U.S. v. Boettjer

• Decision Date: 21 February 1978
• Docket Number: No. 77-1225,77-1225
• Citation: 569 F.2d 1078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Louis BOETTJER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1078

569 F.2d 1078

UNITED STATES of America, Plaintiff-Appellee, v. Robert Louis BOETTJER, Defendant-Appellant.

No. 77-1225.

United States Court of Appeals Ninth Circuit.

Feb. 21, 1978.

Certiorari Denied April 17, 1978.

See 98 S.Ct. 1627.

Marcus S. Topel (argued), San Francisco, Cal., for defendant-appellant.

Lawrence Edelman (argued), San Francisco, Cal., for plaintiff-appellee.

On Appeal from the United States District Court for the Northern District of California.

Before HUFSTEDLER and SNEED, Circuit Judges, and PALMIERI, ^* District Judge.

PALMIERI, District Judge:

The appellant, Dr. Boettjer, a registered physician licensed to practice medicine in California, was convicted after a five day jury trial on seven counts of an indictment charging him with the unauthorized distribution and attempted distribution of controlled substances in violation of 21 U.S.C. § 841 and 21 U.S.C. § 846. ¹ He was sentenced to two years imprisonment on each count, to run concurrently, in addition to a fine of $15,000 payable over five years. Execution of the sentence was suspended and he was placed on probation for a period of five years. A special parole term of two years was also imposed as to each count, to run concurrently. Error is alleged with respect to the District Court's instruction to the jury on the elements of the crime charged and its refusal to give certain instructions requested by the appellant. We affirm.

I.

Between March 12, 1976 and May 3, 1976 three part-time investigators of the Drug Enforcement Administration made a number of visits to the appellant's office, representing themselves as patients, and sought prescriptions for methaqualone (a depressant, commonly known as quaalude) and methylphenidate (a stimulant, commonly known as ritalin). As part of their training they had been instructed not to offer any medical reasons for the prescription of these drugs. After conducting interviews, Dr. Boettjer issued a number of prescriptions for the requested drugs. The substance of these consultations was a matter as to which there was conflicting testimony at trial.

Although the sufficiency of the evidence is not challenged by the appellant, a brief review of the government's case is instructive. The three investigators provided the bulk of the evidence against Dr. Boettjer. They testified that upon their visits to the doctor's office they asked for the controlled substances by name, not complaining of any insomnia, depression, or any other condition requiring medical attention, but rather requesting the drugs because they were "out of them", "liked them", "needed a refill", "it picked me up", and so on. The doctor performed only the most casual physical examinations, in some cases weighing the patient fully dressed and taking blood pressure readings through the patient's clothing. There was evidence that Dr. Boettjer made no professional appointments, but received his callers on a first-come, first-serve basis, the priority of their visits being regulated by the order of their signatures on a sheet of paper attached to a clipboard; that very few of the visits lasted more than about five minutes; and that the doctor's established charge was $25 for a first visit and $12 for subsequent visits.

The testimony of the government's expert witness, Dr. Forrest S. Tennant, a chemist and medical doctor with distinguished professional credentials, supported the conclusion that Dr. Boettjer had dealt with the investigator-patients in an unprofessional manner without the application of sound medical criteria and that the prescriptions were not issued for legitimate medical purposes.

While the appellant testified in his own behalf and sought to cast a very different light upon his activities, the guilty verdict stands given a properly instructed jury as a rejection of his testimony.

II.

21 U.S.C. § 841(a)(1) makes it a crime for any person "knowingly or intentionally to . . . distribute, or dispense . . . a controlled substance," "except as authorized by this subchapter." Persons who are properly registered with the Attorney General are authorized to distribute and dispense controlled substances "in conformity with the other provisions of this subchapter." 21 U.S.C. § 822(b). It was stipulated at trial that Dr. Boettjer was a registered physician who was authorized to dispense controlled substances for legitimate medical purposes.

Quaalude and ritalin have both been classified by the Attorney General as Schedule II controlled substances. 21 C.F.R. § 1308.12. Schedule II substances are drugs which have a "high potential for abuse," and which may lead to "severe psychological or physical dependence," but which nonetheless have a "currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions." 21 U.S.C. § 812(b) (2). It was stipulated at trial that the drugs which Dr. Boettjer prescribed were in fact these controlled substances.

No controlled substance in Schedule II may be dispensed without the written prescription of a practitioner ², subject to certain exceptions not relevant here. 21 U.S.C. § 829(a). In order for a prescription for any controlled substance to be effective it "must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 C.F.R. § 1306.04(a). It is well established that prescriptions not satisfying the requirements of this regulation, if knowingly or intentionally issued, may form the predicate for a practitioner's criminal liability under 21 U.S.C. § 841. United States v. Rosenberg, 515 F.2d 190 (9th Cir. 1975), cert. denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L.Ed.2d 404 (1975); United States v. Green, 511 F.2d 1062, 1070 (7th Cir. 1975), cert. denied, 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404 (1975); United States v. Larsen, 507 F.2d 385 (9th Cir. 1974). It is also established that registered physicians are not immune from prosecution under 21 U.S.C. § 841 when their activities fall outside the usual course of professional practice. United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975).

III.

Appellant's central argument is that the jury instructions given by the trial court regarding the elements of the charged offenses were "erroneous, confusing, and severely prejudicial," in that they set forth an incorrect standard of criminal culpability, were at variance with the language of the indictment, and were grammatically confusing. In particular, appellant argues that the judge's failure to include the phrase "in the usual course of his professional practice" in his instruction constitutes reversible error, and that his use of the phrase "other than . . . in accordance with the medical standards generally recognized and accepted in the medical profession" incorrectly established malpractice as the standard of criminal culpability. It is urged that these actions permitted the jury to find the defendant guilty merely for practicing "bad medicine".

The language of the indictment is as follows:

" . . . ROBERT LOUIS BOETTJER, M.D., defendant herein, being a registrant authorized to dispense controlled substances for legitimate medical purposes, knowingly and intentionally did unlawfully prescribe and cause to be distributed to an ultimate user, the following quantities of drug controlled substances . . . ; said acts of distribution in each instance were not in the usual course of professional practice and were not for a legitimate medical purpose ; . . . " (emphasis added.)

The relevant excerpt of the instructions given at trial reads:

"As I indicated to you just now, the defendant, as a licensed physician, may issue prescriptions for controlled substances so long as he does so lawfully. In order for you to find the defendant guilty on any count, you must first find beyond a reasonable doubt that the prescription in that count was issued by him other than in good faith for a legitimate medical purpose and in accordance with the medical standards generally recognized and accepted in the medical profession. (emphasis added)

Thus, the first question you must decide under each count is whether the evidence shows beyond a reasonable doubt that what the defendant did was something other than an honest effort to prescribe for a patient's condition judged on the basis of standard medical practice recognized and accepted in the medical profession. Whether the defendant acted in good faith is not merely a matter of the good faith of his intentions toward the people who came to see him but, rather, the good faith of his effort to conduct himself in accordance with the medical standards generally recognized and accepted in the United States."

We reject at the outset appellant's contention that the mere omission of the words "in the usual course of his professional practice" was sufficient to render this instruction improper. A close look at the pertinent regulation reveals that the requirements of "legitimate medical purpose" and "usual course" both must be met in order for a prescription to be validly issued. The absence of either would support a conviction under 21 U.S.C. § 841. In fact, our reading of the Supreme Court's unanimous decision in Moore suggests that the "usual course" standard itself imports considerations of medical legitimacy and accepted medical standards. 423 U.S. at 138-143, 96 S.Ct. 335. Even if "usual course" has any significance independent of medical legitimacy, we are satisfied that its negation is not an essential element of the government's case. Proof beyond a reasonable doubt that the prescriptions were not issued pursuant to a legitimate medical purpose suffices to place them beyond the activities authorized by the Controlled Substances Act.

The more difficult question here is whether the given instruction clearly and sufficiently stated the applicable law to the jury. Although it is always somewhat...