U.S. v. Hayes, 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.
Docket NumberNo. 78-5347,78-5347
Decision Date17 May 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.

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 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 notice that certain conduct is proscribed." Rabe v. Washington, 405 U.S. 313, 315, 92 S.Ct. 993, 994, 31 L.Ed.2d 258, 260 (1972).

Hayes contends that the regulation is unconstitutionally vague because of the language immediately preceding the foregoing, stating that "(t)he responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription." A pharmacist, he argues, cannot have a "corresponding responsibility" to that of a practitioner because he cannot prescribe at all but only dispense; an attempt by regulation to impose on him the obligations of a prescriber must, therefore, be ineffectual. 5 From this predicate he urges that the physician cases must be distinguished as applied to him; that is, a practitioner may be held criminally liable for prescribing outside the course of his professional practice, but a pharmacist may not be criminally liable based upon a "corresponding responsibility" because he cannot have responsibility as a prescriber nor does he have any reasonable means to fulfill a duty of establishing that the practitioner-prescriber who issued the order did so in the usual course of medical treatment. He points out that the most the pharmacist can do to verify the bona fides of a prescription is to check with the issuing practitioner; anything more would require him to examine the patient, which he is neither qualified nor legally permitted to do. The argument overlooks that a pharmacist can either fill a prescription or decline to do so. Hayes was charged with conspiracy to distribute controlled substances that were not issued for a legitimate medical purpose, and the jury was charged that he had to know they were not issued for a legitimate medical purpose. The same charge was given for the substantive offenses.

Verification by the issuing practitioner on request of the pharmacist is evidence that the pharmacist lacks knowledge that the prescription was issued outside the scope of professional practice. But it is not an insurance policy against a fact finder's concluding that the pharmacist had the requisite knowledge despite a purported but false verification. The pharmacist is not required to have a "corresponding responsibility" to practice medicine. What is required of him is the responsibility not to fill an order that purports to be a prescription but is not a prescription within the meaning of the statute because he knows that the issuing practitioner issued it outside the scope of medical practice. 6

This court said in Collier that "Congress did not intend for doctors to become drug 'pushers' ". 478 F.2d at 272. Nor do we think that Congress intended to allow pharmacists to aid doctors in becoming pushers. When a pharmacist fills a prescription that he knows is not a prescription within the meaning of the regulations he is subject to the penalties of § 841.

The sufficiency of the evidence argument is almost frivolous. Following is some of the circumstantial evidence. A tremendous number of prescriptions were filled by Hayes on the purported orders of a single doctor who, during the period involved, was an alcoholic and continually under the influence of alcohol and moving from one temporary lodging place to another. The volume of drugs was massive....

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