Com. v. Brown, 07-P-1631.

Citation904 N.E.2d 452,74 Mass. App. Ct. 75
Decision Date15 April 2009
Docket NumberNo. 07-P-1631.,07-P-1631.
PartiesCOMMONWEALTH v. Michael R. BROWN.
CourtAppeals Court of Massachusetts

Russell J. Redgate for the defendant.

Scott A. Katz, Assistant Attorney General (Steven L. Hoffman, Assistant Attorney General, with him) for the Commonwealth.

Present: RAPOZA, C.J., DREBEN, & MILLS, JJ.

DREBEN, J.

The defendant, a physician, appeals from his convictions on multiple charges of illegally prescribing controlled substances in violation of G.L. c. 94C, §§ 32A(a) and 32B(a),1 from his convictions of submitting false medical claims in violation of G.L. c. 118E, § 40(2), and from his conviction of larceny of an amount in excess of $250.2,3 All except two of the indictments were tried to a jury. Subsequent to the jury trial, the same judge heard the remaining two indictments. These two charged drug offenses were dependent on the admission of an audio-video recording that the defendant claims was inadmissible.4 We affirm the convictions.

1. Violation of G.L. c. 94C on indictments tried to a jury. Pointing to the statutory definitions of "dispense" and "ultimate user" in G.L. c. 94C, § 1, the defendant claims that his convictions were not supported by the evidence. He does not seriously dispute that there was evidence that he prescribed the drugs and that the prescriptions were not written in good faith for legitimate medical purposes.5 Rather, he asserts what he terms an issue of law, namely, that he cannot be convicted of illegally dispensing the drugs, under the definitions in § l of c. 94C. Those definitions in relevant part state:

"`Dispense', [means] to deliver a controlled substance to an ultimate user or research subject ... by a practitioner or pursuant to the order of a practitioner, including the prescribing and administering of a controlled substance ..." (emphasis supplied).

"`Ultimate user', [means] a person who lawfully possesses a controlled substance for his own use or for the use of a member of his household...."

G.L. c. 94C, § 1, as amended through St.1972, c. 806, § 3; G.L. c. 94C, § 1, inserted by St.1971, c. 1071, § 1.

The defendant argues that the evidence is insufficient to support the convictions for false prescribing by unlawfully "dispensing" controlled substances because the evidence fails to establish that the "ultimate users" were lawful possessors of such substances.6 Although the statute presents difficulties when only the definitions of "ultimate user" and "dispense"7 are examined, the defendant's conclusion is not in accord with the interpretation given to the statute by our cases.

Recognizing that G.L. c. 94C poses certain problems, our cases emphasize that the separate provisions of the statute must be read in context with its other provisions in order to construe the statute as a harmonious whole. General Laws c. 94C, § 32A(a), as amended through St.1982, c. 650, § 7, the statute the defendant principally is charged with violating, provides:

"(a) Any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance in Class B of section thirty-one shall be punished by imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than two and one-half years, or by a fine of not less than one thousand nor more than ten thousand dollars, or both such fine and imprisonment."8

As noted in Commonwealth v. Perry, 391 Mass. 808, 812 n. 3, 464 N.E.2d 389 (1984):

"General Laws c. 94C, §§ 32-32G, standing alone, would appear to prohibit the delivery by a physician to a patient of medically necessary prescriptions in all instances. However, those sections must be read in conjunction with G.L. c. 94C, §§ 7, 9, 18, 19, 24, 25, and 26. When read together, the several sections provide that a registered physician is authorized to prescribe medically necessary controlled substances if required procedures are followed, but not otherwise."

See Commonwealth v. Kobrin, 72 Mass. App.Ct. 589, 595, 893 N.E.2d 384 (2008).

In Commonwealth v. Comins, 371 Mass. 222, 226, 356 N.E.2d 241 (1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977), the defendant made an argument similar to the contention of the present defendant. Pointing to the statutory definitions, he argued that a practitioner can be charged with dispensing only when the delivery is a lawful one. Id. at 225, 356 N.E.2d 241. The court, however, noted, "If `dispensing' only can be a lawful act under G.L. c. 94C, it is difficult to explain why the word appears in § 32 to describe unlawful conduct." Id. at 226, 356 N.E.2d 241. Rejecting the defendant's claim and emphasizing that the word "lawful," while originally contained in the statutory definition, was deleted by the Legislature in 1972, the court held that "[a] physician who issues a prescription not intending to treat a patient's condition in the usual course of his practice of medicine does not issue a valid prescription, and he thus violates § 32." Id. at 232, 356 N.E.2d 241. "A physician who unlawfully issues a prescription for a controlled substance may `dispense' a controlled substance. ... There is nothing in [the] definition which indicates that the controlled substance or the prescription must be delivered lawfully." Id. at 226, 356 N.E.2d 241. The court then gave an expansive interpretation of "ultimate user," holding that undercover police officers given unlawful prescriptions, i.e., prescriptions not for legitimate medical purposes, were in lawful possession of the drugs. Id. at 230-231, 356 N.E.2d 241.

Subsequently, the court in Commonwealth v. Chatfield-Taylor, 399 Mass. 1, 4 n. 4, 502 N.E.2d 512 (1987), stated, "Both [G.L. c. 94C,] §§ 19 and 32A[,] are involved in the crime of unlawful dispensing of a controlled substance." Section 19(a), as amended through St.1982, c. 650, § 1, provides:

"A prescription for a controlled substance to be valid shall be issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances shall be upon the prescribing practitioner, but a corresponding responsibility shall rest with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section one and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided by sections thirty-two, thirty-two A, thirty-two B, thirty-two C, thirty-two D, thirty-two E, thirty-two F, thirty-two G, and thirty-two H, as applicable."

Without mention of the term "ultimate user," the court in Chatfield-Taylor explicitly stated that "[t]he essential elements of the crime of unlawful dispensing of a controlled substance are set out in G.L. c. 94C, § 19" (footnote omitted). 399 Mass at 4, 502 N.E.2d 512. Commonwealth v. Pike, 430 Mass. 317, 318, 321, 718 N.E.2d 855 (1999), is to the same effect.

The Massachusetts Superior Court Criminal Practice Jury Instructions § 2.49.5, Supplemental Instruction (c) (Mass. Continuing Legal Educ. 1999 & Supp. 2003), are in accord, stating:

"The word `dispense' means the unlawful delivery of a controlled substance to an ultimate user by a practitioner, or pursuant to the order of a practitioner, including the prescribing and administering of a controlled substance."

The jury instructions do not define ultimate user. The comment to the instruction, other than setting forth the full definition of dispense in G.L. c. 94C, § 1, refers only to Commonwealth v. Pike, 430 Mass. at 321-322, 718 N.E.2d 855, and to note 3 of Commonwealth v. Perry, 391 Mass. at 812, 464 N.E.2d 389, set forth above, to the effect that when read together the several sections of the statute provide that a registered physician is authorized to prescribe medically necessary controlled substances if required procedures are followed, but not otherwise. "Dispense" in our cases has thus been construed to encompass the elements in G.L. c. 94C, § 19, without reference to the definition of ultimate user.

This also is the prevailing view under the Federal law. The Federal Controlled Substance Act defines "dispense"9 in language more problematic than the Massachusetts definition and has a very similar definition for "ultimate user."10 See 21 U.S.C. § 802(10), (27) (2006). Both the Massachusetts statute and the Federal statute define "distribute" as to deliver, other than by administering or dispensing, a controlled substance. See G.L. c. 94C, § 1; 21 U.S.C. § 802(11) (2006).11

Without discussing the form of the indictment that charged the defendant with "knowing and unlawful distribution and dispensation" of controlled substances, the United States Supreme Court in United States v. Moore, 423 U.S. 122, 124, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), held that the defendant, a registered physician, could be prosecuted under 21 U.S.C. § 841 for dispensing or distributing controlled substances. Prior to that decision, the United State Courts of Appeals for the First and the Ninth Circuits, based on the term "lawful" in the Federal statutory definition of "dispense," see note 9, supra, held that "distribution" is the offense committed by a defendant physician who writes prescriptions not in the course of professional medical practice. See United States v. Badia, 490 F.2d 296, 298 (1st Cir.1973); United States v. Black, 512 F.2d 864, 866 (9th Cir.1975). Later cases in both circuits diluted the distinction. See United States v. Limberopoulos, 26 F.3d 245, 247 (1st Cir.1994) (conspiring to dispense); United States v. Feingold, 454 F.3d 1001, 1003, 1010-1011 (9th Cir.), cert. denied,...

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