Petition — Tighe v. United States
Supreme Court brief1977
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i MAY 1323 i]
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1. ASL ROD JR 2
IN THE —— den-
Supreme Court of the United States
Octoser TEM, 1976
4 76-1590
Untrep States or AMERICA, Respondent
v.
Patrick L. Ticue, Petitioner
UNITED STATES COURT OF APPEALS
| PETITION FOR WRIT OF CERTIORARI TO THE
| FOR THE THIRD CIRCUIT
: — —
Rosert D. Powe.
734 Fifteenth Street, N.W.
Suite 401
| Washington, D.C. 20005
(202) 1
Paul A. McGione
505 Brooks Building
Scranton, PA 18503
(717) 342-7829
) Attorney: for Petitioner Patrick L. Tighe
Passs or Bryson 8. Abus Paintine, INc., WasHineton, D. C.
Re See
Page
r ̃ . .. . 1
e ̃ ...... —:;Ä—Ä— L 2
Gr 2
ConstiTuTIONAL Provisions anp Statutes Invotvep... 3
STATEMENT OF THE CASE
A. Indictment, Sentence, and Appeal ........... 5
B. Trial Developments Relevant to This Petition. 7
Reasons ror Grantine THE Wr 9
' NED cc deckbes Wees 30
APPENDICES
A. Memorandum in District Court ............. la
B. Opinion of Court of Appeals 22a
C. Judgment on Petition for Rehearing ........ 29a
D. Controlled Substances Act of 1970 (Excerpts) 30a
Ph, PE ccuduaseatodedeadcsareesoceesees 37a
F. Judgment in District Court 39a
G. Colloquy Excerpt from Trial Transcript ..... 4la
H. Charge of the Court Excerpts from Trial
6 ˙0⁴ 66 6 66 45a
I. Testimony Excerpts (Caroff) from Trial
2 55a
J. Testimony Excerpts (Emery) from Trial
e eee ee ee eee 63a
K. Government’s Closing Statement from Trial
Transcript (Excerpt ) 66a
L. Testimony Excerpts (Head) from Trial Trans-
11 77a
M. Testimony Excerpts (Ward) from Trial Trans-
1 88a
il CITATIONS
Cass: Page
Berger v. United States, 295 U.S. 78 e 22
Blackman v. West Jersey Seashore R. R. Co., 68 N. J. L.
1, 52 A. 370 (1902) . . r . . . 23
Brewer v. Williams, — U.S. —, 97 S.Ct. 1232 (1977) .. 12
California v. Green, 399 U.S. 149 (1970) 13
Cantwell v. Connecticut, 310 U.S. 296 (1940)... . 17, 18, 20
Chambers v. Mississippi, 410 U.S. 284 (1973) 14
Di Carlo v. United States, 6 F.2d 364 (2d Cir.), cert.
denied, 268 U.S. 706 (1925))::::ũ eee cece eee 23
Douglas v. Alabama, 380 U.S. 415 (19650)) 13
Dutton v. Evans, 400 U.S. 74 (1970) ..... 26-622 ee ee 14
Greenfield v. Kennett, 69 N. H. 419, 45 A. 233 (1899)... 23
Harris v. New York, 401 U.S. 222 (1971) .......... — 10
Henderson v. United States, 218 F.2d 14 (6th Cir.
BEE ccc cccccdnseuseasdastenerenvcecsngasess 22
Iske v. United States, 296 F.2d 28 (10th Cir. 1968). . 17
Jackson v. Denno, 378 U.S. 368 (1964) ...........-. 14, 16
Jordan v. DeGeorge, 341 U.S. 223 (1951777) 21
Kemph v. Texas, 464 S.W.2d 112 (197177) 23
Lambert v. California, 355 U.S. 225 (1957) 21
Lanzetta v. New Jersey, 306 U.S. 451 (1939) ......... 20
Lowden v. United States, 149 F. 673 (Sth Cir. 1906)... 24
Massiah v. United States, 377 U.S. 201 (1964) ........ 16
Mathis v. United States, 391 U.S. 1 (1968) .......... 15
Michigan v. Tucker, 417 U.S. 433 (1974) ..... 13, 14, 16, 17
Miranda v. Arizona, 348 U.S. 436 (1966) ........ 12, 13, 15
Nelson v. O'Neill, 402 U.S. 622 (197177770) 14
Papachristou v. Jacksonville; 405 U.S. 156 (1972). .10, 18, 21
Parker v. Levy, 417 U.S. 733 (197))))⸗)e eee ee 21
People v. Fielding, 158 N.Y. 542, 53 N. E. 497 (1899).. 23
People v. Hickman, 34 A.D.2d 831, 312 N.Y.5.2d 644
...e eee eee eee es eee 24
People v. Kirkes, 243 P. 2d 816, aff’d 249 P. 2d 1 (Cal.
a...... sse ee ene 24
Peopic v. Powdwys, 44 P'. 2d 377 (Cal. Ct. App. 1955). 22
Samuel v. United States, 169 F.2d 787 (9th Cir, 1948) 28
Screws v. United States, 325 U.S. 91 (1945) ........
Smith v. Goguen, 415 U.S. 566 (1974) ..............
State v. Clark, 114 Minn. 342, 131 N. W. 369 (1911)....
State v. Hawley, 229 N.C. 167, 48 S8. E. 2d 35 (1948). ...
Taliaferro v. United States, 47 F.2d 699 (9th Cir. 1931) 24
Tatum v. United States, 190 F.2d 612 (D.C. Cir. 1951)
12, 28
— tO
: —
Citations (Continued) iii
Page
United States v. Badia, 490 F.2d 296 (Ist Cir. 1973). 27
United States v. Bates, 512 F.2d 56 (5th Cir. 1975). . 12, 22
United States v. Bowser, 532 F.2d 1318 (9th Cir. 1976),
cert. denied — U.S. — (1977) ..............005- 24
United States v. Dickerson, 413 F.2d 1111 (7th Cir.
eee eeu en « 15
United States v. Dunn, 299 F.2d 548 (5th Cir. 1962)... 12
United States v. Ellzey, 527 F.2d 1306 (6th Cir. 1976).. 27
United States v. Frazier, 476 F.2d 891 (D.C. Cir. 1973) 17
United States v. Frucht man, 282 F.Supp. 534 (N.D.Ohio
1968), cert. denied 400 U.S. 849 (1970) ............ 15
United States v. Garber, 471 F.2d 212 (5th Cir. 1972) 22
United States v. Gordon, 242 F.2d 122 (3d Cir. 1957),
cert. denied 354 U.S. 921 (1957) ................ 28
United States v. Gray, 468 F.2d 257 (3d Cir. 1972).... 22
United States v. Green, 511 F.2d 1062 (7th Cir. 1975)
10, 26, 27
United States v. Harriss, 347 U.S. 612 (1954) ........ 21
United States v. Larson, 507 F.2d 285 (9th Cir. 1974). 27
United States v. Laverick, 348 F.2d 708 (3d Cir. 1965) 29
United States v. Leahy, 437 F. 2d 7 (Ist Cir. 1970).... 15
United States v. Levy, 153 F.2d 995 (3d Cir. 1946).... 28
United States v. Luxumberg, 374 F.2d 241 (6th Cir.
— •ͤ ½¼˙““i. ⁵¼5ũm. ³ĩͤ eee 16
United States v. Mal, 264 F.2d 147 (3d Cir. 1959) .... 28
United States v. Mar, 156 F. 2d 13 (3d Cir. 1946)
United States v. Moore, 423 U.S. 122 (1975) ........ 14, 27
United States v. Noble, 155 F.2d 315 (3d Cir. 1946)... 28
United States v. Pincourt, 159 F.2d 917 (3d Cir. 1947) 28
United States v. Rosenberg, 515 F.2d 190 (9th Cir.
1975) 27
United States v. Spanglet, 258 F.2d 338 (2d Cir. 1958) 25
United States v. Sterks, 515 F.2d 112 (3d Cir. 1975). .23, 30
United States v. Yasbin, 159 F.2d 705 (3d Cir. 1947)... 28
Viereck v. United States, 318 U.S. 236 (1943) 22, 24
Young v. Garrett, 149 F.2d 223 (8th Cir. 1945) ..... 26, 27
CoNSTITUTIONAL Provisions:
Z 2, 17, 19
ee ccccccccccccoces 2, 3, 10, 14, 16
U.S. Const., Amend. .............. 2, 3, 4, 10, 13, 14, 15,
16, 17, 21, 24, 25, 30
U.S. Const., Amend. VI ..... 2, 3, 4, 10, 14, 16, 17, 21, 24, 25
iv Citations (Continued)
Page
STaTUTEs :
Controlled Substances Act of 1970 .............. passim
Le 5, 6, 7, 29
ILIE 11, 12
A UBC. Gase . .. „„ „„ el 2,17
21 U.S.C. § 802(6), (8), (10), (11), (20), (25)
4, 9, 10, 25, 26, 28
21 U.S.C. §811 (a) and (o—ᷣͤũꝛʒ cc cece ween 4,9,17
21 U.S.C. § 812(a) and (b)(2) and (3) ........ 4, 17, 19, 20
Si UBC. 6 GRD (a) amd CB). .cccccccccccescsesecess 4,18
21 U.S.C. 5 841 (a)(1)......... 3, 4, 5, 7, 8, 9, 12, 18, 25, 27
21 U.S.C. § 842 (a)(1) and (e) (I) and (2) ..... 4, 9, 18, 27
L 4, 10, 26
LLL 2
Ruls:
Ir 12
a See...... 16
ad... . . .es eee 2
MISCELLANEOUS:
Alsehuler, ‘‘Courtroom Misconduct by Prosecutor and
Trial Judges,’’ 50 Tex. L. Rev. 629 (1972) ..... 22, 23
Carlson, ‘‘ Argument to the Jury and the Constitutional
Right of Confrontation,’’ 9 Crim. L. Bull. 293
Lc 25
Friedman, Oral Argument in United States v. Moore,
423 U.S. 122 (1975), Transcript ................ 27
Hearings on S. 1895, Subcomm. to Investigate Juvenile
Delinquency, Sen. Comm. on the Judiciary, 91st
Cong., Ist Sess. 19 (1969)
Citations Continued) v
Page
Shapiro, Miranda Without Warning: Derivative Evi-
dence as Forbidden Fruit,’’ 41 B
rooklyn L. Rev.
eee ᷑ eee eee 16
, Note, ‘‘ Permissible of Summation,“ 36
Colum. L. Rev. 931 (June 1936) ................ 22
„ Confessions by the Accused: Does Miranda
Relate to Reality, 62 Ky. L. J. 794 (1973-74).. 14,17
xtr States or America, Respondent
v.
Parrick L. Tione, Petitioner
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Petitioner Patrick L. Tighe, M.D., prays that a writ
certiorari issue to review the opinion and judg-
ment of the United States Court of Appeals for the
Third Circuit, entered in the above-entitled case on
February 25, 1977 (No.: 76-1849).
There was no formal opinion of the United States
District Court for the Middle District of Pennsyl-
vania, except for the Memorandum of that Court in
support of its orders denying Petitioner’s motions
=
—
The judgment of the Third Circuit Court of Ap-
peals was entered on February 25, 1977. A Petition
for enlargement ot time to file a Petition for rehear-
ing before the court en bane was granted, and a Peti-
tion for rehearing en bane was then timely filed
in accordance with that enlargement on March 25,
1977. The Cireuit Court’s denial of said Petition was
issued without hearing on April 14, 1977. A copy of
that order is reproduced as Appendix C to this Peti-
tion.
The jurisdiction of this Court is invoked under the
provisions of 28 U.S.C. §1254(1) and Rule 19 of the
Rules of the Supreme Court of the United States.
The instant Petition presents the following ques-
tions for consideration:
1. Did the placement before the jury of hearsay
statements allegedly made by Petitioner, containing
self-incriminatory material, by their nature confes-
sions, violate Petitioner's 4th, 5th and 6th Amendment
rights!
2. (a) Does the Congressional delegation to the At-
torney General permitting him to transfer controlled
substances between Schedules III and II of 21 U.S.C.
9801 et se., in effect provide for the creation of a
erime by an officer of the Executive, thus offending
and abridging Article I, Section I, of the Constitu-
tion of the United States; and
(b) Are the standards for inclusion under Sched-
ules II and III so vague as to be unconstitutional !
3. Whether Petitioner can be convicted for a crime
of which the evidence shows he could not reasonably
have had notice.
4. Were Petitioner's rights under the 5th and 6th
Amendments infringed by the Assistant United States
Attorney’s inflammatory and improper closing argu-
ments to the jury?
5. Whether the Government failed to establish a
critical element of the crime charged in light of the
fact that the evidence shows that not one of the pre-
scriptions allegedly issued by Petitioner were ever
filled.
6. Whether Petitioner was properly prosecuted
under 21 U.S.C. 6841 (a) inasmuch as he is clearly not
within the target area of the legislation.
7. Were the trial court’s instructions on important
Constitution of the United States
Amendment IV
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly de-
scribing the place to be searched, and the persons or
things to be seized.
4
Constitution of the United States
Amendment V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private prop-
erty be taken for public use, without just compensa-
tion.
United States Constitution
Amendment VI
In all criminal prosecutions, the accused shall en-
joy the right to a speedy and public trial, by an im-
partial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for
his defence.
Controlled Substances Act of 1970
21 U.S.C. § 802 (6), (8), (10), (11), (20), (25), 811
(a), §812(a) and (b) (2) and (3) (not Schedule I),
§ 829(a) and (b), §841(a)(1), §842(a)(1) and (e)
(1) and (2), §846. See Appendix D for text.
— ——
5
STATEMENT OF THE CASE
A. Indictment. Sentence, and Appeal
The defendant, Petitioner herein, Patrick L. Tighe,
was indicted on December 18, 1974, in the United
States District Court for the Middle District of Penn-
sylvania on eighteen counts for knowingly, willfully,
unlawfully and intentionally distributing and dis-
pensing a Schedule II controlled substance, bipheta-
mine, in violation of 21 U.S.C. §841(a)(1), and 18
U.S.C. §2(b). The dates of the alleged violations are
indicated in the indictment, reproduced in Appendix
E to this Petition. Petitioner entered a plea of not
guilty on January 10, 1975, and moved to dismiss the
indictment on February 13, 1975, asserting as grounds
for his motion the theories that the indictment failed
to include all essential elements of the crime charged,
inasmuch as none of the prescriptions for bipheta-
mines were filled; that the indictment failed to set
forth conduct that would be criminal, inasmuch as
Petitioner is a licensed medical doctor and author-
ized to issue such prescriptions; that the statute pro-
vided for an unconstitutional delegation of authority
to the Attorney General to modify schedules of con-
trolled substances; and that the statutory procedure
established for administrative reclassification of con-
trolled substances is too vague and indefinite to be
given constitutional sanction.
The motion to dismiss the indictment, after briefing
and argument, was denied by the trial court on April
8, 1975.
Jury trial commenced on June 3, 1975, and resulted
in a verdict of guilty on all counts charged on June
5, 1975. A motion for mistrial was orally made by
defense counsel on June 5, 1975, based upon improper
closing remarks by the prosecution, and that motion
was denied. After verdict, on June 10, 1975, a motion
for acquittal was filed as well as a motion for a new
trial, with additional reasons for new trial being filed
on June 15, 1975. After briefing and argument, on
March 15, 1976, the trial court denied Petitioner’s
motion for acquittal, and on March 16, 1976, denied
his motion for a new trial. A memorandum in support
of these rulings (Appendix A) was issued on August
13, 1976.
On June 11, 1976, a Judgment and Probation/Com-
mitment Order was entered, reproduced as Appendix
F to this Petition. Petitioner was sentenced therein
to imprisonment for a term of six months and fined
$15,000 on Count I of the indictment. On Counts
2-18, he was sentenced to six months’ confinement and
815.000 fine, to run concurrently with the sentence
under Count I. In addition to the sentences imposed,
Petitioner was placed on parole amounting to 36
years. The Order noted Petitioner as having been
convicted of distributing a controlled substance, even
though distribution had been eliminated from the
jury’s consideration by the trial court, infra, and
being convicted of violating 18 U.S.C. §2(b), even
though the trial court charged the jury that this
section was not in the case (Appendix H, at 45a, lines
5-11).
A Notice of Appeal was filed, and after briefing
and argument, the United States Court of Appeals
for the Third Circuit affirmed the decision of the trial
court on the various issues raised on appeal (Ap-
pendix B). A petition for rehearing en bane was filed
7
on March 25, 1977, and an Order denying rehearing,
without opinion, was issued on April 14, 1977 (Ap-
pendix C).
B. Trial Developments Relevant To This Petition
For the purpose of this Petition, except as ampli-
fied, supra, the facts of this case are adequately con-
tained in the decision of the Third Circuit (Appen-
dix B).
Counts 1-18 of the indictment alleged for the dates
involved a knowing, willful, unlawful and intentional
distribution and dispensing of a Schedule II con-
trolled substance, biphetamines. The Government’s
proof at trial developed, however, that at no time were
any of the prescriptions filled.
The dominant theory ultimately embraced by the
Government was that Petitioner dispensed a Schedule
II drug in violation of 21 U.S.C. § 841(a). Indeed the
distribution aspect of the indictment was stricken
from the case by the trial court (see Appendices B,
at 24a, lines 1-5; G, at 42a, lines 19-32; and H, at 45a,
lines 22-29, and at 46a, lines 1-8) as was the indictment
as it related to 18 U.S.C. §2(b). (Appendix H, at 45a,
lines 5-11.) This point is significant, and its impor-
tance will be discussed infra in headings V and VII.
The evidence at trial disclosed that there was no
general publication of the transfer of biphetamines
from Schedule III to Schedule II by appropriate
drug companies, and that the notice of such transfer
published in the Federal Register was not even
available in Lackawanna County, the County in which
Petitioner practices, as the Federal Register is not
received by that County’s public library.
The Government’s key witnesses, Commonwealth
Agents Caroff and Emery, were permitted to testify
as to hearsay statements allegedly made by Petitioner.
These statements, if made, were self-incriminatory
and in the nature of confessions. Reproduced as Ap-
pendices I and J are relevant portions of the direct
testimony of Agents Caroff and Emery. The specific
statements involved and argument with respect to
them will be covered under heading I.
During jury summation, the Assistant U.S. Attor-
ney engaged in inflammatory remarks, argued beyond
the record, and misused evidence admitted for a lim-
ited purpose. Relevant portions of these closing re-
marks are reproduced as Appendix K to this Peti-
tion, and will be discussed under heading IV.
The trial court, in instructing the jury, charged
as to the term ultimate user“ in an improper way
(Appendix H, at 48a, lines 6-9) and included distri-
bution in his charge even though he had previously
ruled on two occasions that the element of distribution
would be stricken from the case. (See Appendix H,
at 50a, lines 28-34.) Further, the trial court improp-
erly instructed on a controlled substance allegedly
distributed by Petitioner, Phendimetrazine (the pink
pills“), even though they had not been included in the
indictment, and were admitted into evidence for the
limited purpose of showing intent. (Appendix H,
at 52a, lines 24-30, at 53a, lines 1-23.) This point will be
discussed under heading VII.
The facts developed at trial, as well as the indict-
ment, establish that the only prescriptions for bi-
phetamines allegedly issued by Petitioner that would
be considered in violation of 21 U.S.C. §841(a)(1)
9
were issued to the two agents. No evidence of wide-
spread trafficking within the general public was al-
leged or provided. This will be covered under heading
VI.
This Petition addresses itself to the prejudicial im-
pact of the court’s instructions, prosecutorial re-
marks, improperly admitted evidence, and evidence
improperly utilized by the trial court and prosecutor,
as well as significant questions of law involving the
employment and interpretation of the Controlled Sub-
stances Act of 1970.
Grant of the writ here sought is essential to review
important questions of federal law heretofore unde-
cided by this Court.
Specifically, there is a need for decision concerning
whether the crime of unlawful dispensing of a con-
trolled substance under 21 U.S.C. § 841(a)(1) requires
the filling of a prescription, thus establishing the
placement of the controlled substance in the hands of
an ‘‘ultimate user“ as defined in 21 U.S.C. § 802(25).
Further, prosecutions of physicians under 21 U.S.C.
§$841(a)(1) have been prevalent without regard to
whether such physicians are really traffickers in
drugs, or merely negligent in prescribing. There is a
need for guidance from this Court in the application
of 21 U.S.C. § 841(a), as opposed to 21 U.S.C. § 842(a)
(1), as it applies to practicing doctors.
Review is further required to determine whether
the courts below have properly decided important
federal questions, such as the delegations and stand-
ards established under 21 U.S.C. § 811(a) and (b), and
10
whether the courts below have departed from prin-
ciples announced by this Court in Papachristou v.
Jacksonville, 405 U.S. 156 (1972).
This Court’s supervisory power is called upon as
well, in the areas covered by headings I, IV, and VII.
In short, the entirety of Petitioner’s trial was
tainted by substantial violations of his rights under
the 4th, 5th and 6th Amendments, in addition to the
essential questiéns of law otherwise raised.
Finally, the Third Circuit’s opinion determines
that, absent its construction of 21 U.S.C. 5 802(25),
constructive and attempted transfers of controlled
substances would be read out of the term deliver,“
as found in 21 U.S.C. § 802(8). This interpretation is
contrary to 21 U.S.C. §846 and the holding of the
Seventh Circuit in U.S. v. Green, 511 F.2d 1062 (7th
Cir. 1975). This conflict between the Seventh and
Third Circuits on this point of law requires review
and disposition by this Court.
The Testimony of the Two Government Witnesses. Common-
wealth Agents Caroff and Emery. Contained Hearsay References
to What Petitioner Allegedly Said. These References are Seli-
Incriminatory, and are in the Nature of Confessions. They Were
Allegedly Made by Petitioner 10 tha Agents Without His
Ha\ing Received a Warning of Any Type. Further, the Only
Method of Rebuttal of the Alleged Statements was for Peti-
tioner to Take the Stand. or Leave the Statements Unrebutied.
Two of the Government’s most important witnesses,
Commonwealth undercover Agents Caroff and Emery,
11
were permitted, without objection or court interfer-
ence, to testify as to numerous statements allegedly
made by Petitioner.’
This testimony was hearsay of the most invidious
kind, inasmuch as the statements purportedly made
1** he didn’t want any mothers calling him up and raising
hell with him.’’ (App. I, at 55a, lines 7 and 8)
„ „ not to take them to the same drug store. (App. I, at
55a, lines 14-15)
„ . make sure you don't take them to the same store be-
cause I don’t want to get into trouble.’’ (App. I, at 56a, lines
6-7)
‘* try to make these last a little longer. (App. I, at 56a,
line 1)
„ hope you aren't taking these to the same drug store. (App.
I, at 57a, lines 5-6) .
The Doctor replied no, it’s too risky.’’ (App. I, at 58a, lines
11-12)
He said they are checking now. be said the federal agents.
(App. I, at 58a, lines 13-15)
It they see some more from the same address then I am in
trouble. (App. I, at 58a, lines 27-28)
„ better wait a couple of weeks. (App. I, at 58a, lines
31-32)
(App. I, at 59a, lines 7-19)
(App. I, at 59a, lines 9-27)
„ . . it’s too risky; the State Police are making photostats of
my prescriptions and checking on me. (App. I, at 60a, lines
17-19
ree * isn’t practicing medicine. (App. I, at 60a, line 30)
„ „ you don’t understand the trouble I can get into. (App.
I, at 61a, lines 12-13)
‘*You don't understand the trouble I can get into. Don't you
know there are Federal Narcotics agents, and they have an
outfit something like the FBI.“ (App. I, at 61a, lines 22-26)
„ vou can drop me a letter and I will send you some pre-
seriptions (App. I, at 62a, lines 7-8)
„ . they ll be checking on me. (App. I, at 62a, line 18)
**eome back (App. J, at 63a, line 19)
‘* the black ones! (App. J, at 63a, line 24)
„drugs were being watched. (App. J, at 65a, line 1)
12
by Petitioner were by their nature confessions, 18
U.S.C. §3501(e), and were made without any warning
consistent with Miranda v. Arizona, 348 U.S. 436
(1966), or succeeding cases.
That this point was not raised at trial is unimpor-
tant here, as it is of such vital importance, not only
to Petitioner, but to all, as is emphasized by the
Court’s recent decision in Brewer v. Williams, ——
US. , 97 S.Ct. 1232 (1977). See also, Federal
Rules of Criminal Procedure, Rule 52(b); U.S. v.
Dunn, 299 F.2d 548 (5th Cir. 1962). Dunn, supra, is
a case factually similar to the one at hand, and pre-
Miranda. Dunn and Darnell were indicted for viola-
tions involving fraud upon FHA. During investiga-
tion by the FBI, Darnell made incriminating state-
ments, without proper warning, that established the
guilt of Dunn. An FBI agent testified as to what
Darnell had told him, without objection. The review-
ing court considered the admission of this testimony
to be plain error and ordered a new trial. See also,
Tatum v. U.S., 190 F.2d 612 (D.C. Cir. 1951); U.S.
v. Bates, 512 F.2d 56 (5th Cir. 1975).
The importance of the Commonwealth’s agents’
testimony in the instant case is highlighted by the
fact that it was the principal evidence placed before
the jury concerning Petitioner’s specific intent to
commit the crime charged, with guilty knowledge,
which are essential elements of that crime. 21 U.S.C.
§ 841(a). Its importance is further highlighted by the
fact that in the Government’s appeal brief to the
Third Circuit, at page 8, Petitioner’s alleged state-
ment, this isn’t practicing medicine,’’ (Appendix I,
at 60a, line 30) appears in block letters.
The inclusion of these statements in the record
was not only unnecessary and improper, but indeed,
a violation of Petitioner's Fifth Amendment rights.
The agents’ testimony tended to have the effect of
forcing Petitioner to take the stand to contradict
that testimony. However, it is well established that
under the Fifth Amendment a person may not be
compelled to take the stand in his own defense. Pe-
titioner's choices, then, were to allow the testimony
ta stand unrebutted, or to be compelled to take the
stand to defend himself. A defendant cannot, under
the Fifth Amendment, be forced to make such a
choice. In Michigan v. Tucker, 417 U.S. 433 (1974),
this Court inferred that Miranda and its forerunners,
as well as subsequent cases, were designed to protect
against compulsory self-inerimination. Mr. Justice
Rehnquist, speaking for the Court, clearly stated that
the failure to protect at one of the stages of the pro-
ceeding may make invocation of Fifth Amendment
rights useless at a later stage (Tucker, supra, at 440-
441). That is exactly what occurred here. Petitioner's
right to silence at trial was vitiated by the unwar-
ranted inclusion of hearsay in the agents’ testimony.
In California v. Green, 399 U.S. 149 (1970), this
Court stated that an out-of-court declaration may be
admitted so long as the declarant is testifying as a
witness and is subject to full and effective cross-
examination. In this instance, the Petitioner was the
out-of-court declarant. He could not be forced to take
the stand either for the purpose of contradicting the
statements testified to by the agents, or to be cross-
examined thereupon. Although he could confront the
agents by cross-examination, he could not be made to
confront them with his best weapon, himself. Douglas
14
v. Alabama, 380 U.S. 415 (1965); Nelson v. O'Neill,
402 U.S. 622 (1971) ; Harris v. New York, 401 U.S. 222
(1971) ; Chambers v. Mississippi, 410 U.S. 284 (1973).
Accordingly, Petitioner’s Sixth Amendment rights to
confrontation were denied.
It has been said by this Court that where hearsay
that is constitutionally self-incriminating is not cru-
cial or devastating, its admission will not raise infer-
ences of Fourth, Fifth, or Sixth Amendment viola-
tions. Dutton v. Evans, 400 U.S. 74 (1970). In this
ease, it is clear that the evidence was crucial and
devastating. It was in block letters in the Government's
appeal brief to the Third Circuit. It was the only
evidence at trial bearing significantly on specific in-
tent and guilty knowledge, and the statement, ‘‘this
isn’t practicing medicine, was determinative of the
principal issue to be decided by the jury. See, U.S. v.
Moore, 423 U.S. 122 (1975).
Mr. Justice Rehnquist, in Michigar v. Tucker, supra,
takes a backward glance (Tucker, at 439-440) through
the reasons for the Fifth Amendment freedom from
compulsory self-incrimination. That review has much
application to the ease at hand. It has been said that
in Tucker this Court tended toward a revision of
Miranda to a totality-of-cireumstances test to evalu-
ate a confession as to its voluntariness. See, Confes-
sions by the Accused: Does Mimanna Relate to Re-
ality, 62 Ky. LJ. 794 (1973-74); Jackson v. Denno,
378 U.S. 368 (1964). If the totality-of-cireumstances
test is applied to the circumstances here to determine
whether the confession or self-incriminating state-
ments were voluntarily made, it cannot be said that
Petitioner voluntarily incriminated himself to two
15
Commonwealth agents. Had he known they were
agents and made the statements, they would have
been preceded by appropriate warnings and, if still
made, would therefore have been admissible as volun-
tary.
Applied to the circumstances described above, the
ease of Mathis v. U.S., 391 U.S. 1 (1968), is in-
structive. Mathis, supra, involved a prosecution for
knowingly filing false claims against the government
on a tax return. While defendant was in state prison
serving a sentence for an entirely different charge,
he was visited by two government agents. Before
eliciting any statement, they failed te give a Miranda
warning. Strongly incriminating statements concern-
ing the federal charges were made hy defendant to
the agents. The government claimed that defendant
knew that his visitors were agents, that he was in
eustody, and that it was just a routine tax investiga-
tion. These defenses were considered shadowy, and
Mathis’ conviction was reversed, as his Fifth Amend-
ment rights had been violated.
Contrary to the facts in Mathis, Petitioner did not
know his visitors“ were Government agents. They
never gave him any kind of warning. Therefore, to
permit their testimony as to his allegedly strongly
ineriminating“ statements was unconstitutional, par-
ticularly in light of the Mathis holding. See also, U.S.
v. Dickerson, 413 F.2d 1111 (7th Cir. 1969), where
failure to tell defendant that he was under criminal
investigation and to advise him of his rights was the
basis for suppressing self-ineriminating statements.
U.S. ». Leahy, 4837 F.2d 7 (ist Cir. 1970); U.S. v.
Fruchtman, 282 F. Supp. 534 (N.D. Ohio 1968), cert.
16
denied 400 U.S. 849 (1970); U.S. v. Lurumberg, 374
F.2d 241 (6th Cir. 1967).
The investigation involved, undercover in nature,
and subsequent use of self-incriminating statements
obtained during that investigation constituted a vio-
lation of Petitioner’s Fourth Amendment rights. See,
Shapiro, Miranda Without Warning: Derivative Evi-
dence as Forbidden Fruit, 41 Brooklyn L. Rev. 325
(Fall 1974); Massiah v. U.S.. 377 U.S. 201 (1964).
Massiah is especially significant. In that case, Mas-
siah, who was indicted for violation of narcotics laws,
made self-incriminatory statements to a co-defendant,
who was wired for transmission. The statements were
heard by an undercover agent who testified against
Massiah at trial. The conviction was reversed by this
Court on Fourth, Fifth and Sixth Amendment
grounds. In the instant case the middleman was left
out. Instead of a co-defendant to obtain the confi-
dence of Petitioner, the undercover agents posed as
patients who were referred by a physician. That the
agent was not wired“ is not of significance, as he
gained entry to Petitioner’s practice utilizing guile
similar to that employed in Massiah.
The use of self-incriminating statements in a crim-
inal trial without the protections afforded by Jack-
son v. Denno through Michigan v. Tucker renders
suspect Rule 804(b)(3) of the Federal Rules of Evi-
dence. If Rule 804 (b) (3) is interpreted in such a way
as to be permitted to apply here, since Petitioner
could not be called as a witness at trial without his
consent and, therefore, might be considered unavail-
able, an unconstitutional result will ensue. There-
fore, Rule 804(b)(3) cannot be applied in this eir-
cumstance. It must be remembered that the Fourth,
—
17
Fifth, and Sixth Amendment rights are not only Pe-
titioner’s to assert but are rights that must be as-
sured by the lower courts, this Court and the Gov-
ernment, unless waived actively, affirmatively and
with knowledge of the consequences. 62 Ky. L.J. 794,
supra, at 807; Michigan v. Tucker, supra; U.S. v.
Frazier, 476 F.2d 891 (D.C. Cir. 1973). No such
waiver is indicated on the record.
a) The Delegation by Congress to the Attorney General Per-
mitting the Transfer of Controlled Substances Between Sched-
ules III and II of 21 U.S.C. § 801, et seq.. Permits the Attorney
General. an Officer of the Executive, to Create a Crime, and
Therefore Constitutes a Violation of Article 1, Section |. of the
U.S. Constitution.
Under our system of government, only the legisla-
ture can create a crime and prescribe penalties there-
for. U.S. Constitution, Article 1, Section 1; Cantwell v.
Conn., 310 U.S. 296 (1940); Smith v. Goguen, 415
U.S. 566 (1974). Under 21 U.S.C. §811(a), Congress
delegated power to the Attorney General to add drugs
to the schedules contained in 21 U.S.C. §812, or to
transfer drugs between schedules. We are not con-
cerned here with the addition of drugs, as was the
subject of the case of Iske v. U.S., 296 F.2d 28 (10th
Cir. 1968), relied upon by the Third Cireuit. As a
practical matter, though, drugs are usually added
only after a full hearing. However, it is not neces-
sary to hold a hearing to merely transfer drugs unless
insisted on by an interested party. The transfer of
biphetamines from Schedule III to Schedule II was
not accompanied by a bearing (Appendix L. at 81a,
lines 22-23).
18
Under 21 U.S.C. §842(a), a registrant, such as
Petitioner herein, who distributes or dispenses a con-
trolled substance in violation of §829, may be prose-
cuted as a misdemeanant or subject to a civil penalty
of $25,000. Under §829(b) the distribution or dis-
pensing of a Schedule III controlled substance may
be accomplished without a written prescription, and
refills are permitted over a six-month period, not to
exceed five refills over said period. Under § 829(a), a
Schedule II controlled substance may be prescribed
only by written prescription, and it may not be re-
filled.
The difference between a Schedule IT and a Sched-
ule III drug is meaningful from a penal point of
view. The prescribing of a Schedule III drug in vio-
lation of §829 may lead to a misdemeanor prosecu-
tion or a civil penalty. Violation of the law as to a
Schedule IT drug may lead to a felony prosecution
under §841(a). The situation which permits the At-
torney General to transfer drugs between schedules,
therefore, may lead to the elevation of a crime from
a misdemeanor to a felony, thus involving statutory
penalties previously inapplicable. This may not be
done.
In Cantwell, supra, this Court found that a delega-
tion to the Secretary of Welfare of Connecticut that
enabled him to determine whether or not conduct
was criminal and to invoke a penalty was an uncon-
stitutional delegation of legislative authority. The
same is true of Papachristou v. Jacksonville, 405
U.S. 156 (1972).
Applying the Cantwell and Papachristou holdings
to this case results in the conclusion that Petitioner's
19
indictment and conviction under this statute must
fall, because the statute is invalid as a violation of
Article 1, Section 1, of the U.S. Constitution.
b) The Provisions of the Controlled Substances Act as to Classi-
fication and Reclassification of Drugs Are so Vague and In-
definite as to be Unconstitutional.
The standards for inelusion of controlled sub-
stances under Schedules II and III are set forth in
21 U.S.C. §812.
In its original enactment of the Controlled Sub-
stances Act, Congress classified biphetamines under
Schedule III. These drugs have been on the market
for over thirty years and have a currently acceptable
medical use.
As a standard for inclusion under Schedule IT, Con-
gress set forth the test that
(A) The drug or other substance has a high
potential for abuse.
(B) The drug or other substance has no cur-
rently accepted medical use in treatment in the
United States or a currently accepted medical
use with severe restrictions.
(C) Abuse of the or other substances
may lead to severe psychological or physical de-
pendence. 21 U.S.C. §812(b)(2), Schedule II.
As a standard for inelusion under Schedule ITI,
Congress set forth the test that
(A) The drug or other substances have a
tential for abuse less than the drugs or r
substances in schedules I and II.
(B) The drug or other substance has a cur-
rently accepted medical use in treatment in the
United States.
20
(C) Abuse of the drug or other substance may
lead to moderate or low physical dependence or
high psychological dependence. 21 U.S.C. § 812(b)
(3), Bebedule III.
At trial testimony was elicited from expert wit-
nesses of both the defense and the Government, both
Doctors of Pharmacology. Neither could point out
the boundary line between the severe psychological
dependence for Schedule II substances and the high
psychological dependence required for a Schedule III
classification. (Appendices L, at 85a, lines 17-20; and
M, at 88a, lines 14-19.) The defense expert stated that
the standards in the statute were generally vague and
indefinite (Appendix M, supra), and this testimony
went unrebutted.
Given the vagueness in the standards as established
hy both witnesses, especially as applied in what is in
essence a criminal statute, prior decisions of this
Court require a more extensive review. Smith v.
Goquen, supra; Cantwell, supra; Lanzetta v. New
Jersey, 306 U.S. 451 (1939).
Petitioner Should Not Have Been Convicted Of Violating A Law
Of Which He Could Not Reasonably Have Had Notice.
The record stands uncontroverted that the means
of disseminating information to physicians in Scran-
ton, Pennsylvania, and Lackawanna County, regard-
ing the transfer of controlled substances between
schedules, are poor. The transfer of biphetamines
from Schedule III to II was published in the Federal
Register, and no other notice was provided. The testi-
mony is clear and convincing, as well as unrebutted,
———— — — — — — ͤ . 2
2¹
that the Federal Register is not a publication re-
ceived in public libraries in Lackawanna County.
While ignorance of the law is no excuse, to enforce
the statute as against Petitioner, as it involves trans-
fer of substances between schedules, would be to en-
force the laws of Caligula. Screws v. U.S., 325 U.S.
91, 96 (1945). See also, Jordan v. DeGeorge, 341 U.S.
223 (1951); U.S. v. Harriss, 347 U.S. 612 (1954);
Parker v. Levy, 417 U.S. 733 (1974); Lambert v.
California, 355 U.S. 225 (1957); Papachristou v.
Jacksonville, supra. This is especially true where the
law, as this one does, requires guilty knowledge and
specific intent.
IV
The Summation Of The Prosecution Was Inflammatory, Went
Beyond The Record. And Used Evidence That Was Admitted
Only For The Purpose Of Showing Intent For Another Purpose.
And Thereby Invites Reversal, Despite Lack Of Objection, On
The Grounds Of Plain Error And Violation Of Petitioner's
Fifth And Sixth Amendment Rights.
During his closing argument, the Government pros-
ecutor made several inflammatory remarks, and
reached beyond the record.“ Some remarks were ob-
.. L submit [that a pill such as amphetamine] goes off like a
bomb in your head and completely messes up all of your
cardiovascular systems and otherwise. (App. K, at 69a, lines
6-10). No record support can be found for this statement of
influence.
submit that if there were two people who could walk into
an office . that absolutely don’t need a diet, that it would
be those guys. (App. K, at 70a, lines 9-15). No evidence as
to their height and weight at the time of examination was
before the jury.
It amounts to the fact that for having put the whatever
they call it on his arm for blood pressure and maybe the
jected to; others were not. That no objection was
lodged is not a defense to this point. Viereck v. U.S.,
318 U.S. 236 (1943); Berger v. U.S., 295 US. 78
(1935) ; U.S. v. Garber, 471 F.2d 212 (5th Cir. 1972);
U.S. v. Bates, 512 F.2d 56 (5th Cir. 1975) ; Henderson
v. L. S., 218 F.2d 14 (6th Cir. 1955) ; U.S. v. Gray, 468
F.2d 257 (3d Cir. 1972). See, Alschuler, Courtroom
Misconduct by Prosecutor and Trial Judges, 50
Tex. L. Rev. 629 (1972); Note, Permissible Scope of
Summation, 36 Colum. L. Rev. 931 (June 1936);
People v. Powdwys, 44 P.2d 377 (Cal. Ct. App. 1955) ;
stethoscope, we are going to give him that one and it is
indicative of showing this Doctor's predisposition and activity
and willingness to let these pills get out of his office without
what anybody would refer to as an honest way of doing busi-
ness in accordance with medical practice. (App. K, at 71a,
lines 10-16.)
Wie are going to give him that one. (App. K, at 713,
line 33.)
if they knew he was selling drugs like that (App.
K, at 73a, lines 2-4.) : *
„pe girls couldn't be selling them in any more deviation
from proper medical standard than he was doing himself.
(App. K, at 73a, lines 7-8.)
Prosecutor instructed as to law and as to whether prescriptions
r filled to constitute the crime. (App. K, at 74a, lines
. he did everything in his power to turn these drugs loose
on society (App. K, at 75a, lines 2-3.)
Unless they happened to be some real healthy specimens
they] could be in their grave as I am standing here talking
to you know. (App. K, at 75a, lines 10-12.)
And if it is found with some kid up in Nay Aug Park, that
is where it is found. And if it is found at 909 Pittston Avenue,
that is where it is found. (App. K. at 75a, lines 22-23.)
And be he standing in Nay Aug Park with hair down to
here or in his office—’’ (App. K. at 75a, lines 29-30.)
Kemph v. Teras, 464 S. W. 2d 112 (1971); State v.
Hawley, 229 N.C. 167, 48 S. E. 2d 35 (1948).
A basic rule of summation forbids allusion in argu-
ment to any elementary proposition of fact that is not
already in evidence. This is especially required in a
criminal case, where life and liberty are at stake. 50
Tex. L. Rev., supra. See also, Blackmun v. West Jer-
sey Seashore R. R. Co., 68 N.J.L. 1, 52 A. 370 (1902);
Greenfield v. Kennett, 69 N.H. 419, 45 A. 233 (1899);
State v. Clark, 114 Minn. 342, 131 N.W. 369 (1911);
People v. Fielding, 158 N.Y. 542, 53 N. E. 497 (1899).
That requirement is so because a prosecutor has more
influence on a jury than does the defense counsel.
DiCarlo v. U.S., 6 F.2d 364 (2d Cir.), cert. denied
268 U.S. 706 (1925).
In the case of U.S. v. Starks, 515 F.2d 112 (3d Cir.
1975), a tape was admitted into evidence as corrobo-
ration. The prosecutor in summation used the tape
substantively. The Third Circuit in that ease held
that a new trial was mandated because of the im-
proper use and instruction concerning the tape.
In the instant case, as will be discussed infra, some
„pink pills“ were admitted for a limited purpose,
and so instructed upon. (Appendix H, at 50a, lines 9-
25, at 51a, lines 16-29.) In argument, the prosecutor
utilized the pills beyond the scope of the limited pur-
pose for which they were admitted. (Appendix K, at
66a, lines 1-2, and at 67a, line 1.) Starks, supra, indi-
cated reversal on this point alone. The Third Circuit,
despite the obvious parallels in Starks to the case at
hand, on Petition for Rehearing, did not consider this
issue in a written opinion.
24
Referring to a defendant in a derogatory fashion
as did the prosecution here in analogizing Petitioner
to a kid in Nay Aug Park“ will often lead to rever-
sal. In People v. Hickman, 34 A.D. 2d 831, 312 N. v. S.
2d 644 (1970), the prosecutor, during summation,
called defendant a ‘‘junky”’, a rat“, and a ‘‘seulptor
with a knife.“ Defendant’s conviction was reversed on
Fifth Amendment grounds. In People v. Kirkes, 243
P. 2d 816, aff'd 249 P.2d 1 (Cal. S. Ct.), where defend-
ant was characterized as a wolf at bay“, there was
a reversal for reference to facts not in evidence. A
prosecutor, it has been said, may strike hard blows,
not foul ones. Viereck, supra, at 248.
Another reason for reversing when a prosecutor
has made remarks outside the scope of the evidence
is suggested by Taliaferro v. U.S., 47 F.2d 699 (9th
Cir. 1931), cited favorably in U.S. v. Bowser, 532
F.2d 1318 (9th Cir. 1976), cert. denied —— US.
—— (1977). Citing the case of Lowdon v. U.S., 149
F. 673 (5th Cir. 1906), the Court in Taliaferro said
that
Cases are to be decided by juries upon the evi-
dence, and when the evidence is offered by wit-
nesses, the witnesses are subject to cross-exami-
nation. A defendant should not be subjected to
a trial on the unsworn statements of an attorney
conducting the prosecution . . for he would by
this procedure be debarred the right of cross-
examination and be also deprived of the right
of offering evidence in rebuttal. (Taliaferro,
supra, at 702)
The Ninth Cireuit in Taliaferro, supra, suggests a
powerful Sixth Amendment objection to prosecutorial
remarks outside of the record that deserves this
Court’s attention. This concept was recognized in the
ease of U.S. v. Spanglet, 258 F.2d 338 (2d Cir. 1958).
See also, Carlson, Argument to the Jury and the Con-
stitutional Right of Confrontation, 9 Crim L. Bull.
293 (1973).
By making the statements noted in footnote 2,
supra, the prosecutor went outside of the record and
engaged in inflammatory remarks, thereby depriving
Petitioner of Fifth Amendment due process of law
and Sixth Amendment right to confrontation.
*
The Elements Oi The Crime Charged Were Not Made Out At Trial
The case as submitted to the jury (Appendix H, su-
pra) concerned whether or not Petitioner violated 21
U.S.C. § 841(a) by unlawfully dispensing a controlled
substance. Dispense, as defined by §802(10),
means to deliver a controlled substance to an ulti-
mate user... . An ultimate user is defined in § 802
(25) as a person who has lawfully obtained, and who
possesses, a controlled substance for his own use or for
the use of a member of his ho hold. Each and
every element of the crime must be proved by the
Government. The Third Circuit, in its Opinion, mis-
apprehended the law when it found that the elements
had been proved as alleged. The prescriptions were
never filled. Absent filling, there could be no ultimate
user, as defined in § 802 (25), and hence no comple-
tion of the crime.
The legislature originally proposed to define ulti-
mate user as follows:
‘Ultimate user’ means a person who lawfully
possesses a narcotic or dangerous drug... . (5.
26
1895, 91st Cong., Ist Sess., April 1969; emphasis
added. )
That definition was changed and enacted as it pres-
ently appears in 21 U.S.C. §802(25). It should be
noted that it is the provision for actually possessing
the drug that establishes the person as an ultimate
user. In the final version of the legislation, this is
recognized as ‘‘and who possesses’’, and is set off by
commas, Therefore, it appears necessary for the pre-
scription to actually be filled in order for there to
be an ultimate user.“ Young v. Garrett, 149 F.2d
223 (8th Cir. 1945).
The Circuit Court stated in its Opinion that, if this
construction were permitted, it would violate the in-
tent of Congress, inasmuch as constructive and at-
tempted transfers would be read out of the definition
of the term deliver.“ 21 U.S.C. §802(8). However,
this is not so, because 21 U.S.C. §846 makes it a
crime to attempt any offense under the subchapter.
Therefore, a prescription, even though not filled,
would give rise to the same penalty thereunder. U.S.
v. Green, 511 F.2d 1062 (7th Cir. 1975). Indeed, the
opinion of the Third Circuit constitutes a variance
from the holding in Green, supra. Of course, in this
case, the lower court did not charge as to attempt,
nor was Petitioner so indicted.
By failing to prove that the prescriptions were
filled, and thereby failing to satisfy the element re-
quiring an ultimate user,“ there was a failure of
proof at trial, as all the elements of the crime charged
were not proved.
27
V
Petitioner Is Net Within The Target Area Oi The Statute.
An analysis of all the cases concerning prosecu-
tion under 21 U.S.C. 6841 (a) discloses that the courts
were dealing with physicians who had patients lined
up in the halls, under guard, and who were literally
selling prescriptions or drugs. See, U.S. v. Moore, 423
U.S. 122 (1975). Drugs were distributed or dispensed
to members of the community at large in most of the
other cases. In this case, the only evidence of any
dispensing was to two undercover Commonwealth
agents. There was no evidence of widespread traffick-
ing. U.S. v. Larson, 507 F.2d 385 (9th Cir. 1974);
U.S. v. Ellzey, 527 F.2d 1306 (6th Cir. 1976); U.S. v.
Badia, 490 F.2d 296 (ist Cir. 1973); U.S. v. Green,
supra; U.S. v. Rosenberg, 515 F.2d 190 (9th Cir.
1975); Young v. Garrett, supra; see, oral argument
of Paul L. Friedman, Asst. Solicitor General of U.S.,
in U.S. v. Moore, supra, Tr. at 20, 21, 45 and 46
(whether or not a physician is to be prosecuted under
Sal (a) is determined on a case-by-case basis, based
upon whether the violation is blatant). It is submitted
herein that for those violations not blatant prosecu-
tion or civil penalty was intended to be under § 842
(a)(1).
Therefore, Petitioner is not within the target area
of che legislation, and should not be prose.uted under
§ 841(a).
The Court's Instructions To The Jury On The “Pink Pills” And
The Term “Ultimate User” Were So Confusing And Improper
As To Constitute Grounds For Reversal.
The trial court charged the jury as to the term
‘“‘ultimate user,“ which charge was critical in this
ease because the definition of the term is a vital
factor in determining whether or not a crime is com-
mitted. The court charged as follows:
Ultimate user means a who has lawfully
obtained a controlled su nee for his own use
or for the use of a member of his household.
(Appendix H, at 48a, line 7-9.)
The term’s actual definition in 21 U.S.C. § 802(25)
varies from that charge, in that the court omitted the
phrase and who possesses.”’
Failure to instruct as to all the essentials of a
crime, whether requested or not, is plain and revers-
ible error. Screws v. U.S., 325 U.S. 91 (1945); Tatum
v. U.S., 190 F.2d 612 (D.C. Cir. 1951); U.S. v. Levy,
153 F. 2d 995 (3d Cir. 1946); U.S. v. Noble, 155 F.2d
315 (3d Cir. 1946); U.S. v. Maz, 156 F.2d 13 (3d Cir.
1946); U.S. v. Yasbin, 159 F.2d 705 (3d Cir. 1947);
U.S. v. Pincourt, 159 F.2d 917 (3d Cir. 1947) ; Samuel
v. U.S., 169 F.2d 787 (9th Cir. 1948); U.S. v. Gordon,
242 F.2d 122 (3d Cir. 1957), cert. denied 354 U.S.
921 (1957); U.S. v. Malfi, 264 F.2d 147 (3d Cir.
1959).
The court's instruction as to the pills“ in the
brown bags (Appendix H. at 50a, lines 10-11) was
confusing. At first, the court stated that the pills
in the bags were admitted on the issue of whether or
not Petitioner had the requisite intent to commit the
crime (Appendix H. supra). The court then stated that
the charge as to ultimate user was confined to the
pink pills.“ (Appendix II. at 53a, lines 13-23). The
court also stated, in a sidebar conference, that it
intended the ultimate user instruction to apply to
the pink pills because they were delivered to the ulti-
mate user (Appendix H, supra). But the court stated
that there was no charge in the indictment as to the
pink pills, and so instructed the jury. (Appendix H, at
50a, lines 19-22.) The court had dropped distribution
from the case and stated that it was going to charge
only on dispensing (Appendix H, supra). Yet it linked
the pink pills to distribution in its charge, demonstrat-
ing that the court was confused (Appendix H, at 46a
and 53a). If the court was so obviously confused, it is
apparent that the jury also must have been confused.
This constitutes plain error under the cases previously
under the cases previously cited, as well as under
U.S. v. Laverick, 348 F.2d 708 (3d Cir. 1965).
The final proof that both the court and the jury
were confused by the instructions may be found in
the judgment itself (Appendix F). This Court should
note that the conviction was for both distributing and
dispensing despite the trial court’s ruling that dis-
tribution was dropped from the case (Appendix H,
supra). In addition, the conviction recognizes a viola-
tion of 18 U.S.C. §2(b), even though the court
dropped that count of the indictment from the case
has been convicted for two charges not contained in the
indictment as presented to the jury. He was therefore
convicted of two crimes for which he was not charged,
in violation of his Fifth Amendment rights. See, U.S.
v. Starks, 515 F.2d 112 (3d Cir. 1975).
The multiplicity of error summarized in this Peti-
tion warrants the review sought. The fact alone that
Petitioner has been convicted of two crimes beyond the
submission of the case to the jury invites attention.
Any one of the points raised herein singly would suf-
fice, but taken together as a whole, the matter compels
scrutiny by this Court. Therefore it is respectfully
urged that this Petition be granted, and a Writ of
Certiorari issue.
Respectfully submitted,
Rosert D. Powe.
734 Fifteenth Street, N.W.
Suite 401
(su) eaten 20005
— A. Metro
Seranton, PA 18503
(717) 342-7829
Attorneys for Petitioner Patrick L. Tighe
APPENDIX
la
APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 74-204 Criminat
Unrrep States or America v. Patrick L. Ticne
Memorandum
This memorandum is in support of this court’s orders
denying the defendant’s motions for a judgment of acquittal
and for a new trial.
Defendant, a physician, was indicted and convicted on
charges that he did ‘‘knowingly, willingly, unlawfully, and
intentionally distribute and dispense a controlled substance,
that is, biphetamine, a Schedule II controlled substance on
eighteen occasions between November 26, 1973 and May 29,
1974.“ There was evidence that he sold prescriptions to
undercover agents in violation of 21 U.S. C. A. § 841 (a)(1),
Section 401 of the Drug Abuse Prevention and Control Act
of 1970 (the Act).
e A. Motion for Judgment of Acquittal.
Defendant advanced eicht reasons, any of which, he
contended, would mandate his acquittal. They will be dis-
cussed seriatem.
1. ‘‘Defendant is a licensed physician and is, therefore,
not subject to prosecution under the sections of the Con-
trolled Substances Act charged in the indictment.’’
een Se CREED . ip Cae
a
two in his brief.
2a
It is is [sie] now settled that a physician may be prose-
euted under this section of the Act. United States v. Moore,
1975, 423 U.S. 122.
2. An essential element ot the crime charged is lacking
under the evidence, to wit: The government failed to show
that any ultimate user ever obtained possession of a con-
trolled substance pursuant to the prescriptions issued by
defendant.’’
The evidence showed that none of the prescriptions writ-
ten by the defendant that formed the basis for the prose-
cution were ever presented to a pharmacist to be filled. De-
fendant contended that since this is an element of the of-
fense, no crime has been committed. The court holds that
in the prosecution of a physician for the sale of a prescrip-
tion, it is not necessary that the Government show that the
prescription was filled. See Jin Fuey Moy v. United States,
1920, 254 U.S. 189.
Section 841 (a)(1) of Title 21, U.S.C.A., provides that it
is unlawful ‘‘to manufacture, distribute, or dispense. ...a
controlled substance.’’ The court charged the jury that they
should decide whether the defendant acted to ‘‘dispense’’ a
controlled substance in order to convict. It is conceeded
[sic] by the Government that the eighteen counts of the
indictment each charge the same operative act—the issu-
ance of a prescription.
Under 21 U.S.C.A. § 802, the following terms are defined :
**(10) The term ‘dispense’ means to deliver a con-
trolled substance to an ultimate user or research sub-
ject by, or pursuant to the lawful order of, a practi-
tioner, including the prescribing and administering of
a controlled substance and the packaging, labeling, or
compounding necessary to prepare the substance for
such delivery. The term ‘dispenser’ means a practi-
tioner who so delivers a controlled substance to an
ultimate user or research subject.
— ™ oe ene
7 — —
3a
(8) The terms ‘deliver’ or ‘delivery’ mean the ac-
tual, constructive, or attempted transfer of a controlled
substance, whether or not there exists an agency rela-
tionship.’’
**(25) The term ‘ultimate user’ means a person who
has lawfully obtained, and who possesses, a controlled
substance for his own use or for the use of a member
of his household or for an animal owned by him or by
a member of his household.’’
Defendant argues that in order for there to have been a
dispensation of the controlled substance, an ultimate user
must have been put in actual possession of the drug. But
see United States v. Bloom, 2 Cir. 1947, 164 F. 2d 556, cert.
denied 1948, 333 U.S. 857; cf. United States v. Brandenburg,
3 Cir. 1946, 155 F. 2d 110, after retrial, 3 Cir. 1947, 162, F.
2d 980, cert. denied 1947, 332 U.S. 769. This may be so if
delivery is charged to have been made by ‘‘actual . . trans-
fer’’ of the controlled substance, but the same section pro-
vides that the transfer may be constructive or attempted.
When delivery has been accomplished by these means, the
ultimate user need not be placed in actual possession. Cf.
United States v. Bartee, 10 Cir. 1973, 479 F. 2d 484.
Here, the evidence showed that the defendant accom-
plished both a constructive and an attempted delivery of
the drugs.
‘
. . . The classical legal clements of an attempt“ are
the intent to commit a crime, the execution of some
overt act in pursuance of the intention and a failure to
consummate the crime,’ United States v. Baker, [D.]
D. C., 129 F. Supp. 684 (1955), . there must be some
appreciable fragment of the crime committed, it must
be in such progress that it will be consummated unless
interrupted by circumetances independent of the will
of the attempter, and the act must not be equivocal in
nature. * * *,’ People v. Buffum, 40 Cal. 2d 709, 256 P.
4a
2d 317.“ Rumfelt v. United States, 7 Cir. 1971, 445
F.2d 134, 136. cert. denied 1971, 404 U.S. 853.
Constructive possession requires simply the power to ex-
ercise dominion and control’’ over the controlled substance.
United States v. Crippen, 3 Cir. 1972, 459 F. 2d 1387. Here
the defendant, a licensed physician, gave the agents pre-
scriptions with the intention that they be filled at a drug
store. The prescriptions directed the pharmacist to give a
specific quantity of an amphetamine compound to the per-
son named thereon. Presentation at any prescription coun-
ter in the area would have entitled the agents to immediate
possession of the biphetamine tablets. Thus, the defendant
did as much as he could do to put the agents in actual pos-
session of the drugs, and there was nothing to prevent the
latter from the exercise of dominion and control over them.
Accordingly, the defendant accomplished both a construc-
tive and attempted transfer of the drugs, as charged in the
indictment and as proved at the trial.’
? Although he did not raise the point in his motion, defendant,
in his brief, seemed to imply that the court’s charge was in error
because it characterized the conduct charged as distribution rather
than dispensation. But cf. United States v. Moore, supra, at 133-
35. According to the statute, ‘‘The term ‘distribute’ means to
deliver (other than by administering or dispensing) a controlled
substance. 21 U.S. C. A. § 802(11). The defendant did not
object to this following the charge. Moreover, if in error, this
portion of the charge did the defendant no harm because of the
totality of the court’s instructions: the indictment charged both
types of transfers, and the operative word for both is ‘‘delivery’’,
and the court correctly defined that term. Finally, the overwhelm-
ing evidence of guilt makes harmless any error in the court's
charge.
*The Act authorizes the Attorney General to delegate any func-
tion under it to any employee of the Department of Justice. 21
U.S.C.A. § 871(a). He has exercised this authorization, and fune-
tions under the Act have been assigned to the Administrator of
the Drug Enforcement Administration (formerly Bureau of Nar-
— —
ͤ—ũͥ — —
5a
3. The provisions of the statute which establish the
schedule of controlled substances, particularly as they pur-
port to differentiate between Schedule II and Schedule III
are so vague and indefinite as to be unconstitutional.’’
The Act classifies drugs in five schedules, based upon
certain findings. The findings required for Schedules II and
III are:
**(2) Schedule II.—
**(A) The drug or other substance has a high poten-
tial for abuse.
**(B) The drug or other substance has a currently
accepted medical use in treatment in the United States
or a currently accepted medical use with severe restric-
tions.
**(C) Abuse of the drug or other substances may
lead to severe psychological or physical dependence.
**(3) Schedule III.—
A) The drug or other substance has a potential for
abuse less than the drugs or other substances in sched-
ules I and II.
**(B) The drug or other substance has a currently
accepted medical use in treatment in the United States.
**(C) Abuse of the drug or other substance may lead
to moderate or 'ow physical dependence or high psycho-
logical dependence.’’ 21 U.S.C.A. § 812.
Defendant’s attack was based, not upon the contention that
the statute did not give him proper notice, but upon the
argument that it did not provide sufficiently concise stand-
coties and Dangerous Drugs). 28 C. F. R. § 0.100. This has been
held to be proper. United States v. Benish, W.D. Pa. 1975, 389
F. Supp. 557, af d 3 Cir. 1975, 523 F. 2d 1051, cert. denied 1975,
44 USLW 3501 (No. 75-843).
6a
ards for the decision maker to determine in which schedule
to classify a controlled substance. The due process clause of
the Fifth Amendment requires legislatures to set reason-
ably clear guidelines . . in order to prevent ‘arbitrary and
discriminatory enforcement.’ Smith v. Goguen, 1974, 415
U.S. 566, 572-73 (footnote omitted).
Defendant stressed the inability of the Government’s ex-
pert witness to distinguish ‘‘high psychological depend-
ence from severe phychological [sie] dependence“, and
high potential for abuse“ from less than high potential
for abuse.“ But this does not support the defendant’s
proposition, since the witness qualified as an expert in phar-
maceutical chemistry and not medicine. His testimony was
that such decisions were matters of ‘‘ weighed medical judg-
ment’’ and ‘‘weighed judgment . . between medical find-
ings and the Drug Enforcement Administration.’’ That
such decisions would require medical expertise is not con-
tradicted by the inability of the defendant’s own expert to
distinguish the same categories since the latter also qualified
as a pharmacologist rather than as a medical doctor.
It is important to note that the statutory scheme treats
the characteristics of the controlled substances in a con-
tinuum. In order to be classified as a controlled substance
in any schedule, there must be a finding that the drug has
some potential for abuse. 21 U.S.C.A. § 811 (a)(1)(A). The
term, potential for abuse, has been the subject of litigation
and has been defined as:
. .. such depressant or stimulant effect on the central
nervous system as to make it reasonable to assume that
there is a substantial potential for the occurrence of
significant diversions from legitimate drug channels,
significant use by individuals contrary to professional
advice, or substantial capability of creating hazards to
the health of the user or the safety of the community.“
Carter-Wallace, Inc. v. Gardner, 4th Cir. 1969, 417 F.2d
1086, 1090, (footnote omitted) ; adopted in Hoffman-La
7a
Roche, Inc. v. Kleindienst, 3 Cir. 1973, 478 F. 2d 1, 6;
see H.R. Rep. No. 130, 89th Cong., Ist Sess. 7 (1965).
Once a drug has been found to have such a potential, it is
placed into one of five schedules based upon a finding as to
three criteria—potential for abuse, medical use, effect of
abuse. The schedules embody an orderly pattern for the
classification of drugs. Viewed in this context, it is clear that
the statute sets forth with appropriate precision the stand-
ards for the schedules of controlled substances.
4. The authorization given the Attorney General by the
statute to reclassify controlled suubstances between the
various schedules of the act constitutes an improper delega-
tion of the legislative power of Congress.’’
In 21 U.S.C.A. 5 812 (a), Congress initially classified
„Amphetamine, its salts, optical isomers, and salts of its
optical isomers’’ as a Schedule III controlled suubstance.
Section 811 gives the Attorney General power to add drugs
to or reclassify the drugs in the statutory schedules:
„(a) The Attorney General shall apply the provi-
sions of this subchapter to the controlled substances
listed in the schedules established by section 812 of this
title and to any other drug or other substance added to
such schedules under this subchapter. .. [The Attor-
ney General may by rule—
(1) add to such a schedule or transfer between
such schedules any drug or other substance if he—
(A) finds that such drug or other substance
has a potential for abuse, and
(B) makes with respect to such drug or
other substance the findings preseribed by sub-
section (b) of section 812 of this title for the
schedule in which such drug is to be
placed
8a
Pursuant to this authority, amphetamine has been reclassi-
fied as a Schedule II controlled substance. Defendant at-
tacked this as an unconstitutional delegation of legislative
power.
The Court, in Youngstown Sheet & Tube Co. v. Sawyer,
1952, 343 U.S. 579, 588-89, held that the Constitution vests
in Congress ‘‘exclusive constitutional authority to make
laws necessary and proper to carry out the powers vested
by the Constitution ‘in the Government of the United States,
or any Department of [sic] Officer thereof.“ Therefore, the
issue is whether to cloak the Attorney General with au—
thority to transfer substances between schedules unconsti-
tutionally delegates the exclusive authority of Congress.
Frequently Congress passes broad standards for adminis-
trative action. These standards provide the framework
within which regulations are promulgated. Wide latitude
must be allowed in order to deal effectively with the com-
plex and changing economic, social and scientific compon-
ents of modern life.
. . . The legislative process would frequently bog
down if Congress were constitutionally required to ap-
praise beforehand the myriad situations to which it
wishes a particular policy to be applied and to formu-
late specific rules for each situation, Necessity therefore
fixes a point beyond which it is unreasonable and im-
practicable to compel Congress to prescribe detailed
rules; it then becomes constitutionally sufficient if Con-
gress clearly delineates the general policy, the public
agency which is to apply it, and the houndaries of this
delegated authority. Private rights are protected by
access to the courts to test the application of the policy
in the light of these legislative declarations. . . .’’ Amer-
ican Power Co. v. SEC, 1946, 329 U.S. 90, 105.
Statutes are unconstitutional if they purport to delegate
unfettered discretion in rule making to the executive. A. L.A.
eee ee ee — ——o
9a
Schechtor Poultry Corp. v. United States, 1935, 295 U.S.
495. But a statute will be upheld if it ‘‘defines the policy
of Congress and establishes standards within the frame-
work of which the administrative agent is to supply the
details. Currin v. Wallace, 1939, 306 U.S. 1, 18. Accord,
Sperry v. Florida, 1963, 373 U.S. 379; Yakus v. United
States, 1944, 321 U.S. 414. This principle is applicable to
rules whose violation results in criminal penalties. United
States v. Grimaud, 1911, 220 U.S. 506; United States v.
Berrigan, 3 Cir. 1973, 482 F. 2d 171. Delegations of author-
ity to regulate drugs have generally been sustained even
though they involve broad standards of discretion due to
the discovery and introduction of new drugs at an unprece-
dented rate and the alteration in methods of abuse. Iske v.
United States, 10 Cir. 1968, 396 F. 2d 28; White v. United
States, 1 Cir. 1968, 395 F. 2d 5, cert. denied 1968, 393 U.S.
928.
Here, the statute is not an unconstitutional delegation. It
requires the Attorney General to act after consultation with
the Secretary of Health, Education and Welfare and to hold
hearings pursuant to the rule making procedures prescribed
by 5 U.S.C.A. §§ 551 et seg. 21 U.S.C.A. § 811. Moreover,
the statute sets forth factors determinative of control or
removal from schedules:
„(e) In making any finding under subsection (a) of
this section or under subsection (b) of section 812 of
this title, the Attorney General shall consider the fol-
lowing factors with respect to each drug or other sub-
steve proposed to be controlled or removed from the
schedules :
**(1) Its actual or relative potential for abuse.
**(2) Scientific evidence of its pharmacological
effect, if known.
**(3) The state of current scientific knowledge
regarding the dru~ or other substance.
10a
‘*(4) Its history and current pattern of abuse.
5) The scope, duration, and significance of
abuse.
66) What, if any, risk there is to the public
health.
‘*(7) Its psychic or physiological dependence lia-
bility.
**(8) Whether the substance is an immediate
precursor of a substance already controlled under
this subchapter. 21 U.S.C.A. § 811(e).
Accordingly, the statute is constitutionally sufficient since
is delineates the general policy, the public agency which is
to apply it, and the boundaries of this delegated authority.
5. The findings required under the statute to transfer
biphetamines from Schedule III to Schedule II were never
made by the Bureau of Narcotics and Dangerous Drugs and
hence the reclassification is invalid.“
As previously noted, under Section 812 as passed by Con-
— — which contained [a}mphetamine, its
salts, optical isomers, and salts of its optical isomers were
Schedule III controlled substances. The provisions govern-
ing lawful delivery of Schedule III substances and the pe-
nalties for unlawful delivery differ from those imposed
upon the delivery of Schedule IT substances. E.., U.S. C. A.
§§ 829, 841. At trial, it was proved that defendant sold pre-
scriptions for biphetamine, a drug containing amphetamine.
Under the Federal Regulations in effect at the time, am-
phetamine compounds had been reclassified as a Schedule IT
controlled substance. 21 C.F.R. § 1308. In order for the
Attorney General to reclassify drugs, certain findings must
be made. 21 U.S.C.A. § 811. Defendant’s contention in this
regard was that the findings necessary for the reclassifica-
tion of biphetamines from Schedule III to II were never
made.
— —
lla
Defendant conceded that in the reclassification of am-
phetamines as a group the appropriate findings were made.
Defendant’s Brief on Motion for Judgment of Acquittal at
10; See 36 F.R. 12734 (1971). He argued, however, that
since biphetamines were excluded from the amphetamine
compounds transferred to Schedule II on July 7, 1971, their
later restoration to the general amphetamine group with-
out additional findings was improper. 36 F.R. 13686 (1971).
This logic ignores the plain wording of the July 7 order.
The crucial portion did not exclude biphetamines from the
appropriateness and applicability of the findings it an-
nounced with regard to amphetamine compounds. Rather,
since Pennwalt Corp., the manufacturer of biphetamines,
had requested a hearing on the reclassification of its drug,
the order reserved the applicability of the reclassification
to biphetamines during the pendency of the requested hear-
ing. 36 F. R. supra, at 12736. Thus, while biphetamines were
found to be in a group with Schedule II criteria, they were
temporarily held in Schedule III. When the reservation was
rescinded and biphetamines restored on July 23 as a result
of the withdrawal of the request for review by the manu-
facturer, no new findings were necessitated as they had
already been made on July 7. Moreover, there would have
been no reason to make new findings inasmuch as no new
evidence had been presented to the factfinder.
Accordingly, since the findings required by 29 U.S.C.A.
§ 811 were properly made and published on July 7, 1971, the
reclassification of biphetamines from Schedule III to II
was valid.
6. The Bureau of Narcotics and Dangerous Drugs hav-
ing issued an order transferring biphetamines to Schedule
II, failed thereafter to publish this classification on a semi-
annual basis as required by the statute.’’
Section 812, 21 U.S.C.A., created the initial classifications
of controlled substances; it provides that schedules shall
de updated and republished on a semi-annual basis during
12a
i t
the two-year period one year after the date of enactmen
of this subchapter and shall be updated and republished
on an annual basis thereafter. Id. The Act was enacted on
October 27, 1970. Pub.L. 91-513, 84 Stat. 1236, 1970 US.
Code Cong. and Admin. News 1437, 1508.
It has been held that this requires publication of the
schedules during the four six-month periods which com-
menced on October 27, 1971. United States v. Nocar, 7 Cir.
1974, 497 F. 2d 719, cert. denied 1974, 419 U.S. 1038. Thus,
the first publication, effective April 27, 1972, was made in
the Federal Register published on May 12, 1972.* 37 F. R.
9545 (1972). This satisfies the statutory requirement. United
States v. Nocar, supra.
in language of the statute does not require semi-
— — of the schedules each time they are
revised. Rather, the entire schedules, whether or not there
have been amendments, must be published semiannually
during the second and third year after enactment and an-
nually thereafter. Thus, since changes in the schedules are
not required by the statute to be republished semiannually,
defendant’s contention in this regard is unavailing.
7. The government failed to introduce evidence that
defendant issued the prescriptions involved in any manner
outside the proper course of medical practice.’
It was stipulated at trial that the defendant was licensed
under the Act. He was, therefore, a praetitioner“ as that
term is defined. 21 U.S.C.A. § 802 (20). In order to convict
a practitioner of a violation of 21 U.S. C. A. § 841, the Gov-
ernment must show that he acted outside the course of his
professional practice or research. United States v. Moore,
supra, 423 U.S. at 141. Evidence demonstrates that a prac-
titioner acted outside the course of his practice when it
shows that:
13a
. . . [HJe gave inadequate physical examinations or
none at all. He ignored the results of the tests he did
make. He did not give methadone [the controlled sub-
stance which formed the basis of the indictment] at the
clinic and took no precautions against its misuse and
diversion. He did not regulate the dosage at all, pre-
scribing as much and as frequently as the patient de-
manded. He did not charge for medical services ren-
dered, but graduated his fee according to the number
of tablets desired. In practical effect, he acted as a
large-scale ‘pusher’—not as a physician. United
States v. Moore, supra, 423 U.S. at 142-43.
In United States v. Bartee, 10 Cir. 1973, 479 F. 2d 484, the
Court held that a physician could be held criminally liable
for conduct outside the course of professional practice and
not for a legitimate circumstance on the basis of expert tes-
timony. However, the jury is not bound by such expert
testimony and may of course consider all of the facts and
circumstances surrounding the [defendant’s ] prescribing as
related by lay witnesses. United States v. Bartee, supra,
479 F. 2d at 488. Here, the Government offered evidence
that except on a few occasions, defendant did not engage
in even the most rudimentary medical examination before
prescribing Biphetamine-20 for his patients. This was con-
trary to standard medical practice as it was testified to by
the Government’s expert witness.
In commenting on Bartee, the Court in United States v.
Larson, 9 Cir. 1974, 507 F. 2d 385, 387-88, propounded the
following factors as relevant:
The evidence showed that Biphetamine-20 contained the greatest
amound [sic] of amphetamine (10 m.g.) and dextroamphetamine
(10 m.g.) of any Biphetamine compound. Lesser strengths were Bi-
phetamine-12+1% and Biphetamine-7+%. The package insert for
Biphetamines indicated that .. amphetamines should be admin-
istered at the lowest effective dosage, and dosage should be indi-
vidually adjusted. The maximum recommended dosage for obesity,
Biphetamine s only known use, was one tablet daily.
14a
1. Whether the physician prescribed inordinate quantities
of controlled substances ;
2. Whether he wrote more than one prescription on oc-
casions in order to spread them out;
fee cha was based on the number of
14 — 8 — of controlled substance sup-
plied;
4. Whether he cautioned his patient. customers to be
careful to avoid drawing the attention of investigators of
the Bureau of Nareoties and Dangerous Drugs;
5. Whether he used street parlance or slang to refer to
the medicient he was prescribing ; and
„Finally, [whether] some of the utterances that *
IN. me Dar that [the defendant] had made, in view
of the previously listed facts and circumstances support the
jury’s determination that [the defendant] was not —
for a legitimate medical purpose or in the usual course o
his professional practice.’’ United States v. Larson, supra,
507 F. 2d at 388.
ing these factors, the evidence showed that the de-
Pa 0 sold up to three prescriptions, each for 32 40 tablets
of Biphetamine-20, to one narcotics agent for his uz —
ing a sixteen day period, November 19-December 5, 1973.
Defendant continued to sell multiple prescriptions to the
undercover agents for five to six months. Expert testimony
established this to be in excess of proper medical —
This finds support in a statement attributed directly to ;
defendant by an undercover agent: “(T )his [the 1
prescriptions for amphetamines] isn't practicing i-
eine.
ile the defendant did not write more than one pre-
4 per person on any single occasion, he wrote pre-
scriptions in three different names at one time. Three —
the maximum number of prescriptions he would sell, how-
15a
ever, although once he added four packets each of which
contained 32 tablets of Phendimetrazine (another stimulant
and Schedule III controlled substance). Finally, on one oc-
casion, the defendant postdated at least one of several pre-
scriptions he delivered to the undercover agents.
The fees charged by the defendant began at $8.00 for one
prescription of 32-40 tablets of Biphetamine-20, $12.00 for
two such prescriptions, and a negotiable fee of $15-$20.00
for three prescriptions. On the occasion when he delivered
the additional 128 tablets of Phendimetrazine charged
$15.00 for the three prescriptions he had written and an
additional $5.00 for the pills.
The defendant manifested a consciousness of the drug
enforcement structure and an awareness that his conduct
could lead to criminal liability if it were discovered by po-
lice. He cautioned the agents not to take the prescriptions
to the same drug stores. He instructed the agents that if
they were themselves dispensing the drugs he prescribed
for them, they should place them in different containers so
that the drugs could not be traced back to him. Finally, the
agents testified that when they asked for more prescrip-
tions, the defendant refused and said—not that such a pro-
cedure was at variance with proper medical practice—but
it's too risky.’’
There was evidence that the defendant used street par-
lance by referring to the Biphetamine-20 tablets which he
prescribed as the black ones.
Finally, the defendant prescribed thy highest strength
dosage of an amphetamine preparation ‘or individuals who,
he believed, had never been examined by him or any other
physician to determine whether any of the myriad of rea-
sons not to prescribe amphetamines applied. He continued
to sell prescriptions for this narcotic after being told that
the persons in whose name he issued the prescriptions were
themselves disposing of the prescribed drugs to third per-
sons. Each of these, in conjunction with the factors above
16a
supports the proposition that the defendant was not act-
ing for a legitimate medical purpose or in the usual course
of his medical practice.
In summary, there was ample evidence from which the
jury could find that the defendant was a conscious instru-
ment in the ‘‘diversion of drugs from legitimate channels
to illegitimate channels.’’ United States v. Moore, supra,
423 U.S. at 135.
8. The government failed to keep minutes of the grand
jury proceedings and as a result, defendant was deprived
of a fair trial. The evidence adduced at the trial clearly
showed that the indictment was based upon the testimony
before the grand jury of only one witness, who admittedly
according to the government testimony, had no knowledge
of the facts upon which the indictment was based.“
There is no requirement than [sic] an indictment be based
on direct rather than hearsay testimony. United States v.
Newcomb, 5 Cir. 1974, 488 F.2d 190. While permissable
[sic], see Rule 6, Fed.R.Crim.P., and while probably desir-
able, see United States v. Aloisio, 7 Cir. 1971, 440 F. 2d 705,
cert. denied 1971, 404 U.S. 824, there is no requirement that
grand jury testimony be recorded. United States v. Heck-
man, 3 Cir. 1973, 479 F. 2d 726. Furthermore, there is no
reason to speculate that the grand jury was misled into be-
lieving it was hearing direct rather than hearsay testimony
or that had the grand jury heard direct testimony, there is
a high probability that it would not have indicated [sic].
See United States v. Leibowitz, 2 Cir. 1969, 420 F. 2d 39.
B. Motion for a New Trial.
The trial ended on June 5, 1975, and this motion was filed
on June 10, 1975, and received by the court one day later.
Rule 33 of the Federal Rules of Criminal Procedure re-
quires that a motion for a new trial be filed within seven
days of the trial or ‘‘within such further time as the court
may fix during the 7-day period.’’ To comply with this Rule,
17a
the grounds asserted by the defendant as a justification for
the new trial must be filed within the same time period.
United States v. Newman, 3 Cir. 1972, 456 F. 2d 668; United
States v. Mathews, W.D. Pa. 1971, 335 F. Supp. 157, app.
dism, 3 Cir. 1972, 462 F. 21 i82, cert. denied 1972, 409 U.S.
896. Defendant’s original motion was filed within the pe-
riod; however, the pleading labeled ‘‘ Additional Reasons
for a New Trial’’ was not. Since it was not timely, and
since the defendant did not secure the court’s permission
within the time period to make a late filing, the court is
without power to grant a new trial on grounds asserted in
the later pleading. United States v. Newman, supra. There-
fore the court will not rule upon the additional reasons to
the extent they do not overlap the grounds put forward in
the orizinal motion.*
* The court did consider the additional reasons, and it is the
opinion of the court that they are without merit.
Reasons 8 and 9 relate to the packets of Phendimetrazine, which
were the subject of a limiting instruction by the court that ade-
quately explained the purpose for their admission. The defense
counsel consented to the portion of the court’s charge attacked
by reason 10. Reason 11 arives from a reference by the Assistant
United States Attorney in his rebuttal to a list of controlled sub-
stances which he said that a witness had testified to the effect that
the list had been sent to all registrants such as the defendant.
Defense counsel interposed an objection on the ground that this
testimony had been ordered stricken. There is some question as to
whether, in fact, the testimony had been admitted into evidence,
compare n.t. 264 (direct examination, testimony that list was sent)
with n.t. 267 (cross examination, objection to testimony concern-
ing whether list sent sustained). However, the court cured any
erroneous reference by its immediate instruction to the jury to the
effect that if they recalled that the testimony had been stricken,
they should disregard the portion of the argument which drew
this objection. United States v. Maenza, 7 Cir. 1973, 475 F.2d 251.
Reason 12-a overlaps the sixth and seventh grounds of the origi-
nal motion and are completely discussed in the text of the memo-
randum. Reason 12-b apparently refers to the prosecutor’s com-
ment on the failure of the defendant's character witnesses who
18a
The first ground asserted in the original motion is the
failure of the court to grant a motion for acquittal at the
conclusion of the Government’s evidence and at the con-
clusion of all the evidence. Since the evidence overwhelm-
were medical doctors to contradict the Government's expert wit-
ness on the proper medical practice with respect to biphetamines.
This comment, if in error, came in without objection by defense
counsel. See United States v. Webb, 5 Cir. 1972, 463 F. 2d 1324,
and could not have affected the outcome of the case, given the
strong showing of guilt.
Reason 12-c refers to a comment by the Assistant United States
Attorney which drew an objection that was sustained.
. If there is a problem we have in this country it has
got to be drug abuse, and if we are to even participate in the
fiction that we are going to do anything about it, we would
have to put a stop to it wherever it may be found.
And if it is found with some kid up in Nay Aug Park,
that is where it is found. And if it is found at 909 Pittston
Avenue, that is where it is found.
am not the one, he is not the one that decided, these
agents aren’t the ones who decided the locality of where this
erime was going to be committed. None of us decided what
educational background you had to have in order to complete
the elements of this offense. The law did that.
And be he standing in Nay Aug Park with hair down to
here or in his office—’’ Transcript of Government's Closing
Statement, at 46-47.
The objection was sustained, however, because the prosecutor had
begun a line of argument—that the law was to be applied equally
to ‘‘hippies’’ and to respected members of the community—which
might have injected an issue not a part of the case. Jurors are not
expected to leave their common sense at the courtroom door and
could not have understood this comment to stigmatize the defendant
as being someone with long hair. There was no factual] issue before
the jury involving unequal application of the law, and to have com-
pleted such an argument might have tended to confuse the jury.
After the objection was sustained, the prosecutor did not pursue
the potentially prejudicial line. Accordingly, there was no error.
19a
ingly pointed to the fact that the defc dant committed the
acts of which he stood accused, the motion on this ground
will be denied.
The second and third grounds are that the verdict was
contrary to the weight of and not supported by the evidence.
As indicated above, the court is not convinced of either.
The fourth ground asserts that the Government failed to
show that the defendant acted in a manner other than in
the proper course of medical treatment. As noted above,
the Government introduced qualified expert testimony on
proper medical treatment and produced eyewitnesses who
testified to the conduct of the defendant which the jury
could find to be a departure from this standard. Accord-
ingly, this ground will not support the motion.
The fifth ground, concerning whether issuance of the pre-
scriptions constituted a sufficient transfer for culpability
under the statute is more fully discussed in the portion of
this memorandum dealing with the motion for acquittal and
is insufficient here too.
In the sixth and seventh grounds the defendant charges
that Government counsel prejudiced the defendant by com-
ments on the defendant’s failure to pursue the defense of
entrapment and that the court should have granted a mis-
trial and should now grant a new trial.
The following portion of the Government’s closing argu-
ment drew an objection and was here attacked by this
motion:
„These witnesses testified as to what happened to the
best of their recollection. On cross-examination Mr.
McGlone can ask them any question he likes within the
broadest margin of relevancy as to what happened,
what didn’t happen, what was said, what wasn’t said,
whether the witness is biased, whether he went in there
for the purpose, whether he went in there with a
20a
grudge, whether he went in there for some kind of ma-
licious reason to frame the doctor or anything like that.
‘*Cross-examination in this case, Ladies and Gentle-
men, of these agents was absolutely negligible.’’ Tran-
script of Government’s Closing Statement, at 22.
The law allows counsel some degree of latitude in arguing
their cases to a jury. However, it is prejudicial and can be
grounds for a new trial for the prosecutor to comment on
the failure of a defendant to take the stand. Griffin v. Cali-
fornia, 1965, 380 U.S. 609. This rule grows out of the right
against self-incrimination, however, Const. Amend. 5, and
the statement of a prosecutor not otherwise improper, see
United States v. LeFevre, 3 Cir. 1973, 483 F. 2d 477, com-
menting upon some portion of the defendant’s case such as
the failure to call a potentially helpful witness does not
mandate a new trial unless the comment can be construed
as a comment upon the failure of the defendant to testify.’’
United States v. Keller, 3 Cir. 1975, 512 F. 2d 182, 186 (em-
phasis in original).
In the quoted portion of his closing statement, the Assist-
ant United States Attorney did not make a comment upon
the defendant’s failure to take the stand and pursue the
defense of entrapment; he was simply bolstering the credi-
bility of the eyewitnesses to the crimes—two undercover
agents who bought drugs and prescriptions from the de-
fendant—by pointing out to the jury that the defense coun-
sel on cross examination, had failed to bring out any facts
upon which might make their direct testimony less believ-
able. Credibility is always at issue during the trial, and it is
within province of the jury to disbelieve any witness’s tes-
timony. Furthermore, on cross-examination, the defendant
mounted an attack on the credibility of at least one of the
eyewitnesses. The prosecutor’s comment went to the failure
of that attack. See United States v. Adamo, 3 Cir. 1976, 534
F. 2d 31.
21a
Moreover, if the prosecutor's comment is seen as a com-
ment upon the failure of the defendant to develop a defense
of entrapment, he limited his argument to the defendant's
eross- examination of Government witnesses. See United
States v. Dansker, 3 Cir. 1976, 75-1685 (filed June 2, 1976).
Any inference with regard to the failure of the defendant to
take the stand or to put forward an entrapment defense
does not logically arise from this comment, and the court’s
charge made this clear to the jury.
Thus the court is satisfied that the closing arguments of
the United States Attorney did not inject unlawful preju-
dice into these proceedings.
/s/ Micnae. H. SHerman
Chief Judge
Middle District of Pennsylvania
Dated: August 13, 1976.
22a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 76-1847
Unrtep States ofr AMERICA
v.
Patrick L. Tionx, Appellant
(D. C. Crim. No. 74-204)
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Argued January 6, 1977
Before Van Dusen and Apams, Circuit Judges,
and Werner, District Judge“
Paul A. McGlone, Esq.,
Scranton, Pa.,
Attorney for Appellant
S. John Cottone, U. S. Attorney;
Lawrence M. Kelly, Assistant
U. S. Attorney;
Scranton, Pa.,
Attorneys for Appellee
* Honorable Charles R. Weiner, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
23a
Opinion of the Court
(Filed February 25, 1977)
Van Dusen, Circuit Judge.
The issue in this case is whether dispensing of a pre-
scription for a controlled substance outside the usual
course of professional practice constitutes dispensing or
possession of that substance with intent to dispense under
the Controlled Substances Act (CSA), 84 Stat. 1242, 21
U. S. C. § 801 ef seq., including § 841(a)(1). We hold that
it does.
I.
Defendant Patrick L. Tighe is a practicing physician,
licensed by the Commonwealth of Pennsylvania, and reg-
istered with the Federal Drug Enforcement Administra-
tion. Between November 26, 1973, and May 29, 1974, two
Commonwealth drug enforcement agents visited defendant
at his office in his home and, between them, obtained 18
prescriptions for biphetamines, a Schedule II controlled
substance. The prescriptions were never filled and were
turned over to another agent, who headed the investigation,
for use in obtaining an indictment and for use in evidence
at trial.
Defendant was indicted on eighteen counts of dispensing
and distributing biphetamines under 21 U. S. C. § 841(a)
(1), which provides:
„(a) Except as authorized by this subchapter, it
shall be unlawful for any person knowingly or inten-
tionally—
**(1) to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or
dispense a controlled substance.
*See United States v. Moore, 423 U.S. 122, 124 (1975).
24a
At the close of trial, the district judge instructed the
jury that he was eliminating ‘‘distribution’’ from the case
because, in his opinion, there was insufficient evidence to
support conviction on that offense, and charged them on
the offense of dispensation. The jury found defendant
guilty on all 18 counts. Motions for acquittal and a new
trial were denied by the district court; sentence was im-
posed, and this appeal followed.
II.
The term ‘‘dispense’’ is defined by 21 U.S.C. 6 802 (10),
which provides, inter alia, that:
„The term ‘dispense’ means to deliver a controlled
substance to an ultimate user or research subject by,
or pursuant to the lawful order of, a practitioner, in-
cluding the prescribing and administering of a con-
trolled substance and the packaging, labeling, or com-
pounding necessary to prepare the substance for such
delivery.“
The terms deliver“ and ultimate user are defined by
21 U.S.C. §802(8) and (25), respectively, as follows:
„The terms ‘deliver’ and ‘delivery’ mean the act-
ual, constructive, or attempted transfer of a con-
trolled substance, whether or not there exists an agency
relationship.
„The term ‘ultimate user’ means a person who has
lawfully obtained, and who possesses, a controlled
substance for his own use or for the use of a member
of his household or for an animal owned by him or by
a member of his household.
Defendant contends on appeal that an essential element
of the crime charged under 21 U.S.C. §841(a)(1) was
lacking because no ultimate user ever received possession
25a
of the drugs, due to the fact that the prescriptions were
never filled. We find this position to be without merit in
view of the facts of this case.
III.
The Supreme Court has recently held, in United States
v. Moore, 423 U.S. 122 (1975), that registered physicians
ean be prosecuted under § 841 when their activities fall
outside the usual course of professional practice,’’ at 124.
Defendant does not contest the validity of this proposi-
tion. Rather, as noted, defendant raises the question of
whether, under the terms and structure of this statute, pos-
session by a putative ultimate user of prescriptions for a
controlled substance is equivalent to possession of the sub-
stance. The crux of the question is the definition of ulti-
mate user,“ in 21 U.S.C. 4 802(25), as someone who pos-
sesses a controlled substr nce. While that definition, stand-
ing alone, might suggest the construction defendant urges,
it does not stand by itself, and it cannot be construed out-
side of the context of the Controlled Substances Act (CSA)
and the congressional intent evinced by that statute.
The term ‘‘dispense’’ is defined by 5 802(1) as delivery
of a controlled substance to an ultimate user. Biphetamines
are a Schedule II controlled substance, and delivery is
defined by §802(8) as their actual, constructive, or at-
tempted transfer. Under the facts presented by this case,
a prescription for a substance cannot be regarded as less
than the constructive or attempted transfer of the sub-
stance itself, since a prescription is the written represen-
tation of the drug and enables its possessor to claim
physical custody and control over the drug prescribed.
While the term ‘‘possession”’ is nowhere defined in the
CSA, to interpret it as defendant urges would not only
contradict the explicit meaning of deliver,“ the operative
term in the definition of dispense, but would also effec-
tively read constructive and attempted transfers out of the
definition of deliver.“ Defendant would have us hold that
conviction on a charge of dispensing might be predicated
upon constructive or attempted transfer to an ultimate
user, but that no ultimate user would then exist, since, under
the literal view of § 802(25) urged by defendant, that term
requires actual“ possession—something quite impossible
in the case of a constructive or attempted transfer.
To alter so dramatically the meaning of this statute,
based upon the defendant’s proferred [sic] and preferred
definition of a term not defined therein would be to deny
congressional intent, principles of statutory construction,
and common sense—particularly when interpretation of
that term in a manner consistent with relevant related
terms of that same statute saves both the structure and
the apparent intention of the Congress.
We note, particularly, the recent advice of the Supreme
Court in this regard in Moore, supra at 145, quoting from
United States v. Brown, 333 U.S. 18, 25-26 (1948) :
The canon in favor of strict construction [of criminal
statutes} is not an inexorable command to override
common sense and evident statutory purpose. . . Nor
does it demand that a statute be given the ‘narrowest
meaning’; it is satisfied if the words are given their
fair meaning in accord with the manifest intent of the
lawmakers.’’
In Moore, the Supreme Court found that Congress in-
tended the CSA to ‘‘strengthen rather than weaken the
prior drug laws,“ and particularly the Harrison Act (Nar-
ooties) of 1914, 38 Stat. 785, predecessor of the CSA, under
which ‘‘physicians who departed from the usual course
of medical practice were subject to the same penalties as
street pushers with no claim to legitimacy (at 139).
In view of this teaching, we note the Supreme Court’s
declaration in Jin Fuey Moy v. United States, 254 U.S.
27a
189, 192 (1920), a IIlarrison Act case involving conviction of
a physician for dispensing large quantities of drugs without
adequate physical examinations or instructions for use:
. . . it is easy to see. . . that one may take a principal
part in a prohibited sale of an opium derivative be-
longing to another person by unlawfully issuing a pre-
scription to the would-be purchaser.’’
United States v. Bartee, 479 F. 2d 484, 488 (10th Cir. 1973),
cited by defendant, while not directly on point, supports
the principle that the prescription is the instrument of the
crime, as does United States v. Green, 511 F. 2d 1062,
1072 (7th Cir. 1975), holding in a § 841(a) case that writ-
ing the prescription completes all elements of the crime
that would ordinarily be in the control of a physician.
In view of the above, we hold that by placing a pre-
scription for a controlled substance, issued outside of the
usual course of medical practice, in the hands of an ulti-
mate user a physician completes the offense of dispensing
under 21 U.S.C. § 841(a)(1).
IV.
The following additional contentions have been carefully
considered by the court and rejected:
(1) that there was a failure of proof that defendant
issued the prescriptions outside the customary course
of medical treatment;
(2) that the classification provisions of the Con-
trolled Substances Act are so vague and indefinite as
to be unconstitutional ; *
Appendix at 47a-6la; United States v. Tighe, No. 74-204 (M.D.
Pa., Aug. 13, 1976), at 13-17, reproduced in appendix at 390a,
402a-406a.
* Iske v. United States, 396 F. 2d 28, 31 (10th Cir. 1968).
28a
(3) that evidence at trial showed that the indictment
was improperly obtained; ‘
(4) that defendant was deprived of a fair trial by
the improper and prejudicial closing arguments of
Government counsel; “ and
(5) that defendant was deprived of a fair trial by
the admission of improper evidence and the charge
of the court pertaining thereto.“
For the foregoing reasons, the judgment of the district
court will be affirmed.
Costello v. United States, 350 U.S, 359, 361-62 (1956) ; United
States v. Calandra, 414 U.S. 338, 342-45 (1974) ; United States v.
Wallace, 528 F. 2d 863, 865 (4th Cir. 1976).
* United States v. Tighe, supra at 18-20, reproduced in appendix
at 407a-409a.
„F. R. Evid, 404 (b); United States v. Stirone, 262 F. 2d 571,
576 (3d Cir. 1959), rev’d on other grounds, 316 U.S, 212 (1960).
No objections or requests for amplification were made at the con-
clusion of the court’s charge to the jury, N. T. 306-08, reproduced
in appendix at 316a-318a.
29a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
(Caption Omitted in Printing)
Sur Petition For Rehearing
Present: Srrrz, Chief Judge, and Van Dusen, ALpisert,
Abaus, Gispons, Rosenn, Hunter, Weis and
Gartn, Circuit Judges.
The petition for rehearing filed by appellant in the above
entitled case having been submitted to the judges who par-
ticipated in the decision of this court and to all the other
available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges
of the circuit in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing
is denied.
By the Court,
7s, Van Dusen
Van Dusen
Judge
Dated: April 14, 1977
30a
APPENDIX D
Ch. 13 Drug Abuse Prevention. Control 21 § 802
9802. Definitions
As used in this subchapter :
(6) The term controlled substance“ means a drug
or other substance, or immediate precursor, included in
schedule I, II, III, IV, or V of part B of this sub-
chapter. The term does not include distilled spirits,
wine, malt beverages, or tobacco, as those terms are
defined or used in subtitle E of the Internal Revenue
Code of 1954.
(8) The terms deliver“ or delivery“ mean the
actual, constructive, or attempted transfer of a con-
trolled substance, whether or not there exists an agency
relationship.
(10) The term ‘‘dispense’’ means to deliver a con-
trolled substance to an ultimate user or research sub-
ject by, or pursuant to the lawful order of, a practi-
tioner, including the prescribing and administering
of a controlled substance and the packaging, labeling,
or compounding necessary to prepare the substance
for such delivery. The term dispenser means a
practitioner who so delivers a controlled substance to
an ultimate user or research subject.
(11) The term distribute“ means to deliver (other
than by administering or dispensing) a controlled sub-
stance. The term ‘‘distributor’’ means a person who so
delivers a controlled substance.
3la
(20) The term ‘‘practitioner’’ means a physician,
dentist, veterinarian, scientific investigator, pharmacy,
hospital, or other person licensed, registered, or other-
wise permitted, by the United States or the jurisdiction
in which he practices or does research, to distribute,
dispense, conduct research with respect to, administer,
or use in teaching or chemical analysis, a controlled
substance in the course of professional practice or re-
search.
(25) The term ‘‘ultimate user’’ means a person
who has lawfully obtained, and who possesses, a con-
trolled substance for his own use or for the use of a
member of his household or for an animal owned by
him or by a member of his household.
21 § 811 Food and Drugs Ch. 13
Part B.—Avutuority to Contro.; STaNDARDS AND
ScHEDULES
9811. Authority and criteria for classification of substances
—Rules and regulations of Attorney General; hearing
(a) The Attorney General shall apply the provisions
of this subchapter to the controlled substances listed
in the schedules established by section 812 of this title
and to any other drug or other substance added to such
schedules under this subchapter. Except as provided
in subsections (d) and (e) of this section, the Attorney
General may by rule—
(1) add to such a schedule or transfer between
such schedules any drug or other substance if he—
(A) finds that such drug or other substance
has a potential for abuse, and
(B) makes with respect to such drug or
other substance the findings prescribed by
32a
subsection (b) of section 812 of this title for
the schedule in which such drug is to be
placed; or
(2) remove any drug or other substance from
the schedules if he finds that the drug or other
substance does not meet the requirements for in-
clusion in any schedule.
Rules of the Attorney General under this subsection
shall be made on the record after opportunity for a
hearing pursuant to the rulemaking procedures pre-
scribed by subchapter II of chapter 5 of Title 5. Pro-
ceedings for the issuance, amendment, or repeal of such
rules may be initiated by the Attorney General (1) on
his own motion, (2) at the request of the Secretary, or
(3) on the petition of any interested party.
§812. Schedules of controlled substances—Establishment
(a) There are established five schedules of con-
trolled substances, to be known as schedules I, I, III,
IV, and V. Such schedules shall initially consist of the
substances listed in this section. The schedules estab-
lished by this section shall be updated and republished
on a semiannual basis during the two-year period be-
ginning one year after the date of enactment of this
subchapter and shall be updated and republished on
an annual basis thereafter.
Placement on schedules; findings required
(b) Except where control is required by United
States obligations under an international treaty, con-
vention, or protocol, in effect on the effective date of
this part, and except in the case of an immediate pre-
cursor, a drug or other substance may not be placed
in any schedule unless the findings required for such
schedule are made with respect to such drug or other
33a
substance. The findings required for each of the sched-
ules are as follows:
0 * * * 0 > * * *
(2) Schedule II.—
(A) The drug or other substance has a high po-
tential for abuse.
(B) The drug or other substance has a cur-
rently accepted medical use in treatment in the
United States or a currently accepted medical use
with severe restrictions.
(C) Abuse of the drug or other substances may
lead to severe psychological or physical depend-
ence.
(3) Schedule III.—
(A) The drug or other substance has a potential
for abuse less than the drugs or other substances
in schedules I and II.
(B) The drug or other substance has a cur-
rently accepted medical use in treatment in the
United States.
(C) Abuse of the drug or other substance may
lead to moderate or low physical dependence or
high psychological dependence.
§ 829. Prescriptions—Schedule II substances
(a) Except when dispensed directly by a practi-
tioner, other than a pharmacist, to an ultimate user,
no controlled substance in schedule II, which is a pre-
scription drug as determined under the Federal Food,
Drug, and Cosmetic Act, may be dispensed without the
written prescription of a practitioner, except that in
emergency situations, as prescribed by the Secretary
by regulation after consultation with the Attorney Gen-
34a
eral, such drug may be dispensed upon oral prescrip-
tion in accordance with section 353(b) of this title.
Prescriptions shall be retained in conformity with the
requirements of section 827 of this title. No prescrip-
tion for a controlled substance in schedule II may be
refilled.
Schedule III and IV substances
(b) Except when dispensed directly by a practi-
tioner, other than a pharmacist, to an ultimate user,
no controlled substance in schedule III or IV, which is
a prescription drug as determined under the Federal
Food, Drug, and Cosmetic Act, may be dispensed with-
out a written or oral prescription in conformity with
section 353(b) of this title. Such prescriptions may not
be filled or refilled more than six months after the date
thereof or be refilled more than five times after the
date of the prescription unless renewed by the prac-
titioner.
§ 841. Prohibited acts A—Unlawful acts
(a) Except as authorized by this subchapter, it shall
be unlawful for any person knowingly or intention-
ally—
(1) to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or
dispense, a controlled substance ;
(b) Except as otherwise provided in section 845 of
this title, any person who violates subsection (a) of
this section shall be sentenced as follows:
A,“!
(B) In the case of a controlled substance in
schedule I or II which is not a narcotic drug or in
the case of any controlled substance in schedule
35a
III, such person shall be sentenced to a term of
imprisonment of not ore than 5 years, a fine of
not more than $15,000, or both. If any person com-
mits such a violation after one or more prior con-
victions of him for an offense punishable under
this paragraph, or for a felony under any other
provision of this subchapter or subchapter II of
this chapter or other law of the United States re-
lating to narcotic drugs, marihuana, or depres-
sant or stimulant substances, have become final,
such person shall be sentenced to a term of im-
prisonment of not more than 10 years, a fine of
not more than $30,000, or both. Any sentence im-
posing a term of imprisonment under this para-
graph shall, in the absence of such a prior con-
viction, impose a special parole term of at least
2 years in addition to such term of imprisonment
and shall, if there was such a prior conviction, im-
pose a special parole term of at least 4 years in
addition to such term of imprisonment.
9842. Prohibited acts B—Unlawful acts
(a) It shall be unlawful for any person—
(1) who is subject to the requirements of part
C to distribute or dispense a controlled substance
in violation of section 829 of this title;
Penalties
(c)(1) Except as provided in paragraph (2), any
person who violates this section shall, with respect to
any such violation, be subject to a civil penalty of not
more than $25,000. The district courts of the United
States (or, where there is no such court in the case of
any territory or possession of the United States, then
the court in such territory or possession having the
36a 37a
jurisdiction of a district court of the United States in APPENDIX E
cases arising under the Constitution and laws of the
United States) shall have jurisdiction in accordance UNITED STATES DISTRICT COURT
with section 1355 of Title 28 to enforce this paragraph. FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(2)(A) If a violation of this section is prosecuted Unrrep States or America
by an information or indictment which alleges that the
violation was committed knowingly and the trier of
fact specifically finds that the violation was so com- Parnick L. Ticne
mitted, such person shall, except as otherwise provided Criminal No. 74-204
in subparagraph (B) of this paragraph, be sentenced : *
VS.
to imprisonment of not more than one year or a fine of . Indictment
not more than $25,000, or both. Tun Gnas Jury Cuances:
(B) If a violation referred to in subparagraph (A) That on or about the dates set forth in the Counts be-
was committed after one or more prior convictions of low, at Scranton, Lackawanna County, Commonwealth of
the offender for an offense punishable under this para- Pennsylvania, within the Middle District of Pennsylvania
graph (2), or for a crime under any other provision and within the jurisdiction of this Court,
of this subchapter or subchapter IT of this chapter
or other law of the United States relating to narcotic Patrick L. Tian
drugs, marihuana, or depressant or stimulant sub- 1
stances, have become final, such person shall be sen- re 1— » wilfully, — <p — 2 4
tenced to a term of imprisonment of not more than 2 . . hedeie It 1 — — ed — — * = ee eed
years, a fine of $50,000, or both. — * — —
Count Date
6008. A yt and ss 1 November 26, 1973
Any person who attempts or conspires to commit .
any offense defined in this subchapter is punishable by : ner 30, 1973
imprisonment or fine or both which may not exceed 3 December 5, 1973
the maximum punishment prescribed for the offense, D
the commission of which was the object of the attempt . mer 6, 1978
or conspiracy. 5 December 12, 1973
6 January 16, 1974
7 January 16, 1974
8 January 25, 1974
9 March 6, 1974
10 March 6, 1974
11 March 6, 1974
12 March 8, 1974
13 April 19, 1974
14 May 1, 1974
15 May 1, 1974
16 May 29, 1974
17 May 29, 1974
18 May 29, 1974
All in violation of Title 21 United States Code Section
841(a)(1), and Title 18 United States Code Section 2(b).
A True Buu
/s/ John L. Winder
Foreman
Date: Dec. 18th, 1974
/s/ S. John Cottone
United States Attorney
APPENDIX F
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Unrrep States or America
vs.
Patrick L. Tiche
Criminal No. 74-204
Judgment and Probation/Commitment Order
June 11, 1976
With Counsel: Paul Melone, Esq., Brooks Bldg.,
Scranton, Pa.
Not Guilty: Counts 1 through 18.
There being a finding/verdict of guilty, Counts 1 through
18.
Defendant has been convicted as charged of the of-
fense(s) of 21 USC Sec. 841(a)(1) and 18 USC See. 2(b)
did knowingly, willfully, unlawfully and intentionally dis-
tribute and dispense a controlled substance, that is, biphet-
amine, a controlled substance.
The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no suf-
ficient cause to the contrary was shown, or appeared to the
court, the court adjudged the defendant guilty as charged
and convicted and ordered that
On Count I, Ir Is Apsupeep that the defendant is here-
by committed to the custody of the Attorney General or his
authorized representative for imprisonment for a term of
6 months and fined the sum of $15,000.00.
40a
On Counts 2 through 18, the sentence is to be the same as
that imposed on Count I and shall run concurrently for a
total of 6 months imprisonment and $15,000.00.
The defendant is ordered to stand committed until the
fine is paid or he is otherwise discharged by due course
of law.
In addition to the imprisonment and fine set forth above,
there is imposed on the defendant with respect to each of
Counts 1 through 18, in accordance with the mandatory
statutory requirements, a Special Parole Term of two
years on each of said 18 counts, to run consecutively, for
a total of 36 years.
Execution of the sentence is stayed for a period of 15 days.
4la
16275) 285a)
June 5, 1975
Federal Courthouse
10:00 a.m.
(The following discussion held in chambers.)
Mr. Kelly: Well, with respect to two and three, I object
on the grounds that they are irrelevant, your Honor.
The Court: What are two and three?
Mr. McGlone: Copies of the Federal Register, July 7th
and July 23rd.
The Court: The Government has withdrawn a request
for a charge under 2B.
Mr. McGlone, do you have a motion?
Mr. McGlone: I have a motion that I want to offer in
evidence Exhibits 1, 2 and 3. Number 1 being the package
insert
The Court: Is there an objection to it?
Mr. Kelly: Not to the package insert.
The Court: Admitted.
Mr. McGlone: Number 2 being the July 7, 1971 Federal
Register; and number 3 being the July 23, 1971 Federal
Register.
The Court: What is the purpose of those?
The Government objects to D2 and 3?
Mr. Kelly: Yes, we do.
The Court: I will permit it in evidence solely on the issue
of intent.
42a
[(276) 286a}] Mr. McGlone: And date.
The Court: Well, the dates speak for themselves, but I
am going to tell the Jury that biphetamine was a controlled
substance on the dates in question. There is no doubt in
my mind.
Mr. MecGlone: Yes, on the dates—you have made that
clear.
The Court: And I think the issue in this case is whether
or not he violated 841. And if you want to argue intent
and use these two exhibits, I will permit you to do it.
Mr. Melone: Use the date, I am going to use the date.
The Court: All right.
Mr. Kelly: Do you plan to give a charge saying that ve
must prove that he knew these to be Schedule II?
The Court: No, I do not.
Government has submitted five points. There is an ob-
jection to number one. It is sustained.
(Discussion held off the record.)
The Court: Let the record show that I conferred with
counsel, and I have told counsel that I intend to charge this
Jury on dispensing only and not on distribution. And in
doing so, I am relying on the authority of U.S. versus
Leigh, 482nd, Federal 2nd, 206. In that case, the defendant
doctor was indicted for distributing a controlled substance
in [(277) Wa] violation of the Act. And the method of dis-
tribution was a prescription. The District Court dismissed
the indictment for failure to state an offense, against the
United States. And the Circuit Court affirmed.
And I think that controls this case. If the facts in this
case spell out anything, it is the dispensing rather than the
distribution. And I think the Government has agreed that
it is all right to charge on dispensing.
Mr. Kelly: Yes.
43a
The Court: That being the case, what about your num-
ber one. Do you still insist on it?
Number one defines distribution.
Mr. Kelly: Your Honor, boy, I’ll tell you, the way I read
that. Deliver controlled substance, attempted transfer—
I am not going to insist upon it. I will accept the Court’s
ruling on it, but...
The Court: Also with respect to number two which re-
quests a charge that where several acts are in the disjune—
tive. I feel that that is no longer in this case because I
am only going to charge on dispensing. There is an objec-
tion to number two, and I sustained that objection.
Number three requests a charge on an attempt to dis-
tribute a controlled substance; and in view of the state-
ments I have just made that I intended to charge on dis-
pensing only, this is no longer necessary. And I am not
going to give that [(278) 288a] charge.
Number four, I am not going to give it as stated. How-
ever, I will tell the Jury that it is not necessary to show
that the prescriptions were actually filled. That is not a
necessary element of this crime.
Mr. MecGlone: That, of course, I want to be on the ree-
ord as objecting to, your Honor.
The Court: The fifth point, I am going to not give it in
those words; but the substance of that is contained in an-
other part of the charge. So you can argue it if you want
to.
I feel if I were to give that I would be unduly empha-
sizing the Government’s case. And that’s why I am not
going to give it the way it is written.
Mr. Kelly: That's the one that says
The Court: The defendant has submitted four points for
charge, I think.
Aa
We have discussed these, and all of them deal with char-
acter. There is no objection to number two, and I am going
to give that together with another statement which is con-
tained in my general charge on character evidence.
Mr. McGlone: That will be satisfactory, your Honor.
The Court: Fine.
(End of discussion in chambers.)
1291) 301la}
APPENDIX H
Charge of the Court
I am not going to read these dates to you; you have the
indictment with you. But the first date on Count One is
November 26, 1973; and the last date is Number Eighteen,
Count Eighteen, is May 29, 1974.
And this is in violation of Title 21 United States Code,
Section 841(a)(1) and Title 18 United States Code, See-
tion 2(b).
I tell you that Title 18 United States Code, Section 2(b)
is not in this case, so your only concern is with Title 21,
United States Code, Section 841(a)(1). And I will read
that to you in a moment.
Section 841(a)(1) reads as follows: Except as author-
ized by this subchapter—and I say it reads, I am going to
eliminate parts that are not pertinent here, such as the
manufacturer. We are not concerned with the manufacture
of this drug. And I am going to eliminate those parts which
are not pertinent.
Section 841(a)(1) provides: Except as authorized by
this subchapter it shall be unlawful for any person know-
ingly or intentionally one [sic], to distribute or dispense a
controlled substance.
Now I am going to say at this moment, I will tell you
now that we are only going to be concerned insofar as the
biphetamines are concerned with the dispensing. It says
it is unlawful to distribute or dispense. I am eliminating
the dis- [(292) 302a] tribution because there isn’t any evi-
dence in my opinion in this case. The only evidence here,
if you will believe it, is the dispensing of biphetamine, not
the distribution.
46a
I will, however, say something a little later about dis-
tribution when I refer to—I can’t remember the name, but
those pills in those brown bags there. Phendimetrazine.
That, if you believe it, would be a distribution. I will come
to that in a minute.
So the essential elements of this offense in 841(a)(1)
are one, to dispense a controlled substance ; and two, doing
such intentionally, willfully and unlawfully.
I stated before the burden is always upon the Govern-
ment to prove beyond a reasonable doubt every essential
element of the crime. The law never imposes upon a de-
fendant in a criminal case the burden or duty of calling
any witness or producing any evidence.
I mentioned to you that one of the elements was to dis-
pense a controlled substance. A controlled substance
means a drug or other substance included in Schedule I,
II. III. IV or V. Now, we are only concerned in this law
suit with Schedules II and III. And I charge you at this
time that biphetamine is a controlled substance under
Schedule II. So the term controlled substance means a
drug included in II and III insofar as this case in con-
cerned.
I mentioned as one of the essential elements of the
(293) 303a] crime which the Government must prove
they must prove it was dispensed. The controlled substance
was dispensed. The term dispense means the prescribing
pursuant to the lawful order of a practitioner. That is dis-
pensing. I said to you during one of the closing arguments,
it would not be necessary for the Government to prove
that the prescription was filled. As a matter of fact, it is
admitted in this esse that those prescriptions were not
filled.
Now, when I read you Section 841 I said except as au-
thorized in this subchapter it shall be unlawful for any
person to dispense a controlled substance. The exception
is the case of a doctor. That is one of them anyway.
47a
Section 829 of Title 21 of the United States Code ex-
empts a medical practitioner—and that is together with
the Code of Federal Regulations, but I won’t read those to
you—suffice it to say to tell you that a medical practitioner
is exempted whenever such practitioner issues a prescrip-
tion for a legitimate medical purpose and in the usual
course of his medical practice.
A medical practitioner is exempted from 841(a)(1), in
other words, a medical practi‘ioner can dispense a con-
trolled substance whenever he issues a prescrip.ion for a
legitimate medical purpose and in the usual course of his
medical practice. It is equally true that when he issues a
prescription that is not for a legitimate purpose and is not
in the usual course of [(294) 34a] his practice, he is not
exempt from Section 841 of Title 21.
A prescription for a controlled substance must be used
for a legitimate medical purpose by an individual practi-
tioner acting in the usual course of his professional prac-
tice. The responsibility for ‘he proper prescribing of con-
trolled substances is upon the prescribing practitioner.
A physician is expected to prescribe or dispense drugs
within the bounds of his professional practice of medicine.
A physician is restricted to dispensing or prescribing
drugs in the bona fide treatment of a patient’s disease. In
determining whether the prescriptions given by Doctor
Tighe, if any, were issued for a legitimate purpose in the
usual course of his professional practice, you are to con-
sider all of the evidence and circumstances in this case.
The burden is on the Government to prove this and ev-
ery clement of the offense beyond a reasonable doubt.
I told you a moment ago that a physician is exempt un-
der certain conditions from the provisions of Section 841
of Title 21. That exception is contained in Section 829 of
Title 21 and in pertinent part it reads: Except when dis-
pensed directly by a practitioner to an ultimate user, no
48a
controlled substance in Schedule II and so forth may be
dispensed.
Then with respect to Schedule III, it says: Except when
dispensed directly by a practitioner to an ultimate user,
no controlled substances in Schedule III may be dispensed.
[(295) 305a] So it becomes important to define for you
ultimate user. The term ultimate user means a person who
has lawfully obtained a controlled substance for his own
use or for the use of a member of his household.
Now, members of the Jury, in giving you and listing the
elements of this crime for you I said it had to be done
knowingly. The word knowingly means that the act was
done voluntarily and purposely and not because of mistake
or accident. Knowledge may be proved by conduct and by
all the facts and circumstances surrounding the case. An
essential element of the crime, before you can convict, is
that it be done willfully.
An act is done willfully if done voluntarily and pur-
posely and with the specific intent to do that which the law
forbids. That is to say, with bad purpose either to disobey
or disregard the law. Specific intent together with all the
other essential elements of the offense must be proved
beyond a reasonable doubt before you can convict.
Willfullness is an essential element of the crime. It re-
quires existence of a specific wrongful intent, an evil mo-
tive at the time the crime charged was co:amitted. Mere
laxity, careless disregard of the duty imposed by law or
even gross negligence unattended by evil motive are not
probative of willfullness.
The crime charged in this requires proof of specific in-
tent before the defendant can be convicted. Specific
((296) 306a] intent as the term implies means more than
the general intent to commit the act. To establish specific
intent, the Government must prove that the defendant
knowingly did an act which the law forbids, purposely in-
49a
tending to violate the law. Such intent may be determined
from all the facts and circumstances surrounding the case.
An act or failure to act knowingly done, as I said before,
done voluntarily and intentionally and not because of mis-
take or accident or other innocent purpose.
Now, in connection with intent, you may consider the
Lackawanna Medical Journal which was introduced in evi-
dence here. I permitted that in evidence only for the re-
stricted purpose or limited purpose of determing [sic] in
your consideration of whether or not any acts of the de-
fendant were intentional.
Now, there has been quite a bit of evidence here about
the reclassification of biphetamines. I have told you before
that, and I charge you, that biphetamines were a Schedule
II substance at the times concerned in this indictment. The
reason for that when Congress passed the bill, the Act in
1970, it classified amphetamines as a Class III substance.
Congress in the Act which passed this law, directed that
the Attorney General from time to time after proper hear-
ings and under certain procedures could add substances to
the different Schedules, could move one substance from a
Schedule to another, to a higher Schedule, to a lower
Schedule and so forth. That is [(297) 307a] proper; it is
provided in the Act.
But after the Act was passed and amphetamines were
under Schedule III, I think the date is July 7, 1971 in the
Federal Register there was a publication of the fact that
amphetamines except for biphetamines were now under
Schedule II. In other words, biphetamines at that time
were reserved.
But shortly thereafter, that reservation was lifted and
biphetamines became a Class II substance.
Now the fact that the defendant, if he did not know
about that would not be a defense to the case. In other
words, ignorance of the law is no excuse. However, if he
50a
didn’t know it, didn’t have notice of that, you could con-
sider that in determining whether or not he had the specific
intent, the willfullness to commit this act. And that is why
during the course of this trial once or twice when there was
an objection made, I overruled the objection and said that
the publication here, the material in the Federal Register,
I thought was admissible, but for a limited purpose. And
that is the limited purpose.
Also members of the Jury, with respect to intent, we
have had testimony with respect to these pills in the brown
bags. Now these were not prescribed. And according to the
testimony in this case at various times when the agents
came in, according to their testimony, they received these
pills directly from the defendant. I permitted evidence of
this only as [(298) 308a] evidence which you might con-
sider together with all the other evidence in the case in de-
termining whether or not the defendant had the requisite
intent or willfullness.
I caution you that this defendant is not charged in this
indictment with having delivered these pills in these yellow
bags marked by the Exhibit GA1 and 2 and GBI through 8.
Ile is not charged, and you cannot consider it for that pur-
pose. Yon can only consider it in determining whether or
not he had the requisite intent to commit the acts in the
indictment, counts one through eighteen.
The term distribute means to deliver a controlled sub-
stance.
What I am going to say now is relevant to the pills that
the agents, the Government witnesses say were delivered
to them. And also it is pertinent to the testimony of the
witnesses who said that—one witness I think Mr. Caroff
said he went in on November 14th and November 19th. And
those two dates, members of the Jury, are prior to the first
date in the indictment, November 26, 1973.
5la
And Mr. Emery said he was in to see Doctor Tighe on
November 14th. So what I am going to say now is relevant
to that testimony.
And that testimony of those two witnesses, Caroff and
Emery, with respect to the visits of November 14th and
Novemver 19th and Mr. Emery’s testimony with respect to
November
16300) 310a] And you might or might not, depending on
how you find, draw the inference that the accused acted
willfully and with the specific intent and not because of
any mistake or inadvertence or any innocent reason. And
also with respect to these visits of November l4th and
19th, you will remember the testimony that on those oc-
easions, as I remember it, blood pressure was taken and I
think stethoscope was applied to the heart.
You should not consider similar acts, that is, this evi-
dence with respect to the pills in the brown bags, the pills
the witnesses testified were given to them, or to the pre-
scriptions given on the 14th or 19th. You should not con-
sider those acts as evidencing a propensity of the defend-
ant to commit the crimes charged. They are not relevant
for that purpose and cannot be so considered. Now, I also
want to mention to you that it was stipulated in this case
that—again may I ask what is the name of that? That
phendimetrazine is a Schedule III substance. It was so
stipulated. Not a Schedule II. And in mentioning Schedule
II and III imsofar as it is relevant to biphetamine, I told
you that I am charging you that biphetamine was a Sched-
ule IT substance at the times alleged in this indictment.
However, whether the Doctor knew it or not you may
consider in determining whether or not he had the requi-
site intent or willfullness to commit this crime. In other
words, did
16305) 315a) Now, your verdict must be unanimous. It
must represent the considered judgment of each juror. It is
your duty as jurors to consult with one another and to delib-
erate with a view to reaching an agreement if you can
do so without violence to individual judgment.
Each of you must decide the case for yourself, but do so
only after an impartial consideration of the evidence with
your fellow jurors. In the course of your deliberation, do
not hesitate to re-examine your own views and change
your opinion if convinced that it is erroneous. But do not
surrender your honest conviction as to the weight or effect
of the evidence solely because of the opinion of your fel-
low jurors or for the mere purpose of returning a verdict.
Mr. Kelly, are there any objections?
Mr. Kelly: I have no objections, your Honor.
Mr. McGlone: I do have one, your Honor.
The Court: All right. Do you want to come to sidebar.
(The following discussion was held at sidebar.)
The Court: Do you want to put your objection on the
record.
Mr. Medlone: I object to the charge of the Court for the
reason that the definition of the term ultimate user being
a person who has obtained and possesses any controlled
substance is inconsistent with the charge that the prescrip-
tions [(306) 316] need not be filled.
The Court: I intended that to apply to the—
Mr. McGlone: The phendimetrazine.
The Court: Phendimetrazine.
Mr. McGlone: I didn’t quite understand that.
The Court: Well, listen, I will correct it. Anything else?
Mr. McGlone: No.
(End of discussion at sidebar.)
53a
The Court: May I see counsel, please, a minute.
(The following discussion was held at sidebar.)
The Court: As I understand the defendant's contention,
I defined ultimate user—and it is certainly relevant to the
phendimetrazine because it was delivered to the ultimate
user.
Mr. McGlone: Right.
The Court: There is no doubt about that.
Mr. McGlone: No question.
The Court: And I will tell the Jury to restrict it to that.
Mr. McGlone: All right.
(End of discussion at sidebar.)
The Court: Members of the Jury, I defined ultimate
user for you as a person who has lawfully obtained a con-
trolled substance for his own use. I intended that to apply
to the [(307) 317a] phendimetrazine and not to the bi-
phetamines. The biphetamines, of course, were prescribed.
They were not handed over by the Doctor to the ultimate
user. They were prescribed.
So I charge you that the term ultimate user as I defined
it is limited—in this case it is limited to the phendimetra-
zine, those pink pills that were according to the testimony
given in the Doctor's office.
Now, members of the Jury, if you have any questions
while you are deliberating, write the questions on paper
and put it in an envelope and seal the envelope and knock
on the door and the bailiff will deliver the question to me.
Also if you should have a question and any answer that
I might give, do not destroy it. We have prepared a ver-
dict for you; and I am only going to read the first and
last counts. I don’t want to read them all, because they are
all the same.
54a
It says we the Jury find the defendant, Patrick L. Tighe
as follows: blank on count one. You write in there guilty
or not guilty. Do it with every count, guilty or not guilty.
And the last one is, of course, count eighteen, guilty or
not guilty to be signed by your foreman or forelady. That
is the person who will be selected by you when you first go
into the jury room. Select someone to conduct your delib-
erations.
And remember to excuse the alternates.
(Whereupon, the bailiff was sworn by the Court.)
[(75) 85a)
APPENDIX |
William Caroff—Direct
girls that I am giving them to.
Q. Did the Doctor ask you anything with respect to how
old the girls were? A. Yes, sir, the Doctor asked me the
ages of the girls, and I said they were about 26.
Q. And what did he say then? A. We had conversation
to the effect that the Doctor didn’t want me to give young
girls—he didn’t want any mothers 2 him up and
raising hell with him.
We get into it a little further, he asked wasn’t I af raid
the mothers would call up and raise hell with me. And I
said no, | wasn’t worried about them. Words to that effect.
Q. Did he ask you any questions with respect to how you
were getting the prescriptions filled? A. Yes, sir. At this
point to the best of my recollection, he told me not to take
them to the same drug store.
Q. Not to take them to the same drug store? A. Right.
Q. Did he give you any reason why he didn’t want you
to take them to the same drug store? A. I would have to
refer to my notes, if I could at this point.
Q. Sir, would your notes accurately reflect the conver-
sation as you recall it between you and Doctor Tighe with
respect to this subject? [(76) 86a] A. Yes, sir, it would.
Mr. Kexry: I request permission to show him his report
with respect to this.
Tus Court: All right.
(Mr. Kelly hands document to witness.)
56a
A. Yes, sir, at that occasion he asked if I was getting
them filled at the same store, and I replied the girls got the
prescriptions filled. And the Doctor stated make sure they
don’t take them to the same store. And I related to the
Doctor that the girls knew what they were doing. And he
said make sure you don’t take them to the same store be-
cause I don’t want to get into trouble.
Q. Did he ask you any questions as to whether or not
you were taking any of the pills! A. Yes, sir, he asked me
if I was using them; and I said I had taken a couple.
Q. Okay. And then do I understand, sir, that he gave
you this prescription for biphetamine-20 that I am holding
in my hand marked Government’s Exhibit 47 A. Yes, sir.
Q. And again you have initialed and dated that? A.
Yes, sir.
Q. November 26, 1973, is that correct? A. That is cor-
rect.
Q. Did he say anything to you as you were leaving the
[(77) Fa] office? A. He said try to make these last a
little longer.
Q. Try to make these last a little longer. And this was
32 capsules? A. Yes, sir, that prescription was for 32
capsules.
Q. Well now, this then was your third visit, is that cor-
rect? A. Yes, sir. -
Q. Well, on this time did he check your blood pressure?
A. No, sir.
Q. Did he check your heart? A. No, sir.
Q. Did he weigh you? A. No, sir.
Q. Did he have any conversation with you with respect
to adverse effects, et cetera? A. No, sir.
Q. Did he make any record of this visit in your pres-
ence? A. Not in my presence, sir.
Q. By the way, this time did he give you any of these
little pills like the kind we had previously? A. I didn’t
take these this time.
57a
Q. You didn’t take them? A. To the best of my know-
ledge.
Q. You say you did not take any?
{(79) 89a] Tur Court: Yes.
A. Yes, sir. I said hiya, Doe. He said weren’t you just
in here last week. I hope you aren’t taking these to the
same drug store.
Q. What did you tell him? A. I replied the girls know
what they are doing, Doc. I sat down next to the Doctor’s
desk. The Doctor sat down. He said what is your first name,
I said William. He said the black ones, right. And I agreed.
And then he asked me my last name, and I spelled it out
for him and he pronounced it.
Q. Did the Doctor ask you anything with respect to the
girls and the pills? A. He asked me what they did with
them, and I just said they liked them, Doe.
Q. Then at that time did he write the prescription? A.
Yes, sir, he finished writing that one.
Q. I am showing you Government’s Exhibit Number 6, a
prescription made out to William Caroff dated December
5, 1973. On the back again it has your initials, December 5,
1973, is that correct, sir?
(Mr. Kelly shows document to witness.)
A. That is correct.
Q. And he wrote out that prescription for you. Now, on
this visit, did he take your blood pressure?
[(84) 94a) Exhibit Number 9, is that correct, sir? A pre-
seription made out to William Caroff? <A. Yes, sir.
Q. For 32 biphetamine-20’s. And your initials and date
on the back, is that correct, sir? A. That is correct.
Q. After he wrote out this prescription to you, sir, was
there any discussion with respect to Sandy Deron? A. Yes,
sir. I asked for one for my girlfriend, asked for preserip-
58a
tions for my girlfriends, And I gave the name Sandy Deron
and the same address,
(). I'd like to show you what has been marked as Gov.
ernment’s Exhibit Number 10 and ask you whether or not
that is a prescription made out for Sandy Deron and dated
January 16, 1974 for 32 biphetamine tablets,
(Mr. Kelly showed document to witness.)
A. Ves, sir, it is.
. And on the back again your initials and the date, is
that correct, sir? A. That is correct,
Q. All right. Now, at that time, did you ask him for a
prescription for a second girl? A, Ves, sir, I did,
Q. What did he say? A. The Doctor replied no, it's too
risky, [(85) a)
Q. Did he say anything else? A, He said they are check.
ing now, And | asked him who's checking, Doe, And he said
the federal agents.
lle then showed me his BNDD number, It's a number
Q. That is just what | was going to say, BNDD number,
ia there one on there? A, Ves, sir, there is,
Q. Where is it?) A, It is in the upper right-hand corner,
BNDD number, ATO 573988,
Q. Now, sir, continue the conversation with respect to
the BNDD number, A, Well, Doctor said they can go
into one drug store and make a photostat of a prescription,
and go into another drug store and if they find the same
address on the preseription, why-—I'll have to refer back
to this to get it right,
Q. Please do so, sir, A, And if they see some more
from the same address then Lam in trouble,
Q. What did you say about this other girlf A. I said
this other girl has a different address, Doe.
Q. What did he say? A. He said better wait a couple
weeks,
Q. All right. How much did this visit cost? A. This visit
was $12.00,
n
{(92)102a) store!
A. Well, the Doctor asked ma where the girls got the
preseriptions filled, And | said they got them filled down
the line,
He asved me again, and | said towns down the line, .
Q. Did the Doctor then say anything with respect to
checking on the preseriptions?t A, Well, the Doctor said
at this time again they can make photostatie copies of the
prescriptions, And | told him that the girls knew enough to
take them to different stores.
Q. Did the Doctor say anything with respect to the con-
tainers you would be getting from the drug store? A, Yea,
air, the Doctor said words to the effect that if | gave any
away to put them ina plain container, At this time he
started looking for a preseription bottle that someone had
brought in previously to show me where the doctor's name
was on it,
. What did he tell you then? A. He said, you know, to
put them in plain bottles, Put them in another container
because the container from the drug store had the doctor's
name on it,
Q. All right. At the time you were leaving the office was
there any further conversation then A, Well, when I left,
the Doctor opened the door and said remember what I told
you.
[(94) 104a) A, Ves, sir,
Q. Did the Doctor ask you anything with respect to
whether or not you were selling the pillat A, Yea, sir, the
Doctor asked me if | was selling the pills.
Q. What did you say? A, I said no, Doe, I give them to
the girls,
Q. Did he ask you what the girls were doing with them?
A. The Doctor asked me if the girls were selling them,
Q. What did you tell him? A. I replied 1 don't know
what they do with them, Doe,
60a
O. What happened after that then? A. The Doctor
asked this agent what the girl's name was.
Q. And what name did you give him? A. Linda Hoff.
man,
. Did he ask you anything with respect to this Linda
Hoffman? X. No, sir,
Q. Did he ask anything with respect to whether or not
you had obtained a preseription for her before? A. Yea,
sir, he asked me; and | said no,
O. This was the first time? A. This was the first time,
yes, sir,
Q. So did you give him an address for her?
[(98) 108a}) Q. And again on the back are your initials
and the date? A. Right.
Q. All right. Well now, he filled out this preseription for
Sandy.
Did you ask him anything about prescriptions for the
other twot A. Ves, sir.
Q. What did he say? A. The doctor refused, He said
it's too risky; the State Police are making photostats of my
prescriptions and checking on me,
Q. What else? A. He said they are pretty tough, And I
said they haven't brought any of mine in, have they, Doe,
And he said no, but that is a different county, meaning I
was down this way, | imagine the State Police up there
were checking with him,
Q. Well, then did he make out the preseriptions for the
other twot A, No, sir, | said you gave me prescriptions
for the other two last time. And the Doctor said it's too
risky, von don't have to worry about losing your license,
And | asked the Doctor, I said what are you talking about,
Doe, He replied this isn't practicing medicine,
Q. He said this isn't practicing medicine!
0 0 . * * * * * * 0
Ge ae didn't have them, I was expecting to pick
some up, but he didn't have them.
Ola
Q. What were you expecting to pick up? A, I don't
know,
Mr. Melton; We object to this line of questioning,
Tun Count: Overruled.
By Ma. Keay:
Q. What did you ask him fort A. I asked him for some-
thing like amphetamines,
Q. And then that was in the prior visit? A. Ves, sir.
Q. Now, this visit you had asked him whether or not he
had got it? A. Ves, sir.
Q. And what did he respond to that? A, Well, he just
shrugged his shoulders, and | repeated it. And then he said
you don't understand the trouble I can get into,
Q. Go on. A. He went on about the Federal Narcotics
agents having an outfit something like the FBI,
Q. Do you have a recollection from your notes as to what
he said to you, sir? A. Exactly?
Q. Yes. [(102) ea] A. The Doctor replied
Ma. Memos | object to this, sour Loner, unless it is
from his own recollection,
Tue Count; Overruled,
A. You don't understand the trouble | can get into, Don't
you know there are Federal Narcotics agents, and they
have an outfit something like the FBI, Then some of the
states or all of the states have an outfit like the Federal
Narcotics,
Q. Go on, A, Then the State Police have an outfit in the
State Police to check our drugs, I guess they try to cut down
on drug abuse, You know, some people use these drags for
diet and some use them for parties to get high.
Q. What did you say to that? A. I said what's so bad
about that, Doc?
Q. What did he say? A. He said well, some 18 or 19 year
old kids use them, and they go out and kill someone while
they are driving a car.
62a
And I replied those damn kids will use anything, Doo, but
these aren't for kids.
(. Well, then did the subject of the conversation turn
towards the actual preseription? A. Yea, sir,
Q. And what did he ask yout
16400) 115a) said where are you going, | said Atlantic City,
lie said you can drop me a letter and | will send you some
preseriptions, And then I said to him you didn't give me a
prescription last time | was in for Linda,
And the Doctor said something like Linda can fly up in
a helicopter and get one, It's not that far; you'll be coming
up this way,
And | said hell, Doe, we're going to be gone all summer,
We're not going to be coming back up here,
And he said tell Linda to take a helicopter up, And I
replied Linda is going to be pissed off, Doe, lan't there
anything you ean do for her,
And the Doctor replied they'll be checking on me,
Q. They'll be checking on met A, Yea, sir.
Q. Then did the subject turn to money? A, | then asked
the Doctor how much, And he said fifteen, And | paid the
Doctor $15.00,
And then I asked the Doctor if there wasn't anything in
this line he could give me for Linda, He gave me two of
those manila envelopes.
Q. Two of them? A. Yea, sir, Then he went in the back
room and brought two more out.
Q. And gave you these theoretically for Linda?
63a
{(140) 1500)
APPENDIX J
Thomas Emery Redirect
left and took a manila-colored rectangular envelope an!
stated take these after supper.
Q. All right, sir, and did you place your initials and date
on the envelope? A. Yea, out in Roger's car,
Q. And are these your initiale? A. Yea,
Q. Okay, This is all on Government's Exhibit Number
A2, ie that correct, sir? A. Yea, sir,
Q. All right. After that, sir, was there any discussion
with respect to how much you should pay him? A, | asked
him how much a visit would cost,
Q. What did he say? A, $8.00,
Q. Did he ask you for any more money other than the
88.007 A, (Witness shakes head negatively.)
9. Did you offer him any more money than the $8,001
A. No,
Q. Was there any conversation with respect to your com-
ing back or being on any kind of a regular schedule of
visita? A. As I was exiting the office, he said be seeing
you, In one tone of voice, And as I was going through the
door said come back. Which was octaves lower.
[(144) 154a}) A, Whereupon | sat down then at the vis-
itor's chair in the Doctor's office there. And he started to
write RI, B. I, on a prescription,
. Did he ask you anything else? A. Whereupon he
asked me the black ones?
. What did you answer to that? A. I answered yes,
Q. What do you mean by the black ones, by the way? K.
The coloring.
Q. The coloring of these pills? A. I forget what color
they are now,
64a
Q. Did he ask you again about the black ones? A. Yea,
Q. All right. What happened after that then! A, I
added the term biphetamines to the word yes, He asked my
name to which I said Tom Emery, adding my address was
Wilkes College.
In the November 14th visit, though, he asked me where
Wilkes College was, This time he did not,
Q. Okay, Well, sir, I'd like to show you what has been
marked as Government's Exhibit Number 5 and ask you
whether or not this is a preseription made out to Tom
‘mery, Wilkes College, Wilkes-Barre, Pennsylvania, dated
November 30, 1973, preseribing 32 biphetamine-20's, is that
correct, airt
(Mr. Kelly shows document to witness.)
[(153) 16%a) Q. Task you whether or not he gave you this
prescription?
(Mr. Kelly shows document to witness, )
A. Yeu,
O. I call your attention to Government's Exhibit Num-
ber 16 which is a preseription for Tom Emery of April 19,
1974, preseribing 32 biphetamine-20's, is that correct, sir!
A. Yeu,
. And that is your initials and date on the back, is that
correct? A, Yea, in pencil,
. Sir, did you ask him anything about a preseription
for anyone other than you at this time? A, Ves, at this
time | asked him for a preseription for my girl,
Q. What did he say? A. At this point there was hosi-
tation,
Mu. McGionn: We object to that, your Honor, It is a con-
clusion by this witness,
Tue Count: Overruled,
A. Said the drugs were being watched. Thereupon I
asked him for an Rx for Eskatrel instead of biphetamines
for my girl. He hesitated, and what to me seemed to be
calculating his answer
Ma. McGvone: I object, your Honor-—
By Ma. Ku:
Q. Sir, you can't make any conclusion. You just tell me
e @ @ * „ * 0 @ - 0
[(8) aa!
APPENDIX E
Government's Closing Statement
I didn’t say isn’t it true that it increases suicidal tenden-
cies. I didn’t mention it. He did. They brought him all the
way from New York to tell you the effect of this drug, and
he did.
I submit that he told you honestly and straight forwardly
when he told you that this drug could drive someone to
commit suicide. I respectfully submit that we are not talk-
ing about a box of M&M candies. We are talking about a
mighty potent brew, Ladies and Gentlemen, and I hope in
the course of your deliberations you keep that subject in
mind.
Phendimetrazine. Phendimetrazine is in these envelopes
right here. | can give you the number of the—318 of these
right here in front of you.
You can open up one of these and take a look at what
they look like. They are not a real small pill. As you can
see, they are pink and they look not an awful lot unlike
an aspirin pill. But that’s about where the similarity ends,
isn’t it?
Let's look at what Doctor Ward said about these. We
didn’t ask any expert what the effects of them were. We
just threw them in. He threw them over the table; we threw
them on this table.
Doetor Ward testified that these are like amphetamines
in a lesser degree—and then you remember I was having
a little trouble with him as to where the parting of the way
was. He said well, they have fewer side effects.
{(9) 335a) Now, I respectfully submit for your consid-
eration that if these drugs are in smaller dosages and
67a
smaller strengths but otherwise similar to amphetamines
but less side effects, that if someone were seriously inter-
ested in prescribing them for any kind of a legitimate med-
ical purpose, that it would be a good idea to start somebody
off on them and not bother with the amphetamines, espe-
cially not start them off with the strongest dose of ampheta-
mines that the company makes. We'll get into that a little
bit later.
Nor are we dealing with a small amount of these pills.
Supposing we had a case where you had this very dangerous
pill, such as what we have here. But on the other hand, vou
know, we ve only shown that he was—you know, he was on
a picnic sometime and some guy said gee, Doc, I don't feel
too good; what have you got for me. And he said here, take
a couple of these; it will perk up your golf game by the
end of the afternoon.
We aren't talking about anything like that. We're talk-
ing, Ladies and Gentlemen, about prescriptions which total
and you can add them up yourself, maybe I can’t add, but
I think it comes up to 744 of these are being turned loose
on society by the actions of this defendant in this case.
Seven hundred and forty-four. If we had them in a jar
here, you could see 744 pills. If you had a transfer at one
time of that it would be an outrageous situation. Here you
[(10) Wa] not only have the outrageous situation, you
have a continued course of conduct knowing every time that
he gives one prescription that he has done everything he
could do to turn 32 of those loose on some unsuspecting soul,
knowing full well that the next time the guy comes in he’s
going to do it again. Knowing full well that the next time
the guy comes in, he’s going to do it again, and again, and
again. That's what we are talking about in this case, Ladies
and Gentlemen.
We have a total here of 1062 units of dangerous drug
that this man knowingly, willfully and unlawfully turned
loose on society. And that’s what this case is about.
Now, with that introduction, I'd like to go on to review
the evidence from which, I submit, you are going to be able
to find beyond a reasonable doubt that—specifically relat-
ing to this case—that this defendant is guilty of all the
offenses for which he has been charged.
First is the necessity to prove that biphetamine contains
amphetamine. Now, that sounds kind of technical after
what we have been through in this case, but you still under-
stand that we have this burden to prove beyond a reasonable
doubt that the defendant is guilty. Each and every element
has to be proven beyond a reasonable doubt. One of the
elements that has to be proven is that we have a drug in-
volved here that contains amphetamine because that is what
the law says. It doesn’t say biphetamine, it says a substance
containing
1615) Ata] prescribed and dispensed at one time in order
to minimize the possibility of an overdose. And again that
amphetamine should be administered at the lowest effective
dosage and dosages should be individually adjusted.
That is how these drugs should be used as Doctor Notari
told you. Just from your recollection of what the testimony
was of these agents yesterday, does that sound anything at
all like the use of these drugs in this case? I submit that
thre is no similarity whatsoever.
At any rate, Doctor Notari did testify that before you
were to put a patient on a diet involving the use of ampheta-
mine, as a part of the treatment, you should get a history
of the patient. Now, that makes perfect sense. In your own
common sense, in your own everyday living, you all know
that you consult physicians from time to time. And what is
the first thing the doctor wants to know? He wants to
know every disease you have had since you were three. He
asks you diseases that you may have had four times and
you were too young to remember, but he wants to know it.
69a
And the reason he w. its to know it is because he wants
to know what effect these drugs 1 is going to give you
are going to have on you. And as you can see, that is a
perfectly legitimate thing to know.
And when you are dealing with a pill such as this, which
I submit goes off like a bomb in your head and completely
1016) 342a] messes up all of your cardiovascular systems
and otherwise, you certainly want to know what kind of a
body you are dealing with before you put that bomb in the
brain.
Here he wanted to know whether you had heart disease,
past or present, high blood pressure, a hyperthyroid con-
dition, other illness like diabetes, psychiatric disorders.
In light of Doctor Ward’s testimony that this drug in-
creases suicidal tendencies, don’t you think that that is a
most relevant inquiry!
Physical exam in addition to just testing to find out the
p
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