Petition — Davis v. United States
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Text
Rnited Staten ~ ae
OctToBER TERM, 1977
—_ =
No? 7-824
eee
Irvine Davis, M.D.,
Petitioner,
Vs.
UNITED STATES OF AMERICA,
Respondent.
al
Ey TY
PETITION FOR A WRIT OF CERTIORARI
to the United States Court of Appeals
for the Ninth Circuit
GrorGE C. MARTINEZ,
Ghirardelli Square,
900 North Point,
Chocolate Building, Suite 402 D,
San Francisco, California 94109,
Telephone: (415) 441-1211,
Counsel for Petitioner.
PERNAU - WALSH PRINTING CO. - 562 MISSION STREET - SAN FRANCIZCO, CA 94105
Subject Index
Page
WEE 6 Sa cautusesetesesaceesesnndaetunasaepnane’ 2
EE Re Soper gee per ere Per Pern a ne 2
NE ian vioeks cedeunesadunnqaenaeennapane 2
SI « ca cat Chace daeeke ae «pusesbacnean4 3
1. Provisions from the United States Constitution ....... 3
2. Title 21 U.S.C. See. 811, et seq. (Appendix 4) ....... 4
3. Title 21 U.S.C. See. 812 (Appendix 5) .............. 4
4. Title 21 U.S.C. See. 841 (Appendix 6) .............. 4
5. Federal Rules of Criminal Procedure ............... 4
6. Federal Rules of Evidence ..................000.0: 4
er es MS 5 ooh cdeuenkaeatusaspidesuevaseen 5
en WI fe a ae peers onal ba ees ke eeaans 10
Questions presented and summary of arguments ........... 13
The statute under which defendant was charged and
convicted represented an unconstitutional delegation
of congressional power; furthermore, opinions of
government experts and arguments of government
counsel infected the proceedings ................... 13
PEE ch e'dc cuaieee ned deebabeedunnsceeeonvceasen tocee Ee
The issue of improper delegation arises under the First
Amendment. The indictment and conviction of peti-
tioner was by executive action defining a crime pur-
suant to authority delegated by congress. Such
delegation must stand the serutiny of this court if our
system based on checks and balances is to be
SEY chs sa cbinpdSendddedednohencenhesuaaaes 14
II
Notwithstanding Rule 704 of the Federal Rules of
Evidence, it is plain error pursuant to Rule 52 of
the: Federal Rules of Criminal Procedure to admit
government expert testimony that petitioner was
“selling scripts” and not practicing medicine ........ 20
ii Sussect INDEX
Ill Page
We ask for consideration of our position that arguments
engaged in by the United States Attorney amounted
OP ee SI GE ED hen ceccvnvccecvdscctsnees 23
Ny GUE TED on n'v'k.nscbnksccosiacescseccceses 26
Table of Authorities Cited
Cases Pages
Hampton v. Mow Sun Wong, 426 U.S. 122 (1976) ........ 17
Howell v. Mississippi, 300 So.2d 774 (Miss. 1974) ........ 16,17
Lisenba v. California, 314 U.S. 219 (1941) .............. 24
National Cable Television Association, Inc. v. United States,
415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed. 370 (1974) ...... 17
Panama Refining Company v. Ryan, 293 U.S. 388, 55 S.Ct.
241, 79 L.Ed. 446 (1935) .............. 2, 10, 11, 13, 14, 17, 18
Schechter Poultry Corp. v. United States, 295 U.S. 495,
55 §.Ct. 837, 79 L.Ed. 1570 (1935) ..... 2,10, 11, 13, 14, 17, 18
Snyder v. Massachusetts, 279 U.S. 97 (1934) ............. 24
United States v. Benish, 389 F.Supp. 557 (1975) ........ 11
United States v. Cummings, 468 F.2d 274 (Ninth Circuit
DES ‘De ev en dauenuene sur ch he ee Cue sede cae igus 25
United States v. Eaton, 144 U.S. 677 (1972) ............. 18
United States v. Fearns, 501 F.2d 486 .................. 24
United States v. Green, 511 F.2d 1062 (1975) ............ 21, 22
U.S. v. Irving Davis, M.D., U.S. District Court, Northern
District of California, No. CR 76-373 ................. 6
United States v. Kung How Fong, 475 F.2d 189 (Ninth
IE a la Na ie to ik a Care lek oe Oe aie on He 25
U.S. v. Louisville and N.R. Company, 176 F. 940 (1910) .. 18
U.S. v. MeCoy, 539 F.2d 1050 (9th Cireuit, 1976) ....... 22
U.S. v. Moore, 423 U.S. 122 (1975) ...............eceees 12
United States v. Piatti, 416 F.Supp. 1202 (E.D. N.Y.
DEE Ceduukeaddas ceeebas oedviad bu teedehcwusceuteons 11,16
TaBLe or AUTHORITIES CITED ili
Constitutions
United States Constitution: Pages
Te ince Ul cui L duhOne deus sebenecs eocerece 2,13
oh Fo ie od ne ee obs aeeey 3
i re een padegnp yess beeye Ve eUwENS 3, 14, 23
A ee tte eee eneeeesetedees 14
ES, BO, Co iccuceccnccsctstccecvccveces 3, 23
Rules
Federal Rules of Criminal Procedure, Rule 52 ........... 3, 4, 23
Federal Rules of Evidence:
Ts ee Ue ce Coes cae bes bedekenen bee seeeus 4, 23
MEE. ogi ads cauaen eae he ae PERSE S0000566S 4, 12, 20, 23
Regulations
Title 21, Code of Federal Regulations, Chapter 2, Part 1308 5
Statutes
21 U.S.C.:
EE MR ee cc cuds dh ee chee eeeeunsbeecess 19
ee 2 i es eb on 40nee bee bes 15
ER ee ae de eae neon bewts 2,10
es i cep ene dntheeeees eeeae esses 4,16,17
i ee eke e tue ke pe kaet 15, 19
Ee sol Col oe owen cece eseceeenhese ees 16, 19
I a dese ee agin eeeennsees 19
ee ee iui hinedeunbanceNs 15
ee ee eos See hr ehde 4 PERENCSE NS ae 15
ESS gC 2 Ree ae ee 2,4, 5, 10, 11, 14, 15
EE Ee, ee ere 6
a ee ese rieneee ees 4
ne ed ee ee ese dee ou abe 2,5
SB UBC., Beotiom UZG4A(1) ... 2. cccccccvccessccccveges 2
Texts
Iu the Supreme Cont
OF THE
Rnited States
OctToBER TERM, 1977
No.
Irvine Davis, M.D.,
Petitioner,
VS.
UnitTEeD SraTes oF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
to the United States Court of Appeals
for the Ninth Circuit
Petitioner, Irving Davis, M.D., respectfully prays
that a Writ of Certiorari issue to review the Judg-
ment and Opinion of the United States Court of
Appeals for the Ninth Circuit entered in this pro-
ceeding on October 11, 1977.
Z
OPINION BELOW
In the United States Court of Appeals for the
Ninth Cieuit, an Opinion was rendered and filed
October 11, 1977, and annexed hereto as Appendix 2.
The Opinion of the United States Court of Appeals
for the Ninth Circuit is not yet reported.
JURISDICTION
The Judgment and Opinion of the Court of Ap-
peals for the Ninth Circuit was entered October 11,
1977 (appended hereto as Appendix 2). A timely
petition for rehearing was denied en bane on No-
vember 11, 1977. The United States Court of Appeals
for the Ninth Circuit issued its order staying issu-
ance of mandate to and until December 9, 1977. This
petition was filed within 30 days of November 11,
1977. Jurisdiction of the United States Supreme
Court is invoked pursuant to 28 U.S.C. Sec. 1254(1).
QUESTIONS PRESENTED
1. Does Title 21 U.S.C. Sees. 811, 812, and
841(a)(1) represent a delegation of congressional
power which violates Article I, Section 1 of the United
States Constitution pursuant to this Court’s holdings
in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)
and Schechter Poultry Corporation v, U.S., 295 U.S.
495 (1935) ?
The Court below answered “No”.
a Se
NE ilgwe nas
3
2. Is it plain error within the meaning of Rule 52
to admit government expert testimony on the ultimate
issue of guilt or innocence?
The Court below answered “No”.
3. Did the argument of government counsel amount
to plain error pursuant to Rule 52, Federal Rules of
Criminal Procedure /
The Court below answered “No”.
STATUTORY AUTHORITIES
1. Provisions from the United States Constitution
First Amendment:
“All legislative powers herein granted shall be
vested in a Congress of the United States, which
shall consist of a Senate and House of Repre-
sentatives.”
Sixth Amendment:
“In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the State and district
wherein the crime shal! have been committed,
which district shall have been previously aseer-
tained 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.”
Fourteenth Amendment:
‘Section 1. All persons born or naturalized in
the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall
4
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person
of life, liberty, or property, without due process
of law; nor deny to any person within its juris-
diction the equal protection of the laws... .”
2. Title 21 U.S.C. Sec. 811, et seq. (Appendix 4).
3. Title 21 U.S.C. Sec. 812 (Appendix 5).
4. Title 21 U.S.C. Sec. 841 (Appendix 6).
5
Federal Rules of Criminal Procedure:
Rule 52:
HaRMLEss ERROR AND Pr.AIn Error
(a) Harmless Error. Any error, defect, irreg-
ularity or variance which does not affect sub-
stantial rights shall be disregarded.
(b) Plain Error. Plain errors or defects af-
fecting substantial rights may be noticed although
they were not brought to the attention of the
court,
6. Federal Rules of Evidence:
Rule 704:
Grinton On ULTIMATE IssuE
Testimony in the form of an opinion or inference
otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by
the trier of fact.
Rule 403:
EXcLusIon OF RELEVANT Evipencre ON GrouNDS OF
PREJUDICE, CONFUSION, OR WASTE OF TIME
Although relevant, evidence may be excluded if
its probative value is substantially outweighed
5
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless
presentation of cumulative evidence.
STATEMENT OF THE CASE
On June 30, 1976, Appellant was indicted for a
violation of Title 21, United States Code §841(a)(1),
to wit, distribution of controlled substances, The in-
dictment contained Count One through Count Twenty
alleging that on each of twenty separate occasions,
Petitioner, a physician, unlawfully prescribed and
caused to be distributed to an ultimate user, certain
Controlled Substances listed in schedules included in
Title 21, United States Code, §812, and Title 21, Code
of Federal Regulations, Chapter 2 Part 1308, and
that said acts of distribution in each instance were
not in the usual course of professional practice and
were not for a legitimate medical purpose. (C.T. 1).’
On August 6, 1976, defendant pled not guilty to each
and every count of the indictment. (C.T. 211).
On Monday, November 15, 1976, the trial of Appel-
lant commenced. The trial continued from day to day
until Friday, November 19, 1976.
On November 17, 1976, the Court instructed the
jury and the jury commenced its deliberations. There-
‘All designations by “C.T.” are to the Clerk’s Transcript on
appeal.
6
=)
after, the jury returned its verdict of “guilty” as to
Count One through Count Twenty of the indictment
herein.
On December 10, 1976, the Court rendered its judg-
ment that defendant is guilty as charged in each of
Counts One through Twenty of the indictment, and
that the defendant be and is hereby sentenced to five
years probation, and, a fine of $1,500 on each of said
twenty counts, or, a total fine of $30,000. (C.T. 204)
(appended hereto as Appendix 1).
On December 15, 1976, defendant filed his Notice
of Appeal from the judgment of the trial court. (C.T.
205).
The convictions of Petitioner rested on the testi-
mony of three undercover agents sent into Petitioner’s
office by the Drug Enforcement Administration for
the purpose of investigating his prescribing practices.
Kach undercover agent held herself out as a former
patient of the doctor and each testified they were
given drugs by Petitioner upon request without a
physical examination or other indictions of medical
need, (R.T. 0085 through R.T. 0352)’ The drugs pre-
scribed were controlled substances listed under
Schedule 2 pursuant to Title 21, U.S.C. See. 812(a),
to wit: Seconal, Tuinal and Ritalin as charged in the
indictment.
In the course of the trial, an expert witness called
by the government, Dr. Frederick Mevers, testified
*All references by “R.T.” are to the Transcripts of Trial Pro-
ceedings in U.S. v. Irving Davis, M.D., U.S. Distriet Court,
Northern District of California, No. CR 76-373.
7
to his opinion that the drugs prescribed for the
undercover agents were not prescribed in the usual
course of professional practice and for -.a legitimate
medical purpose. (R.T. 0487, lines 3 through 8; page
0491, line 16).
Furthermore, the government expert gave the fur-
ther opinion that the defendant was simply “selling
scripts” rather than practicing medicine, (R.T, 0492,
line 1).
The trial court overruled all objections thereto,
holding that the experts were entitled to give their
opinion as to what the ultimate question is. (R.T.
0492).
At the conclusion of the trial, both counsel argued.
The United States Attorney engaged in the following
argument (taken from the context of closing argu-
ments reported at R.T. 0826 through R.T. 0909) :
“ . , and when a doctor is under investigation,
and it’s believed that he is engaging in illegitimate
prescription practices, it’s their job to go and find
out if that’s happening.”
(R.T. 0828 :19-22). ’
“And do vou think ... people who are addicts,
and hypes, and drug abusers, are going to turn
in, and turn over on, their source and _ testify
against their source?”
(R.T. 0829 :6-8).
“They write prescriptions for people in situations
where they know these drugs are going to be
abused; and they do it for money.”
(R.T. 0830:7-9).
8
“Perhaps it’s symptomatic of our society that
drugs are too much a part of it. And people rely
on them too much, And that might be partly the
fault of the doctors and the drug companies, But
that’s not really part of this case.”
(R.T. 0832 :14-17).
“There’s even testimony that his—his receptionist,
his very own receptionist, was high on drugs
when he was there at the office.
“Now [ ask you: what kind of treatment was
being conducted
Mr. Martinez: Pardon me, your Honor, I’m
. interrupting, with reluctance .. .
The Court: Your objection is sustained.
Mr. Martinez: Thank you. May the remarks
of counsel
The Court: There’s no evidence that the re-
ceptionist was high on drugs.
Mr. Eddelman: Well, there was the testimony
of a witness, your Honor, that she believed he
was.
The Court: Well...
Mr. Martinez: As a matter of fact, I should
make my record on this——
The Court: Yes. The objection is sustained.
Mr. Martinez: to strike it out, and ask
the jury to be instructed to disregard it, please,
your Honor.”
(R.T. 0840:8-25).
“. . . When doctors cease acting as doctors, and
become purveyors of drugs on the street, and
makes it easy for people who are drug abusers
to obtain drugs, then something has to be done.
And with Dr. Davis, I think something has to
be done.”
(R.'T. 0843 :16-20).
PPE PEN he
9
“ . . the testimony that vou’ve had, that people
have come forward and given is that at no time in
any visit did they ever sav why they wanted the
medication. I mean that’s the evidence. That was
part of their training and that was how they
were instructed, ‘Don’t tell the doctor why you
want the medication’ .. .”
(R.T. 0902 :24 through 0904:4).
“People come in, they get these drugs and they
go out on the street and they sell them because
things like Ritalin and Seconal go for two or
three dollars a pill out on the street; and it’s just
great, you know, if you can get them from
doctors and there are doctors, script doctors what
know this and this is how they make money, they
don’t practice medicine, they write script.”
(R.T, 0904 18-24).
. maybe in his own mind, he felt that it’s
better to give to people out on the street what-
ever they want so they don’t have—they can get
it without having to buy it on the street. Maybe
that’s the way he runs his practice, to avoid
having people to have to spend the two or three
dollars a tab.”
(R.T. 0905 :5-10).
“ .. there are doctors that don’t practice medi-
cine anymore, but just write script to make
money, do things not in the interests of their
patients. Giving these restrictive drugs to a per-
son who is an abuser is not doing something in
the interests of the patient. It’s letting a person
continue with his abuse and it’s making a small
profit on each transaction on the side, so the
doctor profits and he’s not doing anything to
alleviate suffering. He’s promoting and maybe
counsel—- —
be
10
Mr. Martinez: Pardon me, your Honor, I’m
listening to this and there is no evidence on the
question to which counsel is addressing himself
and I’m—as much as I am reluctant to inter-
rupt
The Court: Well, tell me what part.
Mr. Martinez: May I move to strike out the
argument he is making in generalities about the
street people in whatever context he just stated
it, and I am asking the Court to admonish the
jury to disregard it.
There is no evidence in regard to doctors gen-
erally and the abuse problems, et cetera.
The Court: That’s correct. There isn’t that.
Mr. Eddelman: No, your Honor. I am just
responding to his argu ent about the kind of
patients the doctor treats and his intentions.
That’s been brought up.
The Court: That’s a little different than the
statements that vou made, ‘We all know doctors
sell script.’ I don’t think there is any evidence
that we all know that doctors sell script, so there
is no evidence before this jury of that.”
(R.T. 0906:15 through 0907 :18).
OPINION BELOW
In its opinion filed October 11, 1977 (Appendix 2),
the Court of Appeals considered, in turn, each of the
questions presented te this Court for review. In de-
ciding that 28 U.S.C. Secs. 811 and 812 is not an un-
constitutional delegation of congressional power, the
fourt of Appeals reasons that the 1935 Supreme
Court cases, Panama Refining Company v. Ryan, 293
U.S. 388 (1935) and Schechter Poultry Corporation
11
v. United States, 295 U.S. 495 (1935) to be inappli-
cable to the comprehensive drug abuse prevention and
control act insofar as that act delegates authority to
the Attorney General and to the Administrator of
the Drug Enforcement Administration with respect
to amendment of schedules listed in 21 U.S.C. 812.
The Court of Appeals relies on United States v.
Piatti, 416 F.Supp. 1202, 1205 (E.D. N.Y. 1976) the
holding of which distinguishes Panama Refining Com-
pany v. Ryan, supra, 293 U.S. 388 (1935) and, Schech-
ter Poultry Corporation v, United States, supra, 295
U.S. 495 (1935) on the facts. No case is cited by the
opinion of the Court of Appeals as overruling or
clearly distinguishing Panama Refining Co., or
Schechter Poultry Corporation from that of Petitioner
(as will be discussed in the argument), but the Court
of Appeals refers to and seems influenced by 1 Davis,
Administrative Law Treatise, Section 2.01, which
theorizes that the Panama case was an unusual one
which would not be followed today by this Court.
Furthermore, that the Schechter case involved “ex-
cessive delegation of the kind that Congress is not
likely again to make.” 1 Davis, Administrative Law
Treatise, Section 2.01. (Opn. Court of Appeals, Ap-
pendix 2, page viii, fn.).
Otherwise, the Court of Appeals cites as contrary
to the position of Petitioner herein, United States v.
Piatti, 416 F.Supp. 1202, 1205, and United States v.
Benish, 389 F.Supp. 557 (1975), affirmed without
opinion. (Opn., page vil). Each, in substance, seems
to conflict with Panama and Schechter.
12 .
The exclusive authority cited by the Court of Ap-
peals from this Court is U.S, v. Moore, 423 U.S. 122,
144-145 (1975), which does not decide the issue of
delegability of the congressional power herein com-
plained of.
On Petitioner’s complaint that the expert testimony
of government witness Dr. Frederick Meyers “on the
ultimate issue” was improperly admitted, the Court
of Appeals holds that Rule 704 of the Federal Rules
of Evidence forecloses the issue. (Opn., page x).
Futheremore, to the final issue presented here for
review, the Court of Appeals concludes that the
opening statement of Defense Counsel demonstrated
that both sides went beyond the usual limit of per-
sonal opinion in arguments, and there was, therefore,
no reversible error, (Opn., page xvi). However, the
statements of the government attorney seem in no
way to answer the substance thereof, Certainly, pur-
suant to the authorities, such improper statements
cannot be Justified by the opening statement of counsel
for the Petitioner, No other justification or explana-
tion of the prosecutor’s remarks is set forth in the
opinion below, (Appendix 2), With these and other
views expressed in Appendix 2, the Court of Appeals
affirmed all convictions,
13
QUESTIONS PRESENTED
AND
SUMMARY OF ARGUMENTS
The Statute Under Which Defendant Was Charged and Con-
victed Represented an Unconstitutional Delegation of Con-
gressional Poewor; Furthermore, Opinions of Government
Experts and Arguments of Government Counsel Infected the
Proceedings.
Certiorari should be granted because:
A. The issue turns on the question of the propri-
ety of congressional delegations of its authority and
power pursuant to the United States Constitution,
Article I, Section 1.
B. The validity of such congressional delegations
of its power to the executive branch of our govern-
ment is not answered by the current authorities.
C. The singular authority from the Umited States
Supreme Court on this issue seems to be Panama
Refining Company v. Ryan, 293 U.S. 388, 55 8.Ct. 241,
79 L.Ed. 446 (1935) and Schechter Poultry Corp. v.
United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed.
1570 (1935), which authority though still the law is
observed in the breach by U.S. Courts throughout the
country.
D. The law promulgated by Panama and Schech-
ter Poultry Corp. has led to conflicting decisions in
the states: disregarded by some, and distinguished by
others, but never directly acted upon by this Court;
and
FE. Involves an area of law which particularly
lends itself to the serutiny of this Court inasmuch
as, otherwise, there is unchecked interaction herein
14
between the legislative and executive branches of our
government.
Kh. Resulting from the freely expressed opinion
of guilt by the government expert witness, and, the
often repeated, clearly improper arguments by the
government attorney, petitioner has been denied an
lipartial jury (U.S. Constitution, Amendment V1),
and due process of law (U.S. Constitution, Amend-
ment IN). The opinion of the Court of Appeals
seems not to come to grips with the issues presented ;
lot even discussing in context the remarks complained
of by the government attorney.
Such departures from the accepted and usual
course of judicial procecdings ought to be reviewed
bv this Court.
ARGUMENT
I
THE ISSUE OF IMPROPER DELEGATION ARISES UNDER THE
FIRST AMENDMENT. THE INDICTMENT AND CONVICTION
OF PETITIONER WAS BY EXECUTIVE ACTION DEFINING
A CRIME PURSUANT TO AUTHORITY DELEGATED BY CON-
GRESS. SUCH DELEGATION MUST STAND THE SCRUTINY
OF THIS COURT IF OUR SYSTEM BASED ON CHECKS AND
BALANCES 1S TO BE MAINTAINED.
Panama Refining Company ve Ryan, 293 U.S.
388, 59 S.Ct. 241, 79 L.Ed. 446 (1935); and
Schechter Poultry Corp. v. United States, 295
U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1925).
Our claim before the Court of Appeals, and now,
is that republishing of schedules listed in 21 U.S.C.
15
Sec. 812 and with omissions or additions made pursu-
ant to 21 U.S.C. See. 81i1(a) does, in effect, create
crimes and penalties therefor, A flaw leading to our
claim of invalidity, is that nowhere in the “Act’” is
there a provision requiring or permitting that Con-
gress review, affirm, or ratify the publication or re-
publication of schedules creating new offenses by the
inclusion of drugs, or by the reclassification of drugs
previously included, To “add” [21 U.S.C. See. 801(1),
810(1)], to “transfer” [21 U.S.C. See. 811(1) and
(2)] and to “remove” [21 U.S.C. Sec. 811(2)] actually
is an exercise by the Attorney General, the Adminis-
891 U.S.C. See. 811(a) provides in relevant part that
“ . . 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 yo-
tential for abuse, and
(B) makes with respect to such drug or other substance
the findings prescribed by 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 frem the schedules
if he finds that the drug or other substance does not meet
the requirements for inclusion in any schedule.”
21 U.S.C. See. 811(¢):
“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 following factors with
respect to each drug or other substance proposed to be
controlled or removed from the schedules:
(1) Its actual or relative potential for abuse.
(2) Seientifie evidence of its pharmacological effect, if
known.
(3) The state of current scientific knowledge regarding
the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of
a substance already controlled under this subchapter.”
16
trator of the Drug Enforcement Administration, or
possibly designated subordinates, of a power appro-
priately reserved to Congress. Furthermore, a drug
can be inelnded in any schedule even though not
previously subject to control, Title 21 U.S.C. See.
SkI(b), (ce). The Court of Appeals, in relying en
United States v. Piatti, 416 F.Supp. 1202, 1205
(E.D. N.Y. 1976) holds that delegation of the power
complained of herein is constitutional if accompanied
by sufficient guidelines and standards for the exer-
cise of authority. (Appendix 2, pages vi-vii).
It is true that the Attorney General must consider
eight factors outlined in 21 U.S.C. See. 811(¢) in de-
termining whether to include a drug.
That the included drugs have “potential for abuse”
is the first requisite and seems critical. However, no-
where in the Act are there guidelines for evaluation
of sticii a potential, and absent thereof such a stand-
ard seems so vague as to be utterly without intel-
ligible content depending only on the subjective
attitudes of those entrusted to make that determina-
tion."
In Howell v. Mississippi, 300 So.2d 774 (Miss.
1974) the Supreme Court of Mississippi held uncon-
stitutional state legislation closely modeled on the
Federal legislation here in question, 21 U.S.C. See.
‘If potential for abuse is the actual test, consider the relative
position of alcohol and aspirin on the schedules. Alcohol, it can
he noticed, is thought by some to rank with heroin in potential
harm, and is the subject of addiction for millions of Americans.
Untold thousands of children perish each vear from the aecidental
ingestion of aspirin. Neither drug is contained on the schedules.
te ee wr ee
17
&11, et seq. The Supreme Court stated that action of
the state administrative agency (the State Board of
Health) in rescheduling amphetamines from State
Schedule 3 to State Schedule 2, and thereby increas-
ing the criminal liability for unauthorized possession,
“infringed on the separation of the powers of the
government and is prohibited”.
The Supreme Court of Mississippi held:
“the authority to define crimes and fix the pun-
ishment therefor is vested exclusively in the
legislature, and it may not delegate that power
either expressly or by implication. ...” at 781.
In Hampton v. Mow Sun Wong, 426 U.S. 122 (1976),
Mr. Justice Rehnquist reflects somewhat on the
United States Supreme Court’s failure to review the
applicability of the holding in Schechter Poultry
v. United States, supra, 295 U.S. 495, and Panama
Refining Company v. Ruan, supra, 293 U.S. 388, and
does not determine the answer to Mr. Justice’s own
query as to whether such authorities “are still viable
or whether they now rest on a rusted concept”. Mr.
Justice Rehnquist, however, acknowledges — that
Schechter Poultry was relied upon by the Supreme
Court in National Cable Television Association, Ine.
v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.
370 (1974), which would seem to tip the scales to
viability, if, indeed, of a rusted concept too long ig-
nored by this Court.
Leaving the apparent lack of uniformity of view,
and considering, in context, Panama Refining Com-
pany v. Ryan, supra, and, Schechter Poultry Cor-
18
poration, supra, in each case, Congress legislated
to the President of the United States certain excess
powers found to be an unconstitutional delegation. In
Panama the President was held to have no power
to prohibit the shipment in interstate commerce
of oil produced in excess of state quotas. A significant
factor in this Court’s decision to strike down the dele-
gation was that the regulations, as here, bore criminal
penalties for their violations.
In Schechter, the delegation was of the power to
formulate codes of “fair competition” for industry.
The stated policy was:
" . to chminate unfair, competitive practices,
to promote the fullest possible utilization of the
present productivity of industries ... and other-
wise, to rehabilitate industry .. .” S.P. Corp.,
supra.
In U.S. ve. Louisville and N.R. Company, 176 F.
940 (1910) at page 944, the Court defines the stand-
ard: .
“A erime ean be created only by a publie act,
and the language of the act must be sufficient to
completely declare and define the crime and affix
punishment. It is not competent for Congress to
delegate to the President or the head of an Ex-
ecitive department the power to declare what
facts constitute an offense.”
The principle is) further enunciated ino United
Slates v. Baton, 144 US. 677 at OST (1972):
“ . . there is a principle of criminal law that
an offense whieh may be the subject of eriminal
procedure, is an act committed er omitted ‘in
19
violation of a public law either forbidding it or
commanding it’ ”.
The failure in regard to 21 U.S.C. Sees. 801 et seq.
is that once enacted an unspecifica individual desig-
nated as the Attorney General has the authority to
add new substances to the schedules thereby creating
new crimes. That the power is invested in the chief
prosecutor of the nation we feel to be of significance,
and again, scems to erode the system of checks and
balances so carefully preserved in the Constitution.
The vagueness of the statute in question is illus-
trated by 21 U.S.C. See. 811(¢) which merely requires
that the Attorney General and, where applicable, the
Secretary of Health, Education and Welfare “con-
sider” the factors prescribed for inclusion of a drug
on the schedule. The formal findings specified in Sees.
81l1(a) and 812(b) remain hased on subjective con-
sideration of the Attorney General. Even though the
responsibility of investigating the eight factors listed
in See. 811(¢) is shared with other arms of the exeeu-
tive branch by virtue of See. 811(b) the Act does
not provide Congress with the power to review or to
‘atify the creation of crimes thereunder.
The issue should be reviewed, and petitioner's
rights determined only incidentaliv to the interest of
clearing, once and for all, the ambignous position of
this Court thereon,
20
II
NOTWITHSTANDING RULE 704 OF THE FEDERAL RULES OF
EVIDENCE, IT IS PLAIN ERROR PURSUANT TO RULE 52
OF THE FEDERAL RULES OF CRIMINAL PROCEDURE TO
ADMIT GOVERNMENT EXPERT TESTIMONY THAT PETI-
TIONER WAS “SELLING SCRIPTS” AND NOT PRACTICING
MEDICINE.
The testimony complained of is as follows:
“Q. Now, doctor, I’m going to direct your
attention specifically now to the three people that
testified in this case, Ms. Dalton, Ms. Detro and
Ms. Crane. [| direet vour attention to the ex-
periences which they have related concerning
their visits to Dr. Davis.
Now, in view of the materials vou have been
furnished and your discussions with me and your
view of the photographs, have vou been able to
form an opinion as to whether or not, in the
usual course of professional practice— excuse me,
let me rephrase that, fare you been able to form
an opinion as to whether or not these drugs that
were prescribed for these three people were
prescribed in the usual course of a professional
practice and for a legitimate medical purpose?
A. In my opinion, they were not.”
Page OAST 23-8:
“Q. Would it be fair to say, then, in your
professional opinion as a doctor, that with respect
to the prescriptions issued to Sharon Dalton on
the dates of her visits, that they were not issued
in the usual course of a_ professional practice,
nor for a legitimate medical purpose ?
A. That’s my opinion...”
21
Page 0489 :9-17:
“Q. Do vou have an opinion whether the pre-
scriptions that were issued to her, based on re-
ports of her visits, were issued in the course—
in the usual course of a professional practice,
and for a legitimate medical purpose ?
A. I have such an opinion.
Q. O.K. And what is your opinion?
A. I think it’s the same as in the other two
eases; that this was not—this does not represent
the practice of medicine.”
Page 0491:16: .
“Q. Doctor, finally, in your opinion, when Dr.
Davis wrote these prescriptions, was he prac-
ticing medicine or just writing script?
A. Well, he was—
Mr. Martinez: .Pardon me, your Honor, I
think this is going to be an ultimate question for
the jury.
The Court: Well, experts are entitled to give
their opinion as to what the ultimate question is
and the jury’s questions is another question sep-
arate from that. Your objection is overruled.”
Page 0492:1:
“Mr. Martinez: Very well, thank you.
Mr. Eddelman: Q. Yes, Doctor, go ahead.
A. In my opinion, this pattern is that of a
doctor who is selling scripts rather than prac-
ticine medicine.”
The position of Petitioner is that the controlling
case is United States v. Green, 511 F.2d 1062 (1975).
In that case, the defendant complained that the ex-
pert testimony of Dr. Howard D. Kurland as to
22
customary procedures followed by leensed medical
physicians and treating a new patient prior to pre-
scribing a controlled substance as medication invaded
the province of the jury. The Court responded as
follows:
“While it may be true that an erpert should not
be allowed to express a conclusion upon the ulti-
mate issue of fact to be decided by the jury
[United States v. Spaulding, 293 U.S. 498, 55
S.Ct. 273, 79 L.Ed. 617 (1935)], the testimony
of Dr. Kurland in the present case was eitirely
proper. Here Dr. Kurland merely testified as
to what customary medical procedure was gener-
ally followed before the prescribing of drugs. He
did not comment on whether the procedures fol-
lowed by the defendant were appropriate, given
the individual natevre of his patients’ conditions.
That’ question was properly left for the jury’s
determination... (Emphasis added) United
Slates «. Bartee, 479 F.2d 484, 488 (10th Cir.
1973); Heller v. United States, 104 F.2d 446, 449
(4th Cir. 1939).”
United States ve Green, OIL F.2d 1062 at 1072-
73.
The United States Court of Appeals determined
that the Federal Rules of Evidence, adopted January
21, 1975, and the cases cited by the government there-
after, were controlling and rendered all authority
prior theretc obsolete. See Appendix 2, pages x-xi.
In US. v. MeCoy, 589 F.2d 1050 (9th Cireuit,
1976) relied upon by the Court of Appeals, the Court
stated that even if the conclusion offered therein be
permissible,
23
“We have frowned upon the practice of asking
an expert to give conclusions as to the entire case.”
To the degree that the opinion of the government
experts invade the province of the jury, we feel it to
be outside the language of Rule 704. Furthermore,
the Federal Rules of Evidence, Rule 403, provides
that even relevant evidence may be excluded if there
is unfair prejudice. The conclusions complained of
from the government expert were not. needed to assist
the trier of fact, and, the opinion of the government
expert that petitioner was not practicing medicine
but was “selling scripts” creates exactly the kind of
prejudice the application Rule 403 is designed to
prevent. Any apparent conflict should be reviewed by
this Court and uniformity established.
A query is whether Rule 704 of the Federal Rules
of Evidence in this case has by its application de-
prived Petitioner of a trial by an impartial jury
pursuant to the United States Constitution, Amend-
ment Six, and, amounting to a denial of due process
of law guaranteed by the United States Constitution.
Amendment Fourteen.
Ill
WE ASK FOR CONSIDERATION OF OUR POSITION THAT ARGU-
MENTS ENGAGED IN BY THE UNITED STATES ATTORNEY
AMOUNTED TO PLAIN FRROR (RULE 52).
We feel the issue for this Court is whether or not
there has been application of the concept of fairness
pursuant to Amendment Fourteen, United States
Constitution. It has been said:
24
“Due process of law requires that the procedings
shall be fair, but fairness is a relative, not an
absolute coneept .. . what is fair in one set of
circumstances may he an act of tyranny in
others”,
Snyder ve. Massachusetts, 279 U.S. 97, 116, 177
(1934).
Also, it has been said that:
“as apphed to a criminal trial, denial of due
process is the failure to observe that fundamental
fairness is essential to the very concept of justice.
In order to declare a dental of it... (the court)
must find that the absence of that fairness fatally
infected the trial; the acts complained of must
be of sueh quality as necessarily prevents a fair
trial.”
Lisenba v. California, 314 US, 219, 286 (1941).
It is not claimed in the opinion of the Court of
Appeals that defense counsel’s opening statement, or
evidence in the case during the trial, supported the
construction of the United States Attorney’s remarks
in closing argument that Petitioner was the souree
of drugs for addicts and hypes and drug abusers
CRAP. O829:6-8); that his own receptionist was high
on drugs, that Dr. Davis had “become (a) purveyor
of drugs on the streets”. (R.T. 0843 :16-20). Applica-
tion of the standard set by the Seventh Circuit
in United States v. Fearns, 501 F.2d 486, 489 seems
appropriate :
*... the fundamental rule known to every lawyer,
is that argument is hmited to the facts in evi-
dence ... in any event counsel are never justified
in arguing facts not of record.” At page 489.
25
In United States v. Kung How Fong, 475 F.2d 189
(Ninth Circuit 1973) the Court aiiudes to prejudicial
and inflammatory remarks from government attorneys
being cause for reversal if there is prejudice to a
defendant’s “chance to receive a fair trial”. Kung
How Fong does not examine the standard but cites
United States v. Cummings, 468 F.2d 274 (Ninth
Circuit 1972). In Cummings the United States Attor-
ney discussed in detail the mechanics by which a
defendant is indicted. The inference clearly was the
defendant must be guiity to have been prosecuted.
The Court recognized the extreme prejudice and
stated :
“Where is the presumption of innocence here?
Where the requirement that the jurv consider only
the evidence in the case; where the government’s
burden to prove its case beyond a_ reasenable
doubt?” At page 278.
We feel the Court of Appeals in its opinion affirm-
ing the conviction of Petitioner has rendered a deci-
sion in conflict with the authorities on the same
matter, has decided an important question of Federal
law which has not been but should be settled by this
Court and has decided a Federal question in conflict
with the applicable decisions of this Court relative
to due process of law. Furthermore, in the opinion
of the Court of Appeals, the concern is with the
opening statement of Defense Counsel rather than
with the remarks of the prosecutor. The failure of
the Court of Appeals to consider the government
attorney’s remarks in the context of the authorities
sanctions a departure from the accepted and usual
26
course of judicial proceedings calling for an exercise
of this Court’s power of supervision,
SUMMARY AND CONCLUSION
The Supreme Court should settle the recurring
delegation questions resulting in confusing and con-
tradictory decisions in the lower courts, The interest
of this Court is in preserving the system of checks
and balances, and, indeed, reserving to Congress the
powers invested in that body by the United States
Constitution,
Furthermore, a clarification of the standards of
this Court relative to due process of law is appro-
priate in connection with the complaints of Petitioner
herein that government witnesses and the United
States attorney, by their remarks, infected the pro-
ceedings. Is it appropriate under the Rules of Evi-
dence for a government expert to give an opinion of
euilt and a United States Attorney to suggest to a
jury that there are incriminating facts known to him
which have not been developed in the evidence ?
A Writ of Certiorari should issue to review the
opinion of the Court of Appeals for the Ninth Cireuit
herem,
Respectfully submitted,
Givorce CC. MARTINEZ,
Counsel for Petitioner.
Dated, December 8, LOTT,
(Appendices Follow)
Appendices
Appendix |
United States District Court for the
Northern District of California
Docket No. Cr 76-373 SC
United States of America
Vs.
Irving Davis, M.D.,
Defendant.
{| Filed Dec. 10, 1976}
Counsel
In the presence of the attorney for the government
the defendant appeared in person on this date (De-
cember 10, 1976).
[ ] Without Counsel However the court advised
defendant of right to counsel and asked
whether « ‘endant desired to have counsel
appointed by the court and the defendant
thereupon waived assistance of counsel.
[X] With Counsel George C. Martinez, Esq.
(Name of counsel)
Plea
[ ] Guilty, and the court being satisfied that there
is a factual basis for the plea.
[ ] Nolo Contendere.
[X] Not Guilty.
li
Finding & Judgment
There being a verdict of
[ ] Not Guilty. Defendant is discharged
[ X ] Guilty.
Defendant has been convicted as charged of the
offense(s) of distribution of controlled substances, in
violation of Title 21, U.S.C., Section 841(a)(1) as
charged in a twenty-count indictment.
Sentence or Probation Order
The court asked whether defendant had anything to
say why judgment should not be pronounced. Because
no sufficient cause to the contrary was shown, or ap-
peared to the court, the court adjudged the defendant
guilty as charged and convicted and ordered that: The
defendant is hereby committed to the custody of the
Attorney General or his authorized representative for
imprisonment for a period of
IT IS ADJUDGED that the defendant is placed
on probation for a period of FIVE (5) YEARS;
and the defendant is to pay a fine to the United
States in the sum of fifteen hundred ($1,500.00)
dollars as to each of the twenty (20) counts for
a total of thirty thousand ($30,000.06) dollars to
be paid in such amounts as are determined by
the Probation Department.
Special Conditions of Probation
iii
Additional Conditions of Probation
In addition to the special conditions of probation
imposed above, it is hereby ordered that the general
conditions of probation set out on the reverse side of
this judgment be imposed. The Court may change the
conditions of probation, reduce or extend the period
of probation, and at any time during the probation
period or within a maximum probation period of five
years permitted by law, may issue a warrant and re-
voke probation for a violation occurring during the
probation period.
Commitment Recommendation
The court orders commitment to the custody of the
Attorney General and recommends,
It is ordered that the Clerk deliver a certified
copy of this judgment and commitment to the
U.S. Marshal or other qualified officer.
Signed by [XN] U.S. District Judge
/s/ Samuel Conti
Date 12/10/76
Entered in Criminal Docket 12/13/1976
4
iv
Appendix 2
United States Court of Appeals
for the Ninth Circuit
No. 76-3720
U nited States of America, )
Plaintiff-Appellee,
Vs. ‘
Irving Davis, M.D.,
Defendant-Appellant. :
[Filed Oct. 11, 1977]
Appeal from the United States District Court
for the Northern District of California
OPINION
Before: Barxes and Wricut, Circuit Judges, and
JAMESON,” District Judge
BakNES, Senior Circuit Judge:
A jury convicted Irving Davis, M.D., on 20 counts
for having, on 20 separate occasions, unlawfully “pre-
scribed and caused to be distributed to an ultimate
user” certain quantities of “controlled substances”
listed in 21 U.S.C. § 812 and Title 21 Code of Federal
Regulations, Chapter 2, Part 1308, which acts of dis-
tribution in each instance were not in the usual course
*Honorable William J. Jameson, Senior District Judge for the
District of Montana, sitting by designation.
Vv
of professional practice and were not for a legitimate
medical purpose. The drugs involved herein were
Seconal, Ritalin and Tuinal.
Counsel for defen nt moved (a) for judgment of
acquittal, as to each count, at the conclusion of the
Government’s case (Rule 29 of the Federal Rules of
Criminal Procedure [“FRCrP”]); (b) for judgment
of acquittal on each count after the case went to the
jury (Rule 29(c) of the FRCrP); (¢) for a new
trial (Rule 33 of the FRCrP); and (d) for arrest
of judginent after trial (Rule 34 of the FRCrP).
All such motions were denied,
Appellant was sentenced to five years probation,
and a fine of $1500 on each of the 20 counts, a total
fine of $30,000. This appeal follows. We have juris-
diction. (28 U.S.C. § 1291).
Appellant raises the following issues:
1. Whether 28 U.S.C. § 811 amounts to an uncon-
stitutional delegation of Congressional power.
2. Whether the independent, knowing actions by
government agents can be an element of the offense
and charged against the defendant.
3. Whether the trial court erred in admitting con-
clusionary testimony of the government expert.
4. Whether the trial court erred in admitting into
evidence certain photographs obtained by allegedly
unconstitutional methods and supposedly withheld
from defense counsel prior to the day of trial.
5. Whether the trial court erroneously instructed
the jury as to the law.
vi
6. Whether the argument of government counsel
was plain error within the meaning of Rule 52 of the
FRCrP.
7. Whether the evidence was, as to all counts or
certain enumerated counts, insufficient as a matter of
law.
8. Whether the 20 counts herein were multipli-
cious. We consider each issue in turn.
I
Appellant initially argues that Congess, in passing
the Comprehensive Drug Abuse Prevention & Control
Act (herein “the Act”) has unconstitutionally dele-
gated its authority to define a crime and specify
penalties for its violation to the Attorney General
(and to the Administrator of the Drug Enforcement
Administration) with respect to amendment of the
schedules listed in 21 U.S.C. § 812. Without citing
specifie case authority, appellant makes the claim
that any republishing of the schedules, with any omis-
sions or additions made pursuant to 21 U.S.C.
§ 811(a),' “would in effect, be a determination of a
new drug crime and new penalties.”
21 U.S.C. § 811(a) provides in relevant pa.: that
“the Attorney General may by rule
(1) add to such a schedule or transfer between such sehed-
ules any drug or other substance if he—-
(A) finds that such drug or other substance has a poten-
tial for abuse, and
(B) makes with respect to such drug or other substance
the findings »reseribed by subsection (b) of section 812 of
this title for the scnedule 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 inclusion in any schedule.”
vil
The cases are against any such proposition. United
States v. Benish, 389 F. Supp. 557 (1975), affirmed
without opinion; United States v. Benish, 523 F.2d
105 (1975), cert. denied, 424 U.S. 954 (1976); United
States v. Rosenberg, 515 F.2d 199, 196-197 (9th Cir.),
cert. denied, 423 U.S. 1031 (1975); United States v.
Piatti, 416 F. Supp. 1202, 1205 (E.D.N.Y. 1976).
The federal courts have long held that Congress
may validly provide a criminal sanction for violation
of rules or regulations which it has empowered the
President, a cabinet member or an administrative
agency to promulgate. Avent v. United States, 256
U.S. 121, 130-131 (1924); McKinley v. United States,
249 U.S. 397, 399 (1919); United States v. Grimaud,
220 U.S. 506, 512-514 (1911); United States v. Berri-
gan, 482 F.2d 171, 182-183 (3rd Cir. 1973). Such dele-
gation of authority must be accompanied by sufficient
guidelines and standards for the exercise of the au-
thority. There are sufficient guidelines and standards
expressed in the language cf 21 U.S.C. § 811 itself
(see subsections (b) and (c) of § 811), in addition to
the application of the protections of the Administra-
tive Procedure Act. United States v. Eddy, 549 F.2d
108, 112-113 (9th Cir. 1976).
Appellant relies heavily on two 1935 Supreme Court
eases, Panama Refining Co. v. Ryan, 293 U.S. 388
(1935) and Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935). The Government quotes 1 Davis,
Administrative Law Treatise, Sec. 2.01 in reply.? How-
“. . [nJeither delegation was to a regularly constituted
administrative ageney which followed an established proce-
dure designed to afford the customary safeguards to affected
viii
ever, the prosecution also relies on the previous deci-
sions of this court based on facts somewhat similar
to those here appearing. They are: Uniied Siaies v.
Goldfine, 538 F.2d 815, 819 (9th Cir. 1976); Rosen-
berg, supra, 515 F.2d at 195; United States v. Larson,
507 F.2d 385 (9th Cir. 1974); and particularly the
Supreme Court’s unanimous decision in United States
v. Moore, 423 U.S. 122, 144-145 (1975). “The imph-
cation is that physicians who go beyond approved
practice remain subject to serious criminal penal-
ties.” Id.
We agree that the cases frvaf This circuit, as well
as other cireuits and districts are controlling on the
first issue appellant raises, and that the Act is not
constitutionally infirm. In particular, we find the
discussion of this issue in United States v. Piatti,
supra, 416 F. Supp. at 1205-1206, to be convincing and
consistent with our conclusion herein. Cf. United
States v. Harper, 530 F.2d 828 (9th Cir. 1976).
II
Appellant’s second argument is that he cannot be
charged with distributing a controlled substance under
21 U.S.C. §841(a) for two reasons. First, because
the persons who received the prescriptions were gov-
ernment agents and not “patients,” the appellant con-
tends that he did not cause the controlled substances
parties. The Panama case was influenced by exceptional execu-
tive disorganization and in absence of such a special factor
would not be followed today. The Schechter case involved
excessive delegation of the kind that Congress is not likely
again to make.” 1 Davis, Administrative Law Treaties,
Section 2.01.
to be distributed (rather, he asserts, it was the agents).
Second, he argues that the actions of the agents can-
not be charged to him under a principal-agent theory
as they are not innocent agents within the meaning of
18 U.S.C. §2(b). Hence (his argument goes), he
cannot be found to have participated in an essential
clement of 21 U.S.C. §841(a), the ultimate distribu-
tion of a controlled substance. (All the prescriptions
in evidence were obtained from appellant by govern-
ment agents who falsely pretended they were “pa-
tients,” or wanted to become such, while never intend-
ing to be such.)
The difficulty with appellant’s argument is that: the.
appellant was charged with distributing controlled
substances in violation of §841(a)(1). 21 U.S.C.
§ 802(11) states that: “The term ‘distribute’ means
to deliver (other than administering or dispensing)
a controlled substance”; and 21 U.S.C, § 812(8) states:
“The term ‘deliver’ or ‘delivery’ means the actual, con-
structive or attempted transfer of a controlled sub-
stance, whether or not there exists an agency rela-
tionship.” See United States v. Bartee, 479 F.2d 484,
486-487 (10th Cir. 1973). It is clear that, when a
doctor steps out of the usual course of his professional
duties and writes a prescription for someone for a
controlled substance not pursuant to a_ legitimate
medical purpose, he has initiated a transfer of that
controlled substance. No one can fill a prescription
until some person with authority to issue a prescrip-
tion first writes and delivers it. No person, whether
patient or imposter-patient, can have a prescription
x
filled “but for” a physician’s original act of issuing
the prescription. See United States v. Ellzey, 527
F.2d 1306, 1308 (6th Cir. 1976), United States v.
Green, 511 F.2d 1062, 1072 (7th Cir. 1975), and United
States v. Hooker, 541 F.2d 300 (1st Cir. 1976). It
follows that by creating the means by which con-
trolled substances can be transferred, a doctor “dis-
tributes” within the meaning of 21 U.S.C. § 841(a)
by the act of writing a prescription outside the usual
course of professional practice and not for a legiti-
mate medical purpose. We hold that because the “pa-
tients” were government agents and that they, instead
of the doctor, ultimately filled the prescriptions, does
not affect the conviction of appellant herein.
III
Appellant’s third argument is that the expert tes-
timony of Dr. Frederick Meyers “on the ultimate
issue” was improperly admitted. Dr. Meyers testified
that the appellant was not prescribing drugs in the
usual course of a professional practice and for a
legitimate medical purpose. The ready answer to this
asserted error is that because this case was tried in
November 1976, and because Rule 704 of the Federal
Rules of Evidence® was adopted January 21, 1975,
there was no error.
All the eases cited by appellant in support of this
claim of error were decided prior to January 25, 1975.
°Rule 704 of the Federal Rules of Evidence states that:
“Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.”
xi
The Government cites four cases which were decided
after the Federal Rules of Evidence were adopted;
all of which state the testimony of the kind to which
appellant objects was admissible. /.¢., United States
v. Robinson, 544 F.2d 110, 113 (2d Cir. 1976) ; United
States v. McCoy, 5389 F.2d 1050, 1063 (5th Cir. 1976);
United Telecommunications Inc. v. American Tele-
vision Com. Corp., 536 F.2d 1310, 1318 (10th Cir.
1976) ; United States v. Alexander, 526 F.2d 161, 169
(8th Cir. 1975). We find no error.
IV
Appellant’s fourth argument is that the trial court
should not have admitted into evidence Exhibits 21D
and 21E because they were allegedly improperly ob-
tained and because they were supposedly withheld
from defense counsel.
We have here a technical problem with the record
on this appeal, which we discussed at oral argument.
It is sufficient to state that Exhibits 21D and 21K,
two photographs, are not before this court on this
appeal.*
While we are unable from the record to ascertain
precisely what Exhibits 21D and 21E portray, we are
convinced from references to such ‘photographs in
*(1) Rule 10 of the Federal Rules of Appellate Procedure
provides that
“The original papers and exhibits filed in the district court
.. . Shall constitute the record on appeal in all cases.”
(2) Appellant requested no exhibits to be included in the
reeord on appeal.
(3) Appellee requested no exhibits to be included in the record
on appeal.
xu
both the Reporter’s Transcript and the parties’ briefs,
that their admission, if error at all, was harmless
error. Chapman v. California, 386 U.S. 18, 24 (1966).
The exhibits were merely illustrative, cumulative, and
corroborative of oral testimony in the record by wit-
nesses Dalton, Detro and McClellan. We also note
the Government’s expert, Dr. Meyers, did not take
such exhibits into consideration in coming to his ex-
pert opinion, We therefore hold there was no error
justifying reversal.
V
Appellant’s fifth argument is that the trial court
erroneously instructed the jury on the third essential
clement of the 20 offenses charged in the indictment
namely :
“Now, thirdly, you must also find beyond a rea-
sonable doubt that a physician, who knowingly
and intentionally, did dispense or distribute by
prescription certain controlled substances and did
so other than in good faith and not in the usual
course of a professional practice, and not in ae-
cordance with a standard of medical practice
generally recognized and accepted in the United
States.”
In his brief to this court, appellant asserts that “the
objection thereto can be found in R.T. November 19,
1976, pages 33-34.”
‘This reference in Appellant’s Brief to the pagination of the
~ecord is erroneous. It refers to page numbers apparently in-
serted in “dailies” requested by counsel during trial. The Dis-
triet Clerk’s pagination is controlling. The reference should be to
R.T. Vol. V, 916.
ome
xl
Appellant’s counsel is correct in stating that his
objection was made prior to the time the court in-
structed the jury, and when the instructions were
settled.
Appellant’s objection was that the instruction
“seems to say if the doctor is guilty of malpractice,
he can be found guilty of this crime.” The court then
read the instruction aloud, as qucted supra (inelud-
ing the fact that the doctor must knowingly dispense
or distribute by prescription certain controlled sub-
stances) and “did so other than in good faith” ; asking
defendant’s counsel “what’s wrong with that?” (em-
phasis added). Defendant’s counsel answered: “he-
cause it doesn’t say a good faith atten.pt.” The trial
juage then re-read the instruction and declined to
change it. We find no error.’
Vi
Appellant’s sixth contention was that there were
improper arguments engaged in by the United States
Attorney which amounted to plain error. A thorough
“A trial judge need not give an instruction proposed by counsel
by either side, provided he gives adequate instructions on each
element of the case.
“A party bas no vested interest in any particular form of
instructions . . the language of the instruetions is for the
trial court to determine. If on the entire charges it appears
that the jury has been fairly and adequately instructed, the
an ar of the law are satisfied.” United States +
rarcia-Rodriquez, F.2d (decided A )
1977, 9th Cir.) —
See also Tucker v. United States, 151 US. 164 :
J. . t States, 1 5S. , 170, 14 S.Ct.
299, 38 L.Ed. 112 (1893) ; United States v. Edwards, 503 F.2d
838, S41 (9th ( ir. i974) ; -lmsler v. United States, 381 F.2d 37
v2 (9th Cir. 1967) ; Rivers v. United States, 368 F.2d 362. 364
(9th Cir. 1966).
xiv
discussion of the alleged improper arguments took
place at oral argument among the attorneys for the
parties herein and the members of this panel.
Appellant cites good law—that a prosecutor may
not state his personal belief in the guilt of a defend-
ant (unless he asserts he is basing his belief on the
strength of the evidence in the case), any more then
counsel for the defendant may express his personal
belief in his client’s innocence (unless he asserts he is
basing his belief on evidence alone). The Government
attorney did not go so far as to state his personal
beliefs as to the defendant’s guilt. He did, however,
engage in a rambling closing argument and in several
instanees had to be reminded by the trial judge to
keep within evidence produced at trial.
Moreover, at the time of oral argument, it was
asserted that several of the prosecutor's statements
were necessary arguments to refute what counsel for
the defendant had said, either during the trial, or
during his opening statement. This is of particular
significance in this case because, after the Govern-
ment’s six-page opening statement, the record dis-
closes a 33-page opening statement made by counsel
for the defendant—ineluding the use of black-boards,
diagrams and charts with heavy emphasis on what
the defense counsel thought the law was,’ or what he
thought the evidence might be, and such statements as
"For example the defense attorney at one point states: “I
think it is suffieient to say that the law states, in effect, that if
» doctor writes a preseription for a drug without a medical
purpose to a person who is not a patient, without a good faith
belief that he is writing it for a medical purpose, that that’s
improper.”
a
xv
“that the jury must understand the kind of patients
or the kind of doctor you are dealing with, a doctor
with an office in the tenderloin area of San Francisco,’
but that Dr. Davis has never left his patients, and I’m
going to say that he has never abandoned his pa-
tients”; and “I think that one doctor said to me that:
‘Thank Goodness, we have Dr. Davis .
Counsel for defendant described his client to be a
person of advancing age, “has limited use of his left
arm,” “is practically blind in one eye,” and
“he had an unfortunate experience in connection
with his daughter (who) committed suicide, and
T am saying this not to generate any sympathy.
We are not entitled to under the evidence (sic)
but only to give you some insight into the things
that limit a person's view of their own abilities
and their own way of practicing law (sic) and I
will say this to you, that under the law as it’s
written, I am entitled to bring in evidence, and
I will say this first. !¢ doesn’t apply to Dr. Davis,
but I am entitled to bring, in law, bring in evi-
dence to you indicating that Dr. Davis would be
an incompetent doctor and say even if you believe
he is incompetent, he is entitled to an acquittal
unless he possesses that quality of mind the ab-
sence of which requires a conviction; that is to
say, the absence of good faith. We are not saying
that’s true of Dr. Davis. It certainly isn’t true,
but in any event, these events and circumstances
as they apply to Dr. Davis, as they apply to his
999
“ {This} is an area where you might expect to find wnder-
privileged and poor people, people who have had afflictions in
regard to aleoholism, people who have had emotional disturbances
. Who are the down and out, the sufferers, the under-belly of
society . . . asking for help to a man who is kindly, who is
known ... as being sympathetic.”
practice of medicine, do have relevance with the
frame of mind in regard to the frame of mind in
which he views people as they come up the stairs
of his office, as they come into his office, and they
say to him words which, to him, mean, ‘Dr. Davis,
I need help.’ ”
Counsel told the jury in his opening statement how
he himself suffered from insomnia, how Dr. Davis
could have given medical examination to all his pa-
tients, and “do all kinds of tests that are completely
irrelevant to what (the patient is) talking about, and
then send her a bill for 150 to 200 dollars... .”
We could continue a list of matters through which
counsel for defendant was permitted to roam in his
“opening remarks.” We are reminded of the remarks
of a judge of this court in Barzeles v. Kulikowski, 418
F.2d 869, n.1 (9th Cir. 1969), “We have a low opinion
of the planting of this kind of corn in a federal
courtroom.”
The only significance to the unusual nature of the
defendant’s opening statement is to demonstrate that
perhaps each side went beyond the usual limits of
personal opinion in their arguments. However, we
hold there was no reversible error. United States v.
Hoskins, 446 F.2d 564, 565 (9th Cir. 1971).
Vil
Appellant’s seventh alleged error raises the question
of the sufficiency of the evidence to convict. Both the
jury and the trial judge determined there was suffi-
cient evidence. Looking at the evidence in the light
xvii
most favorable to the prosecution, as we must in this
ease, Glasser v. United States, 315 U.S. 60, 80 (1942),
there is no question but that the evidence was sufficient
to justify conviction. United States v. Badia, 490
F.2d 296, 299 (1st Cir. 1973).
VIil
The eighth issue raised (that 21 U.S.C. § 841 does
not contemplate multiplicious charges) is of no merit.”
United States v. Moore, 423 U.S. 122 (1975), United
States v. Hooker, 541 F.2d 300, 305 (1st Cir. 1976) ;
Umited States v. Noel, 490 F.2d 89, 90 (6th Cir. 1974).
Successive prosecutions for separate offenses arising
out of separate transactions are not violative of due
process. Sanchez v. United States, 341 F.2d 225, 229
(9th Cir.), cert. denied, 382 U.S. 856 (1965).
AFFIRMED.
"In this case, of the 20 counts filed, all related to different
dates, except 2/25/76, 3/10/76, 3/23/76, 3/31/76, on which dates
there were, respectively, 2, 4, 2, and 3 prescriptions written.
Kach prescription was for a different Section Il controlled sub-
stance, except on 3/10/76. On that date, there were two pre-
seriptions for “Ritalin.”
_ Thus, all were prosecutions for allegedly separate offenses aris-
ing out of factually distinet transactions, and there was no denial
of due process. Cf. Sanchez v. United States, 341 F.2d 225. 229
(9th Cir.), cert. denied, 382 U.S. 856 (1965), ae
In United States v. Moore, 423 U.S. 122 (1975), the indictment
covered 639 counts alleging unlawful distribution and dispensa-
tion of Methadone (21 U.S.C. § 841(a)(1)), over a 514 month
period. These were reduced before the trial to 40 counts, and the
defendant doctor was convicted on 22 counts. |
Appendix 3
In the United States Court of Appeals
for the Ninth Cireuit
No. 76-3720
United States of America,
Appellee,
vs.
Irving Davis, M.D.,
Appellant.
[Filed Nov. 11, 1977]
ORDER
Before: Barnes and Wricut, Circuit Judges, and
JAMESON, District Judge.”
The panel hearing this case unanimously denies the
Petition for Rehearing.
*{fonorable William J. Jameson, Senior District Judge for the
District of Montana, sitting by designation.
hawt Oca eatin tS wt
Appendix 4
21 U.5.C.§ 811. Authority and criteria for classifica-
tion of substances—Rules and regu-
lations of Attorney General; hearing
(a) The Attorney General shall apply the pro-
visions 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 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 IL of chapter 5 of Title 5.
Proceedings for the issuance, amendment, or repeal
of such rules may be initiated by the Attorney Gen-
XxX
eral (1) on his own motion, (2) at the request of the
Secretary, or (3) on the petition of any interested
party.
Evaiuation of drugs and other substances
(b) The Attorney General shall, before initiating
proceedings under subsection (a) of this section to
control a drug or other substance or to remove a drug
or other substance entirely from the schedules, and
after gathering the necessary data, request from the
Secretary a scientific and medical evaluation, and his
recommendations, as to whether such drug or other
substance should be so controlled or removed as a
controlled substance. In making such evaluation of
recommendations, the Seeretary shall consider the
factors listed in paragraphs (2), (3), (6), (7), and
(8) of subsection (c) of this section and any scientific
or medical considerations involved in paragraphs (1),
(4), and (5) of such subsection. The recommendations
of the Secretary shall include recommendations with
respect to the appropriate schedule, if any, under
which such drug or other substance should be listed.
The evaluation and the recommendations of the Sec-
retary shall be made in writing and submitted to the
Attorney General within a reasonable time. The
recommendations of the Secretary to the Attorney
General shall be binding on the Attorney General as
to such scientific and medical matters, and if the
Secretary recommends that a drug or other substance
not be controlled, the Attorney General shall not
control the drug or other substance. If the Attorney
(General determines that these facts and all other rele-
a Se
oe
Xxi
vant data constitute substantial evidence of potential
for abuse such as to warrant control or substantial
evidence that the drug or other substance should be
removed entirely from the schedules, he shall initiate
proceedings for control or removal, as the case may
* be, under subsection (a) of this section.
Factors determinative of control or removal from schedules
(c) 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
following factors with respect to each drug or other
substance proposed to be controlled or removed from
the schedules:
(1) Its actual or relative potential for abuse.
(2) Seientific evidence of its pharmacological
effect, if known.
(3) The state of current scientific knowledge
regarding the drug or other substance,
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of
abuse,
(6) What, if any, ris! there is to the public
health.
(7) Its psychic or physiological dependence
hability.
(8) Whether the substance is an immediate
precursor of a substance already controlled under
this subchapter.
ee
International treaties, conventions, and protocols requiring control
(d) If control is required by United States obliga-
tions under international treaties, conventions, or
protocols in effect on the effective date of this part,
the Attorney General shall issue an order controlling
such drug under the schedule he deems most appro-
priate to carry out such obligations, without regard
to the findings required by subsection (a) oi this
section or section 812(b) of this title and without
regard to the procedures prescribed by subsections
(a) and (b) of this section.
Immediate precursors
(e) The Attorney General may, without regard to
the findings required by subsection (a) cf this section
or section 812(b) of this title and without regard to
the procedures prescribed by subsections (a) and (b)
of this section, place an immediate precursor in the
same schedule in which the controlled substance of
which it is an immediate precursor is placed or in any
other schedule with a higher numerical designation.
Tf the Attorney General designates a substance as an
immediate precursor and places it in a schedule, other
substances shall not be placed in a schedule solely
because they are its precursors,
Abuse potential
(f) If, at the time a new-drug application is sub-
mitted to the Secretary for any drug having a stim-
ulant, depressant, or hallucinogenic effect on the
central nervous system, it appears that such drug has
wot Bane, ee Be ote &
an abuse potential, such information shall be for-
warded by the Secretary to the Attorney General.
Non-narcotic suhetances suid over the counter without a
prescription; dextromethorphan
(g) (1) The Attorney General shall by regulation
exclude any non-narcotic substance from a schedule
if such substance may, under the Federal Food, Drug,
and Cosmetic Act, be lawfully sold over the counter
without a prescription.
(2) Dextromethorphan shall not be deemed to be
included in any schedule by reason of enactment of
this subchapter unless controlled after the date of
such enactment pursuant to the foregoing provisions
of this section.
Pub.L.91-513, Title II, § 201, Oct. 27, 1970, 84 Stat.
1245.
Xxiv
Appendix 5
21 U.S.C. § 812. Schedules of controlled substances—
Establishment
(a) There are established five schedules of con-
trolled substances, to be known as schedules I, I,
[11, LV, and V. Such schedules shall initially consist
of the substances listed in this section. The schedules
established by this section shall be updated and re-
published on a semiannual basis during the two-year
perio beginning one year after the date of enactment
of this subchapter and shall be updated and repub-
lished 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
precursor, 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
substance. The findings required for each of the
schedules are as follows:
(1) Schedule I.—
(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.
ee Se
XXV
(C) There is a lack of accepted safety for
use of the drug or other substance under medical
supervision.
(2) Schedule II.—
(A) The drug or other substance has a high
potential 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 de-
pendence.
(3) Schedule III.—
r
(A) The drug or other substance has a poten-
tial for abuse less than the drugs or other sub-
stances in schedules I and IT.
(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.
(4) Schedule IV.—
(A) The drug or other substance has a low
potential for abuse relative to the drugs or other
substances in schedule ITT.
(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 limited physical dependence or
psychological dependence relative to the drugs or
other substances in schedule III.
(5) Schedule V.—
(A) The drug or other substance has a low
potential for abuse relative to the drugs or other
substances in schedule IV.
(3) 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 limited physical dependence or psycholog-
ical dependence relative to the drugs or other
substances in schedule IV.
Initial schedules of controlled substances
(c) Schedules I, IT, III, IV, and V shall, unless
and until amended pursuant to section 811 of this
title, consist of the following drugs or other sub-
stances, by whatever official name, common or usual
name, chemical name, or brand name designated: .. .
Appendix 6
21 U.S.C. § 841. Prohibited acts A—Unlawful acts
(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; or
(2) to create, distribute, or dispense, or possess
with intent to distribute or dispense, a counterfeit
substance.
Penalties
(b) Except as otherwise provided in section 845
of this title, any person who violates subsection (a)
of this section shall he sentenced as follows:
(1) (A) In the case of a controlled substance in
schedule I or II which is a narcotic drug, such per-
son shall be sentenced to a term of imprisonment of
not more than 15 vears, a fine of not more than
$25,000, or both. If any person commits such a viola-
tion after one or more prior convictions 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 relating to narcotic drugs, mari-
huana, or depressant or stimulant substances, have
become final, such person shall be sentenced to a term
of imprisonment of not more than 30 years, a fine of
not more than $50,000, or both. Any sentence imposing
xxViil
aterm of imprisommert under this paragraph shall,
in the absenze of such a prior conviction, impose a
spears. parole term of at least 3 years in addition to
such term of imprisonment and shall, if there was
such a prior convietion, impose a special parole term
of at least 6 years in addition to such term of im-
prisomment.
(B) In the ease of a eontrolled substance in
schedule Lor ti which is not a narcotic drug or in
the case of any controlled substance in schedule ITT,
such person shall be sentenced to a term of imprison-
ment of not more than 5 vears, a fine of not more than
$15,000, or both. If any person commits such a viola-
tion after one or more prior convictions of him for
an offense punishable under this paragraph, or for a
felony under any other provision of this subchapter
or subchapter IT of this chapter or other law of the
United States relating to narcotic drugs, marihuana,
or depressant or stimulant substances, have become
final, such person shall be sentenced to a term of im-
prisomment of not more than 10 years, a fine of not
more than $30,000, or both. Any sentence Imposing a
term of imprisonment under this paragraph shall, in
the absence of such a prior conviction, 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, impose a special parole term
of at least 4 vears in addition to such term of im-
prisonment.
(2) In the case of a controlled substance in
schedule IV, such person shall be sentenced to a term
en ae
xxix
of imprisonment of net more than 3 vears, a fine of
not more than $10,000, or both. If any person com-
mits such a violation after one or more prior convie-
tions of him for an offense punishable under this
paragraph, or for a felony under any ether provision
of this subehapter or subchapter TL of this chapter
or other law of the United States relating to narcotic
drugs, marihuana, or depressant or stimulant sub-
stances, have become final, sueh person shall be sen-
tenced to a term of imprisonment of not more than
6 years, a fine of not more than $20,000, or both. Any
sentence imposing a term of imprisonment under this
paragraph shall, in the absence of sueh a prior con-
Viction, impose a special parole term of at least one
year in addition to such term of imprisonment and
shall, if there was such a prior conviction, Impose a
special parole term of at least 2 vears in addition to
such term of imprisonment,
(3) In the case of a controlled substance in
schedule V, such person shall be sentenced to a term
of imprisonment of not more than one vear, a fine of
not more than $5,000, or both, Pf any person commits
such a violation after one or more convictions of him
for an offense punishable under this paragraph, or
for a cirme under any other provision of this sub-
chapter or subchapter TE of this chapter or other law
of the United States relating to narcotic dries, mari-
huana, or depressant or stimulant substances, have
become final, such person shall be sentenced to a term
of imprisonment of not more than 2 vears, a fine of
not more than $10,000, or both,
xxx
(4) Notwithstanding paragraph (1) (B) of this
subsection, any person who violates subsection (a) of
this section by distributing a small amount of mari-
huana for no remuneration shall be treated as pro-
vided in subsections (a) and (b) of section 844 of
this title.
Special parole term
(c) A special parole term imposed under this sec-
tion or section 845 of this title may be revoked if its
terms and conditions are violated. In such cireum-
stances the original term of imprisonment shall be
increased by the period of the special parole term
and the resulting new term of imprisonment shall not
be diminished by the time which was spent on special
parole. A person whose special parole term has been
revoked may be required to serve all or part of the
remainder of the new term of imprisonment, A special]
parole term provided for im this section or section 845
of this title shall be in addition to, and not in lieu of,
any other parole provided for by law.
Pub.L. 91-513, Title II, § 401, Oct. 27, 1970, 84 Stat.
1260.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.