Petition — Seelig v. United States

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

Bupreme Court, UL

FILED

JuL__7 1990

180-23

HAEL RODAK, JR CLERR

IN THE on

Supreaw Court of the United States

OCTOBER TERM, 1979

RICHARD SEELIG, TERRY HAWKINS

and DONALD PRIMMER,

Petitioners

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DANA G. RINEHART

MATAN, RINEHART & SMITH

261 South Front Street

Columbus, Ohio 43215

(614) 228-2678

Counsel for Petitioners

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGION, D.C. 20001

nine owe 2 Bus? 2 em

QUESTIONS PRESENTED

1. WHETHER THE DISPENSING OF A SCHED-

ULE IV OR V CONTROLLED SUBSTANCE BY A

LICENSED PHARMACIST IN VIOLATION OF 21

C.F.R. §§ 1306.22, 1306.23, OR 1306.32 CAN BE CRIM-

INALLY PUNISHED UNDER 21 U.S.C. § 841(a) (1)

OF THE FEDERAL CONTROLLED SUBSTANCES

ACT.

2. WHETHER OR NOT A D.E.A. COMPLIANCE

INVESTIGATOR CAN TESTIFY ON THE LAW, UN-

DER RULES 403, 702 and 704 OF THE FEDERAL

RULES OF EVIDENCE, IN A PROSECUTION UN-

DER THE FEDERAL CONTROLLED SUBSTANCES

ACT.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................. i

a ccowdusemstuuonsovomons 1

a TR ee 2

STATUTES AND REGULATIONS INVOLVED ......... 2

STATEMENT OF THE CASB ............-...<.-----.-...-.00.-.-.--- 3

A. Statement of the Proceedings Below .................... 3

B. Statement of the Facts Relevant to the Questions

rr rr Ce oc scsscecseeccaccansounnese 5

REASONS FOR GRANTING THE WRIT ..................... 7

I. THE DISPENSING OF SCHEDULE IV AND

V CONTROLLED SUBSTANCES BY A LI-

CENSED PHARMACIST IN VIOLATION OF

21 C.F.R. §§ 1306.22, 1306.23, AND 1306.32

CANNOT BE CRIMINALLY PUNISHED UN-

DER 21 U.S.C. § 841(a)(1) OF THE FED-

ERAL CONTROLLED SUBSTANCES ACT ...... 8

II. THE TESTIMONY OF D.E.A. COMPLIANCE

INVESTIGATOR, GERALD KOPP, VIO-

LATED RULES 403, 702, AND 704, FEDERAL

RULES OF EVIDENCE, INSOFAR AS IT RE-

LATED TO THE LAW CONTROLLING THE

PROSECTION OF THIS CASE .....0000000000.2..... 18

i daipieadiceacieonarstsstaninsianinbsscacsoansseceneseses 27

(iii)

PREVIOUS PAGE WAS BLANK

TABLE OF CONTENTS—Continued

APPENDIA:

. Judgments and Probation/Commitment Orders

Text of Relevant Statutes and Regulations ........

Opinion of the Court of Appeals for the Sixth

Ce Oe BN Fi Be oie sccnccce ces cocccasnscscnccereceseosrstcese

Judgment Entry of May 8, 1980 .................-..........

of June 15, 1979, in the United States District

Court for the Southern District of Ohio, Fastern

RRS ele REA EE St Nig Soyo Rai EO a BCE

. Order Extending Time to File Petition for Writ

i eedte cbadens

TABLE OF AUTHORITIES

Cases: Page

Eastern Associated Coal vy. Aetna Casualty &

Surety Co., 475 F.Supp. 586 (1979) ........00000000... 26

Marx & Co., Inc. v. Diners’ Club, Inc., 550 F.2d

505 (2nd Cir. 1977), cert. den. 434 U.S. 861......... 25

United States v. Barbacoff, 416 F.Supp. 606 (D.C.

MUN ida tea a ee es er ee 11

United States v. Green, 511 F.2d 1062 (7th Cir.

19765), cert. den. 428 U.S. 10811 ............................. 12

United States v. Grimaud, 220 U.S. 506 (1911)... 13

United States v. Moore, 423 U.S. 122 (1975) .......... 18

United States v. Sink, 355 F.Supp. 1067 (E.D. Pa.

1978) aff’d 485 F.2d 688 (1978) 2.000. 25

United States v. Williams, 416 F.Supp. 611 (D.C.

REET ESM ET IS Mia ae TUE Ss AS ANE SOD 11

Statutes and Regulations:

SN ee RIN Oe Ber ee eee 2

es _ Ra r SARORIEIO eE Rd 12

Ss a ecccan readies 12

ee, aA 7 Cree 18

I a 9, 15

ee Pr I oe 9, 10, 12, 14, 15, 16, 17

21 U.S.C. § 841(a) (1) .....8, 5, 6, 7, 8, 11, 12, 14, 15, 17, 18

gS Aa eR i eC there. 11

Ge ERA Deri ee ee SCE sn 11

eS TIES Reon CO CERO. Fa A 13

EU D EE et RDe AE tr Rae: IE 14

a, a 14

I Rs 14

Se I 14

ks ee ee a 12,17

Be hair, PONE ss coccsccacncrenaverschecxtansne 7, 8, 15, 16, 17, 18

Be Gai ais EID ccsans ss csnctennccosabitedencencconons 7,8, 15, 17, 18

ieee 2 Se >}: Ee 8, 6, 7, 8, 10, 12, 14, 15, 18

Rule 403, Federal Rules of Evidence .................... 18, 26, 27

Rule 702, Federal Rules of Evidence ..................... 18, 25, 27

Rule 704, Federal Rules of Evidence..................... 18, 25, 27

TABLE OF AUTHORITIES—Continued

Miscellaneous Authorities: Page

House Report No. 91-1444, 91st Cong., 2d Sess.,

1970 U.S. Code Cong. & Admin. News 4566 ...... 13

81 American Jurisprudence 2d, Expert and Opinion

SI, TIO ccicicccsniisconininpdinicdhseietintshianndnitenateaiiianiintacabes 18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

BG ee

RICHARD SEELIG, TERRY HAWKINS

and DONALD PRIMMER,

Petitioners

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

To the Honorable, the Chief Justice and Associate Jus-

tices of The Supreme Court of the United States:

Richard Seelig, Terry Hawkins and Donald Primmer,

Petitioners herein, pray that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Sixth Circuit entered in the

above-entitled case on May 8, 1980.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is unreported and is printed in the

Appendix hereto, infra, page 19a. The judgment of the

United States Court of Appeals for the Sixth Circuit is

printed in the Appendix hereto, infra, page 37a. The

—

Judgments and Probation/Commitment orders of the

United States District Court for the Southern District

of Ohio, Eastern Division are printed in the Appendix

hereto, infra, page 39a.

JURISDICTION

The judgment of the United States Court of Appeals

of the Sixth Circuit (Appendix, infra, page 37a) was

entered on May 8, 1980. On May 27, 1980, Mr. Justice

Stewart granted Petitioners an Order Extending Time

to File Petition for Writ of Certiorari up to and includ-

ing July 7, 1980 (Appendix, infra, page 45a). The juris-

diction of the Supreme Court is invoked under the provi-

sions of Title 28, United States Code, Section 1254(1).

STATUTES AND REGULATIONS

21 U.S.C. § 801

21 U.S.C. § 802 (10)

21 U.S.C. § 802 (20)

21 U.S.C. § 821

21 U.S.C. § 822 (b)

21 U.S.C. § 829

21 U.S.C. § 841 (a) (1)

21 U.S.C. § 842

21 U.S.C. § 871

21 C.F.R. § 1306.04 (a)

21 C.F.R. § 1306.22

21 C.F.R. § 1306.23

(21 C.F.R. § 1306.32

Ruie 403, Federal Rules of Evidence

Rule 702, Federal Rules of Evidence

Rule 704, Federal Rules of Evidence

STATEMENT OF THE CASE

A. Statement of the Proceedings Below

The Grand Jury returned an indictment against Pe-

titioners Richard Seelig, Terry Hawkins, and Donald

Primmer, on February 5, 1979, for 165 counts of know-

ingly or intentionally and unlawfully distributing without

a prescription within a 48-hour period more than four

ounces of Robitussin A/C, Terpin Hydrate-Codeine, or

Histadyl E/C, preparations containing not more than 200

milligrams of codeine per 100 milliliters as prohibited by

21 C.F.R. § 1306.32 and, therefore, in violation of 21

U.S.C. § 841(a) (1).

Additionally, the indictment charged all three Petition-

ers with 6 counts (Counts 168, 169, 171, 172, 173, and

174) and Richard Seelig and Terry Hawkins with 3 addi-

tional counts (Counts 166, 167, and 170) each, of know-

ingly or intentionally and unlawfully distributing a Sched-

ule IV substance (Valium or Darvon) by unlawfully re-

filling a prescription in violation (ostensibly) of 21

U.S.C. § 841 (a) (1).

Pre-trial discovery took place and Petitioners were

granted leave to file a motion to dismiss.

Petitioners’ motion to dismiss was denied on April 16,

1979.

On April 17, 1979, petitioners’ motion in limine to

exclude certain evidence was granted in part and denied

in part, the Court ruling that a Sales Comparison Chart

would be properly admitted at trial, but a Profit Com-

parison Chart would be excluded.

On that same day jury trial commenced in the United

States District Court for the Southern District of Ohio,

Eastern Division, before the Honorable Judge Joseph

P. Kinneary.

The case was litigated for six days and on April 26,

1979, the jury began its deliberations. On April 27,

1979, the jury reached its verdicts and found Petitioner

Richard Seelig guilty of 19 misdemeanors and 8 felonies

(Counts 2, 12, 13, 14, 30, 40, 57, 58, 62, 79, 80, 82, 122,

123, 135, 137, 142, 143, 144, and 167 through 174).

Petitioner Terry Hawkins was found guilty of 6 mis-

demeanors and 7 felonies. (Counts 10, 26, 76, 92, 121,

154, and 168 through 174).

Petitioner Donald Primmer was found guilty of 18

misdemeanors and 5 felonies. (Counts 73, 74, 95, 110,

112, 124, 125, 132, 133, 136, 138, 139, 140, 141, 145, 146,

147, 152, 168, 169, 171, 172, and 174).

On the remaining 111 Counts, Petitioners were found

not guilty.

On June 15, 1979, Judge Kinneary sentenced Petition-

ers and issued and filed the Judgment and Order of

Commitment.

On June 22, 1979, Petitioners filed a notice of Appeal

with the Sixth Circuit Court of Appeals, challenging the

validity of the convictions in the court below.

Briefs were submitted and oral argument was had.

| On May 8, 1980, the Sixth Circuit Court of Appeals

reversed the judgment of the district court for the rea-

sons set forth in its opinion and remanded for a new

trial.

The questions presented to this Court for review have

been finally adjudicated and are not proper subjects of

contention in the new trial. Said questions are, therefore,

not premature but are ripe for adjudication by this Court.

B. Statement of the Facts Relevant to the Questions

Presented for Review

At all times relevant herein, Petitioners Richard Seelig,

Terry Hawkins and Donald Primmer were employed by

Seelig Pharmacy, Inc. as pharmacists duly licensed in

Ohio to practice pharmacy. [Transcript at Vol. II, p. 312;

Vol. III, pps. 26, 65].

In April and May of 1978, the Federal Drug Enforce-

ment Administration (DEA) conducted an investigative

audit of the two (2) Seelig Pharmacies. [Transcript at

Vol. I, p. 114]. Both are located in Columbus, Ohio; one,

just north of the Ohio State University Campus on

Summit Avenue, and the other located on the East side

of Columbus on South Hamilton Road. [Transcript at

Vol. I, p. 114]. The four (4) man audit team, headed by

DEA compliance investigator Gerald Kopp spent ten (10)

days at Seelig’s Summit Avenue store and five (5) days

at the Hamilton Road Pharmacy auditing records and

inventory. [Transcript at Vol. I, p. 115].

Gerald Kopp testified that Petitioners cooperated fully

with this investigation and admitted that the results of

the inventory audit showed Seelig Pharmacy to have an

excellent compliance record since the inventory was off

only two-tenths of one percent (0.002%). [Transcript

at Vol. I, pps. 225, 256, 258-259].

More than ten thousand (10,000) prescriptions of con-

trolled substances were audited, of which Petitioners were

indicted for nine (9) alleged illegal overfills of Schedule

IV prescriptions in violation of 21 U.S.C. § 841(a) (1).

[Counts 166-174 of Indictment; Transcript at Vol. II,

p. 827; Vol. III, p. 81].

There were in excess of eighteen thousand (18,000)

entries of sales of Schedule V substances audited consist-

ing mainly of cough syrups with codeine, of which Peti-

tioners were charged with one hundred sixty-five (165)

counts in the indictment for alleged illegal sales of more

than four (4) ounces to the same purchaser within a

48-hour period, as prohibited by 21 C.F.R. § 1306.32, and

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

[Counts 1-165 of Indictment; Transcript at Vol. III,

p. 77].

Throughout the proceedings and trial below, Petition-

ers vigorously maintained their innocence. Each took the

witness stand in their defense and denied knowingly and

intentionally making any of the sales alleged to be crimi-

nally punishable. [Transcript at Vol. II, pps. 340-346,

349, 353, 355-356, 325; Vol. III, pps. 35-37, 44].

Furthermore, Petitioners have no prior convictions

other than traffic offenses and each testified as to the

various occasions they had reported to and cooperated

with local law enforcement officials concerning forged or

otherwise illegal narcotic prescriptions. [Transcript at

Vol. II, pps. 323-324; Vol. III, pps. 31-32, 69-70].

Petitioners also testified that in the past they had

relied upon law enforcement agencies to provide lists

of overbuyers of controlled substances to effectively en-

force the various drug laws. [Transcript at Vol. III,

pps. 30, 71]. In particular, Petitioner Donald Primmer

testified that he notified the Columbus Police about an

increase in sales of Robitussin A/C (a Schedule V sub-

stance) and was advised not to worry about it. [Tran-

script at Vol. III, pps. 71, 75; Vol. II, p. 331].

Expert testimony was presented at trial which estab-

lished that it is not the routine practice of pharmacists

to check back into the exempt narcotics book to discover

prior sales of Schedule V substances within a 48-hour

period. [Transcript at Vol. II, pps. 193-194, 33; Vol. III,

pps. 29, 75].

With regard to the refilling and/or renewal of prescrip-

tions, as it relates to Counts 166-174 of the indictment,

expert testimony established that it was the routine prac-

tice of pharmacists and the Petitioners to renew a pre-

scription upon the oral authorization of the issuing physi-

cian, often over the telephone, and to make an appro-

priate notation on the original prescription. [Transcript

at Vol. II, pps. 195-197, 339, 342-343, 345; Vol. III,

p. 44].

REASONS FOR GRANTING THE WRIT

Petitioners are three (3) Columbus, Ohio pharmacists

who are being prosecuted for alleged violations of the

Federal Controlled Substances Act, 21 U.S.C. § 841

(a) (1).

Their petition presents a question of first impression

for the Court: whether or not the conduct of a licensed

pharmacist that is technically in violation of an admin-

istrative regulation, specifically 21 C.F.R. §§ 1306.22,

1306.23 and 1306.32, promulgated by the United States

Attorney General can be punished criminally under 21

U.S.C. § 841 (a) (1).

Petitioners also raise a unique evidentiary issue regard-

ing the admissibility of a DEA official’s opinion testi-

mony on the « sntrolling law that was vigorously contested

at trial.

If the lower courts’ interpretation of these legal prin-

ciples is permitted to stand, Petitioners will be deprived

of substantial rights heretofore protected by the decisions

of this Court.

I. THE DISPENSING OF SCHEDULE IV AND V CON-

TROLLED SUBSTANCES BY A LICENSED PHAR-

MACIST IN VIOLATION OF 21 C.F.R. §§ 1306.22,

1306.23, AND 1306.32 CANNOT BE CRIMINALLY

PUNISHED UNDER 21 U.S.C. § 841(a)(1) OF THE

FEDERAL CONTROLLED SUBSTANCES ACT.

The United States Attorney General’s office promul-

gated 21 C.F.R. § 1306.82 which prohibits the sale of

more than two (2) bottles of Robitussin A/C, a Schedule

V non-prescription drug, over the counter, by licensed

pharmacists to the same person in any given 48-hour

period. In accordance with this administrative regulation,

therefore, a pharmacist is authorized to sell more than

two (2) bottles of Schedule V cough syrups containing

codeine if 48 hours and 1 minute have expired. The

Petitioners were convicted at trial of violating this arbi-

trary “48-hour rule” which ostensibly is also a violation

of 21 U.S.C. § 841(a) (1).

Petitioners argued at trial and continue to defend

against this prosecution, the very first of its kind, on the

ground that professional conduct prohibited by this ad-

ministrative regulation is not criminal under 21 U.S.C.

§ 841 (a) (1).

Section 841 (a) (1) is the criminal penalty section of the

Federal Controlled Substances Act. The statute is drafted

in the negative by outlawing any and all distribution or

dispensing of controlled substances except as specifically

authorized by the Controlled Substances Act.

Section 21 U.S.C. § 841(a) (1) reads as “‘u"lows:

Except as authorized by this title, it shall be unlaw-

ful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or pos-

sess with intent to manufacture, distribute, or dis-

pense, a controlled substance. (Emphasis added).

Only “registrants”, such as licensed pharmacists, are

authorized to distribute or dispense controlled drugs un-

der this federal law.

An example of the conduct authorized by the Controlled

Substance Act is found in 21 U.S.C. § 822(b), which

reads as follows:

Persons registered by the Attorney General under

this title to manufacture, distribute or dispense con-

trolled substances are authorized to process, manu-

facture, distribute or dispense such substances (in-

cluding any such activity in the conduct of research)

to the extent authorized by their registration and in

conformity with the other provisions of this title.

(Emphasis added).

While 21 U.S.C. § 822(b) merely outlines the very

basic requirements for distribution of controlled drugs,

§ 829 carefully defines specific standards of conduct reg-

istrants must follow relative to all five (5) schedules of

controlled substances.

21 U.S.C. § 829 reads as follows:

(a) Except when dispensed directly by a practi-

tioner, other than a pharmacist, to an ultimate user,

no controlled substance in schedule II, which is a

prescription drug as determined under the Federal

Food, Drug, and Cosmetic Act [21 USCS § 301 et

seq.] may be dispensed without the written prescrip-

tion of a practitioner, except that in emergency situ-

ations, as prescribed by the Secretary by regulation

after consultation with the Attorney General, such

drug may be dispensed upon oral prescription in ac-

cordance with section 503(b) of that Act [21 USCS

§ 353(b)]. Prescriptions shall be retained in con-

formity with the requirements of section 307 of this

title [21 USCS § 827]. No prescription for a con-

trolled substance in schedule II may be refilled.

(b) Except when dispensed directly by a_practi-

tioner, 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 Fed-

eral Food, Drug and Cosmetic Act [21 USCS §3801

et seq.] may be dispensed without a written or oral

prescription in conformity with section 503(b) of

that Act [21 USCS § 353(b)]. Such prescriptions

may not be filled or refilled more than six months

after the date thereof or be refilled more than five

times after the date of the prescription unless re-

newed by the practitioner.

a drug may be distributed or dispensed other than

for a medical purpose.

(d) Whenever it appears to the Attorney General

that a drug not considered to be a prescription drug

under the Federal Food, Drug, and Cosmetic Act

[21 USCS § 301 et seq.] should be so considered be-

cause of its abuse potential, he shall so advise the

Secretary to furnish to him all available data rele-

vant thereto. (Emphasis added).

Section 829(c) plainly authorizes pharmacists to sell

at retail, Robitussin A/C over the counter without a

prescription so long as it is for a medical purpose.

On the other hand, 21 C.F.R. § 1306.32 attempts to

define the term “for a medical purpose” in a purely

bureaucratic fashion by providing that: (a) the sale is

made only by a pharmacist; (b) not more than two (2)

bottles be sold to the same person in any 48-hour period;

pharmacist requires suitable identification from every

purchaser; (e) the pharmacist shall maintain accurate

bound records of every sale of over-the-counter Schedule

V drugs including the purchaser’s name and address,

date, initials of seller, name and quantity of the product,

all in accordance with 21 C.F.R. § 1804.04.

By unduly expanding the ordinary meaning of the

term “medical purpose”, the United States Attorney Gen-

eral’s regulations on .he distribution of Schedule V non-

prescription drugs contravenes the express will of Con-

gress as to what professional conduct can be punished

criminally. Rather than intend criminal sanctions for

the sale of Schedule V drugs, Congress specifically pro-

vided for civil enforcement and sanctions under 21 U.S.C.

§ 842. See U.S. v. Barbacoff, 416 F.Supp. 606 (D.C.

1976) ; U.S. v. Williams, 416 F.Supp. 611 (D.C. 1976).

In Barbacoff, supra, the facts were far more egregious .

than in the case at bar, yet, the defendants were not in-

dicted under 21 U.S.C. § 841 (a) ( 1), but were issued a

cease and desist order under 21 U.S.C. § 842. The de-

fendants in Barbacoff had filled Schedule IT prescription

drugs in violation of the controlling statutes and regula-

tions, yet were only assessed civil penalties.

In Williams, supra, a pharmacist who filled forged and

photocopied prescriptions and who failed to maintain com-

plete and accurate records with respect to receipt and

distribution of certain drugs, and who filled Schedule II

prescription drugs when he knew or should have known

that many of them had not been issued in the course of

legitimate medical practice was assessed only civil

liability.

The case of U.S. v. Seelig, et al. is the very first prose-

cution for violating the so-called 48-hour rule promulgated

by the United States Attorney General. The Court below

incorrectly held that:

[t]he Statute (§ 841(a)(1)) does expressly, albeit

in a convoluted fashion, provide that a violation of

the promulgated rules constitutes an unlawful act

under the Controlled Substances Act.” p. 5.

The Court below reasoned that because the Attorney

General is authorized under § 841 and § 871 to promul-

gate rules and regulations “that he deems necessary for

the efficient execution of his functions,” and to register

all persons licensed to handle controlled substances, then

all of the resulting rules and regulations constitute crimi-

nal standards of behavior punishable under § 841 (a) (1).

The Sixth Circuit, in the case at bar, relied exclusively

on the rationale in U.S. v. Green, 511 F.2d 1062 (7th

Cir. 1975) cert. den. 423 U.S. 1031. Green dealt with a

different regulation passed by the Attorney General, 21

C.F.R. § 1806.04(a), concerning prescriptions and the

natural professional standards requiring pharmacists to

fill only those prescriptions that are issued by the physi-

cian in the ordinary course of professional treatment.

Section 1306.04(a), as the court in Green correctly held,

does not expand the natural meaning of the statutory

authorization for distributing prescription drugs found

in § 829(a) and (b). Sections 829(a) and (b) expressly

mandate the dispensing of prescriptions, written or oral,

by pharmacists in conformity with § 503(j) of the Fed-

eral Food, Drug and Cosmetic Act. The regulation in

Green, supra, merely supplements the statutory language

by naturally requiring professional conduct of pharma-

cists. Likewise, § 829 incorporates the statutory terms

dispensing and practitioner as defined in § 802(10) and

(20). Once these critical terms are defined and applied,

it plainly appears that 21 C.F.R. § 1306.04 mimics and

merely supplements the controlling statute.

Thus, the court in Green properly allowed the criminal

prosecution of two (2) physicians and a pharmacist for

having dispensed controlled substances outside the scope

of their professional practice.

The case of U.S. v. Seelig, however, differs drastically

from a criminal prosecution under § 1306.04. Petitioners

were convicted on Counts 1-165 of the indictment on the

basis that their conduct allegedly violated 21 C.F.R.

§ 1306.32(b). This regulation does not attempt to define

or supplement the statutory concept of “medical purpose”

as set forth in 21 U.S.C. § 829(c). Rather, it arbitrarily

expands and bureaucratically annoints a 48-hour rule

that is totally unrelated to the notion of medical purpose.

The question of what is a “medical purpose” relates to

matters of professional judgment and legitimate treat-

ment instead of the number of bottles of cough syrup sold

over the counter.

The 48-hour rule establishes a bureaucratic presump-

tion that all purchases of a Schedule V substance by the

Same retail purchaser within a 48-hour period are for

non-medical purposes. Such a blanket prohibition invades

the judgment of the practitioner and contradicts the in-

tent of Congress. Had Congress intended to criminally

sanction the sale of Schedule V drugs, it would have

designated them as prescription drugs. See House Re-

port No. 91-1444, 91st Cong., 2d Session, 1970 U.S. Code

Cong. & Admin. News 4566.*

Other statutes, governing areas of conduct and social

interaction that are as complex as the regulation of con-

trolled substances, have been phrased in precise terms

when Congress intended to delegate the function of defin-

ing criminal acts to some administrative body. This court

has long since required Congress to expressly state that

the violation of administrative rules are criminally pun-

ishable. U.S. v. Grimaud, 220 U.S. 506 ( 1911).

For example, § 10 of the Securities and Exchange Act

of 1934, 15 U.S.C. § 78; provides as follows:

It shall be unlawful for any person, directly or indi-

rectly, by the use of any means or instrumentality of

interstate commerce or of the mails, or of any facil-

ity of any national securities exchange—

(a) To effect a short sale, or to use or employ

a stop-loss order in connection with the pur-

* It must be noted that nowhere in the legislative history

is it mentioned that conduct falling outside the scope of the

Attorney General’s regulations will be criminally punished.

chase or sale, of any security registered on a

national securities exchange, in contravention of

such rules and regulations as the Commission

may prescribe as necessary or appropriate in

the public interest or for the protection of

investors.

(b) To use or employ, in connection with the

purchase or sale of any security registered on

a national securities exchange or any security

not so registered, any manipulative or deceptive

device or contrivance in contravention of such

rules and regulations as the Commission may

prescribe as necessary or appropriate in the pub-

lic interest or for the protection of investors.

See, also, 15 U.S.C. §$§ 78n; Cf. 29 U.S.C. §$§ 207(g) (3),

207(m) (1), and 211d, which are additional examples of

instances where Congress enacted statutory language

expressly providing that violations of the regulations

promulgated under the authority of the statute would be

violations of the statute.

The absence of such precision with respect to 21 U.S.C.

§ 829(c) manifests Congress’s intent to limit control of

the dispensing of Schedule V substances to the require-

ment that the specified substances be dispensed only for a

medical purpose. Had it intended more stringent regula-

tion, it should have provided so expressly.

In addition to the foregoing illustrations 21 C.F.R.

§ 1306.32 contains many other directives that do not de-

fine “medical purpose.” Instead, they impermissibly ex-

pand the scope of 21 U.S.C. § 841(a) (1).

If the lower court interpretation of 21 .C.F.R. § 1306.32

is allowed to stand, violation of any of the directives set

forth in the aforementioned regulation will constitute a

violation of 21 U.S.C. § 841(a) (1). Accordingly, such

omissions as failure to demand identification from a

potential purchaser will result in criminal punishment.

Additionally, the failure of a pharmacist to maintain a

bound record book which contains the name and quantity

of the controlled substance purchased, the purchase date,

and the signature or initialling of the dispensing pharma-

cist could well result in criminal punishment under 21

U.S.C. § 841(a) (1). Thus, pharmacists must agonize

each time a sale of cough syrup is made for fear of hav-

ing failed to properly initial the record book or having

erroneously recorded the street address of the purchaser.

Under the very worst scenario, a pharmacist could be

prosecuted if he used a loose-leaf record book instead of

a bound record volume. The possibilities for prosecution

for failure to comply exactly with the directives are end-

less. Those examples cited, however, adequately indicate

the ridiculous posture of 21 C.F.R. § 1306.32.

For many of the same reasons, 21 C.F.R. §§ 1306.22

and 1306.23 impermissibly expand the Scope of 21 U.S.C.

§ 841(a) (1). By attempting ostensibly to define an ex-

ception, the Attorney General’s regulations, 21 C.F.R.

§ 1306.22 and 1306.23, limit what was intended by Con-

gress as legally permissible conduct. The result is that

now a larger category of conduct is Susceptible to crimi-

nal punishment.

Following much the same analysis employed with re-

spect to 21 C.F.R. § 1806.32, it must be initially noted

that 21 U.S.C. § 841 (a) (1) provides for exceptions. Ac-

cordingly, 21 U.S.C. § 822(b) permits registrants to dis-

pense controlled substances “to the extent authorized by

their registration and in conformity with the other pro-

visions of this title.” Focusing more narrowly, a careful

reading of § 829(b) discloses that “prescriptions may not

be filled or refilled more than six months after the date

thereof or be refilled more than five times after the date

of the prescription unless renewed by the practitioner,”

The underlined portion of the last sentence implies that

if six months have expired from the original issuing date

of the prescription or if five refills have been extended on

the original prescription, the practitioner must renew the

original prescription before additional quantities of the

controlled substance are dispensed. It appears, however,

that 21 C.F.R. § 1306.22 does not follow the statutory

guidelines but is instead more restrictive.

Initially, it must be noted that the first sentence of

21 C.F.R. § 1306.22(a) provides that “No prescription for

a controlled substance listed in schedule III or IV shall be

filled or refilled more than six months after the date on

which such prescription was issued and no such prescrip-

tion authorized to be refilled may be refilled more than

five times.” Up to this point, the regulation merely mim-

ics the statutory language of 21 U.S.C. § 829(b); (last

sentence). Shortly thereafter, subsection (a) of 21 C.F.R.

§ 1306.22 delineates the manner in which additional quan-

tities of the controlled substance which is the subject of

the original prescription may be dispensed when the

original prescription has become unenforceable because

of the six-month or five-refill limitation previously men-

tioned. Specifically subsection (a) states that:

Additional quantities of controlled substances listed

in Schedule III or IV may only be authorized by a

prescribing practitioner through issuance of a new

prescription as provided in § 1306.21 which shall be

a new and separate prescription.

Proceeding further, and carefully comparing the lan-

guage of 21 U.S.C. § 829(b) with the language of 21

C.F.R. .§ 1306.22(a), it becomes readily apparent that

while § 829(b) merely requires a practitioner to “renew”

a prescription, 21 C.F.R. § 1306.22(a) requires the prac-

titioner to issue a “new” prescription. Unless a court

can construe the words “new” and “renew” as having

the same meaning, the inevitable conclusion to be reached

is that 21 C.F.R. § 1306.22(a) unduly restricts what

Congress otherwise intended to be permissible conduct.

The sole act forming the basis for the prosecution below

was the alleged failure of Petitioners to reduce an oral

renewal prescription to writing on a separate piece of

paper rather than noting the same on the reverse side of

the original prescription.

Congress never intended such an absurd result. Con-

gress should have expressly provided, as it did with the

securities laws hereinbefore mentioned, that violations of

the regulations would constitute a violation of § 841

(a) (1). Nowhere in the statute or in the legislative his-

tory, is such an intent manifested.

The foregoing analysis is equally applicable to 21

C.F.R. § 1306.23. Initially, it must be observed that sub-

section (a) of 21 C.F.R. § 1306.23 refers one back to 21

C.F.R. § 1306.22(a), which, as has been stated previously,

is replete with defects. In addition, subsection (ec) pro-

vides that “no dispensing occurs after 6 months after

the date on which the prescription was issued.” Because

this subsection contains no provision for renewal, it limits

the scope of permissible conduct more severely than 21

U.S.C. § 829(b) and, correspondingly, expands the scope

of 21 U.S.C. § 841(a) (1). Such a result may not be

condoned.

In promulgating these regulations, the Attorney Gen-

eral has violated the doctrine of separation of powers.

Because of the manner in which the statutory scheme of

the Controlled Substances Act functions, violations of the

regulations promulgated by the Attorney General allegedly

constitute violations of 21 U.S.C. § 841(a)(1). Based

upon the prosecution below, the operation of the regula-

tions can only be characterized as having the force and

effect of penal laws. If the regulations do no more than

mimic the statutes, as does 21 C.F.R. § 1306.04, no harm

is done, for in that case, the regulation is consistent with

the statute. However, in the case at bar, the regulations

exceed the scope of the statute and operate not as a

exception but as a penal law. It was to prevent such an

occurrence that our forefathers incorporated the doctrine

of separation of powers into the Constitution. To preserve

this hallowed legal principle, 21 C.F.R. §§ 1306.22,

1306.23 and 1306.32 should be held to be not only imper-

missible expansions of 21 U.S.C. § 841(a) (1), but con-

stitutionally defective as well.

Congress has not provided criminal penalties for acts

contrary to such regulations adopted by the United States

Attorney General. See: 21 U.S.C. § 821. The operative

language of 21 U.S.C. § 841 clearly prohibits illegitimate

drug trafficking. It is noteworthy that this Court recently

characterized 21 U.S.C. § 841 as the federal design for

prosecuting the “offense of acting as a drug ‘pusher’ ”.

United States v. Moore, 423 U.S. 122 (1975).

The foregoing analysis clearly indicates that the At-

torney General has exceeded the scope of the powers

granted to him. The regulation in question has expanded

21 U.S.C. § 841(a) (1). Petitioners submit, on the basis

of the reasoning set forth in Grimavzd, that such action is

impermissible. Accordingly, the prosecution below cannot

be upheld on the basis that Petitioners violated 21 C.F.R.

§§ 1306.22, 1306.23 and 1306.32.

II. THE TESTIMONY OF D.E.A. COMPLIANCE INVES-

TIGATOR, GERALD KOPP, VIOLATED RULES 403,

702, AND 704, FEDERAL RULES OF EVIDENCE,

INSOFAR AS IT RELATED TO “THE LAW” CON-

TROLLING THE PROSECUTION OF THIS CASE.

It is fundamental to Anglo-American Jurisprudence

that it is within the sole province of the Trial Court to

provide the Jury with the controlling law. Likewise, it is

an equally universal maxim that no witness can testify

as to the law. 31 Am.Jur.2d, Expert and Opinion Evi-

dence, § 69. Yet, this trial court’s decisions, as affirmed

by the Court of Appeals, repeatedly and erroneously al-

lowed chief prosecution witness Gerald Kopp to testify

as to his personal opinion of the Federal Law, Petitioners

have been convicted of violating.

Petitioners direct the Court’s attention to the following

direct testimony by Gerald Kopp adduced over counsel’s

vigorous objections.

Q. What basically did you find by looking through

those books?

MR. MATAN: Objection again, Your Honor.

THE COURT: Overruled. Go ahead.

A. We found a pattern of people continuously pur-

chasing Robitussin A/C, or one of the exempt con-

trolled substances, and we found several instances

were making purchases within the 48-hour time

limit.

Q. When you saw such a purchase, did you make

any notation?

A. Yes.

THE COURT: This is a purchase within a 48-

hour period?

Q. That’s correct. What did you do?

A. I circled it and I numbered it. The first I num-

bered 1 and continued through the books in that

manner.

Q. With regard to the time period, why did you

pick the 48-hour time period to single out certain

purchases?

A. Because under the Controlled Substances Act

they can only purchase these exempt preparations,

one four-ounce bottle within 48 hours, a 48-hour

time period.

BY THE COURT:

Q. You say they can only purchase one four-ounce

bottle within a 48-hour time period?

A. That’s correct, sir.

Q. Don’t you really mean that when a person goes

into a drugstore and buys a Schedule V controlled

substance, specifically Robitussin, that he cannot

make another purchase of that controlled substances

until 48 hours expires from his first purchase?

A. Yes, sir.

Q. That’s what you mean; isn’t it?

A. Yes, sir.

Q. But not within 48 hours?

A. Exactly.

MR. MATAN: Your Honor, we would object and

ask that be stricken on the basis this is a matter of

law for the Court to instruct the jury.

THE COURT: Overruled.

BY MR. HUNT:

Q. Based upon your experience with the way the

drug law operates, are pharmacists under a duty

to insure that such a violating purchase is not made

within that time period?

MR. MATAN: I am going to object. That is for

the Court to determine and the jury, it is an ulti-

mate question of law and fact.

THE COURT: Overruled.

A. Yes, it is in the regulations which govern the

sales of the controlled substance that it is the phar-

macist’s duty to make sure that he does not sell it

in 48 hours.

[Transcript at Vol. I, pps. 124-126].

Rather than allow trial counsel for Petitioners to inter-

ject specific objections for the record, the Court below

granted a continuing objection for any and all reasons

relative to Gerald Kopp and at the same time overruled

each and every one of them. [Transcript at Vol. I, p.

135].

The government then proceeded to pose leading ques-

tions to Kopp at the beginning of their presentation of

Exhibits 1 through 165, to which he answered nine (9)

consecutive times that the particular exhibits show sales

“in violation of the 48-hour rule.” (Transcript at Vol. I,

pps. 125-141]. Finally, the Trial Court instructed Kopp

to delete any reference to “violation” yet encouraged him

to continue referring to the 48-hour time period. [Tran-

script at Vol. I, p. 141]. After three (3) more consecu-

tive references to this 48-hour time frame, the Court

below temporarily stopped such blatantly erroneous testi-

mony. [Transcript at Vol. I, p. 142]. But by that time,

the prejudicial damage was beyond repair.

Thereafter, on re-direct examination, despite its earlier

admonition, the Trial Court compounded its error by

allowing and participating in the clearly improper and

highly inflammatory questioning of Kopp on the law. Be-

cause this line of questioning was so prejudicial to the

substantial right of Petitioners and equally critical to this

petition for writ of certiorari, the aforesaid testimony of

Kopp on redirect examination is reproduced below:

BY MR. HUNT:

Q. Mr. Kopp, I want to direct your attention to the

requirements as you understand them for keeping

records that would enable the pharmacist to refrain

from making sales within the 48-hour time period.

Are you familiar with that regulation?

A. Yes.

MR. MATAN: Object.

THE COURT: Ladies and gentlemen of the jury,

the Court has attempted to stop that hammering.

Read the question back to me.

(Question read.)

THE COURT: Do you object to that?

MR. MATAN: Yes.

THE COURT: Overruled.

MR. MATAN: Does the Court wish any reasons?

THE COURT: No.

Is he familiar with the regulation, and he said he is

familiar with the regulation.

A. Yes, sir.

Q. Does the regulation prohibit the sale within 48

hours of cough syrup containing codeine?

MR. MATAN: Object for several reasons, if the

Court wishes to hear them.

THE COURT: Overruled.

A. Yes, it does.

Q. Can you tell in you own words what the regu-

lation requires of a pharmacist?

MR. MATAN: Object.

THE COURT: Overruled.

Q. Go ahead and answer the question: What is he

required to do pursuant to the regulation?

MR. MATAN: Object.

THE COURT: Overruled.

[Transcript at Vol. I, pps. 304-306].

In addition to the foregoing prejudicial errors relative

to Counts 1 through 165, the Court below further erred

with respect to the felony charges of Counts 166 through

174 for alleged prescription overfills of Schedule IV sub-

stances by, once again, allowing and practically encour-

aging Kopp to testify as to his own interpretation of the

controlling law.

In that regard, please consider the following testimony

given by Gerald Kopp:

[MR. HUNT]

Q. Based upon your experience and your knowledge

of the drug field, customarily what does a pharmacy

or pharmacist do when he fills a prescription the

first time?

A. He is required—

MR. MATAN: Objection, Your Honor.

THE COURT: Overruled.

A. He is required by law to indicated the date the

prescription was filled and his initials, and if the

quantity is any different that what was—then the

prescription was written for. He is required to list

the quantity dispensed.

MR. MATAN: Object and ask that be stricken.

THE COURT: Come up, gentlemen.

(Discussion off the record.)

THE COURT: The objection to the last question

and answer is overruled.

[Transcript at Vol. I, pps. 228-229].

[MR. MATAN]

Q. From your understanding and your experience,

isn’t it true that a physician may authorize an oral

renewal of a prescription?

A. Yes, as long as he does not exceed the five re-

fills that are on the prescription.

Q. Are you sure that’s the way you want to an-

swer that?

A. Yes, a prescription is only valid for five refills,

and that’s all.

BY THE COURT:

Q. I would like to ask the question to straighten

my thinking: A physician offers a prescription for

Darvon?

A. Yes, sir.

Q. Let’s say the amount is 50 units, and he au-

thorizes let’s say, three refills under that prescrip-

tion?

A. Yes, sir.

Q. In order to refill the prescription after it is filled

the first time, does the druggist need anything ex-

cept the original prescription, that is does he need

either the oral or written authorization of the physi-

cian in order to fill it the second and third time?

A. No, sir.

[Transcript at Vol. I, pps. 271-272].

Here the Trial Court dignifies and adds authority to

Kopp’s own interpretation of the law by asking his ad-

vice on “the law”—something that the Judge is supposed

to instruct the jury on. Petitioner’s trial counsel in at-

tempting to obtain some rebuttal to Kopp’s interpretation

of the law is again silenced by Judge Kinneary.

BY MR. MATAN:

Q. I would like some information like the Judge:

Would this be correct that such prescriptions may

not be filled or refilled more than six months after

the date thereof or be refilled more than five times

after the date of the prescription unless renewed by

the practitioner; is that correct?

A. Yes.

Q. So that if it is renewed by the practitioner, it

can be more than five times?

A. No, because the pharmacist is required to—If it

is a drug that can be called in over the telephone,

the pharmacist is required to make a new prescrip-

tion for that additionai authorization.

Q. It doesn’t say that in the law: does it?

MR. HUNT: Objection.

THE COURT: Sustained.

(Transcript at Vol. I, pps. 272-273].

Once again, prejudice naturally flows from the testi-

mony since the controlling law as to prescription refills

and renewal under Counts 166 to 174 was and remains

in dispute. Clearly, those parts of the law testified to by

Kopp and those parts that were instructions by the Court

would be indistinguishable to the jury.

If this Court were to condone Trial Judges allowing

law enforcement personnel to render opinion testimony

on the controlling law, defense counsel would be forced

to counter with the truly expert testimony of attorneys

to enlighten juries with their professional opinions and

interpretations of any statute at issue. Such a practice

would not only disserve the administration of justice

greatly, but it would seriously undermine the heretofore

exclusive province of the Trial Court. For example,

United States v. Sink, 355 F.Supp. 1067 (E.D. Pa. 1973),

affirmed, 485 F.2d 683 (1973), involved the prosecution

of a union president for accepting illegal payments from

employers and the District Court ruled inadmissible opin-

ions by representatives of the employer, including a law-

yer, as to what conduct constituted a violation of the

Labor Management Relations Act.

Such testimony is patently beyond the scope of Rules

702 and 704, Federal Rules of Evidence. Testimony of

this nature does not go to the ultimate issues of fact, but

rather concerns the so-called expert interpretation of Fed-

eral Criminal Law.

In Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505 (2nd

Cir. 1977) cert. den. 434 U.S. 861, the Second Circuit

Court of Appeals held that the trial court erred when, in

an action for an alleged breach of an agreement to reg-

ister stock received by the plaintiffs in a transaction in

which defendants acquired assets of the plaintiffs’ cor-

poration in exchange for corporate stock, it permitted an

expert witness called by plaintiffs to give his opinion as

to the legal obligations of the parties under the contract ;

even though the witness, a lawyer, was qualified as an

expert in securities regulation and, therefore, competent

to explain step-by-step practices ordinarily followed by

lawyers and corporations in shepherding registration

statements through the Securities Exchange Commission.

See, also, Eastern Associated Coal v. Aetna Casualty &

Surety Co., 475 F.Supp. 586 (1979).

Additionally, Rule 403, Federal Rules of Evidence per-

mits the trial judge to exclude relevant evidence if its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or mislead-

ing the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.

Although the trial judge is to be granted latitude in

exercising the judicial discretion accorded him under

this rule, admission of the testimony of Gerald Kopp un-

fairly prejudiced Petitioners’ rights, confused the issues,

and mislead the jury by forcing them to distinguish be-

tween the testimony and the Court’s instructions. The

Trial Court below abused its discretion in allowing this

testimony.

Finally, and perhaps most importantly, admission of

opinion testimony relating to the law controlling the

prosecution of a criminal case deprives an accused of his

right to have the jury instructions issued by the court

and accordingly emaciates the concepts of procedural due

process heretofore vigorously protected by this Court.

The very essence of our system of jurisprudence contem-

plates a trier of fact and interpreter of the law. While

the court may exercise both functions simultaneously, the

jury may only try the facts. To allow testimony like that

of Gerald Kopp to be admitted into evidence serves to

slowly erode this time honored division of authority.

On the basis of the foregoing analysis, Petitioners sub-

mit that Gerald Kopp’s testimony violated Rules 403, 702

and 704, Federal Rules of Evidence depriving Petition-

ers of procedural due process and should have been ac-

cordingly excluded.

CONCLUSION

The foregoing reasons for granting a writ of certiorari

demonstrate the importance of the above discussed ques-

tions to a final disposition of this case. For these reasons,

a writ of certiorari should issue to review the judgment

of the Sixth Circuit Court of Appeals.

Respectfully submitted,

DANA G. RINEHART

MATAN, RINEHART & SMITH

261 South Front Street

Columbus, Ohio 43215

(614) 228-2678

Attorney for Petitioners

Dated: July 7, 1980

APPENDIX

A. Statutes and Regulations

21 U.S.C. § 801:

§ 801. Findings and declarations

The Congress makes the following findings and decla-

rations:

(1) Many of the drugs included within this title

have a useful and legitimate medical purpose

and are necessary to maintain the health and

general welfare of the American people.

(2) The illegal importation, manufacture, dis-

tribution, and possession and improper use of

controlled substances have a substantial and

detrimental effect on the health and general

welfare of the American people.

(3) A major portion of the traffic in controlled

substances flows through interstate and foreign

commerce. Incidents of the traffic which are not

an integral part of the interstate or foreign

flow, such as manufacture, local distribution, and

possession, nonetheless have a substantial and

direct effect upon interstate commerce because—

(A) after manufacture, many controlled

substances are transported in interstate

commerce,

(B) controlled substances distributed local-

ly usually have been transported in inter-

state commerce immediately before their

distribution, and

monly flow through interstate commerce

immediately prior to such possession.

(4) Local distribution and possession of con-

trolled substances contribute to swelling the in-

terstate traffic in such substances.

(5) Controlled substances manufactured and

distributed intrastate cannot be differentiated

from controlled substances manufactured and

distributed interstate. Thus, it is not feasible to

distinguish, in terms of controls, between con-

trolled substances manufactured and distributed

interstate and controlled substances manufac-

tured and distributed intrastate.

(6) Federal control of the intrastate incidents

of the traffic in controlled substances is essential

to the effective control of the interstate incidents

of such traffic.

(7) The United States is a party to the Single

Convention on Narcotic Drugs, 1961, and other

international conventions designed to establish

effective control over international and domestic

traffic in controlled substances.

21 U.S.C. § 802(10) (Definitions) :

(10) The term “dispense” means to deliver a con-

trolled substance to an ultimate user or research

subject by, or pursuant to the lawful order of, a

practitioner, including the prescribing and adminis-

tering of a controlled substance and the packaging,

labeling, or compounding necessary to prepare the

substance for such delivery. The term “dispenser”

means a practitioner who so delivers a controlled

substance to an ultimate user or research subject.

21 U.S.C. § 802(20) (Definitions) :

(20) The term “practitioner” means a physician,

dentist, veterinarian, scientific investigator, phar-

macy, hospital, or other person licensed, registered,

or otherwise permitted, by the United States or the

jurisdiction in which he practices or does research,

to distribute, dispense, conduct research with respect

to, administer, or use in teaching or chemical analy-

sis, a controlled substance in the course of profes-

sional practice or research.

21 U.S.C. § 821:

§ 821. Rules and regulations

The Attorney General is authorized to promulgate

rules and regulations and to charge reasonable fees

relating to the registration and control of the manu-

facture, distribution, and dispensing of controlled

substances.

21 U.S.C. § 822(b):

§ 822. Persons required to register

(b) Persons registered by the Attorney General un-

der this title to manufacture, distribute, or dispense

controlled substances are authorized to possess, man-

ufacture, distribute, or dispense such substances (in-

cluding any such activity in the conduct of research )

to the extent authorized by their registration and in

conformity with the other provisions of this title.

21 U.S.C. § 829:

§ 829. Prescriptions

(a) Except when dispensed directly by a practi-

tioner, other than a pharmacist, to an ultimate user,

no controlled substance in schedule II, which is a

prescription drug as determined under the Federal

Food, Drug, and Cosmetic Act [21 USCS § 301 et

seq.], may be dispensed without the written prescrip-

tion of a practitioner, except that in emergency situa-

tions, as prescribed by the Secretary by regulation

after consultation with the Attorney General, such

drug may be dispensed upon oral prescription in

accordance with section 503(b) of that Act [21 USCS

§ 353(b)]. Prescriptions shall be retained in con-

formity with the requirements of section 307 of this

title [21 USCS § 827]. No prescription for a con-

trolled substance in schedule II may be refilled.

(b) Except when dispensed directly by a practi-

tioner, other than a pharmacist, to an ultimate user,

no controlled substance in schedule III or IV, which

is a prescription drug as determined underxthe Fed-

eral Food, Drug, and Cosmetic Act [21 USCS § 301

et seq.], may be dispensed without a written or oral

prescription in conformity with section 503(b) of

that Act [21 USCS § 353(b)]. Such prescriptions

may not be filled or refilled more than six months

after the date thereof or be refilled more than five

times after the date of the prescription unless re-

newed by the practitioner.

(ce) No controlled substance in schedule V which is

a drug may be distributed or dispensed other than

for a medical purpose.

(d) Whenever it appears to the Attorney General

that a drug not considered to be a prescription drug

under the Federal Food, Drug, and Cosmetic Act

[21 USCS § 301 et seq.] should be so considered be-

cause of its abuse potential, he shall so advise the

Secretary and furnish to him all available data rele-

vant thereto.

21 U.S.C. § 841 (a) (1):

§ 841. Prohibited acts A—Penalties

(a) Except as authorized by this title, it shall be

unlawful for any person knowingly or intentionally—

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

possess with intent to manufacture, distribute,

or dispense, a controlled substance; .. .

21 U.S.U. § 871:

§ 871. Procedures

(a) The Attorney General may delegate any of his

functions under this title to any officer or employee

of the Department of Justice,

(b) The Attorney General may promulgate and en-

force any rules, regulations, and procedures which

he may deem necessary and appropriate for the effi-

cient execution of his functions under this title.

(ec) The Attorney General may accept in the name

of the Department of Justice any form of devise,

bequest, gift, or donation where the donor intends

to donate property for the purpose of preventing or

controlling the abuse of controlled substances. He

may take all appropriate steps to secure possession

of such property and may sell, assign, transfer, or

convey any such property other than moneys,

15 U.S.C. § 78):

§ 78j. Manipulative and deceptive devices

It shall be unlawful for any person, directly or indi-

rectly, by the use of any means or instrumentality of

interstate commerce or of the mails, or of any facil-

ity of any national securities exchange—

(a) To effect a short sale, or to use or employ

any stop-loss order in connection with the pur-

chase or sale, of any security registered on a

national securities exchange, in contravention of

such rules and regulations as the Commission

may prescribe as necessary or appropriate in the

public interest or for the protection of investors.

(b) To use or employ, in connection with the

purchase or sale of any security registered on a

national securities exchange or any security not

so registered, any manipulative or deceptive de-

vice or contrivance in contravention of such rules

and regulations as the Commission may prescribe

as necessary or appropriate in the public interest

or for the protection of investors.

15 U.S.C. § 78n:

§ 78n. Proxies; tender offers

(a) It shall be unlawful for any person, by the use

of the mails or by any means or instrumentality of

interstate commerce or of any facility of a national

securities exchange or otherwise, in contravention of

such rules and regulations as the Commission may

prescribe as necessary or appropriate in the public

interest or for the protection of investors, to solicit

or to permit the use of his name to solicit any proxy

or consent or authorization in respect of any security

(other than an exempted security) registered pursu-

ant to section 12 of this title [15 USCS § 781].

(b) It shall be unlawful for any member of a na-

tional securities exchange, or any broker or dealer

registered under this title [15 USCS §§ 78a et seq.],

in contravention of such rules and regulations as the

Commission may prescribe as necessary or appro-

priate in the public interest or for the protection of

investors, to give, or to refrain from giving a proxy,

consent, or authorization in respect of any security

registered pursuant to section 12 of this title [15

USCS § 781] and carried for the account of a

customer...

29 U.S.C. § 207 (g) (3)

(g) No employer shall be deemed to have violated

subsection (a) by employing any employee for a

workweek in excess of the maximum workweek ap-

plicable to such employee under such subsection if,

pursuant to an agreement or understanding arrived

at between the employer and the employee before

performance of the work, the amount paid to the

employee for the number of hours worked by him in

such workweek in excess of the maximum workweek

applicable to such employee under such subsec-

tion—...

(3) is computed at a rate not less than one and

one-half times the rate established by such agree-

ment or understanding as the basic rate to be

used in computing overtime compensation there-

under:

Provided, That the rate so established shall be au-

thorized by regulation by the Administrator as be-

ing substantially equivalent to the average hourly

earnings of the employee, exclusive of overtime pre-

miums, in the particular work over a representative

period of time; and if (i) the employee’s average

hourly earnings for the workweek exclusive of pay-

ments described in paragraphs (1) through (7) of

subsection (e) are not less than the minimum hourly

rate required by applicable law, and (ii) extra over-

time compensation is properly computed and paid on

other forms of additional pay required to be included

in computing the regular rate.

29 U.S.C. § 207(m) (1):

(m) For a period or periods of not more than four-

teen workweeks in the aggregate in any calendar

year, any employer may employ any employee for a

workweek in excess of that specified in subsection

(a) without paying the compensation for overtime

employment prescribed in such subsection, if such

employee—

(1) is employed by such employer—

(A) to provide services (including strip-

ping and grading) necessary and inciden-

tal to the sale at auction of green leaf to-

bacco of type 11, 12, 18, 14, 21, 22, 238, 24,

81, 35, 36, or 37 (as such types are defined

by the Secretary of Agriculture [see 30

CFR § 30.1 et seq.]), or in auction sale,

buying, handling, stemming, redrying, pack-

ing, and storing of such tobacco,

29 U.S.C. § 208:

§ 208. Wage orders in Puerto Rico and the Virgin

Islands

(a) The policy of this Act [29 USCS §§ 201 et seq.]

with respect to industries or enterprises in Puerto

Rico and the Virgin Islands engaged in commerce or

in the production of goods for commerce is to reach

as rapidly as is economically feasible without sub-

stantially curtailing employment the objective of the

minimum wage rate which would apply in each such

industry under paragraph (1) or (5) of section 6(a)

[29 USCS § 206(a) (1) or (5)] but for section 6(c)

[29 USCS § 206(c)]. The Secretary shall, from time

to time, convene an industry committee or commit-

tees, appointed pursuant to section 5, and any such

industry committee—

(1) shall, from time to time, recommend the

minimum wage rates to be paid by employers

who are in Puerto Rico, in the Virgin Islands,

or in both places and who but for section 6(c)

[29 USCS § 206(c)] would be subject to the

minimum wage requirements of section 6(a) (1)

[29 USCS § 206(a) (1)], and

(2) may, from time to time, recommend in-

creases in the incremental increases authorized

by section 6(c) (2) [29 USCS § 206(c) (2)].

The Administrator shall from time to time convene

an industry committee or committees, appointed pur-

suant to section 5 [29 USCS § 205] and any such

industry committee shall from time to time recom-

mend the minimum rate or rates of wages to be

paid under section 6 [29 USCS § 206] by employers

in Puerto Rico or the Virgin Islands, or in Puerto

Rico and the Virgin Islands, engaged in commerce

or in the production of goods for commerce or in any

enterprise engaged in commerce or in the production

of goods for commerce in any such industry or classi-

fications therein. Minimum rates of wages estab-

lished in accordance with this section which are not

equal to the otherwise applicable minimum wage

rate in effect under paragraph (1) or (5) of sec-

tion 6(a) [29 USCS § 206(a) (1) or (5)] shall be

reviewed by such a Committee once during each bien-

nial period, beginning with the biennial period com-

mencing July 1, 1958, except that the Secretary, in

his discretion, may order an additional review dur-

ing any such biennial period.

(b) Upon the convening of any such industry com-

mittee, the Administrator shall refer to it the ques-

tion of the minimum wage rate or rates to be fixed

for such industry. The industry committee shall

investigate conditions in the industry and the com-

mittee, or any authorized subcommittee thereof, shall

after due notice hear such witnesses and receive such

evidence as may be necessary or appropriate to en-

able the committee to perform its duties and func-

tions under this Act [29 USCS §§ 201-216, 217-219,

557]. The committee shall recommend to the Ad-

ministrator the highest minimum wage rates for the

industry which it determines, having due regard to

economic and competitive conditions, will not sub-

stantially curtail employment in the industry, and

will not give any industry in Puerto Rico or in the

Virgin Islands a competitive advantage over any

10a

industry in the United States outside of Puerto Rico

and the Virgin Islands; except that the committee

shall recommend to the Secretary the minimum wage

rate prescribed in section 6(a) or 6(b) [29 USCS

§ 206(a) or (b)], which would be applicable but for

section 6(c) [29 USCS § 206(c)], unless there is

substantial documentary evidence, including pertinent

unabridged profit and loss statements and balance

sheets for a representative period of years or in the

case of employees of public agencies other appro-

priate information, in the record which establishes

that the industry, or a predominant portion thereof,

is unable to pay that wage.

(ec) The industry committee shall recommend such

reasonable classifications within any industry as it

determines to be necessary for the purposes of fixing

for each classification within such industry the high-

est minimum wage rate (not in excess of that in

effect under paragraph (1) or (5) of section 6(a)

[29 USCS § 206(a) (1) or (5)] (as the case may

be)) which (1) will not substantially curtail em-

ployment in such classification and (2) will not give

a competitive advantage to any group in the indus-

try, and shall recommend for each classification in

the industry the highest minimum wage rate which

the committee determines will not substantially cur-

tail employment in such classification. In determin-

ing whether such classifications should be made in

any industry, in making such classifications, and in

determining the minimum wage rates for such classi-

fications, 0 classifications shall be made, and no

minimum wage rate shall be fixed, solely on a re-

gional basis, but the industry committee shall con-

sider among other relevant factors the following:

(1) competitive conditions as affected by trans-

portation, living, and production costs;

lla

(2) the wages established for work of like or

comparable character by collective labor agree-

ments negotiated between employers and employ-

ees by representatives of their own choosing;

and

(3) the wages paid for work of like or com-

parable character by employers who voluntarily

maintain minimum wage standards in the in-

dustry.

No classification shall be made under this section on

the basis of age or sex.

(d) The industry committee shall file with the Sec-

retary a report containing its findings of fact and

recommendations with respect to the matters referred

to it. Upon the filing of such report, the Secretary

shall publish such recommendations in the Federal

mendations contained in such report shall take effect

upon expiration of 15 days after the date of such

publication.

(e) Orders issued under this section shall define

the industries and classifications therein to which

they are to apply, and shall contain such terms and

conditions as the Administrator finds necessary to

carry out the purposes of such orders, to prevent the

circumvention or evasion thereof, and to safeguard

the minimum wage rates established therein.

(f) Due notice of any hearing provided for in this

section shall be given by publication in the Federal

tor deems reasonably calculated to give general notice

to interested persons.

29 U.S.C. § 211(d):

(d) The Administrator is authorized to make such

regulations and orders regulating, restricting, or

12a

prohibiting industrial homework as are necessary

or appropriate to prevent the circumvention or eva-

sion of and to safeguard the minimum wage rate

prescribed in this Act [29 USCS §§ 201-216, 217-219,

557], and all existing regulations or orders of the

Administrator relating to industrial homework: are

hereby continued in full force and effect.

21 C.F.R. § 1806.04 (a) :

§ 1306.04 Purpose of issue of prescription

(a) A prescription for a controlled substance to be

effective must be issued for a legitimate medical pur-

pose by an individual practitioner acting in the usual

course of his professional practice. The responsibility

of the proper prescribing and dispensing of con-

trolled substances is upon the prescribing practi-

tioner, 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 the

legitimate and authorized research is not a prescrip-

tion 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 relat-

ing to controlled substances.

21 C.F.R. § 1306.32:

§ 1806.32 Dispensing without prescription

A controlled substance listed in schedule V, and a

controlled substance listed in schedule II, III, or IV

which is not a prescription drug as determined un-

der the Federal Food, Drug and Cosmetic Act, may

be dispensed by a pharmacist without a prescription

to a purchaser at retail, provided that:

13a

(a) Such dispensing is made only by a phar-

macist (as defined in § 1306.02(d), and not by a

nonpharmacist employee even if under the su-

pervision of a pharmacist (although after the

pharmacist has fulfilled his professional and

legal responsibilities set forth in this section, the

actual cash, credit transaction, or delivery may

be completed by a nonpharmacist) ;

(b) Not more than 240 ce. (8 ounces) of any

such controlled substance containing opium, nor

more than 120 ee. (4 ounces) of any other such

controlled substance nor more than 48 dosage

units of any other such controlled substance may

be dispensed at retail to the same purchaser in

any given 48-hour period;

(d) The pharmacist requires every purchaser

of a controlled substance under this section not

known to him to furnish suitable identification

(including proof of age where appropriate) ;

(e) A bound record book for dispensing of

controlled substances under this section is main-

tained by the pharmacist, which book shall con-

tain the name and address of the purchaser, the

name and quantity of controlled substance pur-

chased, the date of each purchase, and the name

or initials of the pharmacist who dispensed the

substance to the purchaser (the book shall be

maintained in accordance with the recordkeep-

ing requirement of § 1304.04 of this chapter) ;

and

(f) A prescription is not required for distri-

bution or dispensing of the substance pursuant

to any other Federal, State or local law.

l4a

§ 1306.22 Refilling of prescriptions

(a) No prescription for a controlled substance

listed in schedule II or IV shall be filled or refilled

more than 6 months after the date on which such

prescription was issued and no such prescription au-

thorized to be refilled may be refilled more than five

times. Each refilling of a prescription shall be en-

tered on the back of the prescription (or on another

appropriate uniformly maintained, readily retrievable

record, such as medication records, which indicates

by the number of the prescription the following in-

formation: The name and dosage form of the con-

trolled substance, the date of each refilling, the quan-

tity dispensed, the identity or initials of the dispens-

ing pharmacist in each refilling, and the total number

of refills for that prescription), initialed, and dated

by the pharmacist as of the date of dispensing, and

shall state the amount dispensed. If the pharmacist

merely initials and dates the back of the prescription

he shall be deemed to have dispensed a refill for the

full face amount of the prescription. Additional

quantities of controlled substances listed in schedule

III or IV may only be authorized by a prescribing

practitioner through issuance of a new prescription

as provided in § 1306.21 which shall be a new and

separate prescription.

(b) As an alternative to the procedures provided

by subsection (a), an automated data processing sys-

tem may be used for the storage and retrieval

of refill information for prescription orders for con-

trolled substances in Schedule III and IV, subject to

the following conditions:

(1) Any such proposed computerized system

must provide on-line retrieval (via CRT display

or hard-copy printout) of original prescription

order information for those prescription orders

which are currently authorized for refilling. This

15a

shall include, but is not limited to, data such as

the original prescription number, date of issu-

ance of the original prescription order by the

practitioner, full name and address of the pa-

tient, name, address, and DEA registration num-

ber of the practitioner, and the name, strength,

dosage form, quantity of the controlled substance

prescribed (and quantity dispensed if different

from the quantity prescribed), and the total

number of refills authorized by the prescribing

practitioner.

(2) Any such proposed computerized system

must also provide on-line retrieval (via CRT dis-

play or hard-copy printout) of the current refill

history for Schedule III or IV controlled sub-

stance prescription orders (those authorized for

refill during the past six months.) This refill

history shall include, but is not limited to, the

name of the controlled substance, the date of

refill, the quantity dispensed, the identification

code, or name or initials of the dispensing phar-

macist for each refill and the total number of

refills dispensed to date for that prescription

order.

(3) Documentation of the fact that the refill

information entered into the computer each time

a pharmacist refills an original prescription or-

der for a Schedule III or IV controlled substance

is correct must be provided by the individual

pharmacist who makes use of such a system. If

such a system provides a hard-copy printout of

each day’s controlled substance prescription order

refill data, that printout shall be verified, dated,

and signed by the individual pharmacist who re-

filled such a prescription order. The individual

pharmacist must verify that the data indicated

16a

is correct and then sign this document in the

same manner as he would sign a check or legal

document (e.g., J. H. Smith, or John H. Smith).

This document shall be maintained in a separate

file at that pharmacy for a period of two years

from the dispensing date. This printout of the

day’s controlled substance prescription order re-

fill data must be provided to each pharmacy us-

ing such a computerized system within 72 hours

of the date on which the refill was dispensed.

It must be verified and signed by each pharma-

cist who is involved with such dispensing. In

lieu of such a printout, the pharmacy shall

maintain a bound log book, or separate file, in

which each individual pharmacist involved in

such dispensing shall sign a statement (in the

manner previously described) each day, attesting

to the fact that the refill information entered

into the computer that day has been reviewed

by him and is correct as shown. Such a book or

file must be maintained at the pharmacy em-

ploying such a system for a period of two years

after the date of dispensing the appropriately

authorized refill.

(4) Any such computerized system shall have

the capability of producing a printout of any

refill data which the user pharmacy is responsi-

ble for maintaining under the Act and its imple-

menting regulations. For example, this would

include a refill-by-refill audit trail for any speci-

fied strength and dosage form of any controlled

substance (by either brand or generic name or

both). Such a printout must include name of the

prescribing practitioner, name and address of

the patient, quantity dispensed on each refill,

date of dispensing for each refill, name or iden-

tification code of the dispensing pharmacist, and

17a

the number of the original prescription order.

In any computerized system order. In any com-

puterized system employed by a user pharmacy

the central recordkeeping location must be ca-

pable of sending the printout to the pharmacy

within 48 hours, and if a DEA Special Agent or

Compliance Investigator requests a copy of such

printout from the user pharmacy, it must, if

requested to do so by the Agent or Investigator,

verify the printout transmittal capability of its

system by documentation (e.g., postmark).

(5) In the event that a pharmacy which em-

ploys such a computerized system experiences

system down-time, the pharmacy must have an

auxiliary procedure which will be used for docu-

mentation of refills on Schedule III and IV con-

trolled substance prescription orders. This aux-

iliary procedure must insure that refills are

authorized by the original prescription order,

that the maximum number of refills has not

been exceeded, and that all of the appropriate

data is retained for one-line data entry as soon

as the computer system is available for use

again.

nal prescription orders for Schedule III or IV

controlled substances, a pharmacy may use only

one of the two systems described in paragraphs

(a) or (b) of this section.

(d) Any registrant who intends to use a sys-

tem provided by paragraph (b) of this section

must first apply for a Permit to Maintain Cen-

tral Records as required by § 1304.04 (a).

18a

§ 1306.23 Partial filling of prescriptions.

The partial filling of a prescription for a con-

trolled substance listed in schedule III, IV, or V is

permissible, provided that:

(a) Each partial filling is recorded in the

same manner as a refilling,

(b) The total quantity dispensed in all partial

fillings does not exceed the total quantity pre-

scribed, and

the date on which the prescription was issued.

Rule 403, Federal Rules of Evidence:

Rule 403. Exclusion of Relevant Evidence on Grounds

of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of

cumulative evidence.

Rule 702, Federal Rules of Evidence:

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowl-

edge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experi-

ence, training, or education, may testify thereto in

the form of an opinion or otherwise.

Rule 704, Federal Rules of Evidence:

Rule 704. Opinion 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.

19a

B. Opinion of the Court of Appeals for the Sixth Circuit

of May 8, 1980

Nos. 79-5232, 79-5233, 79-5234

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

RICHARD SEELIG, TERRY HAWKINS,

and DONALD PRIMMER,

Defendant-A ppellants.

Appeal from the United States District Court

for the Southern District of Ohio,

Eastern Division

Decided and Filed May 8, 1980

Before: KENNEDY and JONES, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

KENNEDY, Circuit Judge. Appellants are three phar-

macists who appeal their misdemeanor convictions for

distributing codeine-based cough medicines and felony

20a

convictions for distributing Dextropropoxyphene (brand

name Darvon) and Diazepam (brand name Valium) in

violation of the Controlled Substances Act, 21 U.S.C.

§ 841(a) (1). Appellants claim the indictments fail to

state a crime with respect to the misdemeanor counts and

fail to allege facts which would constitute a crime with

respect to the felony counts and that the court should

have granted their motion for acquittal as there was no

evidence of intent. They claim certain evidence was er-

roneously admitted and other evidence erroneously re-

jected.

I. Sufficiency of the Indictments

Appellants are pharmacists duly licensed to practice

pharmacy in Ohio. AJl are employed by Selig Pharmacy,

Inc., which has two stores in Columbus, Ohio. The indict-

ment consists of 174 counts, each for a separate distribu-

tion of a controlled substance. Count One charged

Richard Seelig with knowingly or intentionally and un-

lawfully distributing a schedule V controlled substance |

by distributing without a prescription more than four

ounces of Robitussin A/C within a 48-hour period, as

prohibited by 21 C.F.R. § 1306.32, in violation of 21

U.S.C. § 841(a) (1). Counts 2-165 list other similar sales

of Robitussin A/C, Terpin Hydrate Codeine, or Histadyl

E/C, schedule V controlled substances. The remaining

counts charge the appellants with knowingly or inten-

tionally and unlawfully distributing schedule IV con-

trolled substances by unlawfully refilling prescriptions

for Diazepam (brand name Valium) or Dextropropoxy-

phene (brand name Darvon).

Appellants raise two challenges to the indictment.

First, that counts 1-165 do not charge appellants with a

crime but with only a violation of a regulation. Second,

that counts 166-174 do not allege sufficient facts to con-

stitute a crime as there is no allegation that the sub-

21a

stances were not distributed within the usual course of

professional practice.

COUNTS 1-165

Appellants argue that the sale of more than four

ounces of Robitussin (or other schedule V substance)

within 48 hours to one person, while it violates the regu-

lation, does not violate the Controlled Substances Act,

that the Act does not make violations of the regulations

criminal, and that the Attorney General, who promul-

gates the regulations, does not have the authority to ex-

pand the criminal liability determined by Congress in

the statute. According to appellants, the statute must

explicitly state that a violation of the regulations consti-

tutes an offense. Appellants rely upon United States v.

Grimaud, 220 U.S. 506 (1911), which upheld a criminal

conviction for using the Sierra Forest Preserve for

sheep grazing without a permit as required by regula-

tions, where the statute authorizing the promulgation of

the regulations explicitly stated that anyone who violated

the statute or the rules and regulations thereunder would

be subject to criminal penalties. The Supreme Court dis-

tinguished a previous case, United States v. Eaton, 144

U.S. 677 (1892), which involved a violation of regula-

tions requiring certain books to be kept of oleomargarine

sales. In Eaton, the statute required one kind of book

be kept, but imposed no penalty for failing to do so. The

Commissioner went further and required another kind of

book. To hold someone criminally liable for violating

the regulation in Eaton, said the Grimaud Court, “man-

ifestly was putting the regulations above the statute.”

220 U.S. at 519. Thus, a person may be held criminally

liable for the violation of a regulation, but only if the

statute which authorizes the promulgation of the regu-

lations makes the violation of the regulations a crime.

22a

The Controlled Substances Act defines what drugs are

subject to control of their manufacture and distribu-

tion and lists these drugs in schedules, with different pro-

visions pertaining to each schedule. See 21 U.S.C. §§ 811,

812, 823, 829. Section 841(a) (1) provides:

(a) Except as authorized by this subchapter [The

Controlled Substances Act], it shall be unlaw-

ful for any person knowingly or intentionally—

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

possess with intent to manufacture, distribute,

or dispense, a controlled substance; .. .

Appellants claim that they need only comply with other

statutory provisions to fit within the exception stated

in § 841(a) (1) and are not, as the government argues,

required to comply with the regulations promulgated

under the subchapter in order to distribute “as author-

ized by this subchapter”’.

Section 829(c) provides:

No controlled substance in schedule V which is a

drug may be distributed or dispensed other than

for a medical purpose.

Appellants claim this section authorizes them to dis-

tribute or dispense schedule V drugs such as Robitussin

for medical purposes regardless of whether more than

four ounces of the drug is given to one person within

a 48-hour period, despite the prohibition of 21 C.F.R.

§ 1806.32. Appellants’ argument rests on a negative im-

plication from § 829(c). Were there no other provisions

which explicitly stated when the distribution or dis-

pensing of schedule V drugs were authorized, this Court

might accept appellants’ argument. However, § 822(b)

does provide the express authorization. It states:

Persons registered by the Attorney General under

this subchapter to manufacture, distribute, or dis-

23a

pense controlled substances are authorized to

possess, manufacture, distribute, or dispense such

substances (including any such activity in the con-

duct of research) to the extent authorized by their

registration and in conformity with the other pro-

visions of this subchapter.

The combination of § 829(c) and § 822(b) thus requires

a person to dispense or distribute a schedule V drug for

a medical purpose and to be within the authority of

their registration as determined by the Attorney Gen-

eral. Section 822(a) requires every person who dis-

tributes or dispenses controlled substances to register

with the Attorney General. Section 821 authorizes the

Attorney General to promulgate rules and regulations re-

lating to the registration and control of the manufacture,

distribution, and dispensing of controlled substances.

Section 871(b) authorizes the Attorney General to

promulgate and enforce rules, regulations, and procedures *

that he deems necessary for the efficient execution of his

functions.

Although Congress was not as clear in this statute as

in the one involved in Grimaud, this Court is satisfied

that the statute does expressly, albeit in a convoluted

fashion, provide that a violation of the promulgated rules

constitutes an unlawful act under the Controlled Sub-

stances Act. Thus, counts 1-165 do charge crimes.'

1Other courts have had no problem finding defendants

guilty under 21 U.S.C. § 841(a) (1) for violating the regula-

tions (primarily 21 C.F.R. § 1806.04). See United States v.

Hayes, 595 F.2d 258, 259 (5th Cir.), cert. denied, 100 S. Ct.

138 (1979) ; United States v. Roya, 574 F.2d 386, 390 (7th

Cir.), cert. denied, 489 U.S. 857 (1978); United States v.

Pastor, 557 F.2d 980, 989 (2d Cir. 1977); United States v.

Rosenberg, 515 F.2d 190, 196-97 (9th Cir.), cert. denied, 423

U.S. 1081 (1975); United States v. Green, 511 F.2d 1062,

1069-70 (7th Cir.), cert. denied, 423 U.S. 1081 (1975) ; United

24a

COUNTS 165-174

Appellants object to counts 165-174 because the indict-

ment failed to charge appellants with distributing sched-

ule IV substances “not in the usual course of profes-

sional practice.” Appellants claim that pharmacists are

exempt from the criminal sanctions of § 841(a) (1) if

they dispense drugs in the usual course of professional

practice. The facts as alleged do not amount to a crime,

appellants argue, as the counts do not allege appellants

acted outside the usual course of professional conduct.

The government argues the indictment need not charge

that the exemption does not apply.

An indictment is sufficient if it contains the elements

of the offense charged and fairly informs a defendant of

the charge against him and enables him to plead an

acquittal or conviction in bar of future prosecutions for

the same offense. Hamling v. United States, 418 U.S.

87,117 (1974).

The counts in question allege that certain drugs were

distributed by unlawfully refilling certain prescriptions.

The prescriptions are identified by date, serial number,

and issuing doctor. The counts further allege these dis-

tributions were in violation of 21 U.S.C. § 841(a) (1).

Surely, enough facts are alleged to enable appellants to

States v. Larson, 507 F.2d 385, 386 (9th Cir. 1974) ; United

States v. Bartee, 479 F.2d 484, 488 (10th Cir. 1973). Further

support for our conclusion that Congress intended a violation

of the regulations to be unlawful may be found in the legisla-

tive history. See House Report No. 91-1444, 91st Cong., 2d

Session, 1970 U.S. Code Cong. & Admin. News 4566, 4569:

The bill provides for control by the Justice Department of

problems related to drug abuse through registration of

manufacturers, wholesalers, retailers, and all others in

the legitimate distribution chain, and makes transactions

outside the legitimate distribution chain illegal.

25a

plead acquittal or conviction in bar of future prosecu-

tions for the same offense since the precise acts which

constitute the offense have been alleged. The only prob-

lem is whether by failure to allege the distributions were

not in the usual course of professional practice the indict-

ment fails to allege all the elements of the crime.

In Hamling, the Court held that as the definition of

obscenity was a matter of law, not of fact, the indict-

ment charging use of the mails to carry an obscene book

and an obscene advertisement was sufficient even though

the indictment did not allege the constitutional com-

ponents of the definition of obscenity.

In United States v. Elizey, 527 F.2d 1306 (6th Cir.

1976), this Court held that an indictment charging the

defendant with illegally distributing controlled substances

in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2

was sufficient even though it alleged “distribute” rather

than “dispense”. The Court held that the defendant did

distribute rather than dispense as the evidence showed

the defendant did not follow generally accepted medical

procedures.

The indictments in the present case also charge ap-

pellants with illegal distributions in violation of § 841

(a) (1). As a matter of law, a registered doctor is sub-

ject to the criminal penalties of § 841(a) (1) if he is not

acting within the usual course of professional conduct.

See United States v. Moore, 423 U.S. 122 (1975). Thus,

the allegation of distribution in violation of § 841 (a) (1)

includes the legal definition that the drugs were not dis-

pensed, 7.e., distributed in the usual course of professional

practice. That counts 165-174 of the indictment do not

state this allegation expressly does not render them

defective.

26a

II. Jury Instructions

Appellants claim that they did not unlawfully dis-

tribute, but lawfully dispensed as authorized by 21

U.S.C. §$§ 829(b), 829(c). They claim the government

must prove they do not fall within these exceptions to

§ 841(a) (1) as they introduced evidence that they re-

filled the prescriptions for the schedule IV drugs upon

lawful refill orders of doctors and dispensed the schedule

V drugs for lawful medical purposes. They claim they

were entitled to have the jury instructed upon §§ 829 (b)

and 829(c), as well as the statutory definitions of “dis-

pense”, “distribute”, and “practitioner”.

Section 829(b) provides that no schedule IV drug

which is a prescription drug may be dispensed without a

written or oral prescription. Such prescriptions may not

be filled or refilled more than six months after the date

of the prescription or be refilled more than five times

after the date of the prescription unless renewed by the

practioner. Section 829(c) provides that no schedule V

drug may be distributed or dispensed other than for a

medical purpose.

Section 802(11) defines “distribution” as delivery

(other than by administration or dispensing) of a con-

trolled substance. Section 802(10) defines “dispense”

to mean the delivery of a controlled substance pursuant

to the lawful order of a practitioner to an ultimate user.

Section 802(20) defines “practioner” as a physician,

pharmacy, (among others) or other person licensed,

registered, or otherwise permitted to distribute, dispense,

conduct research with respect to, administer, or use in

teaching or chemical analysis, a controlled substance in

the course of professional practice or research.

Essentially, appellants wanted an instruction that if

they delivered the schedule IV drugs in good faith pur

27a

suant to lawful orders of doctors and delivered the

schedule V drugs in good faith for a medical purpose

in the usual course of professional practice, they would

not be criminally liable under § 841(a) (1).

The District Court instructed the jury that § 841(a)

(1) provided:

Except as authorized ... it shall be unlawful for

any person knowingly or intentionally ...to...

distribute... a controlled substance.

The court charged that the government must prove be-

yond a reasonable doubt that the substances described in

the indictment were unlawfully distributed. To ‘“dis-

tribute” was defined as “to deliver a controlled sub-

stance.” The court went on to say a controlled sub-

stance was distributed “unlawfully” “if such distribu-

tion is not authorized by the statute.” In instructing

when the sale of schedule V drugs was authorized, the

court listed the requirements of 21 C.F.R. § 1306.32.

When instructing when the refill of a prescription for a

schedule IV drug was authorized, the court listed the

requirements of 21 C.F.R. § 1306.22.2 The court nowhere

instructed the jury that if appellants were dispensing—

that is, filling prescriptions pursuant to lawful orders

of practitioners or delivering drugs for good medical pur-

poses in the usual course of professional conduct—they

would be exempt from criminal liability under 21 U.S.C.

§ 841 (a) (1).

The Supreme Court in United States v. Moore, 423

U.S. 122 (1975), held that a registered doctor could be

prosecuted under § 841(a)(1) when his activities fell

2 What the court read of 21 C.F.R. § 1806.22 imposes the

same requirements on refills as § 849(b) except that it adds

that any refill beyond the fifth refill must be on a new and

separate prescription.

28a

outside the usual course of professional practice. The

Court rejected the argument of the D.C. Court of Appeals

that registered doctors are exempted from prosecution

under § 841(a) (1) by virtue of their status as registered

doctors and were only subject to the lesser penalties

- provided in §§ 842, 848. Implicit in Moore is that reg-

istered doctors (or other practioners) are exempt from

criminal liability under § 841(a) (1) unless they were

acting outside the usual course of professional practice.

See United States v. Kirk, 584 F.2d 773, 784 (6th Cir.),

cert. denied, 489 U.S. 1048 (1978). Thus, a conviction

under § 841(a) (1) requires the government to prove

beyond a reasonable doubt that the drugs were distributed

outside the usual course of professional practice. See

United States v. Rogers, 609 F.2d 834, 839 (5th Cir.

1980) ; United States v. Hayes, 595 F.2d 258, 259 & n.2

(5th Cir.), cert. denied, 100 S.Ct. 138 (pharmacist)

(1979) ; United States v. King, 587 F.2d 956, 965 (9th

Cir. 1978) ; United States v. Black, 512 F.2d 864, 871

(9th Cir. 1975).

In United States v. Carroll, 518 F.2d 187 (6th Cir.

1975), the defendant requested an instruction that as a

doctor he had a right to prescribe controlled substances

including Seconal and he would violate § 841(a) (1) only

if he prescribed such substances outside the doctor-patient

relationship. The District Court refused to so instruct,

instead relying upon the language of § 841(a)(1) and

the definitions of distribution, dispensing, and prac-

titioner. This Court held the statutory definitions were

not sufficient. The defendant was entitled to have the

jury instructed that registered doctors are exempt from

the provisions of the drug abuse statute when they dis-

pense or prescribe controlled substances in good faith to

patients in the regular course of professional practice. In

the present case, appellants asked for instructions on

the statutory definitions of “dispense” and “practioner”

29a

and for §§ 829(b) and 829(c). They were entitled at

least to have the statutory definitions and other relevant

sections read. The failure to instruct as to §§ 829(b)

and 829(c) and the statutory definitions of “distribute”,

“dispense”, and “practitioner” .was prejudicial error.

Appellants also object to the jury instructions in that

the judge, when reading § 841(a) (1) to the jury, said

distributions of controlled substances were unlawful “ex-

cept as authorized”, without saying as the statute does,

“except as authorized by this [subchapter]”. The Court

finds this objection to be without merit. Six sentences

later, the District Court instructed “Under Section 841

(a) (1) of Title 21, United States Code, a controlled

substance is distributed ‘unlawfully’ if such distribution

is not authorized by the statute.”

Appellants object to the jury instruction that the ele-

ment of knowledge may be inferred from proof that

appellants deliberately closed their eyes to what would

otherwise be obvious to them. In United States v.

Thomas, 484 F.2d 909, 912-13 (6th Cir.), cert. denied,

414 U.S. 912 (1973), a case in which the defendant was

charged with knowingly making false statements in pur-

chasing a handgun, this Court approved an instruction

that to find the defendant knowingly made a false state-

ment, the jury need not find the defendant actually read

the form or had it read to him “if the jury finds from the

evidence beyond a reasonable doubt that the defendant

acted with reckless disregard of whether the statements

made were true or with a conscious purpose to avoid

learning the truth.” The deliberate ignorance instruc-

tion has also been approved for violations of the Con-

trolled Substances Act. See United States v. Kershman,

30a

555 F.2d 198, 200-201 (8th Cir.), cert. denied, 434 US.

892 (1977). The instruction on deliberate ignorance

was not erroneous.

III. Evidentiary Issues

Appellants claim that the testimony of Gerald Kopp, a

Federal Drug Enforcement Administration investigation

officer, invaded the province of the jury when he stated

the requirements of federal regulations and what the

routine practices of pharmacists should be according to

the regulations. They specifically object to his references

to the 48-hour rule with respect to selling Robitussin, the

requirement that a new and separate prescription be

written for refills of schedule IV drugs after the fifth

refill of the original prescription, the value of the pre-

scriptions, and the quantity of the substances sold. They

challenge his qualifications to testify about -any of these

matters.

The witness had been a compliance investigator with

the Drug Enforcement Administration for over four

years and was familiar with the regulations. He testi-

fied that he was familiar with the “value” of a prescrip-

tion (that is, the number of units of drugs authorized

under a prescription) and knew how the number of pills

dispensed was indicated upon a prescription. The Dis-

trict Court did not err in permitting the witness to

testify based upon his experience as a compliance officer.

Appellants object to the admission of exhibits 1-165.

Exhibits 1-165 purported to be copies of pages of the

over-the-counter exempt ledgers kept by Seelig Pharmacy.

Appellants claim these are unauthenticated hearsay.

Kopp testified that when he went into Seelig Pharmacy

to investigate, he requested the records which are re-

3la

quired to be kept for sales of schedule V drugs. Appel-

lant Seelig handed him the records, which were later

seized and from which the copies were made. The identi-

fication by Kopp and the admission by Seelig (Rule 801

(1) (2), Fed. R. Evid.) establish that the records were

ones of regularly conducted activity which is an excep-

tion to the hearsay rule, Rule 803(6), Fed. R. Evid., and

were properly authenticated under Rule 901, Fed. R.

Evid.

Appellants also object to the admission of exhibits 210,

211, and 212, which are summaries made by Kopp from

exhibits 1-165 showing high volume purchasers and the

dates when they purchased a schedule V substance. Ap-

pellants claim these were irrelevant and prejudicial, since

they show a total of 1,409 sales, of which only 32 were

mentioned in the indictment. Rule 1006, Fed. R. Evid.,

provides that the contents of voluminous writings, re-

cordings, or photographs which cannot be conveniently

examined in court may be presented in the form of a

chart, summary, or calculation. In United States v.

Scales, 594 F.2d 558 (6th Cir.), cert, denied, 99 S.Ct.

2168 (1979), this Court held the admission of a sum-

mary chart of 161 underlying exhibits was _ proper.

Although the underlying writings could possibly have

been examined, the use of the summary was permitted

under Rule 1006 as comprehension of the voluminous ex-

hibits would have been difficult and certainly incon-

venient. The facts summarized were objective and were

stated in a neutral way. The chart was found to be

accurate and authentic. Finally, the trial court had

given a limiting instruction that the chart was not evi-

dence but was only an aid in evaluating the evidence.

In the present case, the underlying documents were

numerous and inconvenient to examine. Appellants do

not object to the accuracy of the summaries. They do

32a

object to the failure to give a limiting instruction, but

the record does not show they asked for such an instruc-

tion.

Appellants argue that the relevance of the summaries

was outweighed by their prejudice because these exhibits

tend to show by the representations of high volume sales

that there must have been other violations than those

charged. The government claims the igh volume shows

knowledge and intent. Since these exhibits show only

what a close reading of the underlying records also dis-

close, that is, that certain individuals bought schedule

V drugs quite frequently, any prejudice is in the under-

lying evidence, not in the form of the summary.

Appellants object to the admission of exhibit 213, which

purportedly is a sales comparison chart compiled by

Columbus Police Officer James Dempsey, comparing the

sales of nonexempt schedule V items of Seelig Pharmacy

with eight other pharmacies allegedly comparable in

size, location, and volume. The two Seelig stores, one of

which is located on the east side of Columbus, Ohio and

the other on the north side, were compared with an aver-

age of four east side stores and an average of four

north side stores. In denying a motion in limine and

holding that the chart could be admitted as a summary

under Rule 1006, the District Court stated:

The probative value of these charts will depend, of

course, on the actual similarity between the stores

chosen to comprise the “average” stores and the two

Seelig stores. The Court is of the opinion that these

matters can be developed properly upon cross-ex-

amination without undue confusion to the jury.

The admission of the sales comparison chart was error.

The underlying records on which they were based were

38a

not exhibits nor were they made available to appellants.

The only records of these other stores examined by Demp-

sey were the schedule V sales. There was no attempt

to compare the stores in terms of total sales. Sergeant

Dempsey was not an expert witness. He admitted he was

not an economist, statistician, or real estate appraiser.

The chart could not therefore be admitted under the

exception for the bases of opinion testimony by experts.

Rule 703, Fed. R. Evid. He did not know if his allegedly

comparable stores operated the same hours. The two

Seelig stores were located near a freeway. He testified

that he picked, apparently at random, six stores from

each area, then did not use two whose volume seemed too

low. The record does not show these other stores were the

same size, covered the same marketing area, were open

the same hours, had pharmacists on duty at all times,

had the same access to the public, or, most importantly,

charged the same prices—all of which could have sig-

nificantly affected the volume of sales. Thus, the sales

comparison chart is simply irrelevant for failure to es-

tablish the comparability of the other stores.

The prosecutor’s use of the comparison chart in final

argument precludes us from finding its admission harm-

less error. The prosecutor told the jury that although

there were only 165 instances of sales of Robitussin

within 48 hours, they could use all the evidence to de-

termine whether the defendants were acting knowingly

and intentionally. He mentioned that approximately

18,000 bottles of Robitussin were sold. The trial judge

interjected that those were not all unauthorized sales.

The prosecutor agreed but commented, “We have not

charged a count for every sale”. He referred to the

sales comparison chart:

This chart has also been admitted. You can have

that and look at it, and you decide what weight

you want to put on the fact that Seelig’s pharma-

34a

cies in the red here sold some months over $1,000,-

000. Of course, it started out small here at the

beginning of time—gradually built up. You decide

what weight you want to put on that fact as opposed

to the average of four stores in each vicinity... .

The purpose of this is to show ... another circum-

stance to show these people must have known what

they were doing.

This Court has previously considered comparisons of

distributions of controlled substances in two cases. In

Kirk, supra, to prove the defendant had the requisite

knowledge of the conspiracy and the criminal intent, the

government introduced the testimony of Richard Ross,

who was charged to investigate all the pharmacies in

a tri-county area. In this investigation, he found that

drugstores were selling an unreasonable quantity of

schedule II drugs prescribed by the defendant. Apparently

at one pharmacy, 90% of the schedule II drugs were

prescribed by the defendant, whereas all the other phy-

sicians comprised the remaining 10%. The Court found

that this was evidence of intent. In Ellzey, supra, the

Drug Enforcement Administration surveyed schedule II

prescriptions from six drugstores. Of 39,000 prescrip-

tions from 152 doctors and dentists in a 22-month period,

29,000 were written by the defendant and all but 200 of

these were for amphetemines or amphetemine-type drugs.

The 29,000 prescriptions were admitted to show intent

and wilfulness. The Court ruled the admission was not

error.

Kirk and Ellzey establish that evidence of high volume

may be used to show intent and willfulness. However, in

each of those cases, the comparison chart was relevant—

the defendants were compared with all other doctors

whose patients used the same pharmacies. In the present

case, the jury was invited to make the same inference

as was made in Kirk and Elizey, that the large volume

35a

compared to other pharmacies indicates knowledge and

intent, but the underlying figures were not truly ¢om-

parable in the absence of a comparison of total sales or

other appropriate basis. The exhibit suggested the jury

make an inference of guilt that the exhibit did not sup-

port. Thus, the admission of the exhibit was prejudicial

error.

Appellants also object to the trial court’s refusal to

allow Jack R. Lawry, a former narcotics inspector and

investigator for the Ohio State Board of Pharmacy, to

testify as to the custom of pharmacists regarding the

sales of over-the-counter exempt drugs. Appellants prof-

fered that he would also testify that it would be utterly

impossible for a busy pharmacist to go back into the

ledger to see if there had been a sale of exempt items

to the same person within 48 hours. The prosecutor re-

sponds that testimony would be beyond the witness’ ¢.x-

pertise and that it would be irrelevant as appellants were

not charged with operating outside the usual course of

professional conduct.

Lawry was as qualified as Kopp, who was allowed to

testify as to what the routine procedure of pharmacists

should be under the regulations. That the indictment did

not explicitly charge appellants with acting outside the

usual course of professional conduct is immaterial—a

violation of § 841(a) (1) necessarily implies that a regis-

tered doctor or other practitioner is acting outside the

usual course of professional conduct. Lawry’s testimony

was relevant and should have been admitted.

IV. Motion for Acquittal

The trial court properly denied appellant’s motion for

judgment of acquittal. The documentary evidence dis-

closes repeated occasions where more than four ounces

of a schedule V drug was sold to the same person within

36a

a 48 hour period. With respect to the felony counts,

several physicians testified that their records failed to

disclose oral authorizations for renewal of prescriptions

and that it was their practice to record such oral au-

thorizations. At least one witness denied receiving any

refills of a prescription which Seelig Pharmacy records

showed had been refilled several times. After review of

the entire record, we conclude that there was sufficient

evidence of intent; the motion for acquittal was properly

denied.

The prejudicial errors found by this Court require that

defendants be given a new trial. The judgments are re-

versed and the cases remanded for proceedings in ac-

cordance with this opinion.

37a

C. Judgment Entry of May 8, 1980

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 79-5232

79-5233

79-5234

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

RICHARD SEELIG, TERRY HAWKINS,

and DONALD PRIMMER,

Defendants-Appellants.

Before: KENNEDY and JONES, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

JUDGMENT

APPEAL from the United States District Court for

the Southern District of Ohio.

THIS CAUSE came on to be heard on the record from

the United States District Court for the Southern Dis-

trict of Ohio and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgments

of the said District Court in these causes be and the same

are hereby reversed and remanded for further proceed-

ings.

38a

No costs taxed.

ENTERED BY ORDER OF THE

COURT.

/s/ [Illegible]

Clerk

A True Copy.

Attest:

/s/ Audrey Crockett

Deputy Clerk

Issued as Mandate:

May 30, 1980

COSTS: NONE

Filing fee ...... $

ey)” $

eee $

39a

D. Judgments and Probation Commitment Orders of June

15, 1979 In the United States District Court for the

Southern District of Ohio, Eastern Division

OTE weet me IN

Uric Stter of Amati Jurts Ps At Ptates District Court t:

ae M9Th Southern District of. Qhao__ 3

veFenvant Sob ERM ET couny

EAST.OIV.COLUHSUS

enccans } eB. 2 ee ene @ & ' oOcKeT HO. D> | Cr-2-79-6 (1) 4

POREE

In the presence of the attorney for the government MONTH ar v

* the defendant appeared in person on this date oa 15 19

COUNSEL | LJ WITHOUT COUNSEL However the court advised defendant of right to Coumsel and ashed whether defendant desired to,

have counsel appointed by the court and the defendant inereupon walved ass of counsel,

EES aj

(Name of counsel) °

PLEA there is a factual basis for the plea, [ ." Ps 5 OE Ae

Guewioied ois:

LJ NOT GUILTY. Octet is dlscharged

— LX curry, JUis 1B S579

ental ag “eubstances” dn viclaes of knopihkif- distribute’ Schedule Vv

FINDING & Controlled substance. In violation of Tifle 2l-Unitedcstates

wocmenr (Section 841(a)(1).---Counts 212,13, 14, 30,39, 40,57, 387625 79,80, é,

122,123,135,137,142,143 and 144. Dia’knowingly distribute Schedule IV

Controlled Substance. In violation of Title 21 United States Code,’ ,

Section 841(a)(1).---Counts 167,168,169,170,171,172,173 and 174,

| —————N The court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the coritraty

was shown, oF appeared to the Court, the Court adjudged the defendant guilty as charged and Convicted and ordered that: The defendant ie

here yXIOEOKA AHA IK AKAMA IONTIKIA MIAN KAKI EKIAKAX fined the

sum of Five Thousand ($5,000.00)dollars on Count # 2 of the Indictment.

It Is The Further Judgment of the Court that the defendant be fined the

sum of Five Hundred ($500,00)dollars each on Counts 12513 14 30,39/M0,

“as > 57, 58,62,79,.80 82,122,123,135,137,142,143 and 144, and’ that

PAOSATION yment of +00 on each of these Counts be suspended.

ORDER t Is The Further Judgment of the Court that the defendant be fined tthe

the sum of Pive Thousand ($5,000.00)dollars on Count # 167 of the

Indictment.’ . .; ; dP ind

It Is Ther Further Judgment of the Court that the defendant be fined tt

sum of Fiwe Hundred ( -00)dollars each on Counts 168,169,170,171,;

172,173 and 174, and that the payment of $500.00 on each of these Count

srecian | De Suspended, = - ' . eer

conoitions| It Is The Further Judgment of the Court that RICH RD SEELIG is hereby

oF committed to the custody of the Attorney General of the United States ¢

paosation | his authorized representative for imprisonment for a period of Three’ (:

years on Count # 167 and that the service of such soatence be suspendec

and that RICH RD SEELIG be and he is hereby placed on probation for a

gaetes of Three (8) years. ine

t Is The Further Judgment of the Court that RICHARD SEELIG is hereby

committed to the custody of the Attorney General of the United States

or his authorized representative for imprisonment for a period of Thret

aoormona. | (3) years each on Counts 168,168, 170,171, ( SEE ATTACHED SHEET

' ion to the conditions of imposed above, it is hereby ordered that the general conditions of probation sel ovt on the

CONDITIONS jeden of poh ate ve ote gy ob may change the Conditions of prod stion, ped of extend the p< :iod of probation, and a.

or any lume during the probation Of within a maximum probatiun period of five years permitted by law, may issue a warrani and rey

PROBATION | probstion for a vielation during tne probation period. ‘ °

; ’

> The court orders commitment to the custody of the Attorney General and recommends, a idiait det

F & cared copy of this judgment

and commitment to the U.S. Mare

shal or other qualified offices.

40a

172,173 and 174, such sentences to be served copfturrentiy with each

otber and concurrently with the sentence imposed in’Count # 167,

and that the service of such sentences imposed in Counts 163,169,170,

171,172,173 and 174 be suspended and that RICHARD SEELIG be end he is

hereby placed on probation for a period of Three (3) years.

It Is The Further Judgment of the Court that the schedule of

payments for the fine imposed herein will be subject to the further

order of the Court at the appropriate time. ae

_ SontOBY

LO U.S. District suege

Lu US. Magistrate

tnaepenthenct Anatea FT uated States District Court to

JOHN D.LYTER,CLERRouthern District of Onto at) ae

renee Ju 15 2 20 PH'79

L TERRY_HAWKINS _ _ _ _ _ILS. DISTRICT COUPdocKeY wo. > L__Cr-2-79-6 (2) 5

Semmicbonmee tea “> east pIVCOLUMBUS ESR

peas SLAC AE NAL ARERR BG FS CHCA VAN

In the presence of the attorney for the government eee

the defendant appeared in person on this date t

6 15 79;

COUNSEL | LJ WITHIOUT COUNSEL = However the court advised defendant of right to counsel and asked whether defendant desired to

have counsel appoinicd by the court and the defendant th walved awl of counsel. ;

ene: «. es OE, onmenekde mine wm a

(Name of counsel) °

; (J GUILTY, and the court being satisfied that — _y NOLO CONTERDERE, -,, L-_A/ WOT OUNEFY,

PLEA there Is a factual basis for the plea, Vuasoi ed UL)

oon Ld NOT GULTY. Oohatetheeeems Jt), 1 9 pn00

Thre being a Cexcvay/verdict of Senay ae

as ‘ U. S. &, ert

Defendant has been convicted as charged of the offense(s) of Knowinghy distribute- Schedule V

rinviiga | Controlled Substance. In violation of Title 2I-Untted-states—Code,

suoceenr ( Section B41(a)(1).---Counts 10,26,76,92,121 and 154. Did knowingly

distribute Schedule IV Controlled Substance. In vio&ation of Title 21

United States “ode, Section 841(a)(1).---Counts 168,169,170,171,172, |

a é~ Je

\ The court asked whether defendant had anything to say why judgment should not be p 4. Because no wi cause to the contrary

was thown, oF appeared to the court, the court adjudged delendant guilty as charged and convicted and ordered that: The defendant bs

haredy AMAXAAKNAKAAAA RK AANA AK KAHN HK HILAR AAK IHR AKA ANIL Fined

the sum of Five Thousand ($5,000.00)dollars on Count # 10 of the

Indictment. 4

sentesce | It Is The Further Judgment of the Court that the defendant is hereby

on >fined the sum of Five Hundred ($500.00)dollars each on Counts 26,76,

paosation | 92,121 and 154 and that the payment of $500.00 on each of these Counts

ORDER be suspended.

.It Is The Further. Judgment of the Court that TERRY HAWKINS is hereby

fined the sum of Five Thousand ($5,000.00)dollars on Count # 168 of

of the Indictment. :

It Is The Further Judgment of the Court that the defendant is hereby

fined the sum of Five Hundred ($500.00)dollars each on Counts 169,170,

SPECIAL | 171,172m173 and 174 and that the payment of $500.00 on each of these

a Counts be, suspended. St

prosation | 2¢ 18 The Further Judgment of the Court that TERRY HAWKINS is hcreby

committed to the custody of the Attorney General of the United State

or his authorized representative-for imprisonment for a period of

Three (3) years on Count # 168 and that the service of such scotence

be suspended and that TERRY HAWKINS be and he is herby placed on

robation for aperiod of Three (3) years.

t Is The Further Judgment of the Court that TERKY HAWKINS is nereby

soneanes committed to the custody of the Attorney General °f the United Sates ‘

CONDITIONS RE adLbPio WW HOE AEB SP REGES MBO VRe, f Ber dP OA SARI) Ser AA AT MGHTED of onde

OF any time during the probation period or within a maximum probation period of five years permitted by law, may hsue 8 warrant and reves

PROBATION | probation for a violation occurring during ihe probation period.

The court ofders commitment to the custody of the Attorney General and recommends, [~ st Ge Gat Ginn

ple street = gy

commitment vo the U.S. Mar-

COMMITMENT ;

RECOMMEN- shal or other qualified officer,

DATION

———

SIGNED BY

5) US. Ofetriet Juaee

La US. Maststrate

4la

42a

ror n period of Three ears each On Counts 16

and 17h, such Sanueenes” ste served concurrently with’ seapteee te

and concurrently with the sentence imposed on Count # 168, and that

the service of such sentences imposed in Counts 169,170,1%1,172 173

und 174+ be suspended and that TERRY HAWKINS be and he is hereby’

placed on probation for a period of Three (3) years.

It Is The Further Judgment of the Court that the schedule of

payments for the fine imposed herebin will- be subject to the further

order of the Court at the appropriate time.

SIGNEO BY

_X U.S, District Judeo

LL U.S. Magistrate

43a

* .

Southern District of Ohlo

c SEs cx ccc. am ee tale Ga ie, eb ae es let al Ga 4

DEFENDANT Ju 15 2 29 Pit 15

U.S.01STRIST COUNT

i _ DONALD PRIMMER SOUTHER OIST. OD wey Cr-2-79-6 (3) 4)

LS Se — = — EAST DIT COLUSGR

re ey

Bea

: 5 bbe

tn etme tet Hd

, Ly Sa BO | BA Terr ery | Maefye pl sahigd oo stoke ny tee

a AMD (e had ry I GRIVEIVEDMIVA es (ies Ck ee

(ENTRANG EA EES: CONC ERO PDEA erly e407

os In the presence of the attorney for the government Monte DAY vena

the defendant appeared in person on this date — 6 15 79

atety

COUNSEL LJ WITHOUT COUNSEL ™ However the court advined defendant of right to counsel and asted whether defendant desired to

have counsel appointed by the court and the defendant thereupon waived amistance of counsel

, : , oe)

LJ GUILTY, and the court being satisfied tht = |__J NOLO CPNTENDERE, |< 1, X's NOT GUILTY

PLEA there Is a factual basis for the plea, rae

pemmenee,* LJ NOT GUILTY, Defendant s dischaiQeu 16 S79

There being aBAHAerdict of » eunsy. U. S. A TOR Ty

CO!LUIHEUS, O19 Ae

ont has been convicted as charged of the ofteoeeid of know edule V

rinoinca \ Controlled Substance. In violation of Title 21 United States Code, |

suocmenr ( Section roe ---Counts 73,74,95,110,112,124,125,132,133,136,138,

139,140,141,145,146 and 152. Did knowingly distribute Schedule IV

Controlled Substance. In violation of Title 21 United States Code.

Section 841(a)(1).---Counts 168,169,171,172 and 174,

\\ The court asked whether defendant had anything to say why judgmnem ».vuld not be pronounced Because no wi ficient cure to the contrary

way shown, oF appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that: The defendant ls

hereby MXAMHK 10H MIOKH KINKI HH XIOK KKK AW MNK KA MRAM HAAKAKAAAXAMMKKKKKKAA Lineti the

sum of Two Thousand Five Hundred ($2,500.00)dollars on Count # 73 of

the Indictment.

Sentence It Is The Further Judgment of the Court that the defendant is hereby

on’ > fined the sum of Five Hundred 9900.00 )}dollars each on Counts 74,95,110

paceAnion 112,124,125,132,133,136,138,139,140,141,145,146,147 and 152, and that

ORDER the payment of $500.00 on each of these Counts be suspended. a

It Is The Further Judgment of the Court that the defender is hereby

fined the’ sum of Two Thousand Five Hundred ($2,500.00)do.lars on Count

168 of the Indictment.

It Is The Further Judgment of the Court that the: defendant is hereby

fined the sim of Five Hundred ($500.00)dollars each on Counts 169,171,

SPECIAL 172 and 174 and that the payment of the $500.00 on each of these dounts:

conoirions | be Suspended, ;

Ff It Is The Further Judgment of the Court that DONALD PRIMMER is hereby

prosation | committed to the custody of the Attorney General of the United States o

his authorized representative for imprisonment for a period of Three

(3) years on Count 168 of the Indictment and that the service of such

sentence be suspended and DONALD PRIMMER be and he is hereby placed on

probation for a period of Three (3) years.

It Is Tne Further Judgment of the t that DONALD PRIMMER is hereby

committed to the custody of the Attorney General of the United States

or his authorized representative for imprisonment for (SEE ATTACHED)

ADDITIONAL

in addition to the special conditions of probation Imposed above, It Is hereby ordered that the general conditions of probation set out on the

connirions svone side of his fodament be inpoue. the Court may change the conditions of probation, reduce or extend the period of probation, and at

OF any time during the probation period oF within 4 maximum probation period of five years permitted by law, may lywe a warrant and tevoke

PROBATION probation for a violation occurring during the probation period,

P” the court orders commitment to the custody of the Attorney General and recommends, oh tendered thes Go Chat deer

a certified copy of Oris judgment

and commitment to the U.S. Mar-

COMMITMENT shal on other qualified officer,

| ie lesinns, ne

Santo BY

LJ US. Oetrict suage

Li U.S, Mogictrate

44a

A- period of Three (3) years each on Counts 169,171,172 and 17!

such sentences 60 be served concurrently with each other and .

concurrently with the sentence imposed in Count # 163, end that the

service of such sentences imposed in Counts 169,171,172 and 174 be

suspended and that DONALD PRIMMER be and he is hereby placed on

probation for a period of Three (3) years.

It Is The Further Judgment of the Court that the schedule of

payments for the fine imposed herein will be subject to the further

order of the Court at the appropriate time.

45a

E. Order Extending Time to File Petition for Writ of

Certiorari

SUPREME COURT OF THE UNITED STATES

No. A-1029

RICHARD SEELIG, TERRY HAWKINS

and DONALD PRIMMER,

Petitioners,

Vv.

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel for

petitioner (s),

IT IS ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including July 7, 1980.

/s/ Potter Stewart

Associate Justice of the

Supreme Court of the

United States

Dated this 27th day of May, 1980.

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.