Opposition — Snapp v. United States

No. 78-203 OCT 8 1978

Te

In the aes Cour of the United States

OCTOBER TERM, [978

LANDON B. SNapp. PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Waprt H. McCree, Jr.

Solicitor General

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-203

LANDON B. SNAPP, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that he was entitled to a lesser-

included offense instruction.

After a jury trial in the United States District Court for

the Middle District of Tennessee, petitioner was con-

victed on 22 counts of unlawful distribution of a con-

trolled substance, in violation of 21 U.S.C. 841(a)(1), and

of conspiracy to commit that crime, in violation of 21

U.S.C. 846. He was sentenced to consecutive terms of

four years’ imprisonment and two years’ special parole on

three of the substantive counts. On the remaining counts,

petitioner was sentenced to four years’ imprisonment and

two years’ special parole, but the sentences were

suspended on the condition that petitioner surrender his

medical license and not apply for its return or practice

(1)

medicine during the five-year term of probation. The

court of appeals affirmed per curiam on May |, 1978 (Pet.

App. A).!

The evidence at trial showed that petitioner, a licensed

physician, sold prescriptions for Didrex, a Schedule III

controlled substance that can cause mood and emotional

changes (Tr. 888) and can lead to drug dependency (Tr.

929), to persons who had received only minimal physical

examinations (see, e.g., Tr. 223). Often one person would

pick up prescriptions from petitioner for a number of

other persons who were not present and had never been

examined by petitioner (see, e.g., Tr. 224-226, 303). The

pharmacy where most of the prescriptions were filled was

the biggest customer for Didrex in central and western

Tennessee, purchasing more of the substance than any

single hospital, clinic, or wholesale drug company (Tr.

806). Didrex prescriptions constituted almost 60% of the

prescriptions filled by that pharmacy during one six-

month period, and all but one or two of its Didrex

prescriptions during that period had been written by

petitioner (Tr. 826).

Petitioner claims that the district court erred in refusing

to give a lesser-included offense instruction (Pet. App. B)

because the proof that he had written prescriptions for

Didrex for an improper medical purpose could have

supported a conviction for dispensing a Schedule III drug

without a proper prescription, which is punishable as a

misdemeanor under 21 U.S.C. 829(b), 842(a)(1) and

'On May 25, 1978, Mr. Justice Stewart extended petitioner's time

to petition for a writ of certiorari to and including June 30, 1978.

The petition was filed on July 5, 1978, and is therefore out of time

under Rule 22(2) of the Rules of this Court.

(c)(2)(A),2 in addition to supporting a felony conviction

under 21 U.S.C. 841.3 See United States v. Moore, 423

U.S. 122, 135-138 & nn.12, 13 (1975). The court of

appeals correctly rejected this contention.

221 U.S.C. 829(b) provides in pertinent part:

Except when dispensed directly by a practitioner, other than

a pharmacist, to an ultimate user, no controlled substance

in schedule III or IV, which is a _ prescription drug as

determined under the Federal Food, Drug, and Cosmetic Act

*** may be dispensed without a written or oral prescription

in conformity with section 503(b) of that Act * * *.

21 U.S.C. 842 provides in pertinent part:

(a) Unlawful acts

It shall be unlawful for any person—

(1) who is subject to the requirements of part C to dis-

tribute or dispense a controlled substance in violation

of section 829 of this title * * *.

(c) Penalties

@ x * * *

(2)(A) If a violation of this section is prosecuted by an in-

formation or indictment which alleges that the violation

was committed knowingly and the trier of fact specifically

finds that the violation was so committed, such person shall,

except as otherwise provided in subparagraph (B) of this

paragraph, be sentenced to imprisonment of not more than one

year or a fine of not more than $25,000, of both.

321 U.S.C. 841 provides in pertinent part:

(a) Unlawful acts

Except as authorized by this subchapter, it shall be un-

lawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, Or possess

with intent to manufacture, distribute, or dispense, a con-

trolled substance * * *.

(b) Penalties

Except as otherwise provided in section 845 of this title

It is well established that a “lesser-included offense

instruction is only proper where the charged greater

offense requires the jury to find a disputed factual element

which is not required for conviction of the lesser-included

offense.” Sansone v. United States, 380 U.S. 343, 350

(1965). See also United States v. Bishop, 412 U.S. 346,

361 (1973); United States v. Thompson, 492 F. 2d 359,

362 (8th Cir. 1974). In this case there was no disputed

factual element necessary to convict for dispensing a

Schedule III controlled substance under 21 U.S.C. 841

but unnecessary to convict under 21 U.S.C. 842. The

issuance of a prescription without a legitimate medical

purpose constitutes dispensing under both 21 U.S.C. 841

and 21 U.S.C. 829, and 21 U.S.C. 842(c)(2)(A) (the

misdemeanor provision of Section 842) sets forth the

same scienter requirement as does 21 U.S.C. 841(a).

Indeed, petitioner’s proposed instruction (Pet. App. B)

merely informed the jurors that, if they acquitted him of

the Section 841 violation charged in the indictment, they

should then consider whether he was guilty of a violation

of Sections 829 and 842; it did not set forth any difference

between the two offenses in respect to the quantum of.

proof necessary for a conviction.* Accordingly, the dis-

trict court properly rejected petitioner's request to give

the instruction.

any person who violates subsection (a) of this section shall

be sentenced as follows:

* * * * *

(B) In the case of * * * any controlled substance in schedule

III, such person shall sentenced to a term of imprisonment

of not more than 5 years, a fine of not more than $15,000, or

both.

*Petitioner observes (Pet. 6) that in United States v. Moore, supra,

423 U.S. at 135-137, the Court reserved the question whether a

physician could be prosecuted under 21 U.S.C. 842 for having

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

WADE H. McCreE, JR.

Solicitor General

OcTOBER 1978

violated the provisions of 21 U.S.C. 829 with respect to the issuing of

prescriptions. But even if petitioner could have been charged under

Section 842, that would suggest only that Sections 841 and 842

overlap to some extent, not that one crime is a lesser-included offense

of the other. In such circumstances, the government has discretion to

choose which statute to use. See United States v. Bishop, supra, 412

bern at 361; United States v. Beacon Brass Co., 344 U.S. 43. 45

).

DOJ-1978-09