U.S. v. Hayes, No. 78-5347

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GODBOLD, SIMPSON and RONEY; GODBOLD
Citation595 F.2d 258
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Timothy Alden HAYES, Defendant-Appellant.
Decision Date17 May 1979
Docket NumberNo. 78-5347

Page 258

595 F.2d 258
UNITED STATES of America, Plaintiff-Appellee,
v.
Timothy Alden HAYES, Defendant-Appellant.
No. 78-5347.
United States Court of Appeals,
Fifth Circuit.
May 17, 1979.

James A. Moore, Houston, Tex., for defendant-appellant.

J. A. Canales, U. S. Atty., John M. Potter, George A. Kelt, Jr., Carl Walker, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Page 259

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

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

GODBOLD, Circuit Judge:

Hayes, a registered pharmacist, was convicted of one count of conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. § 841(a) (1) and 21 C.F.R. 1306.04(a) promulgated thereunder and 35 counts of distribution of Schedule II drugs pursuant to prescriptions which he knew bore false names or were not issued in the usual course of professional practice. The substances were Dilaudid, a narcotic similar to morphine, and Preludin. Hayes asserts that the statute and accompanying regulation are unconstitutionally vague, that there was insufficient evidence to support the convictions, and that there was a variance. We reject all these claims and affirm the conviction.

We set out in the margin the statute and the regulation. 1 The purpose of the regulation is to define the circumstances in which a physician or pharmacist who is registered to dispense controlled substances may nevertheless be held to have violated the proscription against manufacturing, distributing or dispensing a controlled substance contained in 21 U.S.C. § 841. In U. S. v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Supreme Court concluded that a doctor may be convicted for violations of § 841 when he dispenses controlled substances "outside the usual course of professional practice." Id. at 124, 96 S.Ct. at 337, 46 L.Ed.2d at 337. 2 The court rejected the argument that, because a doctor is registered with HEW and may therefore legally prescribe controlled substances, he is exempted from the criminal sanctions of § 841. A registered doctor or pharmacist is exempted from § 841's proscription only when he acts in the normal course of his professional activities. The challenged regulation merely restates the Court's conclusion in Moore.

In U. S. v. Collier, 478 F.2d 268 (CA5, 1973), this court rejected a physician's vagueness challenge to § 841 and accompanying regulations. The court drew its vagueness standard for testing § 841 from the Supreme Court's opinions in Doe v. Bolton,

Page 260

410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and U. S. v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971). Both of those cases involved a constitutional attack on state statutes prohibiting doctors from performing an abortion unless the doctor concluded that it was necessary to preserve the mother's health. The Court concluded that whether an operation is necessary is the type of professional judgment doctors are "called upon to make routinely." Doe v. Bolton, supra at 192, 93 S.Ct. at 747, 35 L.Ed.2d at 212 (quoting U. S. v. Vuitch, supra 402 U.S. at 72, 91 S.Ct. at 1299, 28 L.Ed.2d at 601). The Collier court decided that a doctor's judgment whether a patient needs a Schedule II drug is also a routine judgment and that a criminal standard that only makes unlawful the prescribing of drugs outside the course of professional practice is not unconstitutionally vague. Id. at 272; Accord, U. S. v. Anderson, 523 F.2d 1192, 1197 (CA5, 1975).

We turn then to application of statute, regulations, and case law to pharmacists. We need none of these to tell us that pharmacists usually are engaged in dispensing drugs on the basis of prescriptions issued by doctors. Specifically, § 309 of the Controlled Substances Act 3 prohibits dispensing Schedule II drugs except upon the prescription of a registered practitioner other than a pharmacist. 4 The regulation, 21 C.F.R. § 1306.04(a), teaches us that under some circumstances a purported prescription is not a prescription at all for purposes of the statute.

(A)n order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. § 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.

Thus, a pharmacist may not fill a written order from a practitioner, appearing on its face to be a prescription, if he knows the practitioner issued it in other than the usual course of medical treatment. The regulation gives "fair...

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28 practice notes
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...a logical reading of 21 C.F.R. § 1306.04, the applicable regulation, shows that liability is not conjunctive. See United States v. Hayes, 595 F.2d 258, 259 (5th Cir.1979) (stating that § 1306.04 defines the circumstances in which a registrant may be held to have violated the proscription ag......
  • United States v. Akinyoyenu, Criminal Action No. 15-42 (JEB)
    • United States
    • U.S. District Court — District of Columbia
    • August 4, 2016
    ...within the scope of that authorization are safe from prosecution, but extracurricular activities are not. See United States v. Hayes, 595 F.2d 258, 259 (5th Cir.1979) ("The purpose of the regulation [implementing § 841(a)(1) ] is to define the circumstances in which a physician or pharmacis......
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...examination. There was no legitimate prescription written and signed and the prescriptions were not valid." See United States v. Hayes, 595 F.2d 258, 261 (5th Cir.1979) (upholding conviction of a pharmacist where the doctor testified "that any prescriptions written by [the doctor] were not ......
  • United States v. Birbragher, No. 07-CR-1023-LRR.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 22, 2008
    ...the usual course of medical treatment. The regulation gives `fair notice that certain conduct is proscribed.'" United States v. Hayes, 595 F.2d 258, 260 (5th Cir.1979) (quoting Rabe v. Washington, 405 U.S. 313, 315, 92 S.Ct. 993, 31 L.Ed.2d 258 As set forth above, courts have held the langu......
  • Request a trial to view additional results
27 cases
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...a logical reading of 21 C.F.R. § 1306.04, the applicable regulation, shows that liability is not conjunctive. See United States v. Hayes, 595 F.2d 258, 259 (5th Cir.1979) (stating that § 1306.04 defines the circumstances in which a registrant may be held to have violated the proscription ag......
  • United States v. Akinyoyenu, Criminal Action No. 15-42 (JEB)
    • United States
    • U.S. District Court — District of Columbia
    • August 4, 2016
    ...within the scope of that authorization are safe from prosecution, but extracurricular activities are not. See United States v. Hayes, 595 F.2d 258, 259 (5th Cir.1979) ("The purpose of the regulation [implementing § 841(a)(1) ] is to define the circumstances in which a physician or pharmacis......
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...examination. There was no legitimate prescription written and signed and the prescriptions were not valid." See United States v. Hayes, 595 F.2d 258, 261 (5th Cir.1979) (upholding conviction of a pharmacist where the doctor testified "that any prescriptions written by [the doctor] were not ......
  • United States v. Birbragher, No. 07-CR-1023-LRR.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 22, 2008
    ...the usual course of medical treatment. The regulation gives `fair notice that certain conduct is proscribed.'" United States v. Hayes, 595 F.2d 258, 260 (5th Cir.1979) (quoting Rabe v. Washington, 405 U.S. 313, 315, 92 S.Ct. 993, 31 L.Ed.2d 258 As set forth above, courts have held the langu......
  • Request a trial to view additional results

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