People v. Cliche
| Citation | 444 N.E.2d 649,67 Ill.Dec. 413,111 Ill.App.3d 593 |
| Decision Date | 27 December 1982 |
| Docket Number | No. 81-2009,81-2009 |
| Parties | , 67 Ill.Dec. 413 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert CLICHE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James J. Doherty, Public Defender of Cook County, Chicago (Mary T. Woodward, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.
Richard M. Daley, State's Atty., County of Cook, Chicago (Michael E. Shabat and David A. Shapiro, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.
Defendant Robert Cliche was found guilty after a bench trial of four counts of illegal delivery of controlled substances in violation of section 401 of the Illinois Controlled Substances Act (Ill.Rev.Stat.1979, ch. 56 1/2, par. 1401) and sentenced to 30 months probation and fined costs of $1185. He appeals, contending that he was not proved guilty of the illegal delivery of controlled substances because he was a licensed medical doctor authorized to dispense prescriptions and was, therefore, exempt from prosecution under that section of the Illinois Controlled Substances Act.
We disagree and affirm.
The record discloses:
Special Agent Investigator Clem Ferguson of the Illinois Department of Law Enforcement (IDLE) testified that he was assigned to the drug diversion unit of the IDLE. He described his job as entailing the investigation of doctors, pharmacists and anyone who would have contact with controlled substances legally.
He visited the offices of defendant, Dr. Robert Cliche, at the Monitor Clinic, 5834 West Roosevelt Road, Chicago, about 3 p.m. on August 24, 1979. He first saw Dr. Cliche in the hallway outside one of the examination rooms. Ferguson was introduced to the doctor by a receptionist and then Cliche and Ferguson entered an examination room where they had a further conversation alone. Cliche asked Ferguson what strength and amount of Valium he wanted and Ferguson asked for 50 tablets of 5 milligram strength. Ferguson then returned to the reception area and, after a brief delay, Cliche walked to the front of the waiting room with a white index card and a slip of paper which he put on the receptionist's desk. The receptionist called out Ferguson's undercover name of Frank Deacon and Ferguson approached the desk where he was given a prescription form for 30 tablets of 5 milligram strength of Valium. The receptionist told Ferguson the form would cost $15. Ferguson paid her in cash and was given a receipt for a $15 office visit.
On September 6, 1979, Ferguson returned to the Monitor Clinic. He saw Cliche alone in an examination room. Ferguson told Cliche he needed the Valium prescription refilled for 60 rather than 30 tablets. Cliche said "fine" and asked Ferguson how many pills he took a day. Ferguson said he took three to four. Then Ferguson got up and returned to the reception area. Cliche walked out after a brief time and handed a white slip of paper to the receptionist, who called out the name of Frank Deacon. Ferguson then paid the receptionist $15 and was given an office visit receipt and prescription form.
On September 26, 1979, Ferguson again visited the Monitor Clinic. He was accompanied by Osborne Curtis, another IDLE agent who was using the undercover name of Osborne Curby. Ferguson greeted Cliche alone in one of the examination rooms and asked for 90 tablets of Valium and some Preludin. Cliche told Ferguson that he would have to raise the price of the Preludin prescription to $50 because people were starting to come in there like flies for Preludin. Ferguson said he had a partner outside who also wanted a prescription of Preludin. He then returned to the reception area. The receptionist called Ferguson's undercover name and he received two prescription forms--one for 90 tablets of 5 milligram Valium and one for 30 tablets of 75 milligram strength Preludin. Ferguson handed the receptionist $50 for his prescription and $50 for Curtis's prescription.
Ferguson testified that on all his visits the only information he supplied to the Clinic was his name and address. He gave no medical information on present treatment or medication, no past medical history and was given no medical examination. On cross examination, he stated that he had given someone at Monitor Clinic information on his current medication; he had told the receptionist on one of his earlier visits that he had just got out of Cook County Jail and had been on Valium. He also testified that the index card that had been prepared on him at the Clinic contained only his name and address as of his September 6, 1979, visit. He did not know what information was contained on it afterward nor did he ever ask to see any information about himself other than that card. He further testified that, during his investigation of the doctor, defendant was licensed to practice medicine in Illinois in all branches and forms.
The parties then stipulated that Robin Kunze, a forensic scientist with the IDLE, would testify that she was a handwriting expert and that from her examination of exemplars of defendant's handwriting and the handwriting on the prescriptions and the office visit receipts she concluded that the prescriptions and the receipts were in the handwriting of defendant.
Doctor Marshall B. Segal, M.D., J.D., testified that he was a practicing emergency physician; that, based on his duties as an instructor and the offices and affiliations he holds, he has had occasion to come into contact with the use of prescriptions and controlled substances. He testified that there are certain standards of medical practice for prescribing controlled substances which were implicit in the practice of medicine: Prescriptions must be issued in the "due practice" or "due course of medicine." A doctor cannot prescribe medication without having a patient's problem and a medical history. With reference to Valium, he stated that he never prescribes Valium without conducting a medical examination, although it is prescribed without examinations. Segal was asked three hypothetical questions over defense objection concerning the circumstances under which Ferguson had met Cliche and had been prescribed Valium and Preludin on the three visits. In his opinion, none of the hypothetical situations constituted conduct within the regular course of medical treatment or were they in the practice of medicine.
Defendant did not present any evidence.
The sole issue before us is whether a physician who is registered under the Illinois Controlled Substances Act () can be prosecuted under section 401 of that Act for delivering controlled substances. We answer this question affirmatively.
Section 401 provides (Ill.Rev.Stat.1979, ch. 56 1/2, par. 1401):
" § 401. Except as authorized by this Act, it is unlawful for any person knowingly to manufacture or deliver, or possess with intent to manufacture or deliver, a controlled substance. * * * "
"Deliver" is defined in section 102 as "the actual, constructive or attempted transfer of possession of a controlled substance, with or without consideration, whether or not there is an agency relationship." Ill.Rev.Stat.1979, ch. 56 1/2, par. 1102(i).
Subparagraph (h) of section 312 provides (Ill.Rev.Stat.1979, ch. 56 1/2, par. 1312(h)):
" * * * An order purporting to be a prescription issued to any individual, which is not in the regular course of professional treatment * * *, and which is intended to provide that individual with controlled substances sufficient to maintain that individual's or any other individual's physical or psychological addiction, habitual or customary use, dependence, or diversion of that controlled substance is not a prescription with the meaning and intent of this Act; and the person issuing it, shall be subject to the penalties provided for violations of law relating to controlled substances."
Thus, it is clear that the delivery of possession of a controlled substance by what purports to be a legitimate prescription, but which is not, is not an authorized delivery "[e]xcept as authorized by this Act" within the exception in section 401.
Section 401(a)(1) of the Federal Controlled Substances Act (84 Stat. 1242, 21 U.S.C. § 841(a)(1)), parallel in substance to section 401 of the Illinois Act, provides:
In United States v. Moore (1975), 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333, the Supreme Court held that registered physicians can be prosecuted under section 841(a)(1) when their activities fall outside the usual course of professional practice. The court said (423 U.S. 122, 131-32, 96 S.Ct. 335, 340-41, 46 L.Ed.2d 333):
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