Record and brief — Voorhies v. United States

—UONNeg

Office - Supreme Court, U.S.

ILED

' 81-1702 anil

ALEXANDER L. STEVAS,

CLERK

No ‘ y

IN THE SUPREME COURT

OF THE UNITED STATES

October Term 1981

HERBERT W. VOORHIES, M.D.

Petitioner,

UNITED STATES OF AMERICA

Petition For Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

RICHARDSON LYNN, ESQ.

Member of the Bar

of the United States Supreme Court

and the Law Offices of

RITTER, WINNE & RODRIGUEZ

Los Angeles, California 90036

Telephone (213) 933-587 1

Counsel for Petitioner

QUESTIONS PRESENTED

1. Before a valid search warrant can

be issued pursuant to 2] U.S.C., Section

880(d)(1), must some “suspicious activ-

ity" be demonstrated sufficient to esta-

blish probable cause for the issuance?

2. In order to find a criminal vio-

lation of 21 U.S.C., Section 841(a), and

21 C.F.R., Section 1306.04(a), must the

jury be instructed that it must find be-

yond a reasonable doubt that the defendant

physician distributed, dispensed, or pre-

scribed controlled substances: (1) not in

good faith for a legitimate medical pur-

pose and (2) not in the course of profes-

sional medical practice?

ii

PARTIES INVOLVED BELOW

The pacties to the Federal District

Court trial and the parties to the appeal

in the Sixth Circuit were: HERBERT W.

VOORHIES, M.D., the Defendant and

Appellant, and the UNITED STATES OF

AMERICA the Plaintiff and Appellee.

TABLE OF CONTENTS

PAGE

Questions Presented i

Parties Involved Below ii

Introduction 1

Opinions Below 1

Jurisdiction 2

Constitutional and Statutory

Provisions Involved 2

Statement of the Case 5

Reasons for Granting

the Writ 11

Conclusion 23

APPENDIX : 24

APPENDIX A

Sixth Circuit Court of

Appeals Opinion decided

and Filed November 2, 1981

APPENDIX B

United States District Court

for the Middle District of

Tennessee, Nashville Division,

Judgment Order, February 4, 1980

APPENDIX C

United States Magistrate Search

Warrant, May 2, 1977

APPENDIX D

Drug Enforcement Administration

Application cor Search Warrant

APPENDIX E

Defendant's Proffered Jury

Instruction

iv

TABLE OF AUTHORITIES CITED

Cases Page

Boyd v. United States, 271 U.S. 104

(1926) 16

In re Winship, 397 I.S. 358 (1970) 20

Linder v. United States, 268 U.S.

5, 45 S.Ct. 446 (1925) 16

United States v. Bactee, 479 F.2d

484 (10th Cir. 1973) 16

United States v. Black, 512 F.2d 864

(19th Cir. 1975) 20, 21

United States v. Boettjer, 569 F.2d

1078 (9th Cir.), cect. den. 96

§.Ct. 1627 (1978) 17, 19

United States v. Brandenberg, 115

F.2d 110 (3d Cir. 1946) 16

United States v. Carroll, 518 F.2d

187 (6th Cir. 1976) 18, 21

United States v. Davis, 564 F.2d 840

(9th Cir. 1978) 17

United States v. Goldfine, 538 F.2d

815 (9th Cir. 1976)

United States v. Green, 5ll F.2d

‘1062 (7th Cir. 1975), cert. den.

423 U.S. 1031, 96 S.Ct. 561

United States _v. Greenberg, 334

F.Supp. 364 (W.D. Pa. 1971)

United States v. Kirk, 584 F.2d 773

(6th Cir.), cert. den. 99 S.Ct. 726

(1978) 17,

United States v. Larson, 507 F.2d

385 (9th Cir. 1974)

United States v. Montrom, 345

F.Supp. 1337 (E.D. Pa. 1972), aff'd

without opinion 480 480 F.2d 918 (3d

Cir. 1973)

United States v. Moore, 423 U.S.

122, 96 S.Ct. 335 (1975) 17,

United States v. Prendergast, 436

F.Supp. 931 (W.D. Pa. 1977), aff'd

585 F.2d 69 (3d Cir. 1968)

12

21

12

19

12

18

12

vi

United States v. Rogers, 609 F.2d

834 (Sth Cir. 1980) 17

United States v. Rosen, 582 F.2d

1032 (5th Cir. 1978) 17

United States _v. Rosenberg, 515

F.2d 190 (9th Cir.) cert. den. 423

U.S. 1031 (1975) 17, 18, 19, 21

United States v. Schiffman, 572

F.2d 1137 (5th Cir. 1978) 12

Statutes

21 U.S.C.

Section 841 4, 5, 6, 14, 16, 22

Section 880 2, 8, 11, 13, 14

Rules and Regulations

21 C.F.C.

Section 1306.04 4, 15, 16, 22

;

INTRODUCTION

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 Sixth

Ciccuit entered in the proceeding on

November 2, 1981, and vacate said Court's

afficmation of Petitioner's conviction.

OPINIONS BELOW

The opinion of the Sixth Circuit

Court of Appeals below (Appendix A) is not

reported. The opinion of the Federal Dis-

trict Court for the Middle District of

Tennessee below (Appendix B) was not re-

ported.

JURISDICTION

The judgment of the Sixth Circuit

Court of Appeals below (Appendix A) was

entered on November 2, 1981. A Rehearing

was not sought. The jurisdiction of this

Court is invoked under 28 U S.C. Section

1254(1).

CONSTITUTIONAL AND STATUTORY

PROVIS‘tONS INVOLVED

The statute pursuant to which an ad-

ministrative search warrant was issued to

search and seize Petitioner's patient

medication cards was 2] U.S.C. Section

880(d)(1) (1976):

"Any judge of the United States

or of a State court of record,

or any United States magi-

Strate, may, within his terri-

torial jurisdiction, and upon

proper oath or affirmation

showing probable cause. issue

warcants for the purpose of

conducting administrative in

spections authorized by this

sub-chapter or regulations

thereunder, and s izures of

property appropriate to such

inspections. For the purposes

of this section,’ the term

"probable cause' means a valid

public interest in the effec-

tive enforcement of this sub-

chapter or regulations there-

under sufficient to justify ad-

ministrative inspections of the

area, pcemises, building, or

conveyance, or contents there-

of, in the circumstances speci-

fied in the application for the

warrant."

The statute and federal regulation

under which Petitioner was prosecuted and

Section 841(a)

Section 1306.04

indicted was 21 U.S.C.,

(1976) and 21 C.F.R.

(1976):

21 U.S.C. Section 841(a).

"(a) Except as authorized

by this (title,) it

shall be unlawful for

any person knowingly

or intencionally

to... distri-

bute, or dis-

pense... a

centrolled sub-

ee PE ins

Section 1306.04.

Purpose of issue of prescrip-

(1)

21 CFR.

tion.

"(a) A

rescription for a

controlled substance to be

effective must be issued

for _a_ legitimate medical

purpose by an individua

practitioner acting in the

usual course of his pro-

EFessional paeckice. “The

responsibility or the

| pe peescribing and

ispensing of controlled

substances is upon the

prescribing practitioner

- « « " Emphasis added.)

STATEMENT OF THE CASE

The facts necessary to place in their

setting the questions now raised can be

briefly stated:

On December 21, 1979, in a cause

pending in the United States Distcict

Court for the Middle District of Tennes-

see, Nashville Division, entitled United

States v. Herbert W. Voorhies, M.D..

Criminal Number 78-30265, Petitioner was

found guilty by a jury on an indictment of

focty-nine counts charg ng violations of

‘Title 21 United States Code, Section

841(a)(1). (Appendix B.) Bas:cally, the

indictment charged that Petitioner, a

physician authorized to dispense con-

trolled substances, while not acting in

the usual course of his professional prac-

tice, unlawfully, knowingly, and

intentionally did distribute controlled

substances in violation of 21 U.S.&.

Section 84l(a) 1).

On January 7, 1980, Petitioner filed

a Motion for a New Trial, which motion was

denied by the court on January 9, 1980.

On February 4, 1980, the District

Court entered judgment and Petitioner was

sentenced to a term of six months “in a

jail type institution" as a condition of a

five year suspended sentence, and whereby

Petitioner would spend the remainder of

said term on probation. As a further

condition of the suspended sentence,

Petitioner was ordered to "give nine

hundred hours of public service under the

direction of the’ probation office."

(Appendix B.)

On November 2, 1981, this judgment

and sentence was affirmed by the Court of

Appeals for the Sixth Circuit, United

States v. Herbert W. Voorhies, M.D.,

Number 80-5077. (Unreported.) No peti-

tion for cehearing has been filed.

A. Relevant facts concerning the ques-

tions presented in this Petition.

A compliance inspection of Peti-

tioner's medical office was made from May

2, 1977 to May 11, 1977 by compliance in-

vestigators of the Drug Enforcement

Administration, pursuant to a_= search

warrant issued by a United States Magi-

Strate. (Appendix C.) More than five

hundred patient cards were seized (micro-

filmed) during the course of the search.

The application for the warrant was

made by LARRY W. LOCKHART, Compliance

Investigator for the Drug Enforcement

Administration. In support of his appli-

cation, Investigator LOCKHART stated:

“The establishment has not been pre-

viously inspected pursuant to the

Comprehensive Drug Abuse Prevention

ag Control Act of 1970." (Appendix

The warrant was issued pursuant to 21

U.S.C Section 880(d)(1)

Prioc to trial. Petitioner moved to

suppress all evidence and _ testimony

derived from the search. The motion was

renewed in a subsequent Motion for a New

Trial. Petitioner's Motions to Suppress

wece denied.

Petitioner proffered Defendant's

Requested Instruction Number 1 which was

rejected by the trial court. (Appendix

E.) Instead, in instructing the jury, the

tcial court below used the following in-

struction:

"The essential elements of

the offense charged in Count

One are as follows:

1. That the defendant pos-

sessed with intent to dispense,

or dispensed the substance in

question.

2. That the substance pos-

sessed or dispensed by the de-

fendant was in fact a con-

trolled substance as defined by

the statute.

3. That the defendant know-

ingly and intentionally dis-

pensed the controlled sub-

stance.

4. That the substances dis-

pensed by the defendant were so

dispensed for other than a

legitimate medical purpose in

the usual course of profes-

sional practice.

As to each count you will deter-

mine whether each of the above

elements has been proved beyond

a reasonable doubt."

"Unless you find beyond a rea-

sonable doubt that an act of

dispensation charged in the in-

dictment against a physician

defendant was not done by the

defendant physician in_ the

usual course of his_ pro-

fessional practice, then you

should find him not guilty."

(Emphasis added.)

10

ll

REASONS FOR GRANTING THE WRIT

The QUESTIONS PRESENTED in this

Peticion raise substantial questions con-

cerning the interpretation of federal

Statutes.

Firstly, the search warrant used to

seize Petitioner's medical records was

issued pursuant to 21 U.S.C. Section

880(d)(1), reproduced above. The suffi-

ciency of the probable cause necessary for

the issuance of a search warrant pursuant

to this code section has been interpreted

differently by various Circuit Courts of

Appeals.

Both the Third Circuit Court of

Appeals and the Ninth Circuit Court of

Appeals have held that the passage of a

substantial period of time since a pre-

vious compliance inspection, or where no

inspection had ever been made, would be

12

sufficient to establish a valid public in-

terest to support probable cause for the

issuance of a warrant. See, United States

v. Prendergast, 436 F. Supp. 931, 932

(W.D., Penn., 1977), aff'd, 585 F.2d 69

(3d Cir. 1968); United States v. Goldfine,

538 F.2d 815, 818-819 (9th Cir. 1976).

The Fifth Circuit Court of Appeals

has held that the showing of suspicious

activity would be sufficient to establish

probable cause for the issuance of an ad-

ministrative search warrant. United

States v. Schiffman, 572 F.2d 1137, 1140

(5th Cir. 1978) (large purchases of con-

trolled drugs by pharmacy); See, United

States v. Greenberg, 334 F. Supp. 364, 367

(W.D. Pa. 1971) (purchases of extraordin-

ary quantities of drugs); United States v.

Montrom, 345 F. Supp. 1337, 1342 (E.D. Pa.

1972), aff'd without opinion, 480 F.2d

918, (3d Cir. 1973) (mammoth purchases by

13

registrant).

Before the Sixth Circuit Court of

Appeals had rendered its ruling in the in-

stant appellate case (Appendix A), the

Sixth Circuit Court of Appeals had not

ruled on the issue concerning the suffi-

ciency of probable cause in the issuance

of an administrative search warrant

pursuant to 21 U.S.C. Section 880(d)(1).

This Court should hold that the mere

passage of time, without more, is insuffi-

cient to support a finding of probable

cause. There is nothing set forth in the

Application for Inspection (Appendix D),

except a statement that Petitioner's

business had not been inspected before and

the government desired to do so. There is

no indication that the drug laws were

being broken, that there was probable

cause to believe they were being broken,

that the business was not being conducted

14

legally, or anything that would indicate

the need for an inspection warrant.

It cannot be denied that there is a

valid public interest in seeing that the

drug laws are obeyed. Surely, however,

the Fourth Amendment prohibits audits and

inspections merely to see if the laws are

being violated when the basis for the same

is, apparently, general curiosity rather

than some foundation or showing that esta-

blishes "probable cause."

Because of this conflict in the

Circuit Courts' interpretation of the

term "probable cause" in 21 U.S.C. Section

880(d)(1), this Court should establish a

uniform standard against which the term

“probable cause" can be measured.

Secondly, the jury charge in the in-

stant case did not separately describe the

two distinct elements necessary to find a

conviction under 2] U.S.C. Section 841(a)

15

and 21 C.F.R. Section 1306.04(a).

The standards regarding the criminal

culpability of registered physicians ia

dispensing controlled substances are com-

plex and confusing. The standards are

found in federal statutes, federal regu-

lations, and federal case law. It is only

from a proper and comprehensive reading of

all three of these sources that’ the

correct standards of criminal liability

can be defined.

Because of this very complexity, it

is necessary that the instructions given a

jury in a case involving alleged improper

distribution be clear and precise. The

instruction given in this case did not

accurately reflect the appropriate stan-

dards under which a confiction could be

obtained.

.itle II of the Comprehensive Drug

Abuse Prevention and Controlled Sub-

16

Stances Act of 1970 (hereinafter also

referred to as the "Controlled Substances

Act"), including 21 U.S.C. Section 801 et

seq., along with 21 C.F.R. Section

1306.04(a) make it illegal for a physician

to dispense certain controlled substances

other than “in the course of his profes-

sional practice."

Title 21 U.S.C. Section 841, when

coupled with 21 C.F.R. Section 1306.04 and

the leading cases interpreting both the

statute and the federal regulation define

unlawful distribution and dispensing as

conduct which is: (1) not in good faith

foc a legitimate medical purpose; and (2)

not in the usual course of professional

practice. Linder v. United States, 268

~U.S. 5, 16, 17, 21 45 S.Ct. 446 (1925);

Boyd v. United States, 271 U.S. 104, 106-

107 (1926); United States v. Brandenburg,

155 F.2d 110, 113 (3d Cir. 1946); United

17

States v. Bartee, 479 F.2d 484, 488 (10th

Cir. 1973); United States v. Larson, 507

F.2d 385, 386,387, 388, 389 (9th Cir.

1974); United States v. Moore, 423 U.S.

122, 138-139, 96 S.Ct. 335 (1975); United

States v. Rosenberg, 515 F.2d 190, 197

(9th Cir.), cert denied, 423-U.S. 1031

(1975); United States v. Davis, 564 F.2d

840, 841, 845-846 (9th Cir. 1978); United

States v. Rosen, 582 F.2d 1032, 1033 (5th

Cir. 1978); “nited States v. Boettjer, 569

F.2d 1078, 1081, 1082 (9th Cir.), cert

denied, 96 S.Ct. 1627 (1978); United

States v, Kirk, 584 F.2d 773, 784 (6th

Cir.) cert denied, 99 S.Ct. 726 (1978);

United States v. Rogers, 609 F.2d 834, 838

(5th Cir. 1980).

Petitioner's proffered Request Jury

Instruction (Appendix E) contained the

proper standards of culpability pursuant

to the Controlled Substances Act: that

18

the jury must find beyond a reasonable

doubt that defendant dispensed a con-

trolled substance other than in good faith

for a legitimate medical purpose and other

than in the usual course of his profes-

sional practice. See, e.g., United States

v. Moore, 423 U.S. 122, 138-139, 96 S.Ct.

335 (1975); United States v. Rosenberg,

515 F.2d 190, 197 (9th Cir.), cert denied,

423 U.S. 1031 (1975); United States v.

Carroll, 518 F.2d 187, 189, 190, 207 (6th

Cir. 1975).

The trial court's jury instruction

reduced what should be a two prong

approach for establishing the standards

of criminality to a one step procedure for

conviction. With the instruction given by

the trial court to the jury, Ci triers of

fact could easily convict by finding

either distribution of dispensing for

other than a legitimate medical purpose or

19

distribution or dispensing which was not

in the usual course of professional prac-

tice. The courts have held that this

“either/or” standard of criminality is

not the proper standard for conviction.

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

197 (9th Cir.), cert denied, 423 U.S. 1031

(1975); United States v. Boettjer, 569

F.2d 1078, 1081, 1082 (9th Cir.), cert

denied, 96 S.Ct. 1627 (1978); United

States v. Kirk, 584 F.2d 773, 784 (6th

Cir.) cert denied, 99 S.Ct. 726 (1978).

Because of the lower court's failure

to clearly state each element which the

government must prove, the jury was led to

believe that the government was obligated

to prove only one element beyond a reason-

able doubt: that Petitioner did not act

within the usual course of his profes-

sional practice.

The United States Supreme Court has

20

held, and it is a basic mandate in cri-

minal law, “that the Due Process Clause

protects the accused against conviction

except upon proof beyond a reasonable

doubt of every fact necessary to consti-

tute the crime with which he is charged."

In re Winship, 397 U.S. 358, 364 (1970).

Before the trier of fact may find an

accused guilty of violating the

Controlled Substances Act, the jury must

determine beyond a reasonable doubt that

the accused's conduct was not within the

medical exception authorized by the

Statute, as that statute has been inter-

preted by the federal regulations and case

law. See, United States v. Black, 512

F.2d 864, 881 (9th Cir. 1975). The courts

have determined that the medical practi-

tioner's exception to the Controlled Sub-

stances Act applies to one who is (1) a

registered practitioner prescribing, dis-

~

21

pensing, or distributing in good faith for

a legitimate medical purpose, and (2) in

the usual course of his professional prac-

tice. The burden is on the government to

prove beyond a reasonable doubt that the

physician does not come within either

category of the medical exception. United

States v. Black, 512 F.2d 864, 867 (9th

Cir. 1975); United States v. Green, 511

F.2d 1062, 1069, 1072 (7th Cir.), cert

denied, 423 U.S. 1031, 96 S.Ct. 561

(1975); United States v. Carroll, 518 F.2d

187, 189, 207 (6th Cir. 1976); United

States _v. Rosenberg, 515 F.2d 190, 197

(9th Cir.), cert denied, 423 U.S. 1031

(1975).

Therefore, before a conviction will

stand, the government must show beyond a

reasonable doubt that the accused did not

act in good faith for a legitimate medical

purpose and was not acting in the course

22

of professional practice. Proof of only

one element beyond a reasonable doubt is

not sufficient

This Court has not definitively ex-

plained the elements necessary for a con-

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

21 C.F.R. Section 1306.04(a). Until this

Court ultimately defines the exact

elements of criminal culpatility for a

conviction under these sections, any jury

instruction which incorrectly defines the

elements of criminal action constitutes

reversible error. It is of paramount im

portance that a trial court's jury in-

struction be clear, accurate, and com

plete particularity with respect to the

essential elements of an alleged crime.

23

CONCLUSION

For the reasons set forth above, it

is respectfully submitted that this Peti-

tion for Certiorari should be granted and

the judgment affirming conviction should

be vacated.

Respectfully submitted,

Richardson Lynn, and

the Law Offices of

RITTER, WINNE & RODRIGUEZ

‘i ___ 4) fk rad

Counsel for Petitioner,

HERBERT W. VOORHIES, M.D.

5670 Wilshire Boulevard

Suite 1860

Los oars5"s CA 90036

3) 933-5871

~yipuaday

APPENDIX A

No. 80-5077

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America, APPEAL from the

Plaintiff-Appellee, United States District

¥, Court for the Middle

District of Tennessee.

Herbert W. Voohries, M.D.

Defendant-Appellant.

Decided and Filed November 2, 1981.

Before: EDWARDS, Chief Judge, WEICK and MERRITT,

Circuit Judges.

EDWARDS, Chief Judge. Defendant Voorhies, a doctor

practicing in Nashville, Tennessee, appeals from a conviction

after jury trial for unlawfully distributing controlled sub-

stances, in violation of 21 U.S.C. § 841 (a)(1) (1976). The jury

found defendant guilty of 49 counts of illegal distribution of

amphetamines, amphetamine-like drugs and various other

controlled substances based on evidence which we find

supports their verdict.

Appellant presents only two issues of arguable merit. He

first contends that the search warrant under which hundreds

of his patient medication cards were seized by microfilming

was invalid because the application for the search warrant

relied upon the following statement by a compliance investi-

gator for the Drug Enforcement Administration: “The estab-

lishment has not been previously inspected pursuant to the

Comprehensive D.ug Abuse Prevention and Control Act of

1970.”

The applicable statutory provision authorizing the Attorney

General to conduct administrative inspections under the

Comprehensive Drug Abuse Prevention and Control Act is

21 U.S.C. § 880(b)(1) (1976), which provides as follows:

For the purpose of inspecting, copying, and verifying

the correctness of records, reports, or other docu-

ments required to be kept or made under this

subchapter and otherwise facilitating the carrying out

of his functions under this subchapter, the Attorney

General is authorized, in accordance with this section

to enter controlled premises and to conduct admin-

istrative inspections thereof, and of the things spec-

ified in this section, relevant to those functions. 21

U.S.C. § 880(b)(1).

Probable cause for issuance of an administrative search

warrant is defined in 21 U.S.C. § 880(d)(1) (1976) as

follows:

[Tjhe term “probable cause” means a valid public

interest in the effective enforcement of this sub-

chapter or regulations thereunder sufficient to justify

administrative inspections of the area, premises,

building, or conveyance, or contents thereof, in the

circumstances specified in the application for the

warrant. 21 U.S.C. § 880(d)(1).

The statutory scheme of which the above two paragraphs

are a part contemplates careful regulation and control of

potentially harmful drugs and 21 U.S.C. § 827 requires

the keeping of records which must be made available for

inspection. Careful inspection of the applicable statute

shows clearly that the requirements of the statute were

meant by Congress to apply to a medical “practitioner,”

(see 21 U.S.C. § 802(20)) who packs or holds controlled

substances and dispenses them to ultimate users. (Sec. 21

U.S.C. § § 801a(10) and 822.) It therefore appears that

the regulation of dispensation of narcotics by persons in

medical practice’ is a part of the comprehensive scheme

set forth in the Comprehensive Drug Abuse Prevention

and Control Act of 1970, 21 U.S.C. § 80let seg.

In the case at hand, the application for the administrative

search warrant stated:

1 This case does not involve forcible seizure of the patient records of a normal

medical practice. At the time involved, Dr. Voorhies was practicing three weeks out of

each month in California and one week in Nashville, Tennessee. The evidence in the

case indicates thea 80% of his Nashville patients were “weight reduction” patients. The

testimony at the trial provided evidence from which the jury could have concluded that

he was much more specifically in the business of selling drugs than engaging in the

profession of medicine. The patient records which were “seized” (microfilmed) were

identified by the defendant as the only record he kept concerning dispensation as

required by the terms of the Comprehensive Drug Abuse Prevention and Control Act of

1970. While the agent stated that he had a search warrant, the defendant did not refuse

to allow microfilming. Thus, no decision was made concerning forcible seizure or

alternatively another application for a regular search warrant based upon probable

cause. See Zap v. United States, 328 U.S. 624 (1946).

Larry W. Lockhart, a duly authorized Compliance

Investigator of the Drug Enforcement Administra-

tion, Department of Justice, Nashville, Tennesses,

hereby applies for an inspection warrant, pursuant to

Section 510 of the Comprehensive Drug Abuse

Prevention and Control Act of 1970 (P.L. 91-513),

(Title 21, United States Code, Section 880), for the

inspection of the Establishment as follows:

Herbert W. VOORHIES, M.D.

2412 12th Avenue South

Nashville, Tennessee 37204

1. Drugs or other substances included in the

Comprehensive Drug Abuse Prevention and Control

Act of 1970 (P.L. 91-513) (Title 21, United States

Code, Section 811) are packed or held in this

establishment.

2. The establishment has not been previously

inspected pursuant to the Comprehensive Drug

Abuse Prevention and Control Act of 1970.

3. This is an inspection undertaken as a part of a

statutorily authorized inspection program designed

to assure compliance with the Comprehensive Drug

Abuse Prevention and Control Act of 1970 (P.L. 91-

513).

4. The inspection will be conducted within regular

business hours. The compliance investigator's cre-

dentials will be presented to the registrant as pre-

scribed in Section 510 of the Act. The inspection will

begin as soon as practicable after the issuance of this

warrant and will be completed with reasonable prompt-

ness.

5. The inspection will extend to the establishment

and all pertinent equipment, finished and unfinished

materials, containers and labeling therein, and all

books and records required to be maintained by law.

6. Samples and/or records will be seized when

necessary to a reasonable inspection and receipt will

be given therefor.

7. The compliance investigator named hereinbe-

for may be accompanied by one or more compliance

investigators also duly authorized by the Drug En-

forcement Administration, Department of Justice

and/or investigators from the Tennessee Department |

of Public Health, Health Related Boards.

8. A return will be made to the Court at the

completion of the inspection.

9. The authority for the issuance of the inspection

warrant is Section 510 of the Comprehensive Drug

Abuse Prevention and Control Act of 1970 (P.L. 91-

513), Camara v. Municipal Court, 387 U.S. 523

(1967), See v. Seattle, 387 U.S. 541 (1967) and

Colonnade Catering Corporation v. United Staies,

397 U.S. 72 (1970).

Sworn to and subscribed by

s/ Larry W. Lockhart

LARRY W. LOCKHART

Drug Enforcement Administration

We believe the government’s representation in the

application for the warrant that the premises to be

searched had never before been inspected constituted a

“valid public interest” justifying issuance of un adranis-

trative search warrant, and, together with the statement of

congressional findings and purposes in the act served to

satisfy the requirements of the Fourth Amendment under

the facts of this case. Ui.ited States v. Prendergast, 585

F.2d 69 (3d Cir. 1978); United States v. Goldfine, 538 F.2d

815 (9th Cir. 1976). While we note appellant’s argument

that this court should reject Prendergast and Goldfine and

adopt a rule requiring “a showing of suspicious activity”

before the Magistrate who issued the administrative

search warrant, we do noi find such a requirement either in

the legislative history, or in any of the Supreme Court

cases arguably relevant here. See Camara v. Municipal

Court, 387 U.S. 523 (1967), andColonnade Catering

Corporation v. United States, 397 U.S. 72 (1970), both of

which upheld warrantless inspections authorized by com-

prehensive acts. See also Marshall v. Burlow’s, Inc., 436

U.S. 307 (1977) and Donovan v. Dewey, 49 U.S.L.W. 4748

(1981).

Appellant’s second contention is that the District

Judge’s charge failed to separately describe two elements

of the crime and failed to tell the jury that in the absence of

proof of both, the defendant must be acquitted. As to the

istrict Court’s charge, we find no error requiring reversal

of this case. The paragraphs objected to are as follows:

The essential elements of the offense charged in

Count One are as follows...

4. That the substances dispensed by the defendant

were so dispensed for other than a legitimate medical

purpose in the usual course of professional practice.

Unless you find beyond a reasonable doubt that an

act of dispensation charged in the indictment against

a physician defendant was not done by the defendant

physician in the usual course of his professional

practice, then you should find him not guilty.

The language chosen in the first paragraph al: ove by the

District Judge is drawn directly from 21 C.F.R. §

1306.04(a) which says as follows:

A prescription for a controlled substance to be

effective must be issued for a legitimate medical

purpose by an individual practitioner acting in the

usual course of his professional practice. . .

The District Judge’s charge, however, did not stop there.

On the contrary, we believe that taken as a whole, it was

calculated to protect any physician who made a good faith

effort to comply with the law. For example, the District

Judge specifically instructed the jury as follows:

A controlled substance is dispensed by a physician

in the usual course of his professional practice, and

therefore lawfully, if the substance is dispensed by

him in good faith in medically treating a patient.

Good faith in this context means good intentions and

honest exercise of best professional judgment as to a

patient’s medical needs. It connotes an observance of

conduct in accordance with what the physician should

reasonably believe to be proper medical practice.

This case was well prepared and well tried. We would

find it hard to fault the jury for finding a defendant guilty

who prescribed amphetamines for a patient who ceme in

to ask for “black widows” in order to party with her

friends.

The judgment of conviction is affirmed.

APPENDIX B

DEFENDANT HERBERT W. VOOORHIES,M_LD.

JUDGMENT

COUNSEL

PLEA

FINDING &

JUDGMENT

SENTENCE

OR

PROBATION

ORDER

Docket No. 78-30265

AND PROBATION/

COMMITMENT ORDER

WITH COUNSE!, RICHARDSON LYNN

(Name of Counse))

NOT GUILTY there is a factual basis for the

plea, Counts 6,29,46 and 47 dismissed by

the Court upon motion of the United States

Attorney.

Guilty as to counts 1,2,3,4,5,7,8,9,10,11

12,13,14,15,16,17,18,19,20,21,22,23,24,25

26,27 ,28,30,31,32,33,34,35,36,37,38,39,40

41,42,43,44,45,48,49,50,51,52 and 53.

violating T. 21, U.S.C., § 841 (a)(1)

RECEIVED FOK ENTRY 12:30 P.M.

FEBRUARY 5,19--JULIA B. CROSS,

CLERK

The court asked whether defendant had

anything to say why judgment should not be

pronounced. Because no sufficient cause to

the co was shown, or appeared to the court,

the order adjudged the defendant guilty as

charged and convicted and ordered that:

The defendant hereby committed to the

custody of the Attorney General or his

authorized representative for imprisonment

for a period of five (5) years as to Count 1;

and on condition that the defendant be

confined in a jail type institution for a period

of six(6) months, the execution of the

remainder of the sentence of imprisonment

is hereby suspended and the defendant

placed on probation for such period upon the

usual terms and conditions of probation.

Special condition being that during the

remainder of that four and one-half(4'*) year

period of time that the Court suspended that

the defendant will give at least four (4) hours

a week, for fifty (50) weeks a year, out of each

of the four(4) years and four(4) hours a week,

for twenty-five (25) weeks, out of the one-

half (2)year to some form of public service

under the direction of the probation office.

—~

SPECIAL

CONDITIONS

OF

PROBATION As to the remaining Counts of the In-

dictment, imposition of sentence suspended

and the defendant placed on probation for a

period of five (5) years to run concurrently

with the sentence imposed in Count 1 of the

Indictment.

A special parole term of three(3) years in

addition to such term of imprisonment is

hereby imposed pursuant to T.21.U.S.C.

. §841(1).(A)

ADDITIONAL

CONDITIONS

OF

PROBATION

COMMIT-

MENT RECOM-

MENDATIONS

The defendant is to remain on his present

bond until he reports to the U.S. Marshal at

Los Angeles, California, at 9:00 am. on

Thursday, March 6, 1980

APPENDIX C

United States District Court

for the Middle District

of Tennessee

Nashville Division

IN THE MATTER OF

Administrative Inspection of

Herbert W. VOORHIES, M.D.

2412 12th Avenue South

Nashville, Tennessee 37202

WARRANT FOR IN-

SPECTION UNDER THE

FEDERAL COMPRE-

HENSIVE DRUG

ABUSE PREVENTION

AND CONTROL ACT OF

1970 (P.L. 91-513)(TITLE

21, U.S.C., SECTION 880)

To Larry W. Lockhart and any other authorized Com-

pliance Investigator of the United States Drug Enforce-

ment Administration and/or authorized investigators of

the Tennessee Department of Public Health, Health-

Related Boards:

Application having been made, and probable cause

shown, by Larry W. Lockhart, United States Department

of Justice, Drug Enforcement Administration for an

inspection of the establishment described as:

Herbert W. VOORHIES, M.D.

2412 12th Avenue South

Nashville, Tennessee 37204

Based upon the following grounds:

1. This is an inspection of an establishment registered

under Title II of this Act which has not been previously

inspected.

2. Pursuant to Section 510 of the Federal Compre-

hensive Drug Abuse Prevention and Control Act of 1970

(P.L. 91-513) and the decision of the Supreme Court in

Camara v. Municipal Court, 387 U.S. 523 (1967), See v.

Seattle, 387 U.S. 541 (1967), andColonnade Catering

Corporation v. United States,397 U.S. 72 (1970), you are

authorized to enter the above described premises at a

reasonable time during ordinary business hours, and to

inspect in a reasonable manner and to a reasonable extent,

including the collection of samples if necessary, the

establishment and all pertinent equipment, finished and

unfinished materials, containers and labeling therein, and

seizures of all books and records required to be main-

tained by law, if necessary.

A prompt return shall be made to this Court no later than

ten (10) days from the date of issuance of this warrant.

UNITED STATES MAGISTRATE

Date: May 2, 1977

I received the at‘ ached inspection warrant on

and have executed it as follows:

On_ at. o’clock

I served the warrant on_ at ;

. Lleft a copy of the warrant

with . During the period from

to , L or persons under my

supervision, conducted an inspection of files, records and

controlled substances at the premises shown abovd.

The following items were seized pursuant to the warrant:

Return made by on

Subscribed and sworn

Subscribed and sworn to and returned before me this

day of 19

UNITED STATES

MAGISTRATE

APPENDIX D

United States District Court

for the Middle District

of Tennessee

Nashville Division

IN THE MATTER OF

Administrative Inspection of

Herbert W. VOORHIES, M.D.

2412 12th Avenue South

Nashville, Tennessee 37204

APPLICATION FOR IN-

SPECTION WARRANT

UNDER THE FEDERAL

COMPREHENSIVE

DRUG ABUSE PRE-

VENTION AND CON-

TROL ACT OF 1970 (P.L.

91-513)(TITLE 21, U.S.C.,

SECTION 880)

To: United States Magistrate

United States District Court

Middle District of Tennessee

Nashville, Tennessee

Larry W. Lockhart, a duly authorized Compliance Invest-

igator of the Drug Enforcement Administration, Depart-

ment of Justice, Nashville, Tennessee, hereby applies for

an inspection warrant, pursuant to Section 510 of the

Comprehensive Drug Abuse Prevention and Control Act

of 1970 (P.L. 91-513), (Title 21, United States Code,

Section 880), for the inspection of the establishment as

follows:

Herbert W. VOORHIES, M.D.

2412 12th Avenue South

Nashville, Tennessee 37204

1. Drugs or other substances included in the Com-

prehensive Drug Abuse Prevention and Control Act of

1970 (P.L. 91-513) (Title 21, United States Code, Section

811) are packed or held in this establishment.

2. The establishment has not been previously in-

spected pursuant to the Comprehensive Drug Abuse

Prevention and Control Act of 1970.

3. This is an inspection undertaken as a part of a

statutorily authorized inspection program designed to

assure compliance with the Comprehensive Drug Abuse

Prevention and Control Act of 1970 (P.L. 91-513).

4. The inspection will be conducted within regular

business hours. The compliance investigator’s credentials

will be presented to the registrant as prescribed in Section

510 of the Act. The inspection will begin as soon as

Sworn to and subscribed by

LARRY W. LOCKHART

Drug Enforcement Administration

Sworn to before me on the 2nd day of May, 1977, at

Nashville, Tennessee.

UNITED STATES MAGISTRATE

APPENDIX E

United States District Court

for the Middle District

of Tennessee

Nashyille Division

UNITED STATES OF AMERICA,

HERBERT W. VOORHIES, M.D.

No. 78-30265-NA-CR

DEFENSE REQUESTED INSTRUCTION NO.1

In order to find the Defendant guilty on any Count of this

indictment, you must find beyond a reasonable doubt that

the Defendant dispensed a controlled substance other

than in good faith for a legitimate medical purpose and

other than in the usual course of his professional practice.

United States v. Boettjer, 569 F. Ed.2d, 1078, 1081 (9th

Cir.), cert denied, 96 S.Ct. 1627 (1978).

Respectfully submitted

RITTER & ASSOCIATES

By

Jack Ritter

Attorney for Defendant

HOLLAND, LYNN & SMITH

By

Richardson R. Lynn

Attorney for Defendant

DECLARATION OF FILING AND SERVICE

I R. J. RODRIGUEZ, hereby make this declaration

pursuant to Supreme Court Rule 28.2

I declare that on March 12, 1982 copies of Petitioner's

Petition for Writ of Certiorari have been deposited in the

mail, postage prepaid, first class mail, filed and served on

the following persons or entities:

United States Supreme Court

One First Street, N.E.

Washington, D.C. 20543

United States District

Court, Middle District

Tennessee

United States Courthouse

Nashville, Tennessee 37203

United States Court of

Appeal for the 6th Circuit

United States Courthouse

Post Office Building, Room 502

Cincinnati, Ohio 45202

Margaret M. Huff

Office of U.S. Attorney

Middle District Tennessee

879 United States Courthouse

Nashville, Tennessee 37203

I declare that the foregoing is true and correct.

EXECUTED on March 12, 1982, at Los Angeles, California

R. J. RODRIGUEZ