Opposition — Tighe v. United States

No, 76-1590

eas

In the Supreme Court of the

Ocroner Tram, 1977

, IR, CLERK |

nited States

PaTRrick L. TiGHb, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPLALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wane H. McCree, Jn.,

Solicitor General,

BENJAMIN R, CiviLerti,

Assistant Attorney General,

Sipney M. GLazer,

MARSHALL TAMOR GOLDING,

Attorneys,

Department of Justice,

Washington, D.C, 20530.

* Ju the Supreme Court of the United States

OctToner Term, 1977

No. 76-1590

Patrick L. TiGHe, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

. BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 22a-

28a) is reported at 55! F. 2d 18. The opinion of the dis-

trict court (Pet. App. la-.!a) ts not reported.

QUESTIONS PRESENTED

1. Whether testimony by undercover agents con-

cerning statements of petitioner while selling them pre-

scriptions was properly admitted into evidence.

2. Whether the Attorney General could properly clas-

sity biphetamine as a Schedule II controlled substance

under the Controlled Substances Act, 2! U.S.C. 801, ef

seq.

(1)

2

3. Whether petitioner had. or reasonably could have

been expected to have. notice of biphetamine’s inclusion

as a Schedule II controlled substance under the Con-

trolled Substances Act, 2! U.S.C. 801, et seq.

4. Whether petitioner could properly be convicted for

violating 21 U.S.C. 841(a) despite the fact that none of

the prescriptions that he sold to undercover agents was

filled.

5. Whether the evidence presented at trial was suf-

ficient to support the conviction of petitioner for viola-

tions of 21 U.S.C. 841(a).

6. Whether petitioner was deprived of a fair trial by

the closing argument of the prosecutor.

7. Whether the trial court's instructions to the jury

were so confusing and improper as to constitute grounds

for reversal.

STATEMENT

After a jury trial in the United States District Court

for the Middle District of Pennsylvania, petitioner was

convicted of eighteen counts of dispensing a Schedule

Il controlled substance, biphetamine, in violation of 21

U.S.C. 84l(aXl) and 18 U.S.C. 2(b). He was given con-

current sentences of six months’ imprisonment and a fine

of $15,000 on each count, the imprisonment to be fol-

lowed by a total special parole term of 36 years (Pet.

App. F). A motion for a new trial was denied by the dis-

trict court (Pet. App. la-2la), and the court of appeals

affirmed (Pet. App. 22a-28a).

The evidence showed that over a six-month period

petitioner, a licensed and practicing physician, sold 18

prescriptions for biphetamine to two state undercover

drug enforcement agents who visited him at his oifice

3

(Pet. App. 23a). Biphetamine contains amphetamine and

is used medically for obesity. Petitioner charged $%.00

for a single prescription of 32 to 40 tablets. $12.00 for

two such prescriptions, and a negotiable fee of $15.00 to

$20.00 for three prescriptions (see Pet. App. 15a). Peti-

toner provided the prescriptions without conducting any

physical examination of the undercover agents and with-

out obtaining the agents’ medical history. In addition,

petitioner was told that the agents would themselves

transfer the prescribed drugs to third persons (ihid.). In

fact, the agents never had the prescriptions filled. but

instead placed them im the investigation file (Pet. App.

23a).

ARGUMENT

1. There ts no substance to the claim (Pet. 10-17) that

incriminating statements made by petitioner were

improperly placed into evidence. The statements were made

by petitioner in the course of selling prescriptions to

undercover agents. The agents’ conduct did not violate

Miranda v. Arizona, 384 U.S. 436. The warnings required

by that decision must be given only when the subject of a

police imvestigation has been taken into custody or

otherwise deprived of his freedom in a significant way.

Beckwith v. United States, 425 U.S. 341. Nor was the agents’

testimony concerning statements made by petitioner on

several occasions when prescriptions were sold hearsay.

Fed. R. Evid. 801(d)(2). A fortiori, t was not inadmissible

hearsay.

2. Petitioner contends (Pet. 17-20) that classification

of biphetamine as a Schedule I! controlled substance ts

improper because accomplished puryuant to an unconsti-

tutional delegation of legislative power in 21 U.S.C. B11

(al). Section SI l(ayl) authorizes the Attorney General.

4

after he has made appropriate findings, to transfer con-

trolled substances between the schedules established in

Section 812. The district court correctly concluded that

the statute does not contain an unconstitutional delega-

tion of legislative power. In Section 811(c), Congress has

provided a detailed list of factors for the Attorney Gen-

eral to consider in exercising his authority under Section

Sil(aXl). In addition, Section 811(b) requires the At-

torney General to consult with the Secretary of Health,

Education, and Welfare before transferring a controlled

substance from one schedule to another. The Secretary

is directed to provide a written scientific and medical

evaluation of the substance under consideration, together

with a written recommendation as to whether the sub-

stance should be controlled, and, if so, under which

schedule. The criteria for inclusion under a particular

schedule are not unconstitutionally vague. Inability of

pharmacologist witnesses to define the phrase “severe

psychological or physical dependence” hardly demon-

strates that that language is not susceptible of meaning-

ful application by qualified medical personnel. In sum,

action by the Attorney General under Section 81 1(a)1)

is Clearly governed by adequate statutory standards. See

United States v. Pastor, 419 F. Supp. 1318, 1334-1340

(S.D.N.Y.); see also Iske v. United Stat. +, 396 F. 2d 28

(C.A. 10), White v. United States, 395 F. 24 5 (C.A. 1).

certiorari denied, 393 U.S. 928.

3. The evidence at trial revealed that petitioner knew

he was acting unlawfully in selling biphetamine pre-

scriptions. Petitioner should not be heard to complain

that he was unaware of the reclassification of bipheta-

mine from Schedule Ill to Schedule Il, since his acts

would have been illegal regardless of the schedule ap-

plicable to the drug. If such information was critical to

petitioner's decision whether or not to violate the statute.

5

it was readily available, not only in the Federal Register

but also from the manufacturer of biphetamine. See Pet.

App. Ila.

4. Section 841(aX(l) makes « unlawful for any person

knowingly or intentionally to dispense a controlled sub-

stance, except as authorized by statute. Under Section

802(10), the term “dispense” means “to deliver a con-

trolled substance to an ultimate user * * *.” Section

802(8) provides that the term “deliver” means “the ac-

tual, constructive, or attempted transfer of a controlled

substance * * *.” Petitioner's sale of biphetamine pre-

scriptions plainly constituted an attempted transfer of a

controlled substance. Petitioner's focus (Pet. 25-26) on

the definition of the term “ultimate user” is misplaced.

As the Third Circuit noted in its opinion, if proof of an

attempted transfer to an ultimate user required proof

that that user had obtained actual possession, attempted

transfer would essentially be climinated from the defini-

tion of the terms “deliver” and “dispense.” See Pet. App.

2Sa-27a.

United States v. Green, 511 F. 2d 1062, 1072 (C.A. 7),

certiorari denied, 423 U.S. 1031, is not to the contrary.

There, the Seventh Circuit held that “a prescription need

not be filled to make out a case of attempting to dis-

pense against a physician.” The court did not decide

whether “a prescription must be filled to complete the

crime of dispensing a controlled substance.” Since the

term “dispense” includes attempted transfer, proof that

a prescription was filled is not a prerequisite for convic-

tion of the completed offense. '

‘Even if this statutory construction were incorrect. and such prool

is necessary for conviction of the completed offense, petitioner ts

at most entitled to entry of a judgment of conviction tor attempt-

ing to dispense a controlled substance. The penalties applicable to

6

5. Petitioner contends (Pet. 27) that since he is a physi-

cian, his violation of the statute must be blatant before

he may be prosecuted under Section 84i(a). This is

incorrect. See United States v. Moore, 423 U.S. 122. In

Green, supra, the Seventh Circuit was confronted with

facts virtually identical to those presented here. The

court affirmed a conviction under Sections 841(a) and

846 for attempting to dispense a controlled substance.

The court did not suggest that prosecution under Sec-

tion 842 might have been more appropriate.

6. Petitioner also seeks (Pet. 21-25) review of the

propriety of the prosecution's closing argument. Exam-

ination of that argument (set forth at Pet. App. 66a-76a)

reveals that petitioner's complaints are groundless. Peti-

tioner objected on only a few occasions at the time the

prosecutors remarks were made; in those instances, his

objections were sustained. Nothing in the remainder of

the prosecutor's statements constitutes plain error justify-

ing reversal despite lack of contemporaneous objection,

and there is no occasion for this Court to undertake

review of the determination of the lower courts (Pet.

App. 19a-2la, 27a-28a) that petitioner is not entitled to

a new trial on this ground.

the attempted and corspleted offenses are the same. and the dis-

irict court was clearly aware of all those facts concerning peti-

toners conduct which were relevant to determination of sentence.

Since the jury returned a guilty verdict on the charge of dispen-

ing. 1 necessarily found facts sufficient to support a conviction for

attempting to dispense. Modification of the district court's judg-

ment im the manner suggested is appropriate even where. as in

this case. the district court did not instruct the jury on attempt. See

26 U.S.C. 2106: United States ¥. Swiderski, 548 &. 24 445 (C.A. 2)

(no mstruction given as to simple possession. but judgment modi-

lied from conviction of possession with intent to distribute to con-

viction of simple possession).

>

7. Petitioner attacks (Pet. 28-30) a portion of the dis-

trict court's instructions to the jury as confusing. Peti-

tioner was charged with dispensing a controlled sub-

stance, namely biphetamine. The definition of the term

“ultimate user” was, of course, relevant to the formal

description of that offense. After objection by petitioner

stressing that none of the prescriptions at issue had ever

been filled, the district judge informed the jury that he

intended the definition of “ultimate user” to apply only

to the phendimetrazine, pink pills introduced for the

limited evidentiary purpose of showing intent and not

mentioned in petitioner's indictment. To the extent that

the district judge may have erred in so instructing the

jury, his error was harmless. The court had already ruled

as a matter of law that the crime of dispensing a con-

trolled substance could be established even without proof

that the prescriptions for biphetamine had been filled.

This ruling was correct, as demonstrated in point 4, supra.

Moreover, the district court made perfectly clear to the

jury that petitioner was not being charged with any of-

fense involving phendimetrazine, and indeed petitioner

was convicted of no such offense. Petitioner thus suffered

no prejudice from any confusion that may have sur-

rounded the district court's instruction concerning the

definition of “ultimate user.”

In light of the district court's charge, the judgment of

conviction should have contained no reference to either

distribution of a controlled substance or violation of 18

U.S.C. 2b). The judgment adhered too closely to the

language of petitioner's original indictment. Even con-

ceding this, however, mistakes made in drafting a judg-

ment that the court entered in June 1976 can hardly be

thought to reflect error or confusion in instructions given

to the jury by the district court more than a year earlier.

&

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wape H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

SipNeEY M. GLAZER,

MARSHALL TAMOR GOLDING,

Attorneys.

SEPTEMBER 1977.

DOJ-1977-08