U.S. v. Blanton, 82-5309

• Decision Date: 30 April 1984
• Docket Number: No. 82-5309,82-5309
• Citation: 730 F.2d 1425
• Parties: 15 Fed. R. Evid. Serv. 1133 UNITED STATES of America, Plaintiff-Appellee, v. Frederick M. BLANTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1425

730 F.2d 1425

15 Fed. R. Evid. Serv. 1133

UNITED STATES of America, Plaintiff-Appellee, v. Frederick M. BLANTON, Defendant-Appellant.

No. 82-5309.

United States Court of Appeals Eleventh Circuit.

April 30, 1984.

Jon H. Gutmacher, Fort Lauderdale, Fla., for defendant-appellant.

Stanley Marcus, U.S. Atty., Thomas A. Blair, Linda Collins Hertz, Jon May, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

A jury convicted Frederick Marsh Blanton, a medical doctor specializing in ophthamology, on three counts of distributing methaqualone (quaaludes), a controlled substance in violation of 21 U.S.C.A. Sec. 841(a)(1), one count of acquiring a controlled substance by fraud, misrepresentation, and deception in violation of 21 U.S.C.A. Sec. 843(a)(3), and one count of failing to keep accurate records of controlled substances dispensed in violation of 21 U.S.C.A. Sec. 842(a)(5). Blanton raises a number of issues on appeal: misconstruction of the governing statute by the district court; sufficiency of the evidence; various evidentiary rulings; and violation of his fifth amendment privilege against self-incrimination. We affirm.

A brief review of the federal statutory scheme embodied in the Controlled Substances Act, 21 U.S.C.A. Sec. 801 et seq., ¹ which regulates the means by which medical doctors may acquire and dispense controlled substances is necessary to an understanding of defendant's contentions.

In passing the Controlled Substances Act, "Congress was particularly concerned with the diversion of drugs from legitimate channels to illegitimate channels." United States v. Moore, 423 U.S. 122, 135, 96 S.Ct. 335, 342, 46 L.Ed.2d 333 (1975). The Act attempts to limit this diversion by strict registration requirements for all persons including physicians, who are authorized by state law to handle controlled substances. The registration scheme includes formalized drug ordering procedures and certain types of recordkeeping thus allowing the federal government's Drug Enforcement Administration (DEA) to closely monitor the flow of controlled substances from manufacturer to the hands of the consumer. To simplify the DEA's task, controlled substances are divided into categories or schedules. The schedules are numbered I through V with I including the most dangerous drugs and V the least dangerous. Schedule II N is the schedule for methaqualone. Doctors must register for the schedules they wish to dispense or use in research and order drugs in those schedules on DEA promulgated forms. Subject to certain exceptions, physicians must keep records of the drugs they dispense or use in research. Failure to comply can be a criminal violation.

Defendant's Status

In March, 1976, Blanton was first contacted by the DEA. At that time, he was registered to handle substances in Schedules II through V, including Schedule II N. The DEA had become concerned because of the unusually large quantities of methaqualone defendant had been purchasing. DEA Investigator Chaves conducted an audit of defendant's methaqualone supply, and found that he had 63,500 tablets on hand. When questioned about why he needed so much methaqualone, defendant said he was doing research. He failed to produce any satisfactory records of that research. Investigator Chaves explained what type of records must be maintained by researchers. Defendant promised to comply.

When Blanton renewed his DEA registration for 1976-77 in July of 1976, he omitted Schedule II N, which was the methaqualone schedule, and all less dangerous drug schedules from his registration application, checking only the box for Schedule II narcotic substances. Despite his failure to register for Schedule II N on his 1976-77 DEA registration, Blanton continued to order large quantities of methaqualone. As a result, he received a visit from Investigator Chaves in October of 1976. Chaves informed defendant that he was not registered to handle methaqualone, and requested that he immediately register in Schedule II N. Defendant disregarded Chaves's instructions but continued ordering methaqualone. Between November 19, 1976 and October 10, 1977, defendant purchased 294,000 methaqualone tablets from pharmaceutical houses.

When defendant renewed his DEA registration for the year 1977-78, he again omitted Schedule II N from his registration application. This prompted a third visit from Investigator Chaves on October 7, 1977. Defendant told Chaves that his failure to register for Schedule II N was a "clerical error." Chaves explained to defendant the procedure for registering and cautioned him not to dispose of the methaqualone then in his possession.

An audit of defendant's methaqualone supply five weeks later revealed 92,000 tablets. At that time, Chaves again warned defendant not to dispose of the methaqualone because he was not properly registered. A subsequent search of his medical files revealed no record of how defendant disposed of the almost 300,000 tablets he had procured over the previous year and a half.

On December 5, 1977, defendant called William Lenck, who was then an executive assistant to the Administrator of the DEA. In a rambling conversation with Lenck, defendant said that he had not checked all the blocks on his registration application because "it would reveal information concerning research projects that he did not want to be revealed." Defendant also disclosed that 3,000 persons were involved in his present project. This conflicted with a statement he had made earlier to a DEA attorney, when he claimed to have between fourteen and thirty thousand persons in his project.

Shortly thereafter, defendant was observed emptying the safe deposit boxes where he stored his supply of methaqualone. Defendant was promptly arrested. Only 16,500 out of the 92,000 tablets noted in the latest audit were found by the police.

Section 841(a) Violations

Defendant disputes his conviction on three counts of dispensing methaqualone in violation of 21 U.S.C.A. Sec. 841(a)(1), the general criminal provision of the Controlled Substances Act, on the ground that the trial judge improperly charged the jury that he could be convicted for simply not complying with the technicalities of the registration requirement. The primary issue is whether a physician who dispenses a controlled substance in knowing violation of the Controlled Substances Act's registration requirement can be convicted under 21 U.S.C.A. Sec. 841(a)(1) without proof that the drugs were dispensed outside the bounds of professional practice. Defendant correctly asserts that under the charge given by the trial court he could have been convicted of a section 841(a)(1) violation by simply willfully not registering for methaqualone but dispensing it anyway ². Contrary to defendant's argument, however, this correctly states the law.

In pertinent part, section 841(a)(1) reads: "except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--(1) to manufacture, distribute, or possess with intent to manufacture, distribute, or dispense, a controlled substance...." Section 822(b) defines what activities are authorized by the subchapter and by implication fills out the "except as authorized by this subchapter" part of section 841.

Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense controlled substances are authorized to possess, manufacture, distribute, or dispense such substances ... to the extent authorized by their registration....

21 U.S.C.A. Sec. 822(b) (emphasis added). Thus, under the plain language of the statute, a person who is not registered by the Attorney General for a given substance is not authorized to dispense it and thus is not excepted from prosecution under section 841.

Defendant attempts to avoid this conclusion by arguing that section 841 was designed to criminalize the activities of drug pushers and not registrants who technically violate the registration provisions of the Act. Defendant contends that "technical" violations involving registration can only be prosecuted under 21 U.S.C.A. Secs. 842 ³ and Sec. 843 ⁴. To support this argument, defendant cites United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). Although some of the language in Moore appears to buttress defendant's position, the case is of limited relevance because of its different factual setting. Moore involved the question of whether a physician could ever be prosecuted under section 841(a)(1) for dispensing drugs for which he was registered. The Supreme Court held that a physician could violate section 841 even when acting pursuant to his registration if he exceeded the usual course of professional practice, only the lawful acts of registrants being exempted. Moore does not, however, support the argument that a physician not registered to dispense the drugs he is dispensing could not be prosecuted if his activity would be within the usual course of professional practice, if he had been registered. Defendant clearly falls within the statutory prohibition and not the exception because he was not registered to dispense methaqualone.

In the alternative, defendant argues that he was registered for methaqualone because registration in Schedule II automatically registered him for all less dangerous drug schedules, including those covered by Schedule II N.

The "concept of 'registration' " is the heart of the statute. United States v. Moore, 423 U.S. at 140, 96 S.Ct. at 344. Registration circumscribes the authority to dispense controlled substances. Section 822(b) allows practitioners to dispense controlled substances only "to the extent authorized by their registration". The statute is sufficiently clear to prevent an interpretation that physicians can dispense drugs for...