U.S. v. Davis

Decision Date11 October 1977
Docket NumberNo. 76-3720,76-3720
Citation564 F.2d 840
Parties2 Fed. R. Evid. Serv. 746 UNITED STATES of America, Plaintiff-Appellee, v. Irving DAVIS, M. D., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

George C. Martinez (argued), San Francisco, Cal., for defendant-appellant.

Lawrence Edelman, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.

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

Before BARNES and WRIGHT, Circuit Judges, and JAMESON, * District Judge.

BARNES, Senior Circuit Judge:

A jury convicted Irving Davis, M. D., on 20 counts for having, on 20 separate occasions, unlawfully "prescribed and caused to be distributed to an ultimate user" certain quantities of "controlled substances" listed in 21 U.S.C. § 812 and Title 21 Code of Federal Regulations, Chapter 2, Part 1308, which acts of distribution in each instance were not in the usual course of professional practice and were not for a legitimate medical purpose. The drugs involved herein were Seconal, Ritalin and Tuinal.

Counsel for defendant moved (a) for judgment of acquittal, as to each count, at the conclusion of the Government's case (Rule 29 of the Federal Rules of Criminal Procedure ("FRCrP")); (b) for judgment of acquittal on each count after the case went to the jury (Rule 29(c) of the FRCrP); (c) for a new trial (Rule 33 of the FRCrP); and (d) for arrest of judgment after trial (Rule 34 of the FRCrP). All such motions were denied.

Appellant was sentenced to five years probation, and a fine of $1500 on each of the 20 counts, a total fine of $30,000. This appeal follows. We have jurisdiction. (28 U.S.C. § 1291).

Appellant raises the following issues:

1. Whether 21 U.S.C. § 811 amounts to an unconstitutional delegation of Congressional power.

2. Whether the independent, knowing actions by government agents can be an element of the offense and charged against the defendant.

3. Whether the trial court erred in admitting conclusionary testimony of the government expert.

4. Whether the trial court erred in admitting into evidence certain photographs obtained by allegedly unconstitutional methods and supposedly withheld from defense counsel prior to the day of trial.

5. Whether the trial court erroneously instructed the jury as to the law.

6. Whether the argument of government counsel was plain error within the meaning of Rule 52 of the FRCrP.

7. Whether the evidence was, as to all counts or certain enumerated counts, insufficient as a matter of law.

8. Whether the 20 counts herein were multiplicious. We consider each issue in turn.

I

Appellant initially argues that Congress, in passing the Comprehensive Drug Abuse Prevention & Control Act (herein "the Act") has unconstitutionally delegated its authority to define a crime and specify penalties for its violation to the Attorney General (and to the Administrator of the Drug Enforcement Administration) with respect to amendment of the schedules listed in 21 U.S.C. § 812. Without citing specific case authority, appellant makes the claim that any republishing of the schedules, with any omissions or additions made pursuant to 21 U.S.C. § 811(a) 1, "would in effect, be a determination of a new drug crime and new penalties."

The cases are against any such proposition. United States v. Benish, D.C., 389 F.Supp. 557 (1975), affirmed without opinion, Appeal of Gaich, 3 Cir., 523 F.2d 1050 (1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359 (1976); United States v. Rosenberg, 515 F.2d 190, 196-197 (9th Cir.), cert. denied, 423 U.S. 1031, 96 S.Ct. 562, 46 L.Ed.2d 404 (1975); United States v. Piatti, 416 F.Supp. 1202, 1205 (E.D.N.Y.1976).

The federal courts have long held that Congress may validly provide a criminal sanction for violation of rules or regulations which it has empowered the President, a cabinet member or an administrative agency to promulgate. Avent v. United States, 266 U.S. 127, 130-131, 45 S.Ct. 34, 69 L.Ed. 202 (1924); McKinley v. United States, 249 U.S. 397, 399, 39 S.Ct. 324, 63 L.Ed. 668 (1919); United States v. Grimaud 220 U.S. 506, 512-514, 31 S.Ct. 480, 55 L.Ed. 563 (1911); United States v. Berrigan, 482 F.2d 171, 182-183 (3rd Cir. 1973). Such delegation of authority must be accompanied by sufficient guidelines and standards for the exercise of the authority. There are sufficient guidelines and standards expressed in the language of 21 U.S.C. § 811 itself (see subsections (b) and (c) of § 811), in addition to the application of the protections of the Administrative Procedure Act. United States v. Eddy, 549 F.2d 108, 112-113 (9th Cir. 1976).

Appellant relies heavily on two 1935 Supreme Court cases, Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935) and Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). The Government quotes 1 Davis, Administrative Law Treatise, Sec. 2.01 in reply. 2 However, the prosecution also relies on the previous decisions of this court based on facts somewhat similar to those here appearing. They are: United States v. Goldfine, 538 F.2d 815, 819 (9th Cir. 1976); Rosenberg, supra, 515 F.2d at 195; United States v. Larson, 507 F.2d 385 (9th Cir. 1974); and particularly the Supreme Court's unanimous decision in United States v. Moore, 423 U.S. 122, 144-145, 96 S.Ct. 335, 346, 46 L.Ed.2d 333 (1975). "The implication is that physicians who go beyond approved practice remain subject to serious criminal penalties." Id.

We agree that the cases from this circuit, as well as other circuits and districts are controlling on the first issue appellant raises, and that the Act is not constitutionally infirm. In particular, we find the discussion of this issue in United States v. Piatti, supra, 416 F.Supp. at 1205-1206, to be convincing and consistent with our conclusion herein. Cf. United States v. Harper, 530 F.2d 828 (9th Cir. 1976).

II

Appellant's second argument is that he cannot be charged with distributing a controlled substance under 21 U.S.C. § 841(a) for two reasons. First, because the persons who received the prescriptions were government agents and not "patients," the appellant contends that he did not cause the controlled substances to be distributed (rather, he asserts, it was the agents). Second, he argues that the actions of the agents cannot be charged to him under a principal-agent theory as they are not innocent agents within the meaning of 18 U.S.C. § 2(b). Hence, (his argument goes), he cannot be found to have participated in an essential element of 21 U.S.C. § 841(a), the ultimate distribution of a controlled substance. (All the prescriptions in evidence were obtained from appellant by government agents who falsely pretended they were "patients," or wanted to become such, while never intending to be such.)

The difficulty with appellant's argument is that the appellant was charged with distributing controlled substances in violation of § 841(a)(1). 21 U.S.C. § 802(11) states that: "The term 'distribute' means to deliver (other than administering or dispensing) a controlled substance"; and 21 U.S.C. § 802(8) states: "The term 'deliver' or 'delivery' means the actual, constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship." See United States v. Bartee, 479 F.2d 484, 486-487 (10th Cir. 1973). It is clear that, when a doctor steps out of the usual course of his professional duties and writes a prescription for someone for a controlled substance not pursuant to a legitimate medical purpose, he has initiated a transfer of that controlled substance. No one can fill a prescription until some person with authority to issue a prescription first writes and delivers it. No person, whether patient or imposter-patient, can have a prescription filled "but for" a physician's original act of issuing the prescription. See United States v. Ellzey, 527 F.2d 1306, 1308 (6th Cir. 1976), United States v. Green, 511 F.2d 1062, 1072 (7th Cir. 1975), and United States v. Hooker, 541 F.2d 300 (1st Cir. 1976). It follows that by creating the means by which controlled substances can be transferred, a doctor "distributes" within the meaning of 21 U.S.C. § 841(a) by the act of writing a prescription outside the usual course of professional practice and not for a legitimate medical purpose. We hold that because the "patients" were government agents and that they, instead of the doctor, ultimately filled the prescriptions, does not affect the conviction of appellant herein.

III

Appellant's third argument is that the expert testimony of Dr. Frederick Meyers "on the ultimate issue" was improperly admitted. Dr. Meyers testified that the appellant was not prescribing drugs in the usual course of a professional practice and for a legitimate medical purpose. The ready answer to this asserted error is that because this case was tried in November 1976, and because Rule 704 of the Federal Rules of Evidence 3 was adopted January 21, 1975, there was no error.

All the cases cited by appellant in support of this claim of error were decided prior to January 21, 1975. The Government cites four cases which were decided after the Federal Rules of Evidence were adopted; all of which state the testimony of the kind to which appellant objects was admissible. I. e., United States v. Robinson, 544 F.2d 110, 113 (2d Cir. 1976); United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir. 1976); United Telecommunications Inc. v. American Television Com. Corp., 536 F.2d 1310, 1318 (10th Cir. 1976); United States v. Alexander, 526 F.2d 161, 169 (8th Cir. 1975). We find no error.

IV

Appellant's fourth argument is that the trial court should not have admitted into evidence Exhibits 21D and 21E because they were allegedly improperly obtained and because they were supposedly withheld from defense counsel.

We have here a technical...

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