Record and brief — Albert v. United States

UOn ied

81-1638 |°

ED

FSB 27 1982

NO. ALEXANDER L. strvas

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

ARNOLD ALBERT, M.D.,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JACK PAUL LEON

LEON & BAYLESS

500 Lexington Avenue

San Antonio, Texas 78215

(512) 223-4254

Attorney for Petitioner

I.

QUESTIONS PRESENTED FOR REVIEW

1. Whether, in a prosecution of a

physician for dispensing controlled

substances other than for a legitimate

medical purpose and not in the course of

professional practice, it is incumbent

upon the prosecution to establish that

there was, in fact, with regard to the

controlled substance in question, a

standard of professional practice in the

United States sufficient to support a

finding, beyond a reasonable doubt, that

such a standard had been violated.

Appellant's contention is that even if

the standard “other than for a legiti-

mate medical purpose and not in the

course of professional practice" is not

unconstitutionally vague, that there

remains a serious constitutional

-i-

question as to whether the regulation,

as applied to the specific controlled

substances involved (Preludin and

Tuinal) provides criminal sanctions for

conduct which cannot be determined with

reference to any reasonably ascer-

tainable standard, either by reference

to a Statute or Regulation, or by

reference to the body of medical and

pharmacological authority within the

United States. Appellant believes that

the decision of the Court of Appeals in

this cause is in conflict with the opi-

nion of the Supreme Court of the United

States in the case of Colautti v.

Franklin, 439 U.S. 379, 99 S.Ct. 675,

58 L.Ed.2d 596 (1979), and that the

conflict or apparent conflict should be

resolved by the Supreme Court.

2. Whether the admission in evi-

dence by the Trial Court of approxima-

aiie

tely 20,0000 prescriptions relating to

the dispensing of controlled substances

on occasions not alleged in the indict-

ment violated Dr. Albert's right of

confrontation and whether the same also

violated the general rule regarding the

admission of extraneous offenses,

because there was no evidence as to the

medical condition of the recipients of

the prescriptions, and consequently,

there was an insufficent basis upon

which the Trial Court could have found

the prescriptions to have been issued

unlawfully. Appellant contends that the

constitutional error was twofold.

First, the actual recipients of the

controlled substances were not present

to testify, thus violating the right of

confrontation. Secondly, Doctor

Albert's right not to be tried for

offenses other than those alleged in the

-iii-

indictment was violated because he was

forced to defend the accusation of

approximately 20,0000 separate instances

of criminal conduct in addition to those

alleged in the indictment.

TABLE OF CONTENTS

Pages

QUESTIONS PRESENTED

FOR gg PPrrrrrrrrrrTyT TT TTT

OPINIONS DELIVERED

IN COURTS Be 0 0:0606600066668600864

JURISDICTIONAL STATEMENT.....002-eeeee0!

STATUTES AND REGULATIONS

IN ewe eec ec oeececncececcceeeeeeeeeen

STATEMENT OF THE CASE... .ccececccseseeeld

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CERTIFICATE OF SERVICE... ..ceceeseeeee 38

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-V~-

TABLE OF AUTHORITIES

Cases:

Pages

Colautti vs. Franklin,........++--ii, 18

oe 9) 19, 24, 26

28, 29, 33

34, 36, 37

Casella vs. United States,

F. r C Le SOT UPoocccoenl

Doe vs. REO coccceccececcoocesetes 34

U.S. (1973) 36, 37

Kibbe vs. Henderson,

. nd Cir. TOFebcceccoend

Mullaney vs. Wibur,

~ aay uc. 684, 44 L.Ed.2d,

2508, 95 S.Ct. 1881 4) Je) PPPPPTTTe

United States vs. Hellman,

560 F.2d 1235 (5th Cir. SSee Peo cceceas

United States vs. Rosen,

- t ir. iJ, ) Perrer

United States vs. Vuitch,....ceeeeeeeel9

5. 62, 91 S.Ct. 34, 36

1294, 28 L.Ed.2d 601 (1971) 37, 38

Statutes:

Title 18, United States Code,

Section Dt tihetvanheé6eeee6eeeeee te

-vi-

Title 21, United States Code,

Section errr TT

Title 21, United States Code,

Section Seatac ccccccecececesooss 6

Title 21, United States Code,

Section apc RO

Title 21, United States Code,

Section os6e6006 oeee6e6ebe ence

Title 21, United States Code,

Section 841(a)(1)....eeee00+6, 7, 31

Title 28, United States Code,

Section ol

Regulations:

Title 21, Code of Federal

Regulations, Section 1306(a)(1)

Title 21, Code of Federal

Regulations, Section 1306.02b......2

Title 21, Code of Federal

Regulations, Section 1306.04a

PPYTTTTTIITTTTTTTTTTrtTtTtt 23, 28, 31

Title 21, Code of Federal

Regulations, Section 1306.06...4, 28

-vii-

Il.

OPINIONS DELIVERED IN COURTS BELOW

The opinion of the United

States Court of Appeals for the Fifth

Circuit is not reported: A copy of said

opinion is appended hereto as "Exhibit

A".

Ill.

JURISDICTIONAL STATEMENT

The judgment sought to be reviewed

was entered by a panel of the United

States Court of Appeals for the Fifth

Circuit on November . 1981.

Petitioner's motion for rehearing was

denied on December 29, 1981.

This Court has jurisdiction to

review the judgment in question by Writ

of Certiorari pursuant to 28 USC §1254.

ote

IV.

STATUTES AND REGULATIONS IN QUSTION

1. Title 21, Code of Federal

Regulations, Section 1306.02(b)

provides:

"As used in this part, the following

terms shall have the meanings

specified:"

The term ‘individual practitioner'

means a physician, dentist, veteri-

narian, or other individual licensed,

registered, or otherwise permitted, by

the United States or in the jurisdiction

in which he practices, to dispense a

controlled substance in the course of

professional practice, but does not

include a pharmacist, a pharmacy, or an

institutional practitioner."

2. Title 21, Code Federal

so

Regulations, Section 13.06(a)(1)

provides:

"A prescription for a controlled

substance may be issued only by an indi-

vidual practitioner who is:

(1) Authorized to prescribe

controlled substances

by jurisdiction in which he is

licensed to practice his

profession."

3. Title 21, Code of Federal

Regulations, Section 1306.04(a)

provides:

"A prescription for a _ controlled

substance to be effective must be issued

for a legitimate medical purpose by an

individual practitioner acting in the

usual course of his professional prac-

tice. The responsibility for the proper

prescribing and dispensing of controlled

substances is upon the prescribing prac-

x*

titioner, but a corresponding respon-

sibility rests with the pharmacist who

fills the prescription. An order pur-

porting to a prescription issued not in

the usual course of professional treat-

ment or in legitimate and authorized

research is not a prescription within

the meaning and intent of Section 309 of

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

knowingly filling such a _ purported

prescription, as well as the person

issuing it, shall be subject to the

penalties provided for violations of the

provision of law relating to controlled

substances."

4. Title 21, Code Federal

Regulations, Section 1306.06 provides:

"A prescription for controlled

substances may only be filled by a phar-

macist acting in the usual course of his

professional practice and either

registered individually or employed in a

registered pharmacy or registered insti-

tutional practitioner."

5. Title 21, Umited States Code,

Section 802(b)(10) provides:

"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 prac-

titioner, including the prescribing and

administering of a controlled substance

and the packaging, labeling, or con-

pounding 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".

6. Title 21, United States Code,

Section 802(20) provides:

"The term ‘practitioner’ means a

physician, dentist, veterinarian, scien-

ale

tific investigator, pharmacy, hospital,

or other person licensed, registered, or

otherwise permitted, by the United

States or the jurisdiction in which he

practices or does research, to distri-

bute, 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."

7. Title 21, United States Code,

Section 821 provides:

"The Attorney General is authorized

to promulgate rules and regulations and

to charge reasonable fees relating to

the registration and control of the

manufacture, distribution and dispensing

of controlled substances."

8. Title 21, United States Code,

Section 841(a)(1) provides:

"Except as authorized by this

subchapter, it shall be unlawful for any

person knowingly or intentionally;

(1) to manufacture, distribute,

or dispense, or possess with

intent to manufacture, distri-

bute, or dispense, a controlled

substance."

V.

STATEMENT OF THE CASE

A. Course of Proceedings and

Disposition in Court Below:

Appellant, Dr. Arnold Albert, a phy-

sician, was indicted jointly with James

Hollis Cleveland, a pharmacist, and

charged with five counts of dispensing

Preludin and Tuinal other than in the

course of professional practice and not

for a legitimate medical prupose, and

with one conspiracy count. After a

joint trial, the Jury found Dr. Albert

guilty on all counts, but acquitted Mr.

Cleveland. The Court thereafter granted

Dr. Albert's Motion for Judgment of

Acquittal as to the conspiracy count and

sentenced Dr. Albert on the remaining

counts to an effective sentence of con-

finement for two years and imposed a

fine of $20,000.00.

Dr. Albert perfected an appeal to

the United States Court of Appeals for

the Fifth Circuit with regard to the

judgment of conviction on the substan-

tive counts. In an opinion which was

not reported, and which was dated

November 3, 1981, the conviction was

affirmed. Dr. Albert sought rehearing

both by the panel issuing the opinion

and by the court en banc but rehearing

was denied on December 29, 1981.

The government appealed the judgment

of acquittal as to the conspiracy count

of the indictment, and that appeal has

not yet been decided.

B. Statement of Facts

At the time of trial, Dr. Albert was

71 years old and had practiced medicine

in San Antonio, Texas, for 29 years.

Dr. Albert's Clinic shared a common

entrance with "Cleveland's Professional

Pharmacy," and as a consequence, the

majority of prescriptions filled at the

pharmacy were for Dr. Albert's patients.

At trial, the two primary witnesses

for the Government were Doris Francis

and Herman Francis, who were husband and

wife. Mrs. Francis testified that in

July of 1977, she went to see Dr.

Arnold Albert as a patient. She

testified that she told him that she was

a model and wanted to lose weight and

felt that she needed diet pills.

According to Mrs. Francis, Dr. Albert

required her to take a blood test, took

her bleod pressure and weighed her. She

testified that on the first visit she

obtained fourteen Preludins from the

pharmacy located at the front of the

Arnold Albert clinic (Cleveland's

Professional Pharmacy). Mrs. Francis

testified that after approximately two

weeks, she returned to Dr. Albert's cli-

nic and that she thereafter proceeded to

go to the clinic on a more or less regu-

lar basis. She testified that normally

she would receive fourteen Preludins and

Twelve Tuinals on each visit.

Mrs. Francis testified that,

unbeknownst to Dr. Albert, she and her

husband were engaged in the business of

-10-

reselling Preludin and Tuinal, and that

she visited numerous other physicians

throughout the state of Texas for the

purpose of obtaining the Preludin and

Tuinal. She testified that she con-

tinued, during her visits to Dr. Albert

and other physicians in 1977 and 1978 to

maintain the fiction that she was a

model, and that she needed to remain

thin so that she could continue to be

employed.

In April of 1979, Mrs. Francis and

her husband agreed to cooperate with

Government Agents and agreed to "make

cases" regarding various doctors and

pharmacists in the San Antonio area in

an effort to prevent Herman Francis'

parole from being evoked.

During May, 1979, Mr. and Mrs.

Francis began a series of transactions

with Dr. Albert and Mr. Cleveland in

atte

which they made telephone calls which

were recorded, and wore concealed radio

transmitters on their persons while

making visits to Dr. Albert's office and

Mr. Cleveland's pharmacy. Tape recor-

dings of the telephone calls and of the

conversations were played for the Jury,

and the tapes as well as transcripts of

the tapes were admitted in evidence.

The dates alleged in the substantive

counts of the indictment correspond to

the dates on which Doris and Herman

Francis testified that they received

Preludin and Tuinal while wearing con-

cealed body microphones.

At trial, the Government was per-

mitted to offer in evidence a computer

printout summary of approximately 20,000

prescriptions which were seized from the

pharmacy pursuant to a search warrant.

Approximately 17,000 of the prescrip-

-12-

tions were for Preludin and Tuina! and

had been issued over a two and one-half

year period by Dr. Albert. A Drug

Enforcement Administration Agent, who

executed the search warrant, also was

permitted to testify that he was unable

to locate, at Dr. Albert's clinic,

patient records for various individuals

in whose names Dr. Albert had issued

prescriptions.

The Government called as experts a

professor of pharmacology, an Air Force

physician, and a practicing pharmacist.

The physician and professor of phar-

macology testified that in their opinion

no legitimate medical purpose could be

served by the administration of Preludin

and Tuinal for more than a few weeks

duration based upon the recommendation

of the manufacturers of the drugs. The

physician testified that in his opinion,

at%-

Preludin was ineffective for any pur-

pose, but he acknowledged that some phy-

sicians believed that it had _ an

anorectic effect. On cross examination,

both he and the professor of phar-

macology recognized that the placebo

effect (meaning a situation in which a

non-chemically effective medication

nevertheless produces results) cannot be

ignored by a physician, and that the

psychological rather than phar-

macological effect of a drug is often

the determinative factor insofar as a

physician's decision to prescribe or not

to prescribe is concerned.

Dr. Albert testified that he had

been involved in treating patients for

obesity since the latter days of the

Second World War, and that in his opi-

nion Preludin was effective for the long

term control of weight. Dr. Albert also

-14-

testified that in his _ experience,

patients who were supplied with Preludin

over an extended period of time fre-

quently suffered from insomnia, and that

he often prescribed Tuinal for the pur-

pose of treating the insomnia. Dr.

Albert acknowledged that he had

prescribed Preludin and Tuinal for Doris

and Herman Francis in exchange for

merchandise, but maintained that he did

so for what he believed was a legitimate

medical purpose.

Dr. Albert testified that he had

been "conned" by Doris and Herman

Francis. He testified that he found

Doris Francis to be a good conver-

sationalist and a person whose demeanor

and poise were consistent with her story

that she was a fashion model. The doc-

tor testified that at all times his

issuing of prescriptions for Preludin

«04

and Tuinal for Doris and Herman Francis

was done for what he then believed to be

a legitimate medical purpose, but that

if at some point no legitimate medical

purpose was served it was because they

had induced him to prescribe by con-

tinuously exerting subtle pressure upon

hin. With regard to. the extraneous

prescriptions, Dr. Albert testified that

he disagreed vehemently with’ the

government's experts and maintained that

long term administration of Preludin and

Tuinal was, based upon his clinical

experience, effective and safe.

Dr. Albert called three physicians

to testify on his behalf. All three

physicians questioned the ability of the

Government's experts to form an opinion

that no legitimate medical purpose was

demonstrated by the extraneous prescrip-

tions, based solely on frequency and

o1G-

quanity prescribed. All three physi-

cians testified that a determination as

to legitimate medical purpose could not

be made based solely on frequency and

number. One of the physicians, Dr.

Louis Helfer, testified that in his opi-

nion, the long term administration of an

amphetamine-like controlled substance

such as Preludin would indeed have a

continuing appetite-suppressant effect,

and that he believed that a physician

would be completely justified in

following his own clinical experience,

regardless of the recommendations made

by the manufacturer of the drugs.

VI.

FEDERAL JURISDICTION IN THE

COURT OF FIRST INSTANCE

This case began as a prosecution for

an offense against the laws of the

ai Pa

Unites States. Accordingly, the basis

for federal jurisdiction in the Court

of first instance, the United States

District Court for the Western District

of Texas, was Section 3231 of Title 18,

United States Code.

VIl.

ARGUMENT IN SUPPORT

OF ALLOWANCE OF THE WRIT

Petitioner respectfully submits that

this court should grant certiorari for

two reasons. First, the language of the

regulation -in question, when coupled

with the divergence of medical testimony

at trial, falls within the holding of

Colautti v. Franklin, 439 U.S. 379, 99

S.Ct. 675, 58 L.Ed.2d 596 (1979), that a

statute which seeks to punish as crimi-

nal the existence of medical judgment

cannot stand in the face of a divergence

-18-

of expert medical opinion regarding that

procedure, and as a consequence, the

judgment of the Court of Appeals is in

conflict with that case. This court

should grant certiorari to reconcile

that conflict. Secondly, Colautti is an

apparent conflict with Doe v. Bolton,

410 U.S. 179, 93 S.Ct. 739, 35 L.Ed 2d

201 (1973); and United States v. Vuitch,

402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed 2d

601 (1971), and this court should grant

certiorari to resolve that conflict.

Throughout the trial, an issue which

was vigorously contested by Petitioner

and brought before the Court of Appeals

by appeal was whether there was in fact

a standard of professional practice

among physicians with regard to the

dispensing of Preludin and Tuinal. The

Government's only physician witness in

its case in chief was Dr. Randol C.

-19-

Johnson. Dr. Johnson, on direct exami-

nation, testified that in his opinion

Preludin is not effective as _ an

appetite-suppressant, although he

acknowledged that it was said to be

effective, at least for a short period

of time. His personal opinion, however,

was that it was not.

Dr. Johnson also testified that in

his opinion there was no legitimate

medical purpose served in the admi-

nistration of Preludin and Tuinal in

combination over an extended period of

time. On cross examination, however,

Dr. Johnson went further and stated that

he would never prescribe Preludin and

that he could see no justification for

prescribing either Preludin or Tuinal.

Dr. Johnson did recognize, however, that

Preludin could continue to aid a person

in combating obesity as a resuit of the

-29-

placebo effect when given over an

extended period of time, even though it

had no chemical effect. He insisted,

however, that the standards of pro-

fessional practice required a phusician

to follow the drug manufacturer's guide-

lines as set forth in the Physician's

Desk Reference. He testified that even

if a physician believed, in good faith

and based upon clinical experience that

a drug was effective in treating a par-

ticular condition, the physician would

nevertheless not be acting for a legiti-

mate medical purpose if he prescribed

the drug for a condition not indicated

by its manufacturer. Dr. Johnson based

his knowledge solely upon his Air Force

experience and the medical literature.

He had never prescribed Preludin or

Tuinal in his practice.

Dr. Louis H. Helfer, a defense wit-

aiit<

ness, testified that a physician prac-

ticed for a legitimate medical purpose

when he dispenses based upon his prior

experience with his patients, and that

such was the community standard in San

Antonio, regardless of manufacturer's

recommendation.

Dr. Albert testified that based upon

his clinical experience, Preludin is

effective as an appetite control drug

when administered over a _ prolonged

period of time and that it frequently

causes insomnia in patients who take it.

Even the Government's witnesses

admitted that although they did not

agree with the practice, the administra-

tion of a drug for a non-approved or

non-indicated usage or duration could

nevertheless be done for a legitimate

medical purpose by a physician who

found, based upon his clinical

-22-

experience, that the drug was effective

in the manner in which it was used, pro-

vided that the patient was advised that

the drug was being given for a non-

indicated usage.

The evidence at trial demonstrated

that there is sufficient divergence of

opinion within the medical community, so

as to preclude a finding by the Jury in

the instant case that there was a medi-

cally recognized standard of pro-

fessional practice with regard to the

dispensing of Preludin and Tuinal.

The terms “legitimate medical

purpose" and "in the course of pro-

fessional practice" are defined neither

by statute nor by regulation. The

operative statute is 21 U.S.C. §841, and

the regulation is 21 C.F.R. §1306.04(a).

It is therefore incumbent upon the

Government, as part of its proof, to

-23-

establish beyond a resonable doubt, what

constitutes a legitimate medical purpose

for a given controlled’ substance.

United States v. Rosen, 582 F.2d 1032

(5th Cir. 1978). In the present case,

the Government failed to discharge this

burden. In its case in chief, the

Government established that Dr. Albert

did not follow the course of practice

which Dr. Johnson and Dr. Yanchick (who

was not a physician but a pharmacist)

would have followed. However, the

Government did not establish that there

was at the times alleged in _ the

Indictment a standard of professional

practice sufficiently ascertainable so

as to support a criminl prosecution

based upon its violation.

In the case of Colautti v. Franklin,

439 U.S. 379, (58 L.Ed.2d 596), 99 S.Ct.

657 (1979), the Supreme Court of the

-24-

United States held that a criminal sta-

tute which punished as criminal a physi-

cian who failed to employ a certain

degree of care was unconstitutionally

void on account of vagueness because the

standard involved a complex medical

judgment about which experts are in

disagreement.

Assuming arguendo that the statute

and regulation are constitutional, the

application of the’ statute in the

instant case, in light of the testimony

of the Government's witnesses is

unconstitutional because of the

disagreement between the Government's

witnesses, and also between the

Government's witnesses and the defense

experts.

If a question involving a complex

medical judgment about which experts

cannot agree is sufficient to render a

-25-

statute unconstitutionally vague and

therefore void, as in Colautti vs.

Franklin, supra, then surely a convic-

tion had under testimony which evidenced

medical disagreement among experts can-

not stand, when no other standard is set

forth in the statute creating the

offense.

Even if the evidence was sufficient

to support a finding that a professional

standard did indeed exist with regard to

Preludin and Tuinal, the Court erred in

not requiring the Jury to find its

existence beyond a reasonable doubt as a

prerequisite to conviction.

With respect to the issue of the

existence of a standard of professional

practice, in addition to moving for

Judgment of Acquittal, Dr. Albert also

requested the Court to instruct the Jury

that it must find beyond a reasonable

-26-

doubt that there was in fact a standard

of professional practice for physicians

in the United States with respect to

administering Preludin and Tuinal,

before it could return a verdict of

guilty, and objected to the Court's

failure to so charge.

It is well settled that the failure

to instruct the Jury that it must find

that the Government has established all

of the essential elements of the offense

beyond a reasonable doubt is plain

error. United States v. Hellman, 560

F.2d 1235 (Sth Cir. 1977); Kibbe v.

Henderson, 534 F.2d439 (2nd Cir. 1976);

Casella v. United States, 449 F.2d 277

(3rd Cir. 1971); Cf. Mullaney v.

Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95

S.Ct. 1881 (1975). Thus the failure of

the Court to instruct the Jury that it

must find beyond a reasonable doubt that

-27-

a professional standard existed was an

error of constitutional dimension.

The terms "in the usual course of

his professional practice” and

“legitimate medical purpose" as used in

21 C.F.R. $§1306.04(a) and §1306.06 are

too vague to form the basis for a crimi-

nal prosecution with respect to Preludin

and Tuinal.

In the case of Colautti v. Franklin,

439 U.S. 379, 58 L.Ed.2d 596, 99 S.Ct.

675 (1979), the United States Supreme

Court held that a statute which provided

criminal sanctions for a physician who

failed to employ an abortion technique

which would provide the “best

opportunity” for the fetus to be aborted

alive was unconstitutionally void for

vagueness because, based upon the testi-

mony at the trial, the decision was

dependent upon the resolution of a

-28-

complex medical judgment which was sub-

ject to wide disagreement among experts.

The Court held a criminal prosecution

based upon such a standard was violative

of due process because it did not suf-

ficiently apprise affected persons of

the prohibited conduct.

In the instant case, the divergence

of medical testimony had the same effect

as in Colautti v. Franklin, supra. For

example, even the Government experts

disagreed as to whether a physician

practices other than for a legitimate

medical purpose when he prescribes an

ineffective drug in an effort to treat a

patient. Also, the defense experts

disagreed as to the weight which a phy-

sician should give to medical literature

when the physician's clinical experience

was at odds with published articles.

The Government witnesses felt that a

-29-

physician was bound to follow. the

manufacturor's recommendations and to

disregard his personal clinical

experience with the drug, while the

defense physicians testified that a phy-

sician could properly follow the course

of treatment which his experience had

shown to be appropriate, regardless of

the recommendations set forth in the

Physician's Desk Reference.

The crux of the conflict with regard

to the standard to be followed is a

prime illustration of the constitutional

flaw in the application of the "other

than in the ocurse of professional

practice" and "legitimate medical

purpose" standard, at least with regard

to Preludin and Tuinal. Such a

situation is constitutionally into-

lerable.

Dr. Albert was convicted of

-30-

violating the provisions of Section

841(2)(1) of Title 21, United States

Code, in that he was found to have

dispensed Preludin and Tuinal in viola-

tion of a regulation promulgated under

the provisions of Section 821 of Title

21, United States Code. The regulation

in question is Section 1306.04 of Title

21, Code of Federal Regulations, which

provides that a prescription for a

controlled substance, in order to be

effective, "must be issued for a legiti-

mate medical purpose by an individual

practitioner acting in the usual course

of his professional practice."

in the trial court and in the

Court of Appeais, Dr. Albert contended

that the language of the regulation was

unconstitutionally vague, but further

maintained that even if it was not

unconstitutionally vague per se, it was

@$1-

unconstitutionally vague with regard to

the particular controlled substances in

question because the evidence at trial

demonstrated such a divergence of medi-

cal opinion, on the part of expert wit-

nesses called by by the Government and

by the defense, that there was, at the

time in question, no reasonably ascer-

tainable medical standard in the United

States with regard to the dispensing of

Preludin and Tuinal which could be

determined beyond a reasonable doubt in

a criminal prosecution. That is, Dr.

Albert could not be _ convicted of

dispensing other than for a legitimate

medical purpose because the evidence at

trial showed that medical experts could

not agree as to what constituted a legi-

timate medical purpose for the

controlled substances in question. If

there was no such agreement, and thus no

-32-

ascertainable medical standard, then a

conviction for violating such a non-

existent standard cannot stand.

Dr. Albert contended, both at trial

and on appeal, that the facts in his

case fall within the holding of this

court in Colautti vs. Franklin, 439 U.S.

379, 99 S.Ct. 675, 58 L.Ed.2d 596

(1979). In that case, this court held

that the determination of the constitu-

tional validity of a criminal statute

which involved the exercise of a medical

judgment by a physician must be deter-

mined not only with reference to the

wording of the statute, but also with

regard to the expert medical testimony

adduced at trial. This court held that,

on account of divergent medical testi-

mony, the statute was unconstitutionally

vague.

On appeal, the Court of appeals

-33-

rejected this contention, and cited two

prior cases of this Court: Doe vs.

Bolton, 410 US. 179, 93 S.Ct. 739, 35

L.Ed.2d 201 (1973); and United States

vs. Vuitch, 402 U.S. 62, 91 S.Ct. 1294,

28 L.Ed.2d 601 (1971). The Court of

Appeals, in its opinion, stated "The

language here attacked is as clear as

that sustained in Bolton and Vuitch."

In Bolton, this Court held that a

state criminal statute which required a

physician to use his "best clinical

judgment" in determining if an abortion

was "necessary", was not’ unconstitu-

tionally vague. In Vuitch, this Court

upheld a statute which made abortions

criminal “unless the same were done as

necessary for the preservation of the

mother's life or health" as against a

challenge of unconstitutional vagueness.

In Colautti, however, this Court con-

@3h-

sidered a challenge on the ground of

vagueness, to a state statute which

required a physician performing an abor-

tion to make a determination "based on

his experience, judgment or professional

competence” as to whether the fetus was

viable, and in the event of a deter-

mination that it was "viable", to

“exercise that degree of professional

skill, care and dilligence" to perserve

the life of the fetus so long as a dif-

ferent technique was not "necessary in

order to preserve the life or health of

the mother." This Court held that both

standards were unconstitutionally vague

and relied not only upon the wording of

the statute but also upon the divergence

of medical testimony at trial in

reaching its decision.

Dr. Albert respectfuly submits that

this Court should grant certiorari for

x«*™

two reasons. First, the language of the

regulation in question, when coupled

with the divergence of medical testimony

at trial, falls within the holding in

Colautti, and as a consequence, the

judgment of the Court of Appeals is in

conflict with that case. This court

should grant certiorari to reconcile

that conflict. Secondly, Colautti, is

in apparent conflict with Bolton and

Vuitch, and this court should grant cer-

tiorari to resolve that conflict.

With regard to the conflict between

Bolton and Vuitch, the necessity for

clarification from this court is best

evidenced by the opinion of the Court of

Appeals. The Court of Appeals did not

distinguish the facts in Colautti from

those in the instant case, but rather

relied upon the holdings in Bolton and

Vuitch. Dr. Albert respectfully submits

=36-

that the Court of Appeals could not have

distinguished Colautti from the facts of

the instant case because they are, in

fact, indistingv shable. Therefore,

this court should grant certiorari to

reconcile the conflict between Colautti

and Bolton and Vuitch.

CONCLUSION

The Application for Writ of

Certiorari should be granted so that the

conflict between the holding of the

Court of Appeals and the decision of the

Supreme Court in the case of

Colautti vs. Franklin, 439 U.S. 379, 99

S.Ct. 675, 58 L.Ed.2d 596 (1979), can be

resolved, and further so that’ the

Supreme Court can resolve or reconcile

the apparent conflict between Colautti

vs. Franklin, supra; and Doe vs. Bolton,

410 US. 179, 93 S.Ct. 739, 35 L.Ed.2d

afife

201 (1973); and United States vs.

Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28

L.Ed.2d 601 (1971).

Respectfully submitted,

LEON & BAYLESS

Attorneys at Law

500 Lexington

San Antonio, Texas 78215

(512) 223-4254

Attorneys for Petitioner

BY:

JACK PAUL LEON

Bar No. 12207000

CERTIFICATE OF SERVICE

I certify that three copies of the

foregoing "Application for Writ of

Certiorari to the United States Court of

Appeals for the Fifth Circuit" were

served upon the followng parties by

depositing the same with the United

States Post Office, with first class

postage prepaid, certified mail, return

receipt requested, on the day of

February, 1982:

Edward C. Prado, United States Attorney

and John E. Murphy, Assistant United

States Attorney,

Western District of Texas,

655 E. Durango Blvd.,

-38-

San Antonio, Texas, 78206

Mr. Robert J. Erickson,

United States Department of Justice

Criminal Division

P.O. Box 899

Ben Franklin Station,

Washington, D.C. 20044

The Solicitor General of the United

States

Department of Justice

Washington, D.C. 20530

I further certify that all parties

required under Rule 28, Rules of the

Supreme Court, to be served have been

served.

JACK PAUL LEON

-39-

XIpueddy

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_—— - —_—— ee _-—

NO. 80-2060

—_—— ee

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNOLD ALBERT,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TEXAS

ON PETITION FOR REHEARING AND

SUGGESTIONS FOR REHEARING EN BANC

(Opinion November 3, 1981, 5 Cir., 198 ,

F.2d De

(December 29, 1981

A-1

Before CHARLES CLARK, Chief Judge,

RUBIN and SAM D. JOHNSON,

Circuit Judges.

PER CURIAM:

(X) 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 Procedure; Local Fifth Circuit

Rule 16; Fifth Circuit Judicial Council

Resolution of January 14, 1981), the

suggestion for Rehearing En Bank is

DENIED.

( ) The Petition for Rehearing is

DENIED and the judges in regular active

service of this Administrative Unit

having been polled at the request of one

of said judges and a majority of said

judges not having voted in favor of it

A-2

(Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16;

Fifth Circuit Judicial Council

Resolution of January 14, 1981), the

suggestion for Rehearing En Bank is also

DENIED.

( ) A member of this Administrative Unit

in active service having requested a

poll on the reconsideration in this

cause en banc, and a majority of the

judges in active service of said unit

not having voted in favor of it,

rehearing en banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit

Judge

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 80-2060

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNOLD ALBERT,

Defendant-Appellant.

Appeal from the United States

District Court for the

Western District of Texas

Before CHARLES CLARK, Chief Judge, RUBIN

and SAM D. JOHNSON, Circuit

Judges.

RUBIN, Circuit Judge:

Dr. Arnold Albert, a 71-year-old

physician who has practiced medicine in

A-4

San Antonio, Texas for 29 years, appeals

his conviction on five counts of

dispensing Preludin and Tuinal other

than in the course of professional prac-

tice and not for a legitimate medical

guupese. Finding the evidence suf-

ficient and no error by the district

court in the various respects

challenged, we affirn.

The facts, viewed most favorably to

the government, as they now must be,

Glasser v. United States, 315 U.S. 60,

80, 62 S.Ct. 457, 469, 86 L.Ed. 680, _

(1942), could be found to be as follows.

Doris Francis, an informant who

testified for the prosecution, first

sought out Dr. Albert in the summer of

1977 to obtain prescriptions for diet

medication so that after filling the

prescriptions, her husband could sell

the drugs. She represented herself to

A-5

be a model and to have a need to stay

thin, presumably because she was 5'7"

tall, weighed 125 pounds, and had no

apparent need for weight control. Dr.

Albert made a perfunctory examination,

and orally authorized Cleveland's

Pharmacy, located on the same premises

as Dr. Albert's office, to supply drugs

to her.

Thereafter, in the autumn of 1978,

the Francises agreed to trade stolen

merchandise to Dr. Albert and Cleveland

in exchange for drugs. For a number of

months they obtained drugs far exceeding

their possible legitimate medical needs,

some during regular office visits and

some during visits unrecorded in Dr.

Albert's records, when merchandise was

exchanged. Thus, in December 1978, Mrs.

Francis received 84 Preludins and 72

Tuinals; her husband received 60

A-6

Preludins and 24 Tuinals.

Mr. Francis was on parole. In April

1979, when revocation of his parole was

threatened, the Francises agreed to

cooperate with law enforcement officers

to “make cases" on various doctors and

pharmacists in the San Antonio area.

Pursuant to this plan, they called on

Dr. Albert five times. Each visit was

monitored electronically. During these

visits, the Francises negotiated acti-

vely with Dr. Albert and Cleveland con-

cerning the amount of drugs they were to

receive, and traded merchandise with Dr.

Albert and Cleveland for Preludin and

Tuinal. Dr. Albert wrote prescriptions

in fictitious names solicited from the

Francises. He made no medical examina-

tion, prescribed no diet, conducted no

inquiry about eating habits, but he and

Cleveland did warn the Francises that he

A-7

and Cleveland were being watched by nar-

cotics officers and, accordingly, that

the Francises should be careful.

In addition the government offered

the testimony of experts: a professor

of pharmacy and pharmacology; a

pharmacist; and an M.D. who was a spe-

cialist in internal medicine. In sun,

the experts testified that Preludin is

an amphetamine-like substance with a

limited anoretic effect. When combined

with a regulated diet, this quality

makes it useful in weight control

programs, but only for a short period of

time. Because tolerance for the drug

develops quickly, its effective use as a

hunger suppressant is limited to two or

three weeks. The experts described

Tuinal as a barbituate that can properly

be used to induce sleep in insomniacs.

Tolerance to it is also usually deve-

A-8

loped in two to three weeks. They

testified that it is unusual and

improper to prescribe the two drugs in

conjunction.

The government also introduced com-

pilations showing that Cleveland's phar-

macy had filled 20,027 prescriptions for

Schedule II drugs in the two years bet-

ween November 1977 and November 1979,

far exceeding the average of other phar-

macies in the same area. About 17,000

of these were issued by Dr. Albert for

Preludin and Tuinal. The experts

testified that it was not "standard

operating procedure" for a physician in

San Antonio to prescribe these drugs in

the manner and with the frequency indi-

cated,

Dr. Albert testified that he

prescribed the drugs to the Francises

for a legitimate medical purpose. He

A-9

considered Preludin effective in weight

reduction over extended periods of time.

He found no harmful effects from the use

of Preludin and Tuinal in conjunction.

He called three other doctors as expert

witnesses. They testified that a

physician's judgment, nor the

manufacturer's recommendation, defines

the scope of legitimate medical prac-

tice. They did not find the

prosecutor's compilation of the

prescriptions sufficient to support a

judgment that the drugs were not pro-

perly prescribed. One also testified

that the appetite suppressant effects of

Preludin continue over a long time

and that Tuinal may properly be used to

control its side effects. This expert

also testified, however, that he did not

prescribe Preludin for his own patients,

would not prescribe a drug for a patient

A-10

who intended to sell it, would not

prescribe for a person whom he had not

seen as a patient, would not negotiate

with a patient about the quantity of a

prescription, and, before prescribing

it, would give a patient an extensive

medical examination and a recommended

diet.

This summary of the testimony

demonstrates that the evidence was ample

to support the conviction. Indeed, we

recite it only to make clear the other

objections and our disposition of then.

Dr. Albert argues that the evidence

was insufficient because the medical

experts who testified disagreed as to

the proper role which Preludin and

Tuinal could play in a weight reduction

program, concededly a legitimate medical

undertaking. Even if the testimony were

sufficient to create doubt about the

A-11l

impropriety of using these drugs for

lengthy periods of time, this argument

misses the point. Dr. Albert was

accused, not of improperly prescribing

drugs, given a legitimate medical pur-

pose, but rather of not having any legi-

timate medical purpose for prescribing

them on the occasions specified in the

indictment. United States v. Rosen,

448, F.Supp. 926, 932 (E.D. La. 1977),

aff'd 582 F.2d 1032(5th Cir. 1978).

Moreover, even if this conflict in the

opinions of the experts were relevant,

the determination of which to credit was

an issue for the jury. See e.g., United

States v. Kirk, 584 F.2d 773, 785-86

(6th Cir.), cert. denied, 439 U.S. 1048,

99 S.Ct. 726, 58 L.Ed.2d 708 (1978).

Dr. Albert contends that, because

the experts did not agree on a medical

standard, the regulation under which he

A-12

was indicted was unconstitutionally

vague. Regulations promulgated under

the Comprehensive Drug Prevention and

Control Act of 1970, 21 U.S.C. 801, et

seq., provide that prescriptions “must

be issued for a legitimate medical pur-

pose by an individual practitioner

acting in the usual course of his pro-

fessional practice." 21 C.F.R.

1306.04(a). We have repeatedly

sustained the constitutional sufficiency

of this language. United States v.

Hayes, 595 F.2d 258, 260 (5th Cir.),

cert. denied, 444 U.S. 866, 100 S.Ct.

138, L.Ed.2d_ (1979; United

States v. Rosenberg, 515 F.2d 190, 193,

197-98 (9th Cir..) (Collecting cases

decided under predecessor statutes),

cert. denied, 423 U.S. 1031, 96 S.Ct.

562, 46 L.Ed.2d 404 (1975); United

States v. Collier, 478 F.2d 268, 270-72

A~13

(5th Cir. 1973) (collecting cases

decided under predecessor statutes).

The Supreme Court's decision in

Colautti v. Franklin, 439 U.S. 379, 99

S.C. 675, 58 L.Ed.2d 596 (1979), is not

to the contrary. There, a state crimi-

nal statute designed to limit the

availability of abortions provided

conflicting definitions of “viability,”

at least one of which differed from the

definition promulgated in prior Supreme

Court decisions. The court found the

statute to be constitutionally defective

because it "condition[ed] potential cri-

minal liability on confusing and ambi-

guous criteria” and imposed criminal

liability without regard to fault. In

so doing, the Court specifically

distinguished the clear standards of

medical practice involved in Doe v.

Bolton, 410 U.S. 179, 93 S.Ct. 739, 35

A-14

L.Ed.2d 201 (1973) (requirement that use

“best clinical judgment" to determine if

an abortion is “necessry"), and United

States v. Vuitch, 402 U.S. 62, 91 S.Ct.

1294, 28 L.Ed.2d 601 (1971) (whether

abortion is "necessary for the preser-

vation of the mother's life or health").

The language here attacked is as clear

as that sustained in Bolton and Vuitch.

The indictment was not defective

because it failed to name the persons to

whom Dr. Albert dispensed. In order to

convict a physician of violating 21

U.S.C. 841(a)(1), it is only necessary

to prove that he dispensed a particular

controlled substance, that he acted

knowingly and intentionally, and that he

did so for other than a legitimate medi-

cal purpose and in the usual course of

professional practice. See, e.g.,

United States v. Hayes, supra, 595 F.2d

A-12

at 259 n.2; United States v. Rosen,

supra, 582 F.2d at 1033. The indictment

fully alleged each of these essential

elements and particularized the date of

the dispensations, the names of the

controlled substances, and the appli-

cable statutory and regulatory provi-

sions. There is no additional

requirement that an indictment charging

an offense under Section 841(a)(1)

allege the name of the recipient of the

illegal distribution. See, e.g., United

States v. Cosby, 529 F.2d 143, 146 (8th

Cir.), cert. denied, 426 U.S. 935, 96

S.Ct. 2647, 49 L.Ed.2d 386 (1976);

United States v. Miranda, 494 F.2d 783,

788 (Sth Cir.) cert. denied, 419 U.S.

966, 95 S.Ct. 228, 42 L.Ed.2d 181

(1974); United States v. Martin, 482

F.2d 202, 204 (8th Cir. 1973). The rule

is the same when a doctor is charged

A-16

with unlawfully dispensing a controlled

substance under Section 841(a)(1). See

United States v. Roya, 574 F.2d 386, 391

(7th Cir.), cert. denied, 439 U.S. 857,

99 S.Ct. 172, 58 L.Ed.2d 165 (1978).

Dr. Albert was not prejudiced in his

defense by insufficiency of the indict-

ment or by the surprise production of

evidence. In discovery, he was provided

both the prescriptions for the dates

alleged in the indictment and the tape

recordings made of his conferences with

the Francises on those days.

On November 26, 1979, DEA agents

executed search warrants at Dr. Albert's

clinic and at Cleveland's two phar-

macies. In the ensuing searches, the

agents seized the medical records of

Doris Francis and of the one Joyce

Little from Dr. Albert's clinic. In

addition, the agents seized from

A-17

Cleveland's pharmacies 20,027 prescrip-

tion slips for Schedule II controlled

substances that were filled during the

two years from November 1977 to November

1979. Dr. Albert contends that the

seized materials should be suppressed

because the affidavits supporting the

applications for the search warrants

contained false representations and

failed to establish the reliability of

two confidential informants. In addi-

tion, he contends that the warrants

improperly authorized general searches.

Dr. Albert, of course, lacks

standing to object to the search of

Cleveland's pharmacies. We find the

affidavits for the warrants to search

his own office sufficient. In these

affidavits, one agent stated that in

four monitored exchanges, the confiden-

tial informants traded “purportedly sto-

A-18

len property" to Dr. Albert or Cleveland

for controlled substances. Because

federal agents purchased the goods that

were later traded by the informants, Dr.

Albert argues that this description of

the property was a deliberate misrepre-

sentation designed to mislead the

magistrate.

As the Supreme Court held in Franks

v. Delaware, 438 U.S. 154, 155-156, 98

S.Ct. 2674, 2676, 57 L.Ed.2d 667, ss

(1978), a defendant must show both that

there is a deliberate misrepresentaion

in an affidavit and that the allegedly

false statement is necessary to

establish probably cause before he is

entitled to test the affidavit in a

hearing. First, we fail to see how the

agent's statement can be characterized

as a misrepresentation. Although the

property was not in fact stolen, it was

? A-19

purported to be such by the Francises in

their dealings with Dr. Albert and

Cleveland. In any event, as the court

below properly concluded, the precise

character of the property was not at all

essential to the establishment of pro-

bable cause. The affidavit set forth

facts from which it could reasonably be

concluded that Dr. Albert and Cleveland

were unlawfully dispensing controlled

substances. in this regard, the other

facts recited in the affidavit were

sufficient: that Dr. Albert and

Cleveland actively negotiated the number

of pills to be dispensed; that Dr.

Albert solicited fictitious names for

the prescriptions; that he made no medi-

cal examinations; and that Cleveland had

admitted that he and Dr. Albert could

lose their licenses if their dealings

were discovered. Thus, even if we

A-20

accept arguendo the connotation Dr.

Albert places on the word “purportedly,”

we find its use immaterial.

Dr. Albert contends that the warrant

was not supported by probable cause

because the affidavit did not show that

the informants were reliable or that

they were competent to determine whether

the drugs were being dispensed for other

than a legitimate medical reason.

Although an affidavit based upon hearsay

information provided by an informant

must disclose facts from which a

magistrate can conclude that the infor-

mant came upon his information in a

reliable way and that the informant hinm-

self is reliable, see Aguilar v. Texas,

378 U.S. 108, 114-115, 84 S.Ct. 1509,

1514, 12 L.Ed.2d 723, (1964), there

is no need to resort to this analysis

here because the DEA agents’ own sur-

A-21

veillance established probable cause

independent of any information supplied

by the informants. As the affidavit

sets out, the DEA agents electronically

monitored four meetings and two

telephone conversations between the

informants and appellant or Cleveland.

This information was sufficient to show

probable cause to believe that Dr.

Albert and Cleveland were unlawfully

dispensing drugs, and that evidence of

that offense would likely to be found at

their respective places of business.

The warrants described with sufficient

particularity the items to be seized.

See Andresen v. Maryland, 427 U.S. 463,

479-482, 96 S.Ct. 2737, 2748-49, 49

L.Ed.2d 627, _—_—- (1976). See also

United States v. Osborne, 630 F.2d 374,

378 (5th Cir. 1980), cert. denied,

U.S. _—_, - 101 §.Ct. 1398, _L.Ed.2d

A-22

(1981). The district court did

not err in admitting into evidence a

computer printout summarizing the 20,027

Schedule II controlled substance

prescriptions filled at Cleveland's

pharmacies during the two years pre-

ceding Dr. Albert's indictment.

Although not admissible to prove

character, evidence of uncharged acts is

admissible to prove "motive, oppor-

tunity, preparation, plan, knowledge,

identity, or absence of mistake or

accident" whenever the extrinsic acts

are relevant for this purpose and their

probative valve is not subtantially out-

weighed by any undue prejudice. Rule

404(b), Fed. R. Evid. See United States

v. Beechum, 582 F.2d 898, 911 (5th Cir.

1978) (en banc), cert. denied, 440 U.S.

920, 99 S.Ct. 1244, 59 L.Ed.2d 472

(1979). The determination of whether

A-23

evidence of extrinsic conduct should be

admitted is committed to the trial

court's sound discretion, and its ruling

will be disturbed only for a clear abuse

of that discretion. See, e.g., United

States v. Benton, 637 F.2d 1052, 1056

(Sth Cir. 1981). There was no such

abuse here.

We have repeatedly held that evi-

dence of extraneous prescriptions issued

by a physician is properly admissible in

a prosecution for unlawfully dispensing

drugs. See United States v. Harrison,

651 F.2d 353, 355 (Sth Cir. 1981);

United States v. Dunbar, 614 F.2d 39,

41-42 (5th Cir.) (per curiam), cert.

denied, 447 U.S. 926, 100 S.Ct. 3022,

_____iL.Ed.2d_—__—— (1980); United States

v. Rogers, 609 F.2d 834, 837, 839-840

(5th Cir. 1980) (per curiam) ("a large

number" of extraneous prescriptions) ;

A-24

United States v. Jackson, 576 F.2d 46

(Sth Cir. 1978) (5,000 prescriptions

written over a 15-month period). The

district court engaged in precisely the

sort of careful balancing envisioned by

this court in Beechum, supra, before

admitting the extraneous prescriptions.

When the evidence was first proferred by

the government, the Court ruled that

there was insufficient evidence from

which it could be inferred that the

extraneous prescriptions were issued

outside the bounds of professional pac-

tice. The government thereupon pre-

sented a series of expert witnesses who

testified that there was no legitimate

pharmaceutical purpose for the recurring

dispensation of Preludin and Tuinal to

the same persons over a two year

period, that the number of Schedule II

prescriptions issued by Dr. Albert in

A-25

the two-year period under examination

was inordinate, and that the pattern of

prescriptions depicted did not evince

the existence of any legitimate medical

purpose. In view of this, "there was

ample evidence from which it could be

inferred that the extraneous prescrip-

tione were issued outside the bounds of

professional medical practice... ."

United States v. Rogers, supra, 609 F.2d

at 840.

Finally, the court gave thorough

instructions limiting the jury's con-

sideration of the extrinsic evidence.

The court made clear that "the evidence

that [Dr. Albert] has issued prescrip-

tions, regardless of the number issued,

is not in itself evidence of the comn-

mission of any offense." The jurors

were admonished that they could

“consider evidence of prescriptions for

A-26

persons other than Doris Francis or

Herman Francis to be evidence of illegal

conduct" only after concluding beyond a

reasonable doubt from other evidence

that Dr. Albert "issued the prescrip-

tions other than in the course of pro-

fessional practice and not for a

legitimate medical purpose."

Finally, we turn to the alleged errors

in the court's instructions. Dr. Albert

first argues that the court's instruc-

tion on evaluating expert testimony was

incorrect because the jury was told that

it could disbelieve an expert witness

only for certain enumerated reasons.

The charge the court gave was not so

narrow. It allowed the jury to disre-

gard expert testimony not only if it was

“not based upon sufficient education or

experience," but also if it was unsound

or outweighed by any other evidence in

A-27

the case. In short, the court correctly

conveyed to the jury its duty to

"consider" the expert testimony "and

give it such weight as you may think it

deserves." See United States v.

Johnson, 575 F.2d 1347, 1361 (5th Cir.

1978), cert. denied, 440 U.S. 907 99

S.Ct. 1214, 59 L.Ed.2d 454 (1979). We

need not, therefore, consider whether

reputation for being a good physician

was or was not separately admissible.

Each of the expert witnesses called by

the defense stated that, in his opinion,

Dr. Albert had a good reputation as an

honest and law-abiding citizen. These

experts were then asked if they had an

opinion on whether he had a reputation

for being a physician who pratices medi-

cine in a professional manner. In sum,

they testified that Dr. Albert was a

careful physician who enjoyed a reputa-

A-28

tion for practicing in a professional

manner. In its instructions to the

jury, the court therefore charged:

Now where a defendant has

offered evidence of a good

general reputation for truth

and veracity or honesty and

integrity or as a law-abiding

citizen, the jury should con-

sider such evidence along with

all the other evidence in the

case. Evidence of a

defendant's reputation incon-

sistent with those traits of

character ordinarily involved

in the commission of crime

charged may give rise to a

reasonable doubt since the Jury

may feel it is improbable that

a person of good character in

respect of those traits would

commit such a crime.

The court did not give a requested

charge expressly instructing the jury

that they could consider evidence of Dr.

Albert's reputation for practicing medi-

cine in accordance with professional

standards and for legitimate purposes,

but, in the circumstances of this case,

A-29

the court's charge on character evidence

was adequate to apprise the jurors that

they could consider Dr. Albert's rele-

vant character traits.

Dr. Albert also contends that the

instructions impermissibly shifted the

burden of proof. The trial court

stated, “it is therefore a defense to

the charge in this Indictment that the

controlled substances [were] prescribed

by [Dr. Albert] in the course of his

professional practice." Viewed in the

context of the proof at trial, the

court's brief charge did no more than

alert the jury that it could consider

all the evidence in the case in deciding

whether the drugs were dispensed in the

usual course of professional practice.

The court also repeatedly admonished the

jury that Dr. Al*ert was presumed to be

innocent, that he was not required to

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present any evidence or prove his inno-

cence, and that the prosecution bore the

burden of proving beyond a reasonable

doubt each element of the offense --

including that the drugs were dispensed

outside the course of professional prac-

tice and not for a legitimate medical

purpose. Accordingly, the single

reference to a “defense” in the course

of the court's comprehensive and careful

jury charge did not improperly shift the

burden of proof. Cf. United States v.

Brown, 582 F.2d 197, 201-202 (2d Cir.),

cert. denied, 439 U.S. 915, 99 S. Ct.

289, 58 L.Ed.2d 262 (1978).

Nor did the court err in instructing the

jury that a controlled substance is

lawfully “prescribed by a physician in

the course of his professionsl practice

- « « if the substance is prescribed by

him in good faith in medically treating

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a patient." The court's use of the

“good faith" formulation comports with

the jury instructions given in other

cases where doctors have been prosecuted

for unlawfully dispensing drugs. See

United States v. Moore, 423 U.S. 122,

138-139, 96 S.Ct. 335, 342-44, 46

L.Ed.2d 333, _—s— (1975); United States

v. Potter, 616 F.2d 384, 388 (9th Cir.

1979), cert. denied, U.S. A

101 S.Ct. 101, —L.Ed.2d 760 (1978);

United States v. Kirk, supra, 584 F.2d

at 784; United States v. Davis, 564 F.2d

840, 845-46 (9th Cir. 1977), cert.

denied, 434 U.S. 1015, 98 S.Ct. 733, 54

L.Ed.2d 760 (1978); United States v.

Kershman, 555 F.2d 198, 201 (8th Cir.),

cert. denied, 434 U.S. 892, 98 S.Ct.

268, 54 L.Ed.2d 178 (1977); United

States v. Rosenberg, supra, 515 F.2d at

197.

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The court's instruction on reaso-

nable doubt and the presumption of inno-

cence was also proper. See United

States v. Clayton, 643 F.2d 1071, 1075

(5th Cir. 1981). There was no error in

the charge that the jury “must consider

only the evidence . . . admitted in the

case" in deciding whether there was a

reasonable doubt. As we have noted

above, the court repeatedly stressed

that the government bore the burden of

proving each element of the offense

beyond a reasonable doubt. In view of

this, there was no additional require-

ment that the court charge that a reaso-

nable doubt may also arise from a lack

of evidence. See United States v. Tant,

412, F.2d 840, 840-41 (5th Cir.) (per

curiam), cert. denied, 396 U.S. 876, 90

S.Ct. 152, L.Ed.2d (1969);

Laughlin v. United States, 385 F.2d 287,

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294-295 (D.C. Cir. 1967), cert. denied,

390 U.S. 1003, 88 S.Ct. 1245, ss

L.Ed.2d_ _——_s—“ (1968); United States v.

Caruso, 358 F.2d 184, 186-87 (2d Cir.),

cert. denied, 385 U.S. 862, 87 S.Ct.

116, L.Ed.2d __—‘(1966).

Finally, there was no need for the

court to charge the jury expressly that

the presumption of innocence, standing

alone, was sufficient to require an

acquittal unless it was overcome by

proof beyond a reasonable doubt. The

court did instruct the jury that Dr.

Albert was presumed innocent, that he

was under no obligation to offer evi-

dence or prove his innocence, and that

the prosecution bore the burden of

proving each element beyond a reasonable

doubt. Read as a whole, the court's

instructions clearly conveyed to the

jury its obligation to acquit Dr. Albert

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unless his guilt was established beyond

a reasonable doubt.

For these reasons, the judgment is

AFFIRMED.

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