Opposition — Andrews v. United States

No. 82-1846 eos

983

ene

In the Supreme Court of the Anited States STEVAS:

OCTOBER TERM, 1983 Ce ml

RONALD W. ANDREWS, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

CAROLYN L. GAINES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ee

QUESTION PRESENTED

Whether an indictment against a physician for unlaw-

fully dispensing and distributing controlled substances,

in violation of 21 U.S.C. 841(a)(1), must include an alle-

gation that the conduct complained of was not in the

usual course of a professional medical practice.

(1)

TABLE OF CONTENTS

Page

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ecoswerageus en OO 1

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TABLE OF AUTHORITIES

Cases:

Hamling v. United States, 418 U.S. 87. an 7

McKelvey v. United States, 260 U.S. 353 me 4

United States v. Czeck, 671 F.2d BIO . 55s 6

United States v. Jackson, 576 F.2d —..... 5, 6

United States v. King, 587 F.2d 956....... 5, 6

United Statzs v. Moore, 423 U.S. 122 ..... 4

United States v. Outler, 659 F.2d me... £8

United States v. Roya, 574 F.2d 386 ...... 5

United States v. Seelig, 622 F.2d 207...... 5

Constitution and statute:

or oy... 4

Controlled Substances Act, 21 USC. &

we ceri 4

ities ea: OE Oe 4

mm te et)... 145

Ot OO) ............. 4

(III)

Jn the Supreme Court of the United States

OCTOBER TERM, 1983

ae Se No. 82-1846

fpwere W. ANDREWS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet.

App. A4-A5) is not reported.

JURISDICTION

The judgment of the court of appeals was entered on

March 14, 1983 (Pet. App. A5). A petition for rehearing

was denied on April 7, 1983 (Pet. App. A6). The peti-

tion for a writ of certiorari was filed on May 18, 1983.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, peti-

tioner was convicted on nine counts of dispensing con-

trolled substances, in violation of 21 U.S.C. 841(a)(1).

He was sentenced to concurrent terms of three years’

imprisonment, to be followed by two years’ special pa-

role on five of the counts. Petitioner's sentence on the

(1)

2

other four counts was suspended and he was placed on

three years’ probation, to be served consecutively to

the prison and special parole terms. The court of ap-

peals affirmed (Pet. App. A4-A5).

1. The evidence at trial showed that in August 1980,

Domenic Deodati, a state undercover narcotics agent,

initiated an investigation into the activities of petition-

er, a licensed physician, with respect to violations of

state and federal drug laws. On August 14, 1980, Deo-

dati went to petitioner’s office and requested a pre-

scription for quaalude (C.A. App. 81a). Petitioner re-

sponded by telling Deodati that the DEA had warned

petitioner that he was writing too many prescriptions

for quaalude and suggested that he could give Deodati a

prescription for seconal or dalmane to help him with

any sleeping problems he might be experiencing (ibid. ).

Deodati agreed, and petitioner, without taking any

medical history or performing any physical examina-

tion, gave Deodati a prescription for 50 seconal tablets

and charged him $15 (id. at 84a, 85a).

During the next six months Deodati visited petitioner

a total of 10 times, obtaining more than two dozen pre-

scriptions for seconal, desoxin, quaalude and

tussionex.? Petitioner never examined Deodati or dis-

cussed any treatment of any medical condition; more-

over, petitioner charged him by the number of prescrip-

tions, 7.e., two prescriptions were charged as two office

visits (C.A. App. 91a). On several occasions, petitioner

made comments to Deodati indicating his awareness

that Decdati was not personally using the prescriptions

(C.A. App. 103a, 107a, 123a). Indeed, during a visit on

*“C.A. App.” refers to the supplemental appendix filed by

the United States in the court of appeals.

? Quaalude is a sedative hypnotic with the same effect as a

barbiturate (C.A. App. 527a). Seconal is a barbiturate, desoxin

is a stimulant, and tussionex is a cough syrup that contains a po-

tent narcotic (id. at 519a-522a, 530a-532a, 533a).

3

November 6, 1980, Deodati requested a prescription for

quaalude because it “sold better on the street,” and pe-

titioner issued the prescription (id. at 117a).

On November 10, 1980, a second agent, Esther Kiah,

also visited petitioner and introduced herself as Deo-

dati’s friend (C.A. App. 385a). She asked for quaalude,

which petitioner prescribed for her. He also gave her a

prescription for dalmane, but told her to use different

pharmacies for each prescription (id. at 388a). Petition-

er charged Kiah $25 for the “visit” (id. at 389a).

During the next four months, Kiah returned to peti-

tioner’s office three more times and obtained several

prescriptions for quaalude, valium and dalmane (C.A.

App. 391a, 393a, 408a, 413a-414a). Petitioner never dis-

cussed any form of treatment with regard to any of the

drugs he prescribed for Kiah and never gave her a

physical examination or even took a medical history of

her (id. at 429a, 431a).

Petitioner was indicted on 31 counts charging that he

“knowingly and intentionally did unlawfully dispense

and distribute” specific drugs on specific dates (C.A.

App. 7a-31a). Although there was no allegation in the

indictment that petitioner was not acting in the ordi-

nary course of his medical practice, petitioner never

moved to dismiss the indictment on the basis of this

omission. In the instructions to the jury, the district

court explained that one of the elements the govern-

ment was required to prove beyond a reasonable doubt

was that petitioner acted “other than for a legitimate

medical purpose and that he did so outside of the course

of his professional practice, and not * * * [to] provid[e]

medication for a patient[’s] welfare, needs or medical

needs” (C.A. App. 758a).

2. The court of appeals affirmed (Pet. App. A4-A5).

In so doing, it merely noted that petitioner challenged

the adequacy of his indictment for failure “to allege the

drugs were dispensed with a lack of legitimate medical

d

purpose or outside the course of his professional prac-

tice” (id. at A4).

ARGUMENT

Petitioner argues (Pet. 5-8) that where, as here, the

defendant in a prosecution under 21 U.S.C. 841(a)(1) is

a physician, the “[absence] of a legitimate medical rea-

son” is an element of the offense, and, accordingly, the

failure to allege it in the indictment violates the Fifth

Amendment due process right to be apprised of the

specific crime charged and the right to be indicted by a

grand jury. Petitioner’s contention was properly reject-

ed by the court of appeals.

It is settled that “an indictment or other pleading

founded on a general provision defining the elements of

an offense, or of a right conferred, need not negative

the matter of an exception made by a proviso or other

distinct clause, whether in the same section or else-

where, and that it is incumbent on one who relies on

such an exception to set it up and establish it.” McKel-

vey v. United States, 260 U.S. 353, 357 (1922). With re-

spect to the general provision of 21 U.S.C. 841, this

Court observed in United States v. Moore, 423 U.S.

122, 131 (1975), that “[b]y its terms § 841 reaches ‘any

person.’ It does not exempt (as it could have) ‘all regis-

trants’ or ‘all persons registered under this Act.’” Thus,

any exceptions provided by the Controlled Substances

Act, 21 U.S.C. (& Supp. V) 801 et seg., must be raised

on an individual basis by the defendant seeking its ben-

efit and need not be alleged in the indictment.3 Indeed,

21 U.S.C. 885(a)(1), explicitly states that “[i]t shall not

be necessary for the United States to negative an ex-

Of course, once a defendant has satisfied his burden of going

forward with sufficient evidence to raise a factual issue as to

whether an exception applies, the burden shifts to the govern-

ment to prove the inapplicability of the exception beyond a rea-

sonable doubt.

5

emption or exception set forth in this subchapter in any

complaint, information [or] indictment * * * and the

burden of going forward with the evidence with respect

to any such exemption or exception shall be upon the

person claiming its benefit.” Accordingly, most courts

have held that it is unnecessary to allege the absence of

medical justification in an indictment charging a viola-

tion of 21 U.S.C. 841(a)(1). See Pet. App. A4-A5;

United States v. Seelig, 622 F.2d 207, 211-212 (6th Cir.

1980); United States vy. Roya, 574 F.2d 386 (7th Cir.

1978).

Petitioner points out (Pet. 6), however, that two

other courts of appeals have decided that failure to al-

lege the absence of any medical justification renders de-

fective an indictment against a physician charging a vio-

lation of Section 841(a)(1). See United States v. Outler,

659 F.2d 1306 (5th Cir. 1981); United States v. King,

587 F.2d 956 (9th Cir. 1978). The inconsistency with the

decision below does not, however, make this case a

worthy candidate for review by this Court. First, there

is at least some doubt whether the Fifth and Ninth Cir-

cuits would decide this case differently from the court

below. In King, a divided court held, as an alternative

ground, that the indictment was defective; the court

also held that the conviction had to be reversed for fail-

ure to instruct the jury properly. 587 F.2d at 965-966.

Thus, the court was not required to decide whether the

deficiency in the indictment would, by itself, warrant

reversal. Although the court in Outler did clearly hold

that the deficiency in the indictment alone constituted

reversable error, a different panel of that court, in

United States v. Jackson, 576 F.2d 46, 48 n.4 (5th Cir.

1978), while leaving the issue open, noted that general-

ly the government need not allege the absence of an ex-

ception and that medical justification is clearly an ex-

ception to Section 841(a)(1). While these considerations

did not ultimately persuade the panel in Outler, their

discussion in Jackson suggests that the final word in

6

that circuit on this issue may not yet have been writ-

ten.4

Moreover, there is another crucial distinction be-

tween this case and Outler and King: petitioner never

challenged the sufficiency of his indictment in the dis-

trict court. Thus, he cannot raise the sufficiency of the

indictment issue directly; his indictment, even if defec-

tive, should be upheld unless it was so defective that by

no reasonable construction could it be said to charge the

offense for which petitioner was convicted. United

States v. Czeck, 671 F.2d 1195, 1197 (8th Cir. 1982).

The allegation that petitioner did “unlawfully dispense”

controlled substances adequately indicated that peti-

tioner’s conduct was for an illegal purpose. Thus, the

indictment can reasonably be construed to charge peti-

tioner with acting outside the scope of his medical au-

thority. See United States v. King, 587 F.2d 956, 966

(9th Cir. 1978) (Choy, J., dissenting). There is no rea-

son to suppose that a defendant who failed to raise this

issue in a timely fashion would be able to secure a re-

versal of his conviction in either the Fifth or Ninth

Circuit.

Finally, even if there is a conflict in the circuits on

this issue, it plainly is not one that affects significantly

the administration of criminal justice. The “defect” in

the indictment does not impair any substantial rights of

4 The court in Jackson upheld the conviction based on an in-

dictment that did “not state that Dr. Jackson acted outside the

scope of professional practice” (576 F.2d at 48); instead, it sim-

ply alleged that he unlawfully dispensed drugs “‘under the guise

and artifice of operating’ his clinic,” which the court held was

sufficient.

Although there is a clear tension between Outler and Jack-

son, the United States did not seek rehearing en banc in Outler

because the technical pleading requirement, even if unneces-

sary, did not involve an issue that was deemed important

enough to justify en banc consideration, since the panel’s deci-

sion did not impose any serious obstacle to law enforcement.

7

the defendant; it is a technical omission. This case is a

good illustration of the point. Each count in petitioner’s

indictment clearly set forth the statutory elements of

the offense, as well as the date of the offense, the quan-

tity and description of the controlled substance, and a

citation to the statute violated. Since the indictment

contained the elements of the offense charged, it fairly

informed petitioner of the charge against which he had

to defend, and enabled him to plead his conviction in

bar of future prosecutions for the same offense; accord-

ingly, the indictment plainly satisfied due process.

Hamling v. United States, 418 U.S. 87, 117 (1974).

Moreover, the allegation that petitioner “unlawfully”

dispensed drugs, renders wholly fanciful petitioner’s

claim that the grand jury could have indicted under the

misimpression that petitioner could be prosecuted un-

der this statute simply as a physician writing prescrip-

tions in the ordinary course of his practice.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

REX E. LEE

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

CAROLYN L. GAINES

Attorney

JULY 1983