U.S. v. Ellzey

Decision Date29 January 1976
Docket NumberNo. 75--1772,75--1772
Citation527 F.2d 1306
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Howard W. ELLZEY, M.D., Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Charles C. Burch, Memphis, Tenn., for defendant-appellant.

Thomas F. Turley, U.S. Atty., Glen Reid, Jr., Asst. U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.

PER CURIAM.

Appellant, a practing physician in Memphis, Tennessee, was convicted by a jury on one count of an indictment charging him with conspiracy to illegally distribute controlled substances in violation of 21 U.S.C. § 846, and on eleven substantive counts charging him with illegally distributing controlled substances in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). Appellant was sentenced to concurrent terms of imprisonment of three years on each count, except count 16, on which he was given probation for three years. He was also fined $1,500 on each count, or a total of $18,000.

Dr. Ellzey operated two offices in Memphis, one on each side of town. He worked in his Mallory Avenue office in the morning and in his Sumner Avenue office in the afternoon.

About one-half of Dr. Ellzey's patients were 'diet patients.' They would come into his office, would be given a vitamin B--12 injection by the doctor or an assistant, and would be given an amphetamine prescription, usually Preludin. Diet patients paid $15 cash for these visits which usually required from thirty seconds to five minutes with the doctor. The patients would be weighed, but generally not examined. The usual greeting by Dr. Ellzey was, 'What do you want?' He would then write the prescription for the drug named by the patient.

Dr. Ellzey's practice attracted the attention of people interested in purchasing amphetamines for resale. They would recruit a carload of overweight men at the employment office, and would pay them to visit Dr. Ellzey's office and obtain prescriptions for amphetamines. These carloads would go to one office of the doctor in the morning, and then the same people were taken to his other office in the afternoon.

Dr. Ellzey generally declined to issue more than one prescription for amphetamines to any one person in a month from one office, and he kept separate records in each office so one person could see him twice in one day at the two offices, and could receive two prescriptions.

The Drug Enforcement Administration (DEA) performed a survey of amphetamine prescriptions in which schedule II prescriptions from six drugstores in the Memphis area were examined by DEA agents. These drugstores had filled 39,000 prescriptions for schedule II drugs from 152 physicians and dentists in the twenty-two months' period covered by the survey. Of these 39,000 prescriptions, 29,000 were written by Dr. Ellzey, and all but 200 of his schedule II prescriptions were for amphetamines and amphetamine-type drugs.

In our opinion there was substantial evidence to support the judgment of conviction on both the conspiracy and the...

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25 cases
  • State v. Young
    • United States
    • West Virginia Supreme Court
    • 28 Junio 1991
    ...States v. Rogers, 609 F.2d 834, 839-40 (5th Cir.1980); United States v. Jackson, 576 F.2d 46, 49 (5th Cir.1978); United States v. Ellzey, 527 F.2d 1306, 1307 (6th Cir.1976); Commonwealth v. Comins, 371 Mass. 222, 235, 356 N.E.2d 241, 249 (1976) (testimony concerning extraneous prescriptions......
  • Arthurs v. Board of Registration in Medicine
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 3 Abril 1981
    ...Comins, 371 Mass. 222, 233, 356 N.E.2d 241 (1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977); United States v. Ellzey, 527 F.2d 1306 (6th Cir. 1976);"(ii) the physician's expressing concern as to how and where a prescription would be filled in a manner which does not ......
  • Com. v. Kobrin
    • United States
    • Appeals Court of Massachusetts
    • 12 Septiembre 2008
    ...denied, 423 U.S. 1031, 96 S.Ct. 561, 362, 46 L.Ed.2d 404, 405 (1976); United States v. Rosenberg, 515 F.2d at 199; United States v. Ellzey, 527 F.2d 1306 (6th Cir.1976). These cases all reflect facts and circumstances similar to those encountered in Comins. (E.g., medicines requested by nam......
  • U.S. v. Genser
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 24 Mayo 1983
    ...1126, 102 S.Ct. 975, 71 L.Ed.2d 113 (1981); United States v. Thompson, 624 F.2d 740, 742 & n. 2 (5th Cir.1980). In United States v. Ellzey, 527 F.2d 1306 (6th Cir.1976), the Sixth Circuit upheld an indictment that charged a doctor with " 'distributing' rather than dispensing." The court dis......
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