Petition — Hayes v. United States

td ~ Supreme Court, UR

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1} JUL 13 1979

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K, JR., CLERK

IN THE

Supreme Court of the United States

TERM, 1979

wo. 29760

TIMOTHY ALDEN HAYES, Petitioner

: v.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Fifth Circuit

ROBERT C. HUNT

Counsel for Petitioner,

Timothy Alden Hayes

4801 Woodway Drive

Houston, Texas 77056

(713) 965-9752

Of Counsel:

JAMES A. MOORE

2020 North Loop West, Suite 101

Houston, Texas 77018

(713) 688-9581

ee a RR CE RR RN

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002 :

SUBJECT INDEX

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CONSTITUTIONAL PROVISIONS INVOLVED .......

STATUTORY PROVISIONS INVOLVED .............

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STATEMENT OF THE NATURE OF THE CASE .....

REASONS FOR GRANTING THE WRIT .............

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TABLE OF AUTHORITIES CITED

CASES

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US.

v. Bolton, 410 U.S. 200 (1973) ........ cece eeaeee

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v. C1.T. Credit Corp., 344 U.S. 218 (1952) ........

U.S. v. Cohen Grocery, 255 U.S. 81 (1921) ............

U.S. v. Hayes, No. 78-5347 (Sth Cir. 1979) .............

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Winters v. New York, 333 U.S. 507 (1948) .............

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Supreme Court of the United States

TERM, 1979

NO.

TIMOTHY ALDEN HAYES, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Fifth Circuit

The Petitioner, Timothy Alden Hayes prays that a

Writ of Certiorari issue to review the Judgment of the

United States Court of Appeals for the Fifth Circuit.

OPINION BELOW

The Opinion of the Court of Appeals is reported at

595 F.2d 258 (1979). It is set out in the Appendix

Infra, p. A-1.

JURISDICTION

The Judgment of the Court of Appeals was entered on

May 17, 1979. Petition for Rehearing was denied on

June 14, 1979. The Jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

2

QUESTIONS PRESENTED

QUESTION ONE

WHETHER THE FIFTH CIRCUIT COURT OF AP-

PEALS ERRED IN UPHOLDING THE CONSTITU-

TIONALITY OF 21 C.F.R. § 1306.04(a) USED IN

CONJUNCTION WITH TITLE 21 U.S.C. § 841 AS AP-

PLIED TO PHARMACISTS WHEN SAID STATUTE

VIOLATES PETITIONERS FIFTH AMENDMENT

RIGHTS OF DUK PROCESS BECAUSE IT FAILS TO

GIVE ADEQUATE NOTICE THAT CERTAIN CON-

DUCT IS PROSCRIBED AND IS VOID OF ANY

STANDARD BY WHICH A PHARMACIST MAY

PROTECT HIMSELF FROM CRIMINAL PROSE-

CUTION.

QUESTION TWO

WHETHER IT IS POSSIBLE FOR PETITIONER

TO BE CONVICTED FOR CONSPIRACY TO VIO-

LATE 21 U.S.C. § 841(a) (1) WHILE THE OTHER

ALLEGED CO-CONSPIRATORS PLED GUILTY TO

A VIOLATION OF 21 U.S.C. § 843(a) (3).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution provides in

pertinent part:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on presentment or

indictment of a Grand Jury * * *; nor shall any

person * * * be deprived of life, liberty, or property,

without due process of law.

3

STATUTORY PROVISIONS INVOLVED

1. Title 21, United States Code, Section 841(a)(1)

provides: (a) Except as authorized by this subchapter,

it shall be unlawful for any person knowingly or inten-

tionally—

(1) To manufacture, distribute, or dispense, or

possess with intent to manufaciure, distribute, or

dispense, a controlled substance;

2. Title 21, United States Code, Section 843(a)(3)

provides: (a) It shall be unlawful for any person know-

ingly or intentionally—

(1) To acquire or obtain possession of a con-

trolled substance by misrepresentation, fraud, forgery,

deception, or subterfuge;

3. Title 21, Code of Federal Regulations, Section

1306.04(a) provides:

(a) A prescription for a controlled substance to

be effective must be issued for a legitimate medical

purpose by an individual practitioner acting in the |

usual course of his professional practice. The re-

sponsibility for the proper prescribing and dispensing

of controlled substances is upon the prescribing prac-

titioner, but a corresponding responsibility rests with

the pharmacist who fills the prescription. An order

purporting to be a prescription issued not in the

usual course of professional treatment or in legiti-

mate and authorized research is not a prescription

within the meaning and intent of section 309 of the

Act (21 U.S.C. 829) and the person knowingly

4

filling such a purported prescription, as well as the

person using it, shall be subject to the penalties

provided for violations of the provisions of law

relating to controlled substances.

STATEMENT

The Petitioner, Timothy Alden Hayes was convicted

of violating Title 21, United States Code, Section 841

(a)(1) and Title 21, Code of Federal Regulations, Sec-

tion 1306.04(a) in that he allegedly dispensed controlled

substances to fill prescriptions which he knew were not

issued in the usual course of professional practice for a

legitimate medical purpose. To the accusation Petitioner

pled not guilty. On April 20, 1978 the Petitioner was

found guilty and sentenced to five (5) years imprison-

ment.

STATEMENT OF THE NATURE OF THE CASE

Appellant is one of 12 alleged co-conspirators charged

in a 79 count Indictment with conspiracy to dispense and

distribute Schedule II controlled substances in violation

of 21 U.S.C. 841(1)(1), 21 C.F.R. 1306.04(a) and

distributing Schedule II controlled substances pursuant

to prescriptions which he knew bore false and ficticious

names and which he knew were not issued in the usual

course of professional practice for legitimate medical

purposes in violation of 21 U.S.C. 841(1)(1) and 21

C.F.R. 1306.04(a). Said Indictment was filed on Decem-

ber 6, 1977.

Defendant was arraigned and pled not guilty.

A jury trial commenced on April 4, 1978 and the jury

began deliberations on April 20, 1978. The jury deliber-

5

ated approximately 7 hours and found Appellant guilty

on Counts 1, 6, 7, 8, 9, and 48 through 79, these being

all the counts of the Indictment involving this Appellant.

Appellant was sentenced to five years confinement on

Count I plus a special parole term of five years; five years

probation with supervision with a special condition of

probation being that he surrender his license to the

Court, with notification to the Pharmacy Board and that

he divest himself of any interest in any pharmacy within

30 days on Count 6; and five years confinement plus

five years special parole to run concurrently with the

sentence imposed on Counts 7, 8, 9, and 48 through 79.

This was affirmed by the Fifth Circuit Court of Appeals

in an opinion rendered May 17, 1979.

Petitioner thereupon timely filed his Motion for Re-

hearing. In this motion he raised a substantial federal

question, namely, whether a statute which is devoid of

any standard by which a pharmacist may protect himself,

can support a conviction, without violating Petitioner’s

Fifth Amendment Right to Due Process of Law.

As Petitioner argued in his Motion for Rehearing, the

evidence at trial showed that he had availed himself of

every means to verify the legitimacy of the prescriptions,

namely, calling Dr. Bennett, he should have been insured

against prosecution.

The opinion of the Fifth Circuit noted that by phoning

a physician, a pharmacist shows some evidence of his

lack of knowledge but that this is not an insurance policy

against criminal sanction.

Petitioner argued in his Motion for Rehearing, that if

it is not insurance it was encumbent on that Court to

6

delineate what would be. The opinion of the Court of

Appeals states that a pharmacist may “fill or not fill”

a prescription. This is not sufficient notice for the practic-

ing pharmacist. The Panel in the opinion admits that the

statute is not “crystal clear”, but did not avail itself of

this opportunity to clarify the statute. The issue of the

applicability of 21 C.F.R. § 1306.04(a), Title 21 U.S.C.

§ 841(a)(1) to Pharmacists has never been decided by

the Court. Because of the vital function which a pharma-

cist performs, the chilling effect of an admonition to

“fill or not fill” should be carefully considered before

being allowed to become controlling precedent in this

important area.

REASONS FOR GRANTING THE WRIT

QUESTION ONE (Restated)

WHETHER THE FIFTH CIRCUIT COURT OF AP-

PEALS ERRED IN UPHOLDING THE CONSTITU-

TIONALITY OF 21 C.F.R. § 1306.04(a) USED IN

CONJUNCTION WITH TITLE 21 U.S.C. § 841 AS AP-

PLIED TO PHARMACISTS WHEN SAID STATUTE

VIOLATES PETITIONERS FIFTH AMENDMENT

RIGHTS OF DUE PROCESS BECAUSE IT FAILS TO

GIVE ADEQUATE NOTICE THAT CERTAIN CON-

DUCT IS PROSCRIBED AND IS VOID OF ANY

STANDARD BY WHICH A PHARMACIST MAY

PROTECT HIMSELF FROM CRIMINAL PROSE-

CUTION.

The Fifth Circuit Court of Appeals recognized that

the purpose of the regulation is to define the circum-

stances in which a physician or pharmacist who is regis-

tered to dispense controlled substances may nevertheless

7

be held to have violated the proscription against manu-

facturing, distributing, or dispensing a controlled substance

in 21 U.S.C. § 841. U.S. v. Hayes, No. 78-5347 (Sth

Cir. 1979). Petitioner Hayes contends that 21 C.F.R.

§ 1306.04(a) fails to give notice of the standard by

which a pharmacist may determine compliance with the

law.

The decision below imposes criminal liability on a

pharmacist if he fills an order that purports to be a

prescription but is not a prescription within the meaning

of the statute because he knows that the issuing practi-

tioner issued it outside the scope of medical practice.

Hayes contends that the statute must be examined in

advance of any jury findings and that the lower court

indulged in circular reasoning by stating “the facts of

this case show how a pharmacist can know prescriptions

are issued for no legitimate medical purpose”. U.S. v.

Hayes, supra footnote 6. Furthermore, the recognition

that the phrase “corresponding responsibility” is not

crystal clear, because a pharmacist can not be held to

the same standard as a physician, illustrates the vague-

ness in which the statute is worded.

As presently construed § 1306.04(a) applied through

§ 841 offends several important values; first it traps

innocent pharmacists, such as Hayes, by failing to pro-

vide fair warning, and secondly it impermissibly delegates

basic policy matters to police, judges and juries for reso-

lution on an ad hoc and subjective basis to determine

compliance with the attendant dangers of arbitrary and

discriminatory application.

If arbitrary and discriminatory enforcement is to be

prevented laws must provide explicit standards for those

who apply then. Petitioner had no advance notice of

what his corresponding responsibility was and to hold

him criminally liable for knowingly dispensing narcotics

outside the course of professional medical practice after

he exceeded his professional activities by verifying the

prescriptions with the issuing physician holds him liable

for factors which he had no control over and which he

could not adequately protect himself against. The lower

court’s reasoning that he may either fill a prescription

or decline to do so is also evidence of the lack of

standard by which a pharmacist may determine his com-

pliance with the regulation.

Congress may not impose upon a pharmacist, at the

peril of criminal prosecution, the duty of resolving to

what extent he may rely upon a doctor’s good faith

verification of a prescription when such medical judg-

ment is routinely made by physicians.

This is not a situation where Congress failed to choose

clear and more precise language equally capable of

achieving the end which it sought but rather the more

onerous situation where Congress has not provided any

standard by which a pharmacist may operate his busi-

ness and protect himself from criminal responsibility.

Under the rationale of the Fifth Circuit a pharmacist

can never fill a prescription with the confidence that it

would not later be determined that the prescription was

not issued by the physician for legitimate medical pur-

poses. é

When a choice has to be made between two readings

of what conduct Congress has made a crime it is ap-

propriate, before we choose the harsher alternative, to

require that Congress should have spoken in language

9

that is clear and definite. U. S. v. Bass, 404 U.S. 336

(1971); U. S. v. CLT. Credit Corp, 344 U.S. 218

(1952).

The Supreme Court has reasoned and the Fifth Cir-

cuit has accepted the proposition that, if a physician is

licensed by the State, and the Drug Enforcement Ad-

ministration, he is recognized by these agencies as

capable of exercising acceptable clinical judgment in

the treatment (including the prescribing of controlled

substances) of his patients. “It is still true today that

reliance must be placed upon the assurance given by his

license issued by an authority competent to judge in

that respect, that he (the physician) possesses the

requisite qualification” Doe v. Bolton, 410 U.S. 200

(1973).

From this predicate it is apparent that if 21 U.S.C.

§ 841 is not vague then verification by the licensed doc-

tor mus’ be an insurance policy for the pharmacist.

It would be highly anomalous for Congress to au-

thorize a physician to prescribe controlled substances,

but leave a pharmacist in peril of up to fifteen years

imprisonment, for relying on the authority granted to

the physician by the licensing agency and the doctor’s

verification of the bona fides of a particular prescription.

Vagueness challenges which do not invoke First

Amendment freedoms must be examined in the light of

the facts of the case at hand. U. S. v. Mazurie, 419 U.S.

544 (1975). The record of this case discloses that

Hayes called Dr. Bennett to verify the prescriptions is-

sued by Dr. Bennett (R. Vol. 1, p. 80-81). Dr. Bennett

further testified that he never communicated the fact to

_

10

Hayes that his prescriptions. were not issued in the course

of professional practice for legitimate medical purposes

(R. Vol. 1, p. 141, 145-147). Dr. Bennett further

testified that as to the purchases by Claude Meade that

he, Dr. Bennett, had examined all these people as

patients, that the prescriptions were good, that the

patients had a bona fide need for the medicine and to

go ahead and fill the prescriptions. It is also important

to note that the expert testimony adduced at trial il-

lustrated that Hayes went beyond the normal course of

his professional activities by verifying the prescription

with Dr. Bennett even though there is no requirement to

do so (R. Vol. 8, p. 58, 72). As previously stated, if

§ 1306.04(a) is not vague, as applied to pharmacists,

then reliance by a pharmacist on a doctor’s judgment in

prescribing a controlled substance and verification by

the doctor of the prescription presented satisfies the re-

quirements of 21 U.S.C. § 841.

Statutes which proscribe no comprehensible course of

conduct may not be constitutionally applied to any set of

facts. U.S. v. Powell, 423 U.S. 87 (1975). While § 841

does forbid a specific act it provides no notice of any

standard by which a pharmacist may adequately guard

against. It is analogous to a statute making speeding

illegal, but not giving fair notice of what a legal speed is.

Under the lower court’s rationale the conviction for speed-

ing would be sustained if a jury subsequently determines

that the Defendant knew he was speeding.

The hindsight reasoning adopted by the Fifth Circuit

also overlooks the fact that the jury had no standard by

which to determine when a pharmacist has complied

with the requirements of 21 U.S.C. § 841 regardless of

oe

11

the Court’s charge. The Court merely stated that the

facts justified the conviction but they failed to specify

by what standard a pharmacist is to govern his pro-

fessional activities.

This reasoning is analogous to the Court upholding

a Fourth Amendment question involving probable cause

by saying that probable cause may be bolstered by

results or fruits of a subsequent search.

The law requires that there be ascertainable standards

of guilt such that men of common intelligence cannot be

required to guess at the meaning of the enactment. The

vagueness may be from uncertainty in regard to persons

within the scope of the act or in regards to the applicable

tests to ascertain guilt. Winters v. New York, 333 U.S.

507 (1948).

The Fifth Circuit, by its refusal to accept verification

as an insurance policy and leaving the pharmacist as his

only option to fill or not to fill the prescription, leaves

the pharmacist at his peril whenever he fills a prescription.

This uncertainty has a chilling effect on a pharmacist’s

proprietary right in the operation of his business and

further thwarts medical treatment because it leaves

this regulation open to arbitrary and invidious discrimi-

nation beyond reason in its application.

Hayes contends that it is the statute, not arbitrary de

facto jury findings under it, that must prescribe the rule

of conduct and warn against its transgression.

Petitioner Hayes respectfully submits that 21 C.F.R.

§ 1306.04(a) used in conjunction with § 841 is so

vague and indefinite as applied to pharmacists that its

application to him violates the first essential of due pro-

12

cess Of law because it amounts to the exaction of obedi-

ence to a rule or standard that is so vague and indefinite

as to be really no standard at all. U.S. v. Powell, 423

U.S. 87 (1975); U.S. v. Cohen Grocery, 255 U.S. 81

(1921).

If 21 C.F.R. § 1306.04(a) is not unconstitutionally

vague then verification by the issuing physician must be

an insurance policy for pharmacists (compliance as a

matter of law) so that they may protect themselves from

criminal responsibility and legitimately operate the busi-

ness that they are trained and licensed to run.

QUESTION TWO (Restated)

WHETHER IT IS POSSIBLE FOR PETITIONER

TO BE CONVICTED FOR CONSPIRACY TO VIO-

LATE 21 U.S.C. § 841(a) (1) WHILE THE OTHER

ALLEGED CO-CONSPIRATORS PLED GUILTY TO

A VIOLATION OF 21 U.S.C. § 843(a) (3).

Title 21 U.S.C. § 843(a)(3) makes it a crime to

“acquire or obtain possession of a controlled substance by

misrepresentation, fraud, forgery, deception or subter-

fuge”. In order for a person to be guilty of this crime

it is necessary that some other person or persons be

defrauded, deceived or in some manner misled as to the

actual facts. 37 C.J.S. Fraud §3 (1943). Petitioner

Hayes was convicted for dispensing controlled substances

on the authority of prescriptions which he knew to be

issued not in the normal course of professional practice,

for a legitimate medical purpose.

Petitioner maintains that it is a logical impossibility

for one group of alleged co-conspirators to violate these

13

two statutes simultaneously. If the other alleged co-

conspirators are guilty of obtaining controlled substances

by fraud, misrepresentation, forgery deception or subter-

fuge, the only possible person who this deception was

worked upon was the Petitioner. The evidence at trial

clearly demonstrated that it was a part of the conspiracy

to keep the Petitioner ignorant of the fact that the pre-

scriptions were not legitimate.

Dr. Bennett testified that there was no agreement

or conspiracy between himself and Hayes (R. Vol. 1,

p. 63-64). He further testified that Hayes called him

to verify many of the prescriptions he issued. (R. Vol. 1,

P. 80-81) and that Hayes would call him and the police

when forged prescriptions were presented to him. (R. Vol.

1, P. 82). The doctor never communicated to Hayes the

fact that he had written any prescriptions not in the

course of professional practice for a legitimate medical

purpose (R. Vol. 1, P. 161-162, 169) but to the contrary

the evidence disclosed that Dr. Bennett actually told

Hayes that the prescriptions were issued by him for

some injury, ailment, or illness of a patient after ex-

amination. (R. Vol. 1, P. 67-68).

Thomas Hammond, an indicted and alleged co-con-

spirator testified that he had no agreement with Hayes.

(R. Vol. 5, P. 88). C. W. McKay, an indicted and

alleged co-conspirator testified that he had no agreement

with Hayes. (R. Vol. 5, p. 153). Charlotta Wills, an-

other indicted and alleged cc.nspirator testified that

she had no agreement with Hayes. oth Judy Adams and

Charlotta Wills, the two women who were employed by

Dr. Bennett as receptionists during the time the alleged

conspiracy took place, testified that Hayes would regu-

14

larly call to verify Dr. Bennett’s prescriptions. (R. Vol.

7, p. 56, 60 and Vol. 9, p. 30).

On the other hand all of these alleged co-conspirators

admitted that they had obtained controlled substances

through the use of misrepresentation, fraud, forgery, de-

ception or subterfuge. When the above testimony is con-

sidered together with the guilty pleas of the alleged co-

conspirators the conclusion that Hayes was defrauded

becomes inescapable.

Petitioner does not dispute the sufficiency of the evi-

dence of a conspiracy to defraud but rather contends that

he was a victim of this conspiracy.

The ultimate issue in the Petitioner’s trial was; did he

know that the prescriptions were not legitimate? The evi-

dence showed that they were not, however it is also

shown that Hayes was unaware of this fact. It was crucial

to the success of the alleged conspiracy that Hayes be kept

in the dark. All of the acts of the co-conspirators which

inculpate them must by definition exculpate the Petitioner.

To indulge in this basic logical inconsistency makes a

mockery of a system of justice based upon narrowly

drawn statutes prohibiting specific acts. In order to sus-

tain the validity of the convictions of the other alleged

co-conspirators Hayes, by legal definition, must be inno-

cent of the crime for which he has been convicted.

15

CONCLUSION AND PRAYER

For all the reasons stated above, the petition for writ

of certiorari should be granted and petitioner’s conviction

and sentence set aside.

Petitioner prays for such relief.

Respectfully submitted,

Rosert C. HUNT

Counsel for Petitioner,

Timothy Alden Hayes

4801 Woodway Drive

Houston, Texas 77056

(713) 965-9752

CERTIFICATE

I certify that three copies of the foregoing petition for

writ of certiorari was mailed to John Potter, 515 Rusk,

Houston, Texas, on this 12th day of July, 1979.

ROBERT C. HUNT

A-1

APPENDIX

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

TIMOTHY ALDEN HAYES,

Defendant-A ppellant.

NO. 78-5347.

UNITED STATES COURT OF APPEALS,

Fifth Circuit.

May 17, 1979.

Defendant, a registered pharmacist, was convicted in

the United States District Court for the Southern District

of Texas at Houston, John V. Singleton, Jr., J., of

conspiracy to distribute Schedule II controlled substances,

and he appealed. The Court of Appeals, Godbold, Cir-

cuit Judge, held that: (1) the statute and accompanying

regulation under which the pharmacist was convicted

were not unconstitutionally vague, and (2) the evidence

was sufficient to support the conviction.

Affirmed.

Appeal from the United States District Court for the

Southern District of Texas.

Before GODBOLD, SIMPSON and RONEY, Circuit

Judges.

GODBOLD, Circuit Judge:

Hayes, a registered pharmacist, was convicted of one

count of conspiracy to distribute Schedule II controlled

A-2

substances in violation of 21 U.S.C. § 841(a)(1) and

21 C.F.R. 1306.04(a) promulgated thereunder and 35

counts of distribution of Schedule II drugs pursuant to

prescriptions which he knew bore false names or were

not issued in the usual course of professional practice.

The substances were Dilaudid, a narcotic similar to

morphine, and Preludin. Hayes asserts that the statute

and accompanying regulation are unconstitutionally

vague, that there was insufficient evidence to support

the convictions, and that there was a variance. We re

ject all these claims and affirm the conviction.

We set out in the margin the statute and the regulation.’

1. (a) 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 controlled sub-

stance;

*x* *

(b) Except as otherwise provided in Section 845 of this title,

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

sentenced as follows:

(1)(A) In the case of a controlled substance in schedule I or

II which is a narcotic drug, such person shall be sentenced to a

term of imprisonment of not more than 15 years, a fine of not

more than $25,000, 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 3 years in addition to such

term of imprisonment... .

*« * *

21 U.S.C. § 841.

Purpose of issue of prescription.

(a) A prescription for a controlled substance to be effective

must be issued for a legitimate medical purpose by an individual

practitioner acting in the usual course of his professional prac-

tice. The responsibility for the proper prescribing and dispensing

of controlled substances is upon the prescribing practitioner,

but a corresponding responsibility rests with the pharmacist who

fills the prescription. An order purporting to be a prescription

issued not in the usual course of professional treatment or in

A-3

The purpose of the regulation is to define the circum-

stances in which a physician or pharmacist who is regis-

tered to dispense controlled substances may nevertheless

be held to have violated the proscription against manu-

facturing, distributing or dispensing a controlled sub-

stance contained in 21 U.S.C. § 841. In U. S. v. Moore,

423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the

Supreme Court concluded that a doctor may be convicted

for violations of § 841 when he dispenses controlled sub-

stances “outside the usual course of professional practice.”

Id. at 124, 96 S.Ct. at 337, 46 L.Ed.2d at 337.’ The

court rejected the argument that, because a doctor is

registered with HEW and may therefore legally prescribe

controlled substances, he is exempted from the criminal

sanctions of § 841. A registered doctor or pharmacist is

exempted from § 841’s proscription only when he acts in

the normal course of his professional activities. The chal-

lenged regulation merely restates the Court’s conclusion

in Moore.

In U. S. v. Collier, 478 F.2d 268 (CAS, 1973), this

court rejected a physician’s vagueness challenge to § 841

and accompanying regulations. The court drew its vague-

ness standard for testing § 841 from the Supremé Court’s

legitimate and authorized research is not a prescription within

the meaning and intent of section 309 of the Act (21 US.C.

§ 829) and the person knowingly filling such a purported pre-

scription, as well as the person issuing it, shall be subject to

the penalties provided for violations of the provisions of law

relating to controlled substances.

21 C.F.R. § 1306.04.

2. This court held in U. S. v. Rosen, 582 F.2d 1032 (C.A. 5,

1978), that to convict a physician of violating 21 U.S.C. § 841(a) (1)

it is necessary to prove “(1) that he distributed or dispensed a

controlled substance, (2) that he acted knowingly and intentionally,

and (3) that he did so other than for a legitimate medical purpose

and in the usual course of his medical practice.” Jd. at 1033.

A-4

opinions in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739,

35 L.Ed.2d 201 (1973), and U. S. v. Vuitch, 402 US.

62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971). Both of

those cases involved a constitutional attack on state

Statutes prohibiting doctors from performing an abortion

unless the doctor concluded that it was necessary to pre-

serve the mother’s health. The Court concluded that

whether an operation is necessary is the type of profes-

sional judgment doctors are “called upon to make rou-

tinely.” Doe v. Bolton, supra at 192, 93 S.Ct. at 747,

35 L.Ed.2d at 212 (quoting U. S. v. Vuitch, supra 402

U.S. at 72, 91 S.Ct. at 1299, 28 L.Ed.2d at 601). The

Collier court decided that a doctor’s judgment whether a

patient needs a Schedule II drug is also a routine judg-

ment and that a criminal standard that only makes unlaw-

ful the prescribing of drugs outside the course of profes-

sional practice is not unconstitutionally vague. Jd. at 272;

accord, U.S. v. Anderson, 523 F.2d 1192, 1197 (CAS,

1975).

[1] We turn then to application of statute, regulations,

and case law to pharmacists. We need none of these to

tell us that pharmacists usually are engaged in dispensing

drugs on the basis of prescriptions issued by doctors.

Specifically, § 309 of the Controlled Substances Act* pro-

hibits dispensing Schedule II drugs except upon the pre-

scription of a registered practitioner other than a pharma-

cist.* The regulation, 21 C.F.R. § 1306.04(a), teachs

3. Public Law 91-513, Tit. II, § 309, 84 Stat. 1260 (1970)

codified as 21 U.S.C. § 829.

4. Section 102(20) defines practitioner to mean “a physician,

dentist, veterinarian, scientific investigator, pharmacy, hospital, or

other person licensed, registered, or otherwise permitted, by the

United States or the jurisdiction in which he practices or does re-

search, to distribute, dispense, conduct research with respect to,

A-5

us that under some circumstances a purported prescription

is not a prescription at all for purposes of the statute.

[A]n order purporting to be a prescription issued

not in the usual course of professional treatment or

in legitimate and authorized research is not a pre-

scription within the meaning and intent of section

309 of the Act (21 U.S.C. § 829) and the person

knowingly filling such a purported prescription, as

well as the person issuing it, shall be subject to the

penalties provided for violations of the provisions of

law relating to controlled substances.

Thus, a pharmacist may not fill a written order from a

practitioner, appearing on its face to be a prescription,

if he knows the practitioner issued it in other than the

usual course of medical treatment. The regulation gives

“fair notice that certain conduct is proscribed.” Rabe v.

Washington, 405 U.S. 313, 315, 92 S.Ct. 993, 994, 31

L.Ed.2d 258, 260 (1972).

[2] Hayes contends that the regulation is unconstitu-

tionally vague because of the language immediately pre-

ceding the foregoing, stating that “[t]he responsibility for

the proper prescribing and dispensing of controlled sub-

stances is upon the prescribing practitioner, but a cor-

responding responsibility rests with the pharmacist who

fills the prescription.” A pharmacist, he argues, cannot

have a “corresponding responsibility” to that of a prac-

titioner because he cannot prescribe at all but only

dispense; an attempt by regulation to impose on him the

administer, or use in teaching or chemical analysis, a controlled

substance in the course of professional practice or research.” 21

U.S.C. § 802(20).

A-6

obligations of a prescriber must, therefore, be ineffectual.°

From this predicate he urges that the physician cases must

be distinguished as applied to him; that is, a practitioner

may be held criminally liable for prescribing outside the

course of his professional practice, but a pharmacist may

not be criminally liable based upon a “corresponding

responsibility” because he cannot have responsibility as

a prescriber nor does he have any reasonable means to

fulfill a duty of establishing that the practitioner-prescriber

who issued the order did so in the usual course of medical

treatment. He points out that the most the pharmacist can

de to verify the bona fides of a prescription is to check

with the issuing practitioner; anything more would re-

quire him to examine the patient, which he is neither

qualified nor legally permitted to do. The argument over-

looks that a pharmacist can either fill a prescription or

decline to do so. Hayes was charged with conspiracy to

distribute controlled substances that were not issued for

a legitimate medical purpose, and the jury was charged

that he had to know they were not issued for a legitimate

medical purpose. The same charge was given for the

substantive offenses.

Verification by the issuing practitioner on requesi of

the pharmacist is evidence that the pharmacist lacks

knowledge that the prescription was issued outside the

scope of professional practice. But it is not an insurance

5. This aspect of Hayes’ vagueness challenge is also in effect a

claim that a pharmacist cannot be subjected to § 8+1’s criminal

penalties if he dispenses controlled substances pursuant to a pre-

scription issued by a registered practitioner. Our discussion of the

issue in vagueness terms also answers this contention. If the pharma-

cist knows that the prescription is not a prescription within the

meaning of the regulations, he must decline to fill it or face the

criminal sanctions of § 841.

A-7

policy against a fact finder’s concluding that the pharma-

cist had the requisite knowledge despite a purported

but false verification. The pharmacist is not required to

have a “corresponding responsibility” to practice medi-

cine. What is required of him is the responsibility not to

fill an order that purports to be a prescription but is not

a prescription within the meaning of the statute because

he knows that the issuing practitioner issued it outside

the scope of medical practice.°

This court said in Collier that “Congress did not in-

tend for doctors to become drug ‘pushers’”. 478 F.2d

at 272. Nor do we think that Congress intended to allow

pharmacists to aid doctors in becoming pushers. When a

pharmacist fills a prescription that he knows is not a

prescription within the meaning of the regulations he is

subject to the penalties of § 841.

[3] The sufficiency of the evidence argument is al-

most frivolous. Following is some of the circumstantial

evidence. A tremendous number of prescriptions were

filled by Hayes on the purported orders of a single doctor

who, during the period involved, was an alcoholic and

continually under the influence of alcohol and moving

from one temporary lodging place to another. The volume

of drugs was massive. Considering just one of the relevant

customers, Claude Meade, during one month Hayes filled

6. The challenged regulation makes clear that this is the re-

sponsibility imposed on pharmacists. Standing alone, the phrase

“corresponding responsibility” is not crystal clear, but when read

in context the regulation gives adequate notice of proscribed conduct

to pass muster. It is also evident that a pharmacist can fulfill his

responsibility under § 1306.04 without practicing medicine. The facts

of this case show how a pharmacist can know that prescriptions are

issued for no legitimate medical purpose without his needing to know

anything about medical science.

A-8

for him 34 prescriptions for Dilaudid, representing 3400

pills for which Meade paid $3,400, and 75 prescriptions

for Preludin at $75 each, or $4,125. The following month

Hayes fiilled for Meade 101 prescriptions for Dilaudid

and 137 for Preludin, for which he was paid, respectively,

$10,000 and $10,825. Meade testified that he sold the

drugs on the street at a wholesale rate of $4.00 per Dilau-

did tablet and $3.00 per Preludin tablet. During the rele-

vant time Meade lived with the doctor off and on and part

of the time kept him hidden out in various hotels and

motels. Hayes possessed a supply of the doctor’s prescrip-

tion forms which he gave to customers to have filled out

and signed by the doctor. The prices charged by Hayes

for drugs were unusually high. The doctor himself testi-

fied that during the period in question he had no legiti-

mate patients and that any prescriptions written by him

were not written in the usual course of medical practice

or for a legitimate medical purpose. The volume of

prescriptions filled for a single individual as well as

the prices charged by Hayes support the jury’s conclusion

that Hayes also knew that the prescriptions were not

issued for a legitimate medical purpose.

Hayes complains that the government only cited

§ 1306.04 of the regulations in the indictment and that

§ 1306.05 should have also been cited. Assuming that

*§ 1306.05 should have been cited, it is clear that Hayes

cannot show he was prejudiced.

AFFIRMED.

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