U.S. v. Black

• Decision Date: 11 March 1975
• Docket Number: No. 73-3003,73-3003
• Citation: 512 F.2d 864
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur R. BLACK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 864

512 F.2d 864

UNITED STATES of America, Plaintiff-Appellee, v. Arthur R. BLACK, Defendant-Appellant.

No. 73-3003.

United States Court of Appeals, Ninth Circuit.

March 11, 1975.

Anthony Savage, Jr. (argued), Kempton, Savage & Gossard, Seattle, Wash., for defendant-appellant.

Irwin H. Schwartz, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Before MERRILL and KOELSCH, Circuit Judges, and MURRAY, ^* District Judge.

OPINION

KOELSCH, Circuit Judge:

Arthur R. Black appeals from a judgment convicting him of three counts of unlawfully distributing a controlled substance. 21 U.S.C. § 841(a)(1).

The first of his two assignments is in the nature of a claim of variance.

21 U.S.C. § 841(a)(1) reads, in pertinent part:

"(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally-

(1) to ... distribute, or dispense ... a controlled substance...."

Black contends, in substance, that his violations-if any were established-were those of dispensing not distributing (with which he was charged). Although recognizing that the quoted provision proscribes both acts, he argues that because he was-as the government itself proved-a duly licensed "practitioner," defined in § 802(20) as "a physician ... 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 ..." and because the deliveries here were pursuant to his prescriptions, that the matters came within the purview of 21 U.S.C. § 802(10), which reads: "The term 'dispense' means to deliver a controlled substance to an ultimate user ... pursuant to the lawful order of, a practitioner, including the prescribing ... of a controlled substance ..." and not within 21 U.S.C. § 802(11): "The term 'distribute' means to deliver (other than by administering or dispensing) a controlled substance...."

We disagree. By definition "dispense" expressly contemplates a "lawful order"; if the order is not such, the prescription is not lawful under 21 U.S.C. § 829. ¹ If the prescription is not lawful, the "practitioner" does not dispense; rather, under § 802(11), he "distributes"-that is, he effects delivery "other than by dispensing." ² In short, a "practitioner" who dispenses does not violate the Act. ³

"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.... 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 309 of the Act (21 U.S.C. § 829)...."

Black's second assignment, which he characterizes as one relating to evidence in reality poses a very nice question of substantive law.

Black was tried to the court. At the conclusion of the government's case in chief, he moved for a judgment of acquittal for failure of the government to prove that the prescriptions were not written "for a legitimate medical purpose in the usual course of his professional practice" and hence had not proved the nonapplicability of § 822(b), the medical exception which permits "practitioners" to lawfully dispense controlled substances. ⁴

The government, relying on 21 U.S.C. § 885(a)(1), ⁵ took the position that the medical exception was not in issue because Black had not produced evidence showing or tending to show that his prescriptions were for a legitimate medical purpose and hence had not fulfilled his burden of "going forward with the evidence with respect to any such exemption ...."

The trial court agreed with the government and when Black thereupon declined to adduce any proof and rested, the court found him guilty.

The reporter's transcript manifests that the court did not find that the prescriptions were not for a "legitimate medical purpose by an individual practitioner in the usual course of professional practice," and hence that Black's acts were outside the medical practitioner's exception. Instead, what appears is that the court based the conclusion of guilt solely upon the showing that the prescriptions were signed by Black and that controlled substances were transferred pursuant to those orders. This was error. The court confused burden of proof with burden of going forward.

Section 885(a)(1), viewed in the light of Supreme Court decisions governing the validity of presumptive devices which shift the burden of proceeding to a defendant, cannot validly be construed to require Black to put on evidence beyond that already adduced by the government in its case in chief. As we have pointed out above, the government by its own evidence established that Black was a "practitioner." To avoid running afoul of constitutional restrictions, this proof must be considered sufficient under § 885(a)(1) to raise the medical exception ⁶ and to then require the government to prove beyond a reasonable doubt that Black's acts were outside that exception, and hence criminal.

We are compelled to this conclusion by the standards set forth in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), for judging the validity under the Due Process Clause of statutory devices which authorize a presumption of guilt on proof of facts less than those statutorily defined to constitute the elements of the offense. That the statutory scheme involved here-a general prohibition with exceptions, with the burden on the defendant to raise the issue of exception-operates as such a presumptive device is, upon inspection, manifest. 21 U.S.C. § 841(a)(1), set out earlier in this opinion, does not proscribe all distributions of controlled substances but only those which are unauthorized, non-excepted distributions. In this case the exception is found in 21 U.S.C. § 822(b):

"Persons registered by the Attorney General under this subchapter to ... dispense controlled substances are authorized to ... dispense such substances ... to the extent authorized by their registration and in conformity with the other provisions of this subchapter."

To "dispense," of course, Black must, as indicated above, do so pursuant to a prescription "issued for a legitimate medical purpose ... in the usual course of his professional practice ...." Stated in terms of the exception involved here, the offense described by 21 U.S.C. § 841(a)(1) is distribution of controlled substances not authorized by § 822(b) because either (a) the physician issuing the prescription was not registered, or (b) the prescription was not "issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." (Indeed, the government conceded below that were the issue of exception raised, it would then bear the burden of proving each element of the crime as just described.)

21 U.S.C. § 885(a)(1) merely relieves the government of the necessity of proving one of the elements of the crime as defined, i. e., "lack of authorization in the subchapter," and places the burden on an accused of going forward with evidence respecting a potential exemption. Thus § 885(a)(1) effectively creates a presumption dictating that any transfer of a controlled substance is non-authorized and consequently criminal unless the accused introduces some evidence that the transfer is lawful under the statute. Although not worded in presumptive language, the statute here operates precisely like the presumptions dealt with in Leary, Turner, or Tot. ⁷ It authorizes a finding of guilt in the absence of proof of one of the elements of the crime defined-here "non-exception"-upon proof of other elements of the crime-here "knowing transfer of a controlled substance." ⁸

Thus, the validity and permissible manner of application of the statutory presumption of non-exception created by § 885(a)(1) must be measured by the standards applied by the Court in judging presumptions, the clearest statement of which is perhaps found in Tot :

"Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience." 319 U.S. at 467, 63 S.Ct. at 1245.

The Court clarified that formulation in Leary, Turner, and Barnes. In Leary the Court explained:

"The upshot of Tot, Gainey (United States v. Gainey, 380 U.S. 63 (85 S.Ct. 754, 13 L.Ed.2d 658) (1965)), and Romano (United States v. Romano, 382 U.S. 136 (86 S.Ct. 279, 15 L.Ed.2d 210) (1965)) is, we think, that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." 395 U.S. at 36, 89 S.Ct. at 1548.

In Turner and Barnes the Court reaffirmed that position but expressly declined to decide the issue, left open in Leary (see 395 U.S. at 36 n. 64, 89 S.Ct. 1532), of whether or not a presumed fact in a criminal case must follow beyond a reasonable doubt from the fact proved, or whether it is sufficient that the presumed fact follow more likely than not; in both cases the Court decided that the attacked presumptions satisfied the more stringent standard.

In addition, the Court, rejecting Holmes' "greater includes the lesser" ⁹ and Cardozo's "comparative convenience" ¹⁰ tests, also made clear in this line of cases that before the burden of...