Petition — Andrews v. United States

Office - Supreme Court, US.

rtLeae

82-1846 MAY 13 1983

ALEXANDER L. STEVAS,

CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

RONALD W. ANDREWS, M.D..,

Petitioner

U.

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to the United States Court

of Appeals for the Third Circuit.

Richard M. Meltzer, Esquire

MALIS, TOLSON & MALIS

Suite 305

Six Penn Center Plaza

Philadelphia, PA 19103

(215) 665-9111

Counsel for Petitioner

THE LEGAL INTELLIGENCER, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

QUESTION PRESENTED

1. Was Petitioner deprived of his Fifth and Sixth

Amendment Constitutional rights as a result of an in-

dictment charging a physician with a violation of Title

21 United States Code §841(a)(1), but which indict-

ment failed to include the essential allegation that the

controlled substances distributed lacked a legitimate

medical purpose or were distributed beyond the course

of professional practice?

INDEX

Page

BR OG eBoy Og a dt es i

OPINIUNS OF fre COURT BELOW ......... 2

er ee ene 2

EY PUR GS ae sk eee eer 2

mem eeeeeree Gr fein, CASE .... 2.5 6...025:. 3

REASONS RELIED ON FOR ALLOWANCE OF

i i ei ee cee 5

Certiorari is essential to prevent grave injustice to

the Petitioner as Petitioner was deprived of his Fifth and

Sixth Amendment rights under the United States Con-

stitution as the decision of the Third Circuit Court of Ap-

peals is contrary to the decisions of the Fifth Circuit

Court of Appeals enunciated in United States v. Outler,

659 F.2d 1306 (5th Cir. 1981) and the Ninth Circuit

Court of Appeals announced in United States v. Deal,

587 F.2d 956 (9th Cir. 1978) and is contrary to the policy

of the United States Supreme Court as pronounced in

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

provide that an essential element of the offense charging

a physician with a violation of 21 U.S.C. 841(a)(1) is that

the prescription was dispensed or distributed without a

legitimate medical reason.

ee a 8

APPENDIX A — Statutes Involved ............ A-1

APPENDIX B — Final Judgment of Eastern District

ee ee ee A-2

APPENDIX C — Court of Appeals Judgment Order A-4

APPENDIX D — Court of Appeals Petition for

a A-6

TABLE OF CASES CITED

Page

Law

(

United States v. Deal, 587 F.2d 956 (9th Cir. 1978) 5.

United States v. Moore, 423 U.S. 122 (1975). 5.6.

United States v. Outler, 659 F.2d 1306 (5th Cir.

Sea) 4... ee ee 5

United States v. Roya, 576 F.2d 386 (7th Cir. 1978)

United States v. Seelig, 622 F.2d 207 (6th Cir.),

cert. denied 449 U.S. 869 (1980) ..........

~]

~

STATUTES CITED

Page

ee Oe, OT gee ccc, i, 2, 3,3,.6

Oe icc eek 2

ill

eT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

RONALD W. ANDREWS, M.D..,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

To The Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Petitioner, Ronald W. Andrews, respectfully prays

that a Writ of Certiorari issue to review the Judgment

Order of the United States Court of Appeals for the Third

Circuit, entered in the above case on March 14, 1983,

affirming the Order of the United States District Court

for the Eastern District of Pennsylvania in favor of Re-

spondent, United States of America, and against Peti-

tioner, Ronald W. Andrews.

l

2

OPINIONS OF THE COURTS BELOW

The United States Court of Appeals for the Third

Circuit entered a Judgment Order on March 14, 1983 af-

firming the Judgment of conviction and sentence of the

United States District Court for the Eastern District of

Pennsylvania of July 1, 1982. The United States Court of

Appeals for the Third Circuit thereafter entered an Or-

der denying Petitioner's Petition for Rehearing on April

7, 1983.

No specific reasons were given for either the deci-

sion of March 14, 1983 or April 7, 1983.

JURISDICTION

The Judgment Order of the Court of Appeals for the

Third Circuit affirming the Judgment of the United

States District Court for the Eastern District of Pennsyl-

vania was entered on March 14, 1983 and is printed,

infra (Appendix C, p.A-4). The Order of the United

States Court of Appeals for the Third Circuit denying Pe-

tition for Rehearing was entered on April 7, 1983 and is

printed, infra (Appendix D, p. A-6). The jurisdiction of

this Court is invoked under 28 U.S.C.A. §1254(1).

STATUTES INVOLVED

The specific statutory provision involved is Title 21]

United States Code §841(a)(1) and is printed, infra, Ap-

pendix A, p. A-1.

3

STATEMENT OF THE CASE

On April 6, 1982, petitioner, Ronald W. Andrews,

M.D.. was indicted in the Eastern District of Pennsylva-

nia in a 31 count superseding indictment charging him

with violations of Title 21 United States Code, Section

841(a)(1).

Except for the dates, quantity, and description of

the prescription for the controlled substance, each count

contained the same allegation. A sample of a count in

the indictment is contained below:

“That on or about August 14, 1980, at Philadel-

phia, in the Eastern District of Pennsylvania,

RONALD W. ANDREWS

knowingly and_ intentionally did unlawfully

dispense and distribute 50 tablets of Seconal, con-

taining secobarbital, a Schedule II non-narcotic

controlled substance.

In violation of Title 21, United States Code,

Section 841(a)(1).

Title 21 U.S.C. §841(a)(1) provides, in part:

(a) “Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or inten-

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

or possess with intent to manufacture, distribute or

dispense a controlled substance. .. .”

Following a jury trial on May 10, 1982, petitioner

was convicted on 9 of the 3i counts and was sentenced

to imprisonment for a term of three (3) years, a special

parole term of two (2) years, and probation of three (3)

years.

The Government's evidence was presented through

the testimony of two (2) undercover agents and the Gov-

ernment’s expert medical witness, Dr. George Woody.

The two undergover agents presented evidence concern-

ing their conversations with the petitioner in his medical

4

office including the medical treatment. history, and ad-

vice given by the petitioner.

In regard to the tesumony of Dr. George Woody, the

Government for the first time presented an offer of proof

that it was necessary to prove that the conduct of the pe-

titioner was outside the course of his protessional prac-

tice. Dr. Woody then testified to procedures normally

conducted in the usual course of a professional medical

practice before prescribing drugs, reasons for prescrib-

ing certain drugs, and expressed an opinion as to the

usual course of medical practice concerning the pre-

scriptions with which the petitioner was charged with

dispensing and distributing in violation of the law.

During his charge to the Jury, the trial judge in-

structed the jury that an essential element of the offense

was that the Government was required to prove the ac-

tions of the petitioner were outside the scope of his pro-

fessional practice and that the prescriptions were distrib-

uted or dispensed other than for a legitimate medical

purpose

Following the petitioner’s sentence. he timely filed

an appeal to the Third Circuit Court of Appeals with new

counsel, which appeal was denied on March 14, 1983.

Petitioner filed a petition for rehearin g which was denied

on April 7, 1983.

The issue presented by this petition concerns

whether petitioner’s Constitutional rights were violated

because the indictment failed to allege that the prescrip-

tions were dispensed with a lack of a legitimate medical

purpose, which is an essential element of the offense.

Since there were no pre-trial motions filed to dismiss the

indictment for lack of sufficiency, there is no evidence

that either the petitioner or his original counsel would

have been aware that the Government had to prove this

essential element.

Petitioner was deprived of his Fifth and Sixth

Amendment Constitutional rights as a result of an in-

2)

dictment charging a physician with a violation of Title

21 United States Code §841(a)(1), but which indict-

ment failed to include an essential allegation that the

prescriptions dispensed or distributed lacked a legiti-

mate medical purpose or were done so beyond the

course of professional practice.

REASONS RELIED ON FOR ALLOWANCE OF THE

WRIT

CERTIORARI IS ESSENTIAL TO PREVENT

GRAVE INJUSTICE TO THE PETITIONER AS PETI-

TIONER WAS DEPRIVED OF HIS FIFTH AND

SIXTH AMENDMENT RIGHTS UNDER THE

UNITED STATES CONSTITUTION AS THE DECI-

SION OF THE THIRD CIRCUIT COURT OF AP-

PEALS IS CONTRARY TO THE DECISIONS OF THE

FIFTH CIRCUIT COURT OF APPEALS ENUNCI-

ATED IN UNITED STATES v. OUTLER, 659 F.2d 1306

(Sth Cir. 1981) AND THE NINTH CIRCUIT COURT

OF APPEALS ANNOUNCED IN UNITED STATES v.

DEAL, 587 F.2d 956 (9th Cir. 1978) AND IS CON-

TRARY TO THE POLICY OF THE UNITED STATES

SUPREME COURT AS PRONOUNCED IN UNITED

STATES v. MOORE, 423 U.S. 122 (1975), WHICH ALL

PROVIDE THAT AN ESSENTIAL ELEMENT OF

THE OFFENSE CHARGING A PHYSICIAN WITH A

VIOLATION OF 21 U.S.C. 841(a)(1) IS THAT THE

PRESCRIPTION WAS DISPENSED OR _ DISTRIB-

UTED WITHOUT A LEGITIMATE MEDICAL REA-

SON.

In the case of the United States v. Outler, 659 F.2d

1306 (Sth Cir. 1981), this same issue was raised before

the Fifth Circuit Court of Appeals. In that case the de-

fendant physician was indicted for the same violation as

in this case and the issue presented was “whether a

grand jury indictment which charges a physician with

prescribing drugs in violation of 21 U.S.C., 841(a)(1)

6

must allege that the prescription lacked a legitimate

medical reason? . . . For the following reason, we believe

that the lack of a legitimate medical reason is an essen-

tial element of this offense and, therefore. must be al-

leged in the indictment.” p. 1309

The Court states:

“This Court, however, repeatedly has held

since Moore that it is incumbent upon the govern-

ment to prove the lack of a legitimate medical rea-

son in order to convict a registered physician of

dispensing drugs in violation of 21 U.S.C. §841(a).

[citations omitted] We now conclude that this ele-

ment is essential to a charge of the offense. We rec-

ognize that an element is not always an ‘essential

element’ simply because the prosecution carries the

burden of proof; however, here the element em-

bodies the culpability of the offense. Without behav-

ior beyond professional practice, there is no crime.

We believe, therefore, that the lack of a legitimate

medical reason is as essential to the offense charged

against Dr. Outler as the requisite Mens rea.”

(p.1310)

This decision was also premised upon the conclu-

sion that the defendant’s Fifth and Sixth Amendment

rights were violated. The defendant’s Fifth Amendment

right guaranteeing the right to a proper grand jury in-

dictment was violated since one could only speculate

whether or not the grand jury was able to properly deter-

mine probable cause without this essential element. The

Fifth Circuit did not believe that the defendant’s Sixth

Amendment rights were violated to the extent he had

been unable to prepare a full defense to avoid surprise at

trial, since his counsel had moved to dismiss the perti-

nent counts of the indictment for failure to contain this

essential allegation. This distinction is critical since Peti-

tioner never raised this motion and may not have been

f

aware of this essential element until trial. The Govern-

ment should not be permitted to exploit its patently de-

fective indictment by any contention of waiver.

The Ninth Circuit Court of Appeals also confronted

this issue in U.S. v. Deal, 587 F.2d 956 (9th Cir. 1978).

In that case, the indictment failed to charge an essential

element of the offense i.e., lack of authorization to

dispense. The court reversed the physician’s conviction

by holding that “lack of authorization to distribute or

dispense controlled substances is an element of the

crime. .. . The most liberal reading of the indictment

does not reflect an allegation that Deal acted outside of

the scope of the medical exception.” p. 963.

These decisions are in apparent conflict with some

other Circuits which have confronted this issue. In U.S.

v. Roya, 576 F.2d 386 (7th Cir. 1978) the Seventh Cir-

cuit has ruled that the lack of a legitimate medical pur-

pose is not an essential element of the offense stated in

§841(a) (1). This decision appears to be no more than

dicta. See also U.S. v. Seelig, 622 F.2d 207 (6th Cir. ),

cert. denied 449 U.S. 869 (1980).

It is essential that this issue be decided by this

Court to obtain uniformity of indictments in all Circuits

when a physician is charged with this offense. This

Court should also consider the issue for clarification as

to the application of its ruling in U.S. v. Moore, 423 U.S.

122 (1975) to the sufficiency of an indictment.

One should not be burdened with uncertainty of the

essential elements of the offense to be presented against

a defendant like petitioner, a professional practitioner.

Speculation as to the adequacy of his preparation of a de-

fense or to the initial decision of the grand jury in return-

ing a defective indictment must not be permitted and

countenanced. All future indictments must be uniform

in charges of this nature and only this Court is able to

demand such uniformity so that future defendants in a

position as that of Petitioner herein can be adequately

and fully protected in defending such charges.

8

CONCLUSION

Petitioner's conviction resulted from an indictment

which failed to contain an essential element of the of-

fense. The element strikes at the core of the prosecu-

tion's case against the Petitioner. a physician charged

with unlawfully dispensing or distributing controlled

substances. The allegation that the physician’s conduct

occurred without a legitimate medical reason is required

in some, but not all Circuits. Uniformity is essential to

protect all similar defendants. Accordingly, Certiorari

should be granted, and the conviction below reversed.

Respectfully submitted.

Richard M. Meltzer. Esquire

Counsel for Petitioner

APPENDIX A

Title 21 U.S.C. 841(a) (1). Prohibited acts A.

Unlawful acts

(a) 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, distribute, or

dispense, a controlled substance; or...

A-1

United States ok Aste Vs. a as | United States District Court fo

A-2 EASTERN DISTRICT OF PENNSYLVANIA

DEFENDANT

L—_ RONALD W, ANDREWS | APPENDIX B_ vocketno. LCR, 81-00353

RSS A Here Rey SBS GAL SLATS tS Teac iia eet whe tree Bair ph GPEe codes 0 SY ia ie aa ale Wei ek ae ea hee ae ee ee ne

eho PE pee ae BA. “E: De R LX f / ‘ Ei; oP Ais ally ti

wee tees SUBGMENT AND’ RROBATION/COMMITMENT: ORDER 2) aa 249 0/1)

eae In the presence of the attorney for the goOvernmMenL p5 MONTH DAY YEAR

Marinari, USq- yy June 30 1982

b

COUNSEL L__jJ WITHOUT COUNSEL However the court advised defendant of right to counsel and asked whether defendant desired to

have counsel appointed by the court and the defendant thereupon waived assistance of counsel.

sAR iwc. 61... Sicherd M. Meliuet, Bee... is ck. llr

(Name of counsel)

the defendant appeared in person on this date

L__J GUILTY, and the court being satisfied that | ___ J NOLO CONTENDERE, ) NOT GUILTY

PLEA there is a factual basjs for the pica,

There being a finding/verdict of

Lx) GUILTY.

Defendant has been convicted as charged of the offense(s) of Dispensing eo: controlled substances,

FINDING & Lin violation of Title 21, United States Code, Section 841(a) (1)

JUDGMENT

J

“\.) The court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary

was shown, or appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that: The defendant i

hereby committed_to the aes, the Attorney General or his authorized representative for imprisonment for a period of THREE (3)

sentence | YEARS/°"1n°addition, there is a special parole term of TWO (2) YEARS

OR >imposed on Count 16. On Count 20, the defendant is hereby committed

PROBATION | to the custody of the Attorney General or his authorized representative

ORDER for imprisonment for a period of THREE (3) YEARS and in addition, there

is imposed a special parole term of TWO (2) YEARS, said sentence shall

run concurrently with sentence imposed on Count 16,

special | On Count 21, imposition of sentence as to imprisonment only is suspende

CONDITIONS | and the defendant is placed on probation for a period of THREE (3) YEAR

i to begin and commence at the termination of any and all sentences of

imprisonment and upon termination of the special parole term.

On Count 22, imposition of sentence as to imprisonment only is suspende

and the defendant is placed on probation for a period of THREE (3) Yu

apoitiona, | tO begin and commence at the termination of any and all sentences of

CONDITIONS In addition to the special conditions of probation imposed above, it is hercby ordered that the general conditions of probation set out on the

OF reverse side of this judgment be imposed. The Court may change the conditions of probation, reduce or extend the period of probation, and at

any time during the probation period or within a maximum probation period of five years permitted by law, may issue a warrant and revoke

PROBATION probation for a violation occurring during the probation period.

LJ NOT GUILTY. Defendant is discharged

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

it is ordered that the Clerk deliver

a certified copy of this judgmeni

COMMITMENT and commitment to the U.S, Mar-

RECOMMEN- shal cr other qualified officer. -

DATION

: CERTIFIED AS A TRUE COPY ON

SIGNED BY THIS ore fuuley l / Kj L

Soe” Want ul onl, AOE NC

Donald W. VanArtsdalen owe June 30, 1982 | OQ deputy

U.S.A. v. RONALD W, _ \DREWS A-3 _ €R, 81-00353

of imprisonment and upon termination of the special parole term, said

sentence shall run concurrently with sentence imposed on Count 21,

On Count 23, imposition of sentence as to imprisonment only is suspended

and the defendant is placed on probation for a period of THREE (3) YEARS

to begin and commence at the termination of any and all sentences of

imprisonment and upon termination of the special parole term, said

sentence to run concurrently with sentence imposed on Count 21,

On Count 25, defendant is hereby committed to the custody of the Attorney

General or his authorized representative for imprisonment for a period of

THREE (3) YEARS and in addition, there is imposed a special parole term

of TWO (2) YEARS, said sentence to run concurrently with sentence imposed

on Count 16.

On Count 26, imposition of sentence as to imprisonment only is suspended

and the defendant is placed on probation for a period of THREE (3) YEARS

to run concurrently with term of probation on Count 21; said term of

probation to commence on the termination of any and all sentences of

imprisonment and the term of any special parole.

On Count 27, defendant is committed to the custody of the Attorney Genera

for imprisonment for a period of THREE (3) YEARS and in addition, there i

imposed a special parole term of TWO (2) YEARS to run concurrently with

sentence on Count 16,

On Count 28, defendant is committed to the custody of the Attorney Genera

or his authorized representative for imprisonment for a period of THREE (

YEARS and in addition, there is imposed a special parole term of TWO (2)

YEARS to run concurrently with sentence on Count 16. *

A-4

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1407

UNITED STATES OF AMERICA

v.

RONALD W. ANDREWS,

Appellant

(Criminal No. 81-00353-01 - E.D.Pa. )

District Judge: Honorable Donald W. VanArtsdalen

Submitted Under Third Circuit Rule 12(6)

March 9, 1983

BEFORE: SEITZ, Chief Judge, HIGGINBOTHAM and

SLOVITER, Circuit Judges.

JUDGMENT ORDER

After consideration of the contention raised by ap-

pellant, to-wit, that an indictment charging a physician

with prescribing drugs in violation of Title 21 U.S.C.

§841(a) (1) is insufficient if it fails to allege the drugs

were dispensed with a lack of legitimate medical pur-

pose or outside the course of his professional practice, it

is

A-5

ADJUDGED AND ORDERED that the judgment of

the district court be and is hereby affirmed.

By the Court,

Chief Judge

ALIEST:

Chief Deputy Clerk

DATED: March 14, 1983

A-6

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 82-1407

UNITED STATES OF AMERICA

y

RONALD W. ANDREWS.

Appellant

(Criminal No. 81-00353-01 - E..D.Pa. )

District Judge: Honorable Donald W. VanArtsdalen

SUR PETITION FOR REHEARING

PRESENT: SEITZ, Chief Judge, ADAMS. GIBBONS,

HUNTER, WEIS, HIGGINBOTHAM.,

SLOVITER, BECKER, Circuit Judges.

The petition for rehearing filed by Appellant in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci-

sion having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court in banc, the peti-

tion for rehearing is denied.

By the Court,

Collins J. Seitz

Chief Judge

DATED: April 7, 1983