Opposition — Millen v. United States

No. 78-1670 Sepa he

In the Supreme Court of the United States

OCTOBER TERM, 1978

JAMES M. MILLEN, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WADE H. McCrEE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JOHN C. WINKFIELD

Altorney

Department of Justice

Washington, D.C. 20530

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INDEX

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CITATIONS

Cases:

Chapman vy. California, 386 U.S. 18 wc... Yy

Jones v. United States, 338 k. 2d

orn ot can y

New York Central R.R. v. Johnson, 279

ak OU bhbehnitetepKodeadenPeeniatibabnibbveracsosseese y

United States v. Badia, 490 Kk. 2d

PBR EIR ENS A AIEEE N Nese il ett UPON pt a 6

United States v. Black, 512 k. 2d

aaa ne A rt ccuccausaiins 6

United States v. Ellzey, 527 k. 2d

BRE UA Rai ree EAT A SE Oe a a 5-6

United States v. Fellman, 549 Kk. 2d

RIESE aps SNM USE 8 sp OO RO a pO 5, 6

United States v. Green, 511 k. 2d

1062, cert. denied, 423 U.S.

gp RP EAS RRR MS Fie aE en aS a 6

Page

Causes (Continued):

United States v: Leigh, 487 k. 2d

PID | \ kcoddensiensinbeandecisae ide ine ee ee

United States v. Miranda, 494 &. 2d

783, cert. denied, 419 U.S.

DOD - casesnsdicisdiovvieligntnlscunicstode ee 6

United States v. Moore, 423 U.S.

LD 5 SR SIAN Whe EM el lst Meee ae

United States v. Rosenberg, S15 bk. 2d

iSO. cert. deed, 423 U.S. et 6

Statutes:

iS 2.356 .- Pe ccc eee 3

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24 USC: BRE: vncdivetec 2 ee 259

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In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1670

JAMES M. MILLEN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPLALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 17-24) is

reported at 594 F. 2d _ 1085S.

JURISDICTION

The judgment of the court of appeals was entered on

February 27, 1979. A petition for rehearing was denied on

April 4, 1979 (Pet. App. 25). The petition for a writ of

certiorari was filed on May 4, 1979. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

!. Whether the indictment failed to state an offense

under 21 U.S.C. 841(a)(1) because it charged petitioner, a

physician, with unlawfully “distributing,” rather than

“dispensing,” a controlled substance.

(1)

.

tioner of a fair trial.

STATUTES INVOLVED

1. 21 U.S.C. 802 provides in part:

As used in this subchapter:

* ¥ * ¥ ”

(10) The term “dispense” means to deliver

a controlled substance to an ultimate user or

research subject by, or pursuant to the lawful

order of, a practitioner, including the prescrib-

ing and administering of a controlled substance

and the packaging, labeling, or compounding

necessary to prepare the substance for such de-

livery. The term “dispenser” means a practitioner

who so delivers a controlled substance to an

ultimate user or research subject.

(11) The term “distribute” means to deliver

(other than by administering or dispensing) a

controlled substance. The term “distributor”

means a person who so delivers a controlled sub-

stance.

* * x ¥ x

(20) The term “practitioner” means a_physi-

clan, dentist, veterinarian, scientific investi-

gator, pharmacy, hospital, or other person li-

censed, registered, or otherwise permitted, by

the United States or the jurisdiction in which

he practices or does research, to distribute, dis-

pense, conduct research with respect to, admin-

ister, Or use in teaching or chemical analysis,

2. Whether prosecutorial misconduct deprived peti-

a controlled substance in the course of proles-

sional practice or research.

* * * * *

2. 21 U.S.C. 841 provides in pertinent part:

(a) Except as authorized by this subchapter,

it shall be unlawful for any person knowingly

or intentionally—

(1) to manufacture, distribute, or dis-

pense, or possess with intent to manufac-

ture, distribute, or dispense, a controlled

substance * * *.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Kentucky, petitioner

was convicted on 20 counts of unlawful distribution of

Demerol, a controlled substance, in violation of 21 U.S.C.

841(a)(1) (Counts 2-7, 9-18, 20, 22, 24, 25), and one count

of involuntary manslaughter, in violation of 18 U.S.C.

1112 (Count 1).! He was sentenced to concurrent terms of

five years’ imprisonment on each of the illegal distribution

counts and three years’ imprisonment on the involuntary

manslaughter count. The court of appeals affirmed the

illegal distribution convictions. The court vacated the

conviction for involuntary manslaughter, however, and

remanded for a new trial on that count (Pet. App. 17-24).?

'The district court dismissed Court 19 of the indictment, and the

jury was unable to reach a verdict as to Counts 8, 21 and 23.

2The-court of appeals vacated the conviction on the manslaughter

count because it concluded that the district court had erred in

submitting the issue of second degree murder with malice

aforethought to the jury and that this error prejudiced the jury's

consideration of the charge of voluntary manslaughter (Pet. App. 21-

22). The court also relied on the fact that the prosecutor had

attempted to establish that there was a homosexual relationship

between petitioner and the victim without first showing a need for

that evidence. /d. at 23.

The evidence adduced at trial showed that petitioner, a

physician with a medical practice in Bardstown, Ken-

tucky, began prescribing Demerol tor Bruce Howell in

February 1977 (II1 Tr. 178-179). Between March 23, 1977,

and April 29, 1977, petitioner wrote six prescriptions for a

total of 158 tablets of Demerol for Howell.’ Occasionally,

after writing a prescription for Demerol, petitioner would

give Howell the money to pay for it (1 Tr. 119-120, 155-

156). After dissolving the Demerol tablets in water,

petitioner or Howell would inject the solution in the

other’s veins (1 Tr. 142-143, 166-167).

On April 29, 1977, Howell, suffering the effects of a

growing dependency on Demerol, was admitted for

treatment at the Fort Knox Alcohol and Drug Rehabilita-

tion Center. He remained a patient in the drug

rehabilitation program until August |, 1977, when he was

transferred to a hospital at Fort Gordon, Georgia. While

Howell was under treatment at Fort Knox, petitioner

wrote Howell 14 more prescriptions for 593 Demerol

tablets (Il Tr. 71-74).4

Following Howell's discharge from the Fort Gordon

hospital, petitioner wrote four more prescriptions for 172

Demerol tablets for Howell between August 13 and 16,

1977.5 As with the other prescriptions, Howell and

petitioner would crush the Demerol tablets, mix water

with the powder, and give themselves intravenous

injections (Il Tr. 167-172). In the early morning hours of

August 17, 1977, petitioner, who apparently had been

sleeping at Howell’s residence, notified the authorities of

‘These prescriptions formed the basis for Counts 2 through 7.

*These prescriptions formed the basis for Counts & through 21.

‘These prescriptions formed the basis for Counts 22 through 25.

Howell’s death (I Tr. 17-19, 43-44). The results of an

autopsy indicated that Howell died of an overdose of

Demerol (1 Tr. 178-180).

Testifying in his own behalf, petitioner admitted that he

had written some of the prescriptions that were in-

troduced into evidence. He claimed, however, that he had

not known that Howell had been using the drugs for

improper purposes (IV Tr. 21-25; II] Tr. 185-186).

ARGUMENT

1. Petitioner argues (Pet. 6-8) that a physician (or other

“practitioner”) may be indicted under 21 U.S.C. 841(a)

only for unlawful “dispensing” of drugs and not for

unlawful “distributing.” This contention is insubstantial.

The term “dispense” under the Controlled Substances

Act means to deliver a controlled substance “to an

ultimate user * * * by, or pursuant to the /aw/ul order of,

a practitioner * * *” (21 U.S.C. 802(10); emphasis

supplied).° Dispensing is lawful under the Act only when

done by a practitioner “in the course of professional

practice.” See 21 U.S.C. 802(20); United States v. Moore,

423 U.S. 122, 131-133 (1975). Several courts have

correctly concluded that a physician who prescribes or

administers drugs other than for a professional purpose is

not “dispensing” drugs within the meaning of the Act;

instead, he is engaged in the unlawful distribution of

drugs, which is defined by the Act to mean the delivery of

a controlled substance “other than by administering or

dispensing” (21 U.S.C. 802(11)). United States v. Fellman,

549 F. 2d 181, 182 (10th Cir. 1977); United States v.

‘A “practitioner” is defined as “a physician * * * licensed,

registered, or otherwise permitted * * * to * * * dispense * * * in the

course of professional practice * * ** (21 U.S.C. 802(20); emphasis

added).

Ellzey, 527 F. 2d 1306, 1308 (6th Cir. 1976); United States

v. Rosenberg, 515 F. 2d 190, 193 (9th Cir.), cert. denied,

423 U.S. 1031 (1975); United States v. Black, 512 F. 2d

864, 866-867 (9th Cir. 1975); United States v. Green, S11

F. 2d 1062, 1066-1068 (7th Cir.), cert. denied, 423 U.S.

1031 (1975); United States v. Badia, 490 F. 2d 296, 298-

299 (Ist Cir. 1973).’

Petitioner asserts (Pet. 7) that the decision in this case is

in conflict with United States v. Leigh, 487 F. 2d 206 (Sth

Cir. 1973). In Leigh the court dismissed an indictment

charging that the defendant, a physician, had knowingly

distributed a controlled substance to a patient. As the

same court explained in United States v. Miranda, 494 F.

2d 783, 786 (Sth Cir.), cert. denied, 419 U.S. 966 (1974),

the defect in the indictment in Leigh was that it failed to

charge any illegal conduct:

By identifying Leigh as a medical doctor, the

indictment placed him with a class of persons who

are registered to dispense controlled substances as a

matter of right. * * * By further averring that a

prescription was used to distribute the controlled

substance, the activity alleged on the face of the

’As the First Circuit explained in United States v. Badia, supra,

490 F. 2d at 298 n.4:

We think the reason Congress included the term “dispense” in

§841(a)(1) was to compel physicians to become properly licensed.

If not licensed, a physician could then be convicted of unlawful

dispensing. However, once licensed, he could not be convicted of

unlawful dispensing because * * * the statute defines the term in

and of itself as a lawful act.

In United States v. Moore, supra, the defendant physician was

prosecuted for both unlawful distributing and dispensing of

controlled substances. As the Tenth Circuit stated in United States v.

Fellman, supra, 549 F. 2d at 182-183, this Court’s opinion in Moore

“leaves little, if any, doubt that physicians may be prosecuted for

both unlawful dispensing and distributing when their activities go

beyond the usual course of professional practice” (emphasis by the

court).

indictment could be legal. * * * The indictment was

dismissed because it did not allege that the act of

distribution was unlawful.

Here, by contrast, the indictment specified that petitioner

had engaged in the unlawful distribution of a controlled

substance by acting outside the usual course of

professional practice in issuing orders purporting to be

prescriptions (C.A. App. 5a-17a). The decision in this case

is therefore not in conflict with Leigh.

2. Petitioner contends (Pet. 8-14) that he was deprived

of a fair trial by three instances of alleged prosecutorial

misconduct.

a. Petitioner first argues (Pet. 8-10) that the prosecutor

engaged in prejudicial misconduct when he failed to

comply with a pretrial order directing him to furnish

certain items to. petitioner.

The district court issued an order prior to trial directing

the government to disclose all documents and physical

objects intended to be used as exhibits at trial. Pursuant

to this order, petitioner was given access to most of the

government’s exhibits prior to trial. In a number of

instances, however, the government did not furnish

exhibits until the eve of trial or until trial had begun. But,

in each of these instances, petitioner's counsel objected,

and the district court refused to admit the evidence until

defense counsel had had an opportunity to examine the

document and to prepare adequately for cross-

examination (Pet. App. 20). Petitioner has not

demonstrated any prejudice from this delay that deprived

him of a fair trial.

b. Petitioner argues (Pet. 10-11) that he was prejudiced

when the prosecutor failed to comply with a pretrial order

directing him to inform petitioner of any agreements

between the government and its witnesses that could

conceivably influence their testimony. Petitioner claims

that the government violated this disclosure order by

failing to inform petitioner of its agreement not to

prosecute Taylor Linkfield, who testifed at trial that he

had used Demerol with Howell and petitioner and that

the Demerol they used was obtained with prescriptions

written by petitioner (Il Tr. 165-172).

During trial, but before’ Linkfield testified, the

prosecutor released the transcript of Linkfield’s grand jury

testimony to petitioner. This transcript showed that

‘Linkfield had been advised before the grand jury that, in

return for his testimony, he would not be prosecuted in

connection with the offenses charged against petitioner.

Since petitioner was thus informed before Linkfield

testified at trial that the government had agreed not to

prosecute him, and since petitioner thoroughly cross-

examined Linkfield about this agreement at trial (11 Tr.

167, 179-180), petitioner was not prejudiced by any failure

to reveal earlier the assurances given to Linkfield.

c. Finally, petitioner argues (Pet. I1-13) that the

prosecutor engaged in prejudicial misconduct by eliciting

from a witness the fact that there was a homosexual

relationship between petitioner and Howell. When this

matter was first mentioned at trial, petitioner objected (II

Tr. 197), and the prosecutor explained to the court that

evidence of the relationship was necessary to establish

petitioner's motive for providing Demerol tablets to

Howell (11 Tr. 198). The judge sustained the objection

without any explanation and instructed the jury not to

consider the witness’s response (ibid.). The court of

appeals concluded that the elicitation of petitioner's

homosexual relationship with Howell was improper

because the government failed to demonstrate how it was

probative of petitioner’s guilt; the court stated that in

these circumstances the prejudicial aspects of the evidence

outweighed its probative value (Pet. App. 23). The court

nevertheless affirmed the convictions on the drug counts

because of “the overwhelming nature of the proofs as to

those offenses.” /d. at 23-24.

The court of appeals’ disposition of this issue was

proper. The claimed prosecutorial misconduct was not “so

prejudicial as to deprive petitioner of a fair trial.” New

York Central R.R. v. Johnson, 279 U.S. 310, 316 (1929).

It is well established that “whether improper conduct of

Government counsel amounts to prejudicial error

depends, in good part, on the relative strength of the

Government's evidence of guilt.” Jones v. United States,

338 F. 2d 553, 554 n.3 (D.C. Cir. 1964).* The evidence

showing petitioner's guilt on the drug charges was

overwhelming, and the brief reference to the homosexual

relationship, which the jury was immediately instructed to

ignore, Was harmless beyond a reasonable doubt (Pet.

App. 23-25). See Chapman vy. California, 386 U.S. 18, 23-

24 (1967).

‘Thus, the court of appeals noted in this case that the proof otf

involuntary manslaughter was “tenuous” (Pet. App. 24) and that the

prosecutogial misconduct may have been prejudicial as to that count.

The evidence on the drug charges. however, was “overwhelming”

(Pet. App. 23) and “as to these counts, the prosecutorial abuse * * *

Was harmless beyond reasonable doubt” (Pet. App. 25, amending Pet.

\pp 24)

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapE H. McCRrEE, JR.

Solicitor General

PHitiep B. HEYMANN

Assistant Attorney General

JOHN C. WINKFIELD

fhorney

JUNE 1979

DOJ-1979-06