505 F.2d 426 (D.C. Cir. 1974), 73-1192, United States v. Moore

Docket Nº:73-1192.
Citation:505 F.2d 426
Party Name:UNITED STATES of America v. Thomas W. MOORE, Jr., Appellant.
Case Date:October 18, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 426

505 F.2d 426 (D.C. Cir. 1974)

UNITED STATES of America

v.

Thomas W. MOORE, Jr., Appellant.

No. 73-1192.

United States Court of Appeals, District of Columbia Circuit

October 18, 1974

Argued Oct. 25, 1973.

Certiorari Granted Feb. 18, 1975, See

95 S.Ct. 1116.

Raymond W. Bergan, Washington, D.C., for appellant. Edward Bennett Williams and Steven M. Umin, Washington, D.C., were on the brief for appellant. John B. Kuhns, Washington, D.C., also entered an appearance for appellant.

Peter C. Schaumber, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and Vincent R. Alto, Asst. U.S. Attys., were on the brief for appellee.

Page 427

Before BAZELON, Chief Judge, and McGOWAN and MacKINNON, Circuit judges.

BAZELON, Chief Judge:

Appellant, a licensed physician, was registered under 822 of the Controlled Substances Act 1 to prescribe methadone. He was convicted of violating 841 of the Act, which forbids prescriptions without authorization. We find 841 inapplicable to appellant and reverse his conviction.

Our conclusion is reached by force of the established principle that 'when (a) choice has to be made between two readings of what conduct Congress had made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.' 2 This rule, of course, cannot serve to 'override . . . evident statutory purpose.' 3 In the search for an 'evident statutory purpose,' our analysis necessarily covers a complex maze of statutory language, regulatory provisions, and previous legislation.

I

Methadone is an addictive drug which can be used in the treatment of narcotics addiction. 4 A heroin addict who switches to methadone may experience neither a craving for heroin nor a euphoric 'high.' Moreover, methadone can be taken orally once a day, while heroin must often be injected several times a day.

There are two general approaches to the use of methadone in treating addicts-- maintenance and detoxification. Under a system of maintenance, a large dose of methadone is given once a day for an indefinite period in order to keep the patient from taking heroin. In detoxification, the less controversial approach, a large dose of methadone is given for the first few days in order to keep the patient free of withdrawal symptoms. The dose is then gradually reduced, ultimately to achieve abstinence from all drugs.

The evidence at appellant's trial established that from August, 1971 to February, 1972 appellant prescribed methadone to numerous patients. Under the Controlled Substance Act only those doctors who have obtained registration from the Attorney General can prescribe a 'controlled substance' such as methadone. 5 Appellant had obtained such registration for the period in question and it was never revoked during that period.

Appellant contended at trial that he prescribed methadone in good faith for detoxification. The government argued that appellant was no more than a 'pusher':

He used the physician's cloak as a cover to sell drugs . . . There was no medical purpose behind this-- there was only one purpose: money.

As appellant concedes in his brief to this court, 6 the evidence at trial established that he engaged in certain highly

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irregular practices during the period in question:

1.) He prescribed methadone in whatever quantities the patient requested;

2.) His fees were graduated in accordance with the quantity of methadone prescribed;

3.) He did not make certain that the patients for whom he was prescribing methadone were addicts. Some were not, and some delivered their methadone to non-patients.

In a 639-count indictment filed June 27, 1972, 7 appellant was charged with violating 841(a) of the Controlled Substances Act:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally-- (1) to . . . distribute, or dispense (that is, prescribe) . . . a controlled substance.

When appellant was arraigned, the trial judge told the prosecutor that the theory of the government's case would have to be spelled out in greater detail since 'the indictment doesn't tell the defendant anything.' Accordingly, at a pre-trial hearing government counsel offered an oral bill of particulars. Counsel noted that pursuant to a provision in the Controlled Substances Act the Attorney General had promulgated regulations governing those registered to prescribe controlled substances. The government relied on appellant's alleged violation of one of those regulations:

(Government Counsel): The Government would rely on the Section numbered 306.04. And, the two main sections or the two main parts of that section that apply to this case, that is, the specific theories of the Government's case, is section (a) which states in part: '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.'

It is the Government's contention and theory that the conduct by Dr. Moore in giving out these prescriptions was not for a legitimate medical purpose, and secondly, that he was not acting in the usual course of his professional practice.

The second aspect of that regulation is part (c), which states in part: 'A prescription may not be issued for the dispensing of narcotic drugs to a drug addict for the purposes of continuing his dependence upon such drugs.'

It is the Government's contention that these prescriptions were issued to maintain these drug addicts as drug addicts, and that he was not issuing these prescriptions to detoxify them, but retaining them as drug addicts.

So, that really boils down to the end result of what I stated, that he was conducting methadone maintenance or maintaining drug addicts rather than detoxifying them as he was only authorized to do by his regulations, and by his violation of these regulations he violated 841(a) of the CSA.

THE COURT; I will take that statement which you made, Mr. Alto, in the nature of a Bill of Particulars, and limit your proof accordingly, and it will be of notice to (defense counsel) as to the theory of the case.

(Government Counsel): Yes, your Honor.

Appellant's trial commenced on October 17, 1972. After the prosecution rested, the defense moved for a judgment of acquittal, noting that the government had failed to establish that appellant was not authorized to write prescriptions for methadone. The motion was denied. After the defense rested, the court, in keeping with the government's

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theory of the case, instructed the jury that it had to find:

beyond a reasonable doubt that a physician who knowingly or intentionally did dispense or distribute (methadone) by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.

The jury returned a verdict of guilty on 22 counts. Appellant was sentenced to prison terms of five to fifteen years on each of fourteen counts, all to run concurrently, and ten to thirty years on each of the remaining eight counts, to run concurrently to each other but consecutively to the first set of sentences. Fines totalling $150,000 were also imposed. 8

II

Appellant contends that his indictment must be dismissed because 841 of the Controlled Substances Act does not apply to doctors registered to dispense methadone. He argues that if he acted unlawfully he was subject to trial only under those sections of the statute which specifically govern the activities of registered doctors-- sections with less severe penalties than those in 841. This contention is the only one we address. We do not decide under what circumstances, if any, an individual such as appellant could lawfully administer a methadone maintenance program. Nor do we decide whether appellant was in fact maintaining addicts, detoxifying them, or simply pushing drugs. We may assume that appellant, a licensed physician registered to prescribe methadone, acted wrongfully. We are only concerned with the consequences of such action.

There is support in the language and history of 822 of the Act for appellant's contention that 841 does not apply to him. 822(b) specifically provides that persons registered by the Attorney General to dispense controlled substances are 'authorized (to do so) to the extent authorized by their registration and in conformity with the other provisions of this subchapter.' The language echoes the 'except as authorized' language of 841, suggesting immunity for registrants from the penal sanctions provided for in that section. Of course, that a registrant is 'authorized . . . to the extent authorized' lends some credence to a theory that Congress did not intend authorization for registrants to extend beyond compliance with the other provisions of the Act and the regulations promulgated thereunder.

The legislative history of 822, however, weighs against such a theory. The Act, as it was originally passed by the Senate, 9 did not contain a section comparable to 822(b). The provision was inserted by the House Committee on Interstate and Foreign Commerce, which flatly stated in its report that the purpose of the addition was 'to make it clear that persons registered under this title are authorized to deal in or handle controlled substances.' 10 The Committee's explanation contains no suggestion that it intended to authorize only registrants who complied in every way with responsibilities established under other sections of the Act. 11

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