595 F.2d 258 (5th Cir. 1979), 78-5347, United States v. Hayes

Docket Nº:78-5347.
Citation:595 F.2d 258
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Timothy Alden HAYES, Defendant-Appellant.
Case Date:May 17, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 258

595 F.2d 258 (5th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Timothy Alden HAYES, Defendant-Appellant.

No. 78-5347.

United States Court of Appeals, Fifth Circuit

May 17, 1979

James A. Moore, Houston, Tex., for defendant-appellant.

J. A. Canales, U. S. Atty., John M. Potter, George A. Kelt, Jr., Carl Walker, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Page 259

Appeal from the United States District Court for the Southern District of Texas.

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

GODBOLD, Circuit Judge:

Hayes, a registered pharmacist, was convicted of one count of conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. § 841(a) (1) and 21 C.F.R. 1306.04(a) promulgated thereunder and 35 counts of distribution of Schedule II drugs pursuant to prescriptions which he knew bore false names or were not issued in the usual course of professional practice. The substances were Dilaudid, a narcotic similar to morphine, and Preludin. Hayes asserts that the statute and accompanying regulation are unconstitutionally vague, that there was insufficient evidence to support the convictions, and that there was a variance. We reject all these claims and affirm the conviction.

We set out in the margin the statute and the regulation. 1 The purpose of the regulation is to define the circumstances in which a physician or pharmacist who is registered to dispense controlled substances may nevertheless be held to have violated the proscription against manufacturing, distributing or dispensing a controlled substance contained in 21 U.S.C. § 841. In U. S. v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Supreme Court concluded that a doctor may be convicted for violations of § 841 when he dispenses controlled substances "outside the usual course of professional practice." Id. at 124, 96 S.Ct. at 337, 46 L.Ed.2d at 337. 2 The court rejected the argument that, because a doctor is registered with HEW and may therefore legally prescribe controlled substances, he is exempted from the criminal sanctions of § 841. A registered doctor or pharmacist is exempted from § 841's proscription only when he acts in the normal course of his professional activities. The challenged regulation merely restates the Court's conclusion in Moore.

In U. S. v. Collier, 478 F.2d 268 (CA5, 1973), this court rejected a physician's vagueness challenge to § 841 and accompanying regulations. The court drew its vagueness standard for testing § 841 from the Supreme Court's opinions in Doe v. Bolton,

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410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and U. S. v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971). Both of those cases involved a constitutional attack on state statutes prohibiting doctors from performing an abortion unless the doctor concluded that it was necessary to preserve the mother's health. The Court concluded that whether an operation is necessary is the type of professional judgment doctors are "called upon to make routinely." Doe v. Bolton, supra at 192, 93 S.Ct. at 747, 35 L.Ed.2d at 212 (quoting U. S. v. Vuitch, supra 402 U.S. at 72, 91 S.Ct. at 1299, 28 L.Ed.2d at 601). The Collier court decided that a doctor's judgment whether a patient needs a Schedule II drug is also a routine judgment and that a criminal standard that only makes unlawful the prescribing of drugs outside the course of professional practice is not unconstitutionally vague. Id. at 272; Accord, U. S. v. Anderson, 523 F.2d 1192, 1197 (CA5, 1975).

We turn then to application of statute, regulations, and case law to pharmacists. We need none of these to tell...

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