U.S. v. Steele

• Decision Date: 29 July 1998
• Docket Number: No. 94-3139,94-3139
• Citation: 147 F.3d 1316
• Parties: 11 Fla. L. Weekly Fed. C 1654 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. William O. STEELE, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1316

147 F.3d 1316

11 Fla. L. Weekly Fed. C 1654

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. William O. STEELE, Defendant-Appellant, Cross-Appellee.

No. 94-3139.

United States Court of Appeals, Eleventh Circuit.

July 29, 1998.

Leo A. Thomas, Pensacola, FL, William H. Mills, Redden, Mills & Clark, Birmingham, AL, for Defenfant-Appellant, Cross-Appellee.

P. Michael Patterson, U.S. Atty., Nancy Hess, Asst. U.S. Atty., Pensacola, FL, William Wagner, Gainesville, FL, for Plaintiff-Appellee, Cross-Appellant.

Appeals from the United States District Court for the Northern District of Florida.

Before HATCHETT, Chief Judge, and TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and MARCUS, Circuit Judges.

CARNES, Circuit Judge:

William O. Steele, a pharmacist, was indicted for "knowingly and intentionally dispens[ing]" controlled substances "in violation of Title 21, United States Code, Section 841(a)(1)." The governing statute provides an exception which permits pharmacists and other "practitioners" to dispense controlled substances "to the extent authorized by their registration and in conformity with other provisions of this subchapter," 21 U.S.C. § 822(b), which for present purposes means "in the course of professional practice," 21 U.S.C. § 802(21).

We granted en banc review to decide whether the indictment under which Steele was convicted is defective because it does not negate the course of professional practice exception. A panel of this Court answered that question in the affirmative and reversed Steele's conviction, United States v. Steele, 117 F.3d 1231 (11th Cir.1997), superceding, 105 F.3d 603 (1997), because it was bound to do so by the prior panel decision in United States v. Outler, 659 F.2d 1306 (5th Cir. Unit B 1981). Because we are sitting en banc, we are not bound by the Outler decision. Being free to overrule it, we hold that an indictment of a practitioner for unlawfully dispensing drugs need not aver that it was done outside the course of professional practice. We believe this conclusion is compelled by 21 U.S.C. § 885(a)(1) ("It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any ... indictment ... ").

The panel's opinion, 117 F.3d at 1232-33, sets out the relevant facts, the most pertinent of which concern the contents of the four-count indictment returned against Steele for actions occurring while he was authorized as a pharmacist to dispense controlled substances in the course of his professional practice. Count one of the indictment charged:

That from on or about July 1, 1993, and continuously thereafter, up to and including on or about November 2, 1993, in the Northern District of Florida, the defendant, William O. Steele, did knowingly and intentionally dispense hydromorphone hydrochloride, a schedule II controlled substance, commonly known as Dilaudid, in violation of Title 21, United States Code, Section 841(a)(1).

117 F.3d at 1233. Counts two, three, and four are identical except that the controlled substances named in them were Xanax, Valium, and Percodan, respectively. The government's theory of prosecution was that on numerous occasions during the specified period, Steele dispensed those controlled substances pursuant to prescriptions he knew to be forged. Steele maintained that he did not know they were forged. The jury found that he did and convicted him.

Steele contends there was insufficient evidence to convict, but the panel did not reach that issue. Instead, it held that the indictment was defective because it failed to allege that Steele dispensed the drugs outside the course of his professional practice as a pharmacist. See 117 F.3d at 1232, 1235. The panel reached that holding reluctantly, because it believed that the plain language of 885(a)(1) obviated the need for such an allegation. Nonetheless, the panel felt bound to follow the holding in Outler, which was to the contrary. See 117 F.3d at 1235 & n. 5 ("The holding in Outler stands in apparent conflict with section 885(a)(1) ... [but] ... even if it conflicts with statutory law, we are bound by Outler until such time as it is overruled."). The panel was correct in both respects. Under our prior precedent rule, a panel cannot overrule a prior one's holding even though convinced it is wrong. See, e.g., Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997) ("The law of this circuit is 'emphatic' that only the Supreme Court or this court sitting en banc can judicially overrule a prior panel decision."), cert. denied, --- U.S. ----, 118 S.Ct. 1529, 140 L.Ed.2d 680 (1998); United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) ("[I]t is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court."). However, we are not bound by Outler, and our examination of the relevant statutory provisions leads us to conclude, as the panel in this case did, that Outler was wrongly decided.

21 U.S.C. § 841(a) provides: "Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally (1) to ... dispense ... a controlled substance...." The subchapter referred to is Subchapter I of Chapter 13 of Title 21, and that subchapter runs from § 801 through § 904.

One of the authorized exceptions to the proscription against dispensing controlled substances is contained in 21 U.S.C. § 822(b), which specifies that "Persons registered by the Attorney General under this subchapter to ... dispense controlled substances are ... authorized to possess ... or dispense such substances ... to the extent authorized by their registration and in conformity with the other provisions of this subchapter." "Dispense" means "to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance." 21 U.S.C. § 802(10). An "ultimate user" is "a person who has lawfully obtained ... a controlled substance for his own use or for the use of a member of his household," 21 U.S.C. § 801(27), as by prescription from a practitioner. The term "practitioner" is defined to include "a physician, dentist, veterinarian, scientific 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 distribute, [or] dispense ... a controlled substance in the course of professional practice or research." 21 U.S.C. § 802(21).

The upshot of all those provisions is that because Steele was acting as an agent of a registered pharmacy, he was authorized to dispense controlled substances in the course of his professional practice as a pharmacist, but only pursuant to a prescription issued by a practitioner. See 21 U.S.C. § 829(a)-(b). That is undisputed. What is disputed between the parties is the meaning and effect of § 885(a)(1), which provides:

It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any ... indictment ... or in any trial ... 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.

The meaning of that provision, as it relates to the issue before us, is evident from its plain language: an indictment charging a violation of § 841(a)(1) need not negate the course of professional practice exception contained in § 822(b).

"In construing a statute we must begin, and often should end as well, with the language of the statute itself." Merritt v. Dillard, 120 F.3d 1181, 1185 (11th Cir.1997). Where the language Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must presume that Congress said what it meant and meant what it said. See, e.g., Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.").

Steele argues that United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), stands for the proposition that a practitioner may be convicted for distributing and dispensing controlled substances only if the government pleads and proves that those activities were outside the course of professional practice. That is not what that case holds. Certiorari was granted in Moore to review a court of appeals decision that 21 U.S.C. § 841 does not apply to registered practitioners, such as the physician in that case, regardless of whether their distributing and dispensing were in the course of professional practice. The Supreme Court reversed, holding that § 841 does apply to registered practitioners when their activities fall outside the usual course of professional practice. See id. at 124, 96 S.Ct. at 336. However, the Court did not address the issue of whether the outside the course of professional practice factor was an element of the offense or whether the government was required to plead it in the indictment. It is worthy of note that the indictment in the Moore case alleged nothing about the course of professional practice. See United States v. Moore, 505 F.2d 426, 446 n. 2 (D.C.Cir.1973) (dissenting opinion).

Steele also seeks support in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1961), in which the Supreme Court stated: "It is a general guide to the interpretation of criminal statutes that when an exception is incorporated in the enacting clause of a statute, the burden is on the prosecution to plead and prove that the defendant is not within the exception."...