U.S. v. Green

• Decision Date: 18 March 1975
• Docket Number: 74--1433,Nos. 74--1428,74--1435,74--1420 and 74--1468,s. 74--1428
• Citation: 511 F.2d 1062
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford T. GREEN et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. PAY MING LEU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1062

511 F.2d 1062

UNITED STATES of America, Plaintiff-Appellee, v. Clifford T. GREEN et al., Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. PAY MING LEU, Defendant-Appellant.

Nos. 74--1428, 74--1433, 74--1435, 74--1420 and 74--1468.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 1975.

Decided Feb. 27, 1975.

Rehearing Denied March 18, 1975.

Gerald M. Werksman, R. Eugene Pincham, Sidney S. Altman, George Kita, Bernard B. Brody, Chicago, Ill., for defendants-appellants.

James R. Thompson, U.S. Atty., Gary L. Starkman and Gordon B. Nash, Jr., Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

These consolidated appeals raise the same principal issue: whether indictments against physicians and a pharmacist (registrants under the Controlled Substances Act, 21 U.S.C. § 801 et seq.) for the dispensing or distributing of controlled substances pursuant to prescriptions allegedly issued without a legitimate medical purpose or outside the usual course of professional practice, properly charge crimes under 21 U.S.C. § 841(a) ¹ and 21 C.F.R. § 306.04(a). ²

I

In 74--1428, et al., the defendants below were: Valeriano Suarez, a physician who practiced at the Central West Medical Center located on the eighth floor of a building at 2400 West Madison, Chicago, Illinois; James McClure, a physician who assisted Dr. Suarez on a part-time basis at the medical center; ³ Clifford T. Green, a pharmacist and part-owner of the Afro-American Pharmacy located across the hall from the medical center and Henry G. Fort, part-owner of the pharmacy and owner of the building.

In June 1973, a grand jury returned a 33 count indictment against the defendants. ⁴ Count I charged that a conspiracy existed between the defendants to dispense controlled substances pursuant to prescriptions which would be issued without a legitimate medical purpose and to distribute controlled substances pursuant to prescriptions which they knew to be issued neither in the usual course of professional treatment nor for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and 21 C.F.R. § 306.04(a).

In addition to the conspiracy count, 27 of the remaining 32 counts are on appeal. ⁵ Seventeen substantive counts charged Dr. Suarez for knowingly and intentionally dispensing on or about specified dates Schedule II and III controlled substances without a legitimate medical purpose, ⁶ and ten substantive counts charged Green for knowingly and intentionally distributing on or about specified dates Schedule II controlled substances pursuant to prescriptions which he knew were issued neither in the usual course of professional treatment nor for a legitimate medical purpose. ⁷ The controlled substances which constitute the basis for the bulk of the charges are: Ritalin, Desbutal, Doriden, and Tuinal. ⁸ After a jury finding of guilty, Suarez was sentenced to five years, Green to three years and Fort to one year imprisonment. In addition, all were given special parole terms of two years.

Numerous individuals, some of whom were government agents, testified that they would come to the medical clinic, receive minimal, if any, professional medical treatment and would be given upon request one or more prescriptions, either in their own or a fictitious name, for substances described in the indictment. They would then proceed across the hall and have their prescriptions filled without questioning by defendant Green. Some witnesses testified to coming in once a week under different names and receiving prescriptions on each occasion. This was supported by medical files which contained more than one name on them. There was also evidence that there were names of famous individuals ⁹ appearing on prescriptions for controlled substances written by Dr. Suarez and filled at the Afro-American Pharmacy. These individuals neither received the controlled substances prescribed nor were medical files containing their names found at the medical center.

Other corroborating evidence of wrongdoing by the defendants included the existence of the no refill for fifteen days rule established by Dr. Suarez. Most patients, who paid $10 per visit, were given prescriptions that would last them fifteen days. Jackie Hunter, receptionist and office manager of the clinic, testified that there were certain preferred patients who did not have to abide by the 'fifteen day rule' and who could usually purchase multiple prescriptions. Ms. Hunter also testified that she overheard a conversation where Green was cautioning Dr. Suarez about prescribing too much medication for a particular individual. There was also evidence that a direct telephone line was set up from Dr. Suarez' office to the pharmacy owned by Green and Fort. Ms. Hunter testified that Green and Fort complained that Suarez was not using the telephone often enough to call prescriptions directly in, and that because of this sales were being lost to other pharmacies. Finally, Fort and Hunter had a guard placed near the pharmacy with directions to prevent individuals from entering the pharmacy unless they had a prescription and with directions to prevent the selling of medication in the lobby.

Defendants Suarez and Green challenge their convictions on the grounds that as individuals subject to registration under the Controlled Substances Act, they are not subject to conviction under 21 U.S.C. § 841(a) which was the basis for the indictment. United States v. Moore, 505 F.2d 426 (D.C.Cir. 1974), cert. granted, 43 U.S.L.W. 3445 (U.S. Feb. 18, 1975). Furthermore, all the defendants argue that the indictment in the present case is dependent on a regulation that was promulgated without authority and that impermissibly expands the range of proscribed activities beyond what the statute itself makes criminal. Finally, defendant Fort raises a sufficiency of the evidence claim.

II

In 74--1468 ¹⁰ the defendant is Pay Ming Leu, a physician who practiced medicine on Chicago's west side. Dr. Leu was charged in an indictment returned in April 1974. Counts 1--11 charged that he knowingly and intentionally dispensed Schedule II and III controlled substances pursuant to prescriptions not written in the course of professional practice in violation of 21 U.S.C. § 841(a)(1), and Counts 12--30 charged that he knowingly and intentionally attempted to dispense Schedule II and III controlled substances pursuant to prescriptions not written in the course of professional practice in violation of 21 U.S.C. §§ 841(a)(1), 846. Dr. Leu was found not guilty of Counts 1--11 (dispensing) and guilty of Counts 12--30 (attempting to dispense). He was sentenced to five consecutive one year prison terms ¹¹ which are the subject of this appeal.

The primary evidence against Dr. Leu was the testimony of three agents of the Drug Enforcement Administration and one agent from the Illinois Legislative Investigating Commission. These agents each described circumstances in which Dr. Leu sold them prescriptions for controlled substances. Agent Ward testified that he went to Dr. Leu for the first time on April 19, 1973 and asked to buy $100 worth of Ritalin. Dr. Leu said he could only give him a prescription for 90 pills. Five days later Ward asked for, but was refused another prescription for Ritalin because he was 'too early', but after asking then instead for Seconal, he was given a prescription for a similar drug called Tuinal. Agent Ward returned thereafter and picked up other prescriptions. At no time was any physical examination given or a medical history taken.

Agent Adams testified that he told Dr. Leu that he was not kicking any habit, but just wanted to buy some Ritalin to get high. Dr. Leu then gave him a prescription for 90 pills in exchange for $20. On his next visit Adams received prescriptions for Ritalin and Seconal.

Agent Doyle went to Dr. Leu in September 1973, and explained that since July, when he had last seen Dr. Leu, he had been in Canada selling Methylphenidate (active ingredient in Ritalin). Dr. Leu wrote a prescription for Desoxyn in the name of Eddie DeGrazia (Doyle's undercover name) and although he would not write one for Ritalin to the same person, he did write one in another name, known by Dr. Leu not to be Dolye's real name. Agent Doyle told Dr. Leu that he never used Ritalin, but he just sold it to which the doctor replied: 'Everybody has to make a living.' Shortly thereafter Doyle asked for and received two 90 pill Ritalin prescriptions made out in the names of Ronald Henry and Thomas Sexton. A few days later Doyle purchased two more prescriptions under new names. He was at no time examined by Dr. Leu.

Agent Brown first visited Dr. Leu's office on April 19, 1973 and asked for and received a prescription in the name of Arnie Wilson for Ritalin and Seconal because he was having a party. Two weeks later he bought prescriptions in the name of Eddie Brown. Agent Brown subsequently returned and got prescriptions in the name of Bonnie Hill, Billy Brown, Lenora Brown, Lenora Wilson and Glenn Gray. Brown had told Dr. Leu that he was selling the pills.

Dr. Leu challenges his conviction on the same grounds as the defendant-doctor in 74--1428. In addition, Dr. Leu argues that his conviction should be reversed on the grounds that certain instructions to the jury were erroneous; that the evidence was insufficient to make out an attempt case where the prescriptions were never filled; that certain expert opinion evidence invaded the province of the jury; and that there was excessive pretrial publicity and that the evidence was insufficient to sustain the conviction.

III

The principal issue raised by the defendant-physicians in both cases is that they are not subject to conviction under 21 U.S.C. § 841(a)(1) because of their status as registrants. ¹² The thrust of defendants' argument is premised on Chief Judge...