Record and brief — Harrison v. United States

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89

Supreme Court of the United State”

October Term — 1981

JIM T. HARRISON, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

(NOW THE ELEVENTH CIRCUIT)

HYLTON B. DUPREE, JR.

Counsel of Record

MARK A. JOHNSON

DUPREE & STAPLES

49 Green Street

P.O. Box 525

Marietta, Georgia 30061

(404) 424-7171

Counsel for Petitioner

Copy Center Law Printers, Atlanta, Ga. Phone 261-5273

i

Questions Presented

1. Did the Trial Court err by failing to dismiss the indict-

ment because it did not charge an offense within the terms of

21 U.S.C.A. Section 841(a)(1)?

2. Did the Trial Court erroneously take judicial notice of

schedules of controlled substances without proof of those

schedules at the date of the alleged offenses?

Parties to the Proceedings in the Court of Appeals

The only individuals who may be deemed to be parties to the

proceedings in the Court of Appeals for the Fifth Circuit, Unit

B (now the Eleventh Circuit) are the following counsel for the

Government:

William L. Harper

United States Attorney

James’ E. Baker

United States Attorney

Jake Arbes

Assistant United States Attorney

Janet F. King

Assistant United States Attorney

1800 United States Courthouse

75 Spring Street, S.W.

Atlanta, Georgia 30335

Mervyn Hamburg

Criminal Division

Department of Justice

Washington, D.C. 20530

Solicitor General

Department of Justice

Washington, D.C. 20530

TABLE OF CONTENTS

Page

eae chee hed neaweeas i

Parties to the Proceedings in the Court of Appeals. ..... i

ee OIE GIN TIN eo 5 cc ccc ccccesccvcscsecss 2

NS cc ond odds pee ad os 0bidons sbeeceeneersers 2

IEE RP EP ee TT ee 2

TE. cccesescbeeuceseseeseceses 4

IIIS oc ccc bcuee cenesdedesecdces 6

Reasons for Granting the Writ....................... 7

I

The Court of Appeals Should be Reversed for Failing

to Delineate Between the Indictable Offenses of

**Dispensing’’ and ‘*Distributing’’ Controlled Sub-

PveeGhiieeareeedsreinaubeandenees Coane 7

The Supreme Court Should Exercise Its Discretionary

Powers to Review to Examine the Arbitrary Exercise

of Judicial Notice Which Allows the State the Per-

quisite of Not Proving Material Elements of Its

Dre tate CE Eg ee 8 oe 12

i ge aes eae 15

APPENDIX A. Order-Rehearing Denied September

re ere ares 16

APPENDIX B. Decision Entered of Sth Cir.

nt cc eeceseens 17

APPENDIX C. Decision Entered of Sth Cir.

DL kan ebedetacecstnbane 20

TABLE OF AUTHORITIES CITED

Cases Page

U.S. v. Atwell, 71 F.R.D. 357 (D.Del 1976)........ 13

U.S. v. Bartee, 479 F.2d 484, (10th Cir. 1973). ...8, 10

U.S. v. Dunbar, 614 F.2d 39 (Sth Cir. 1980)....... 18

U.S. v. Greenfield, 574 F.2d 305 (Sth Cir.)........ 18

U.S. v. Harrison, 651 F.2d 353 (Sth Cir. 1981).....

desk sts skbewadnssebedan thes seehiene 2, 5,9, 10

U.S. v. Harrison, 628 F.2d 929 (Sth Cir. 1981). 2, 5, 20

U.S. v. Leigh, 487 F.2d 206 (Sth Cir. 1973)........

Lee vensdenawd 4, 5,7, 8,9, 10, 11, 12, 17, 18, 19, 20

U.S. v. McDaniel, 428 F. SUPP. 1226 (d.c. Okl

DERE DALEAGL oo deed eda ce oecuedaunneacks 6

U.S. v. Moore, 423 U.S. 122, 96 S.Ct. 335

Op Ee sé cco sancceessenns 4,7, 18

U.S. v. Rosen, 582 F.2d 1032 (Sth Cir. 1978)....... 21

U.S. v. Thompson 624 F.2d 740 (Sth Cir. 1980). ...

PO eee Fn Fer Renny rer Ey rey 5, 9, 10, 18

Miscellaneous

29 Am. Jur.2d Evidence Section 27............ 13, 14

BF Feds PU TOs 6.0.6 06 0o6scccnevcesces 13

1 Underhill’s Criminal Evidence, Section 88 (6th Ed.

REA Spe prs eee rns eee eIPereg 15

Statutes

ee i, CN I ns cs gw eb o-0 50 00eesseses 21

United States Code, Title 18, Sec. 2.............. 7

United States Code, Title 21, Sec. 802(10), (11).....

wo Wb8 54566 0466 SES EEEOS a»&%& 788 8. 0

United States Code, Title 21, Sec. 812. .3, 5, 12, 14, 21

United States Code, Title 21, Sec. 841............

Jedcdviaesueonsennee 3, 4, 6, 7, 8, 11, 12, 17, 18, 20

United States Code, Title 44, Sec. 1507.......... 4, 13

United States Code, Title 44, Sec. 1510.......... 3, 13

No.

IN THE

Supreme Court of the United States

October Term — 1981

JIM T. HARRISON, JR.,

Petitioner,

vs.

United States of America,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

The petitioner respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit entered in this

proceeding.

fies

Opinions and Order Below

The order of the Fifth Circuit Court of Appeals denying

the petition for rehearing and suggestion for rehearing en

banc is printed as Appendix A.

The opinion of the Fifth Circuit Court of Appeals of Oc-

tober 24, 1980, is printed as Appendix B and is reported as

United States v. Harrison, 628 F.2d 929.

The opinion of the Fifth Circuit Court of Appeals of July

20, 1981, is printed as Appendix C and is reported as United

States v. Harrison, 651 F.2d 353.

Jurisdiction

The order of the Fifth Circuit Court of Appeals Unit B

(now the Eleventh Circuit) in denying a petition for rehearing

and petition for rehearing en banc was entered on September

11, 1981.

The opinion of the Fifth Circuit Court of Appeals, in

reversing its previous ruling, was entered on July 20, 1981;

the Fifth Circuit’s previous opinion, in reversing the Trial

Court, was entered on October 24, 1980.

Jurisdiction in this Court is invoked pursuant to Rule 17.1

of this Court.

Statutes Involved

1. 21 U.S.C.A. Sections 802(10) and 802(11), which

provide:

**(10) The term ‘‘dispense’’ means to deliver a con-

trolled substance to an ultimate user or research sub-

ject by, or pursuant to the lawful order of a practi-

tioner, including the prescribing and administering of

a controlled substance and the packaging, labeling, or

compounding necessary to prepare the substance for

such delivery. The term ‘‘dispenser’’ means a practi-

tioner who so delivers a controlled substance to an

ultimate user or research subject.”’

a

**(11) The term ‘‘distribute’’ means to deliver (other

than by administering or dispensing) a controlled

substance. The term ‘‘distributor’’ means a person

who so delivers a controlled substance.”’

21 U.S.C.A. Section 841(a), which provides:

**(a) Except as authorized by this sub-chapter, it

shall be unlawful for any person knowingly or inten-

tionally—

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

possess with intent to manufacture, distribute, or

dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit

substance.”’

21 U.S.C.A. Section 812(a), which provides:

**(a) There are established five schedules of con-

trolled substances, to be known as Schedules I, II, III,

IV, and V. Such schedules shall initially consist of the

substances listed in this section. The schedules

established by this section shall be updated and

republished on a semiannual basis during the two-year

period beginning one year after October 27, 1970 and

shall be updated and republished on an annual basis

thereafter.”’

21 U.S.C.A. Section 812(c), which provides:

**(c) Schedules I, II, III, 1V, and V shall, unless and

until amended pursuant to Section 811 of this title,

consist of the following drugs or other substances, by

whatever official name, common or usual name,

chemical name, or brand name designated..."

44 U.S.C.A. Section 1510(e), which provides:

**(e) The codified documents of the several agencies

published in the supplemental edition of the Federal

Register under this Section, as amended by documents

subsequently filed with the Office and published in the

_ wa

daily issues of the Federal Register, shall be prima facie

evidence of the text of the documents and of the fact

that they are in effect on and after the date of publica-

tion.”’

6. 440U.S.C.A. Section 1507, which provides:

**... The contents of the Federal Register shall be

judicially noticed and without prejudice to any other

mode of citation, may be cited by volume and page

number.”*

Statement of the Case

Petitioner Harrison was indicated for unlawful distribution

of controlled substances by writing prescriptions. Section

841(a)(1) of Title 21, U.S.C., provides that a physician may be

indicted for distributing or dispensing controlled substances.

A physician ‘‘dispenses’’ when he prescribes or administers

controlled substances. 21 U.S.C. 802(10). The term ‘‘distrib-

ute’’ means to deliver, other than by administering or dispens-

ing, a controlled substance. 21 U.S.C. 802(11).

The Fifth Circuit has previously held in U.S. v. Leigh, 487

F.2d 206 (Sth Cir. 1973), that Congress clearly established

two separate offenses; ‘‘dispensing’’ and ‘‘distributing’’ con-

trolled substances are mutually exclusive transgressions of the

Comprehensive Drug Abuse Prevention and Control Act of

1970. This Court, in U.S. v. Moore, 423 U.S. 122, 96 S.Ct.

335, 46 L.Ed.2d 222 (1975) has held the provisions of 21

U.S.C. Sections 842 and 843 (which apply specifically to per-

sons registered under 21 U.S.C. Section 822 and assess re-

duced penalties for those registered) do not purport to exempt

physicians and other registrants from the strictures of 21

U.S.C. Section 841. This Court did not rule, however, on the

propriety of indicting a physician for ‘‘dispensing’’ or

‘*distributing’’ controlled substances through the conduit of

written prescription.

tlfion

Petitioner was convicted in April 1980, in the United States

Court for the Northern District of Georgia. The Fifth Circuit

Court of Appeals reversed Petitioner’s conviction in its opin-

ion of October 24, 1980, at U.S. v. Harrison, 628 F.2d 929 (Sth

Cir. 1980). The Court found U.S. v. Leigh, supra, to be con-

trolling, and directed the dismissal of the indictment. The

Court recited its recent reaffirmation of Leigh, supra, in U.S.

v. Thompson, 624 F.2d 740, 742 (Sth Cir. 1980) ‘‘(affirming

physician’s conviction for ‘dispensing’ controlled substances):

‘precedent in this Circuit establishes that, under Title 21 of the

Code, a doctor who administers or prescribes a controlled

substance in an unlawful manner is to be indicted for dispens-

ing it rather than distributing it. U.S. v. Leigh.’ ”’

Upon the grant of the Government’s motion for rehearing,

the Fifth Circuit withdrew its original reversal of the convic-

tion and issued an affirmance of petitioner’s conviction. U.S.

v. Harrison, 651 F.2d 353 (Sth Cir. 1981). The Court found

the inclusion in the indictment of ‘‘unlawful’’ distribution

‘*for other than a legitimate medical prupose and not in the

usual course of medical practice’ to be dispositive and upheld

the indictment in the instant case. The Court’s opinion

vitiated totally the statutory distinction between ‘‘dispensing’’

and ‘‘distributing’’ controlled substances, found at 21 U.S.C.

802 (10) and (11) respectively, and instead invoked the pro-

secutor’s panacea of dubbing an action ‘‘unlawful’’ and ‘‘not

legitimate medical practice’’ as justifying affirmance of con-

viction.

The Court of Appeals also affirmed the trial court’s taking

of judicial notice of effective dates of inclusion of controlled

substances in the federal schedules at 21 U.S.C. 812 and 21

C.F.R. 1308, over counsel for petitioner’s objection that a

vestige of substantiation must be present before the Court can

exercise the fiat of judicial notice. In the instant case, the trial

judge took judicial notice of the inclusion of pharmaceuticals

in the schedules of controlled substances in the United States

Code and the Code of Federal Regulations as of 1980, and not

-_

of the date of alleged offenses (1976 to 1977). At trial, the

Government was unable to verify that the subject phar-

maceuticals were controlled substances as of the time of al-

leged infraction; petitioner submits the lack of a foundational

modicum precluded the trial court from exercising judicial

notice. As it stands, the State failed to establish a matérial ele-

ment of each count of the indictment and invoked the

strawman of judicial notice tu resurrect its case against peti-

tioner.

Trial Court Jurisdiction

The basis of trial court justidiction in the Federal District

Court rests upon 21 U.S.C. Section 841. (See also, U.S. v.

McDaniel), 428 F.Supp. 1226 (D.C. Okl. 1977).

=“ =

REASONS FOR GRANTING THE WRIT

I.

The Court of Appeals Should Be Reversed for Failing to

Delineate Between the Indictable Offenses of ‘‘ Dispensing’’

and ‘‘Distributing’’ Controlled Substances.

Supreme Court Rule 17.1(c) envisions the grant of the writ

of certiorari where a Federal Court of Appeals has decided an

important question of federal law which has not been, but

should be, settled by this Court. As previously noted, this

Court, in delineating the indictable offenses of registrants

under the Controlled Substances Act in U.S. v. Moore, supra,

did not dispose of the gravamen of this petition for certiorari.

The ruling in petitioner’s case before the Fifth Circuit effec-

tively eviscerates the distinctions of the legislatively-

formulated offenses of ‘‘distributing’’ and ‘‘dispensing”’

under 21 U.S.C. Section 841(a)(1) and 21 U.S.C. Section

802(10) and (11).

The Fifth Circuit’s opinion, in overruling its earlier reversal

of petitioner’s conviction, distinguished the acknowledged

controlling authority in the Fifth Circuit of U.S. v. Leigh,

supra.

In Leigh, the defendant physician was charged in multiple

counts of ‘‘knowingly and intentionally distributing con-

trolled substances, 21 U.S.C. Section 841(a)(1), and for caus-

ing the same to be distributed, 18 U.S.C. Section 2(b).’’ Leigh,

supra, at 207. Each of the counts described the defendant as a

medical doctor and charged that he ‘* ‘did knowingly and in-

tentionally distribute and cause to be distributed (the par-

ticular prohibited substance) by means of a prescription

signed by defendant.’ Jn essence, the defendant was charged

with the basic offense of unlawfully distributing controlled

substances, 21 U.S.C. Section 841(a)(1).’’ Ibid, (emphasis

added). The factual parallels to the instant case are thus with-

out variance. The charged offense was ‘‘distribution’’ under

21 U.S.C. Section 841(a)(1), and, by the Leigh court's specific

assertion, the distribution was ‘‘unlawful.”’

The Leigh court then affirmed the dismissal of the indict-

ment fo: failure to state an offense, by relying on U.S. v.

Bartee, 479 F.2d 484, 487 (10th Cir. 1973): ‘‘It has been de-

cided that a doctor can be indicted, tried, and convicted for

the unlawful dispensing of a controlled substance, if his

prescription is not for a legitimate medical purpose in the

usual course of his professionai practice. The appellee,

however, has not been indicted for unlawful dispensing. The

charge is unlawful ‘distribution.’ ’’ (Emphasis added). Again,

the deliberations of the Leigh court specifically address the

identical facts and issues of the instant case. Leigh stands as a

paradigm of the instant case, incapable of distinction.

The Leigh court then cited Justice Marshall’s uncon-

troverted maxim that the indictment must specify the crime

which is to be proved, that the conduct alleged must be an

offense against the law, and that one may not be charged with

one crime and convicted of another. The Leigh court then

methodically dissected 21 U.S.C. 841(a)(1), noting four

separate and mutually-exclusive offenses were created by

Congress, to encompass situations where any person know-

ingly or intentionally 1) manufactures, 2) distributes,

3) dispenses, or 4) possesses with intent to manufacture,

distribute, or dispense, a controlled substance. These separate

acts were deemed to constitute unlawful offenses. Leigh,

supra, p. 208.

Examined next by the Leigh court was Section 802(10) of 21

U.S.C., which defines ‘‘dispense’’ as follows:

**The term ‘dispense’ means to deliver a controlled

substance to an ultimate user or research subject by, or

pursuant to the lawful order of, a practitioner, including

the prescribing and administering of a controlled sub-

stance, 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 sub-

ject.””

eliun

The Leigh court then noted:

** This clearly means that a doctor who administers or

prescribes a controlled substance is, for the purposes of

the statute, dispensing it, although as Bartee, supra,

points out, if he performs that function in an unlawful

manner he may be indicted, tried and convicted for it.

This view is buttressed by the provisions of 21 U.S.C.

Section 802(11), defining ‘distribute’: The term ‘distrib-

ute’ means to deliver (other than by administering or

dispensing) a controlled substance. The term ‘distributor’

means a person who so delivers a controlled substance.

Obviously, the specific language ‘other than by adminis-

tering or dispensing’ is not to be ignored.

The conclusion is inescapable, we believe, that the in-

dictment as drawn fails to charge an offense within the

terms of the applicable statutes.’’ Ibid.

Without question, Leigh is controlling in the case sub judice

and is indistinguishable. The panel of the United States Fifth

Circuit Court of Appeals, upon its opinion rendered sub-

sequeni to its grant of rehearing, found dispositive the

Government’s argument in its petition for rehearing that ‘‘this

case must be distinguished from Leigh. There the charge was

only knowing and intentional distribution. Here the indict-

ment charged distribution that was ‘unlawful’ and ‘for other

than a legitimate medical purpose and not in the usual course

of medical practice.’ This states an offense.”’ U.S. v. Har-

rison, 651 F.2d 353 (Sth Cir. 1981).

As justification for its rationale, the panel proffered a foot-

note, which reads as follows:

**In U.S. v. Thompson, 625 F.2d 740 (Sth Cir. 1980)

the physician was charged with ‘unlawfully dispensing a

controlled substance, not in the usual course of profes-

sional practice for a legitimate medical purpose.’ He

asserted, relying on Leigh, that the indictment was defec-

tive because he could be indicted for only distributing

_——

(and that only an unregistered physician could be indicted

for dispensing unlawfully). We rejected this argument,

and relying on Leigh, stated that ‘a doctor who ad-

ministers or prescribes an unlawful substance in an

unlawful manner is to be indicted for dispensing it rather

than distributing it.” We do not take this statement to

mean that a doctor acting unlawfully and for other thana

legitimate medical purpose and not in the usual course of

medical practice can only be indicted for dispensing. The

indictment in Leigh did not charge unlawful administer-

ing or prescribing but merely distribution, and we held

this was not enough.’’ /bid.

Petitioner submits the panel’s reliance on U.S. v. Thomp-

son, supra, is simply inappropriate. The status of the instant

case renders it a ‘‘mirror image’’ of Leigh, and the instant

case is indistinguishable. The panel has, by proxy, emascu-

lated the holding and precedent of Leigh. Noted the Leigh

court, ‘‘this clearly means that a doctor who administers or

prescribes a controlled substance is, for the purposes of the

statute, dispensing it. although as Bartee, supra, points out,

if he performs that function in an unlawful manner he may be

indicted, tried, and convicted for it.’’ Leigh, supra, p. 208.

The court then reiterated the clear congressional intent, that

‘to distribute’ means to deliver (other than by administering

or dispensing). . .Obviously, the specific language ‘other than

by administering or dispensing’ is not to be ignored.’’ Leigh,

Ibid.

The panel’s distinguishing, in all due respect, is sophistical.

The panel cites the fact the instant case’s indictment charged

distribution that was ‘‘unlawful’’ and ‘“‘for other than a

legitimate medical purpose and not in the usual course of

medical practice.’’ Harrison, supra, p. 354. These adden-

dums stand as nothing more then surplusage, failing to

address the critical distinction between ‘‘distribution’’ and

“‘dispensing’’ promulgated by the Leigh court. *‘*Distrib-

uting’’ and ‘‘dispensing’’ are mutually exclusive offenses by

virtue of the clear intent of Congress inherent in 21 U.S.C.

Sections 802(10) and 802(11). As in Leigh, the indictment

fails to charge an offense within the terms of the applicable

Statutes.

As its rationale, the panel cited the addition of the terms

‘*‘unlawful’’ and ‘‘for other than a legitimate medical purpose

and not in the usual course of medical practice’ as saving the

indictment from adjudged insufficiency. Petitioner submits

these addendums are little more than embellishments, which

fail to ameliorate the clear distinctions between ‘‘distribu-

tion’’ and ‘‘dispensing.’’ As noted previously, the Leigh

court specifically addressed the question of ‘‘unlawful’’

distribution and found such to be less than persuasive. ‘‘In

essence, the Defendant was charged with the basic offense of

unlawfully distributing controlled substances, 21 U.S.C. Sec-

tion 841(a)(1).”’ Leigh, supra, p. 207. The nomen of

‘‘unlawful’’ did not prevent the Leigh court from mandating

**distributing,’’ and rightfully so. ‘‘Unlawfulness”’ is nothing

short of conclusory, and of no possible assistance to one

indicted in the preparation of his defense (other than alerting

the individual to the obvious fact he is not being commended

by the Government). The addendum of ‘‘for other than a

legitimate medical purpose and not in the usual course of

medical practice’’ to the indictment in the instant case is

likewise inconsequential. The Leigh court noted expressly

that terminology had been deliberated by the 10th Circuit in

Bartee; yet the Leigh court chose to unequivocally base its

decision on the fact that indictment charged ‘‘distributing”’

rather than ‘‘dispensing.’’ Leigh, supra, p. 207. The panel in

the case sub judice, then, has distinguished this case based on

two specific criteria addressed by, and found wanting by, the

Leigh court.

Petitioner respectfully notes that the inclusion of

‘‘unlawfully”’ in the indictment does not render the indict-

ment’s statutory infirmities vitiated. Such an inclusion is not

oa

the panacea the panel suggests, and is little more than con-

clusory surplusage. Additionally, the sound precedent

established by this Circuit in Leigh, supra, should not be

undermined for any reason. The panel obscures the distinc-

tions between ‘‘distributing’’ and ‘‘dispensing,’’ in direct

contravention to the express intent of Congress. And what is

to be garnered by such a ‘“‘distributing-dispensing’’ hybrid?

Shall this herald the inclusion of ‘‘manufacturing’’ and

**possessing’’ under 21 U.S.C. Section 841(a)(1) with the

hybrid, rendering 21 U.S.C. Section 841(a1) amorphous?

Will the Government be afforded the perquisite of drafting

‘“*blanket”’ indictments in the future as they have in the

instant case? Will this not result in ‘‘fishing expeditions’’ for

the Government?

Petitioner submits this Court should follow the express

design of Congress, rather than opting for prosecutorial

expediency.

The Supreme Court Should Exercise Its Discretionary Powers

of Review to Examine the Arbitary Exercise of Judicial

Notice Which Allows the State the Perquisite of Not Prov-

ing Material Elements of Its Case.

Petition was indicted for distribution of four drugs: Didrex

(Benzphetamine hydrochloride), Melfiat (Phendimetrazine

tartrate), Capital (Acetaminiphen with codeine), and Fastin

(Phentermine).

The prescriptions which were introduced into evidence at

trial used only brand nares of these drugs. The Government

sought to establish two facts with respect to these names: that

each brand name had a certain equivalent generic name, and

that generic names were listed on the federal schedule of con-

trolled substances, 21 U.S.C. Section 812 and 21 C.F.R. 1308.

To this end the Government elicited the testimony of one

Special Agent Starling. Agent Starling first described the

generic equivalents of the brand names in question. He next

=— =

gave his opinion over the objection of petitioner’s counsel that

all four drugs named in the prescription were Schedule III or

Schedule IV controlled substances.

This opinion was based solely on the current edition of the

Code of Federal Regulations. Agent Starling did not know

when these substances were placed on the schedules.

After the Government offered the schedules of controlled

substances listed at 21 C.F.R. Section 1308, the trial court

took judicial notice of the fact that the generic names in ques-

tion were listed in Schedules III and IV.

At that time, petitioner objected that the Government had

introduced evidence of the schedules as they were at the time

of the trial but not as they were as of the period of the alleged

offenses, which was 1976-1977. His motion was overruled.

Petitioner posits the trial court was in error when it took

judicial notice of the Code of Federal Regulations schedules

without any proof of the schedules as they were in 1976 and

1977.

All courts take judicial notice of the statutes of the United

States. 29 Am. Jur.2d Evidence Section 27 (1967). ‘‘Moreover,

the courts will take judicial notice of the effective date of a

statute, and whether it existed as law at any particular time.’’

Id. Section 28.

The contents of the Federal Register are required to be

judicially noticed, 44 U.S.C. Section 1507 (1967), and the con-

tents of the Code of Federal Regulations are prima facie

evidence of agency documents, text and effective dates, 44

U.S.C. Section 1510(e) (1969).

A trial judge has wide latitude in taking judicial notice of

statutes and regulations. He ‘‘may examine decisions and

books containing statutes printed by the official printer of the

jurisdiction.’’ Annot. 35 A.L.R.Fed. 440 (1977); see United

States v. Atwell, 71 F.R.D. 357 (D.Del. 1976).

However, where there is any doubt as to the verifiable cer-

tainty of the text of a statute or a regulation, the trial court

a

should not take judicial notice, but instead should require

additional evidence. 29 Am. Jur.2d, supra Sections 24-25.

Before applying the facts of appellant’s case to these prin-

ciples of judicial notice some aspects of the statutes and

regulations under which appellant was indicted must be con-

sidered.

21 U.S.C. Section 812 (amended 1978) established the

schedules of controlled substances within the Comprehensive

Drug Abuse Prevention and Control Act of 1970, Publ. L.

91-513, Title II, Section 101, 84 Stat. 1242. The schedules

became effective October 27, 1970, /d. Section 704. 28 Section

812(c) provides that the schedules ‘‘shall, unless and until

amended. . . consist of the (drugs listed therein).’’ Further, the

schedules must be updated and republished annually. 21

U.S.C. Section 812(a) (1970).

It is true that the drugs in question are listed in the 1980 edi-

tion of the Code of Federal Regulations. 21 C.F.R. Section

1308.13(b)(2) (benzphetamine), Section 1308.13(b)(6) (phen-

dimetrazine), Section 1308.13(e)(2) (codeine not more than

1.8 grams, in preparation with nonnarcotic), Section

1308.14(e)(2) (phentermine). However, this is the sole source

the trial judge relied on in taking judicial notice.

There is no indication that the court considered the list in

the 1970 statute. Even if it had, only one of the four drugs is

listed there: codeine, 1.8 grams or less mixed with a non-

narcotic substance. 21 U.S.C. 812(c), Schedule III(d)(2).

Therefore, the other three were added sometime in the sub-

sequent period before 1980.

The court never confronted this problem. When it took

judicial notice of the schedules it simply assumed that the

1976-1977 versions were identical to 1980’s, in the face of

appellant’s vigorous objection. This assumption was totally

unjustified. The court should have ordered the Government to

produce additional evidence on the point, but it did not. 29

Am.Jur.2d, supra.

_= =

The Government’s proof should have shown that appel-

lant’s acts took place after the effective date of the offenses.

1 Underhill’s Criminal Evidence Section 88 (6th Ed. 1973).

The Government failed to offer any proof at all on this

point, and thus failed to establish a material element of each

count of the indictment. Therefore, the verdict should be

reversed.

Conclusion

For the reasons stated above, petitioner respectfully sub-

mits that a writ of certiorari should issue to review the judg-

ment and opinion of the Fifth Circuit Court of Appeals, Unit

B (now the Eleventh Circuit Court of Appeals).

Respectfully submitted,

HYLTON B. DUPREE, JR.

Counsel of Record

MARK A. JOHNSON

DUPREE & STAPLES

49 Green Street

P.O. Box 525

Marietta, Georgia 30061

Counsel for Petitioner

November 5, 1981

= =

APPENDIX A

Order.

United States Court of Appeals, for the Fifth Circuit, Unit B.

United States of America, Appellee, vs. Jim T. Harrison,

Appellant. No. 80-7416.

Filed September 11, 1981.

Before GODBOLD, Chief Judge, and KRAVITCH and

HATCHETT, Circuit Judges.

The Petition for Rehearing is DENIED and no member of

this panel nor Judge of this Administrative Unit in regular

active service having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate Pro-

cedure; Local Fifth Circuit Rule 16; Fifth Circuit Judicial

Council Resolution of January 14, 1981), the suggestion for

Rehearing En Banc is DENIED.

= =

APPENDIX B

United States of America, Plaintiff/Appellee, vs. Jim T.

Harrison, Jr., Defendant/Appellant. No. 80-7416.

United States Court of Appeals for the Fifth Circuit, Unit B.

Decided October 24, 1980.

Before GODBOLD, KRAVITCH and HATCHETT, Cir-

cuit Judges.

GODBOLD, Circuit Judge:

Appellant is a doctor of osteopathics, authorized under

Georgia law to perform the same services as a medical doctor.

He was indicted on 37 counts of distributing controlled

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

C.F.R. Section 1306.' He appeals from his conviction by a

jury of 33 of the 37 counts. We agree with appellant that this

case is controlled by U.S. v. Leigh, 487 F.2d 206 (Sth Cir.

1973), and we accordingly reverse the directions to dismiss the

indictment.

Section 841(a)(1) of 21 U.S.C. makes it unlawful ‘‘to

manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense a controlled substance.”’

In Leigh, this Court held that, under the definitions of the

terms ‘‘dispense’’ and ‘‘distribute’’ in 21 U.S.C. Section

803(10) and (11), ‘ta doctor who administers or prescribes a

controlled substance is, for the purpose of the statute, dis-

pensing it, ‘‘Leigh, 487 F.2d at 208 (emphasis added), and af-

firmed the dismissal of an indictment charging a doctor with

‘‘distributing rather than ‘‘dispensing’’ a controlled

substance.

‘Count I is representative of the other counts of the indictment:

On or about the 22nd day of March, 1977, within the North-

ern District of Georgia, the defendant JIM T. HARRISON,

JR., did unlawfully and knowingly distribute and cause to be

distributed a Schedule III controlled substance, that is Didrex

(Benzphetamine hydrochloride) pursuant to a prescription

numbered 156753, for other than a legitimate medical purpose

and not in the usual course of professional practice, in viola-

tion of Title 21, United States Code, Section 841(a)(1) and

Title 21, C.F.R. Section 1306. (Emphasis added).

The government argues that ‘‘decisions subsequent to Leigh

have rendered Leigh of dubious precedential value,”’ citing

U.S. v. Moore, 423 U.S. 122, 96 S. Ct. 335, 46 L.Ed.2d 333

(1975); U.S. v. Dunbar, 614 F.2d 39 (Sth Cir. 1980); and U.S.

v. Greenfield, 574 F.2d 305 (Sth Cir.), cert. denied, 439 U.S.

860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978). We must disagree.

In Moore, the Supreme Court held that the provisions of 21

U.S.C. Sections 842 and 843, which apply specifica'ly to per-

sons registered under 21 U.S.C. Section 822, and which pro-

vide lesser penalties than does Section 841, do not imply an

exemption from Section 841 for physicians and other

registrants. Although the government relies on the Supreme

Court’s statement of the issue as ‘‘whether persons who are

registered under the Controlled Substances Act. . .can be pro-

secuted under Section 841 for dispensing or distributing con-

trolled substances,’’ Moore, 423 U.S. at 124, 96S. Ct. at 337,

46 L.Ed.2d at 337, that case did not address the question

whether a physician is properly charged with ‘‘dispensing’’ or

‘*distributing.’’ Similarly, although both Dundar and Green-

field upheld convictions of physicians for ‘‘distributing’’ con-

trolled substances, neither case considered the issue presented

here. Moreover, this Court only recently reaffirmed the

holding of Leigh in dictum in U.S. v. Thompson, 624 F.2d

740, 742 (Sth Cir. 1980) (affirming physician’s conviction for

**dispensing’’ controlled substances): ‘‘Precedent in this cir-

cuit establishes that, under Title 21 of the Code, a doctor who

administers or prescribes a controlled substance in an

unlawful manner is to be indicted for dispensing it rather than

distributing it. U.S. v. Leigh.”’

Appellant also challenges the procedure by which the trial

judge took judicial notice of the schedules of controlled

substances listed in 21 C.F.R. Section 1306 and the sufficiency

of the evidence to support his conviction on counts 15 through

27. Because of our disposition of appellant’s challenge to the

indictment, we need not consider these objections.

—20—

APPENDIX C

United States of America, Plaintiff/Appellee, vs. Jim T.

Harrison, Jr., Defendant/ Appellant. No.80-7416.

United States Court of Appeals for the Fifth Circuit.

Decided July 20, 1981.

Before GODBOLD, Chief Judge, and KRAVITCH and

HATCHETT, Circuit Judges.

On Petition for Rehearing and Petition for Rehearing En

Banc.

GODBOLD, Chief Judge:

Appellant, an osteopathic doctor, was charged with

‘‘unlawfully and knowingly distributing and causing to be

distributed a controlled substance...for other than a

legitimate medical purpose and not in the usual course of pro-

fessional practice,”’’ in violation of 21 U.S.C. 841(a)(1). This

section makes it unlawful ‘‘to manufacture, distribute, or

dispense. ..a controlled substance.’ We held, U.S. v. Har-

rison 628 F.2d 92° (Sth Cir. 1980) that the indictment must be

dismissed, relying on U.S. v. Leigh, 487 F.2d 206 (Sth Cir.

1973) in which we dismissed an indictment that charged the

defendant, a medical doctor ‘‘did knowingly and intentionally

distribute. ..a controlled substance in violation of Section

841(a)(1).”’

(1) We agree with the government’s argument in its peti-

tion for rehearing that this case be distinguished from Leigh.

There the charge was only knowing and intentional distribu-

tion. Here the indictment charged distribution that was

‘‘unlawful’’ and ‘‘for other than a legitimate medical purpose

and not in the usual course of medical practice.’’ This states an

offense.'

‘In U.S. v. Thompson, 624 F.2d 740 (Sth Cir. 1980) the physician was

charged with “‘unlawfully dispensing a controlled substance, not in the

usual course of professional practice for a legitimate medical purpose.’’ He

—2)|—

The allegations present in this case protect the doctor from

exposure to criminal prosecution for errors of judgment as to

the amount of prescribed and as to the necessity for the

prescription.

(2) We consider two other points that were pretermitted

in our original opinion. The court took judicial notice that the

generic names of the four drugs that appellant was indicted for

distributing were listed in the federal schedule of controlled

substances, 21 U.S.C. Section 812, 21 C.F.R. 1308. Appellant

insists that the court was required to take testimony to show

that the C.F.R. schedules showed as of the dates of the

offenses charged, 1976 and 1977. The argument misconceives

the nature of judicial notice, which dispenses with the neces-

sity of proof. The Federal Register specifies the effective date

of each regulation, and this is required to be judicially noticed

along with the content of the regulation. Both the 1976 and

1977 editions of the C.F.R. list as controlled substances the

drugs appellant was convicted of distributing. This is all that is

required.

(3) There was sufficient evidence to permit submission to

the jury of counts 15 through 27. Appellant urges that it was

not shown that the prescriptions charged in these counts were

written for other than legitimate medical purposes. The con-

tention is based upon two incorrect hypotheses. U.S. v.

Rosen, 582 F.2d 1032 (Sth Cir. 1978) is not an exclusive and

exhaustive list of the types of conduct by which a physician

can breach the limits of legitimate medical practice nor does it

asserted, relying on Leigh, that the indictment was defective because he

could be indicted for only distributing (and that only an unregistered physi-

cian could be indicted for dispensing unlawfully). We rejected this argu-

ment, and, relying on Leigh, stated that ‘‘a doctor who administers or

prescribes an unlawful substance is an unlawful manner is to indicted for

dispensing it rather than distributing it." We do not take this statement to

mean that a doctor acting unlawfully and for other than a legitimate medical

purpose and not in the usual course of medical practice can only be indicted

for dispensing. The indictment in Leigh did not charge unlawful administer-

ing or prescribing but merely distribution, and we held this was not enough.

=<

establish some minimum number of types of conduct that

must be present to permit submission to the jury of the

legitimate medical practice issue. The fallacy of appellant's

mechanistic approach is demonstrated by the presence in this

case of testimony that appellant would make up fictitious

names for prescriptions, or ask the ‘‘patient’’ to supply him

with names to be used, and even alluded to the difficulties he

might encounter by having no files on the confected names.

Nor was the jury, in considering the issue of exceeding the

legitimate bounds of medical practice, limited to considering

only prescriptions charged in counts 11 through 27. Prescrip-

tions issued at other times were admissible as evidence of plan,

design or scheme.

The petition for rehearing of GRANTED and the convic-

tion of appeilant is AFFIRMED. No member of this panel or

judge in regular active service on the court has requested that

the court be polled on rehearing en banc, FRAP Rule 35, Fifth

Circuit Local Rule 16, theref6re, the petition for rehearing en

banc is DENIED.