U.S. v. Johnson, Nos. 86-1993

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore JONES, WELLFORD and GUY; RALPH B. GUY, Jr.
Citation831 F.2d 124
Decision Date15 October 1987
Docket Number86-1994 and 86-2013,Nos. 86-1993
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Betty J. JOHNSON (86-1993), James E. Johnson, (86-1994), Andrew Paul Taylor (86-2013), Defendants-Appellants.

Page 124

831 F.2d 124
UNITED STATES of America, Plaintiff-Appellee,
v.
Betty J. JOHNSON (86-1993), James E. Johnson, (86-1994),
Andrew Paul Taylor (86-2013), Defendants-Appellants.
Nos. 86-1993, 86-1994 and 86-2013.
United States Court of Appeals,
Sixth Circuit.
Argued Aug. 24, 1987.
Decided Oct. 15, 1987.
Rehearing and Rehearing En Banc Denied in No. 86-2013 Dec. 7, 1987.

Page 125

Howard J. Wittenberg (Court-appointed), argued, Detroit, Mich., for Betty J. Johnson.

Alvin Keel (argued), Bloomfield Hills, Mich., for James E. Johnson.

Frank D. Eaman (Court-appointed), argued, Detroit, Mich., for Andrew Paul Taylor.

Michael Lang (argued) Asst. U.S. Atty., Detroit, Mich., for U.S.

Before JONES, WELLFORD and GUY, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Defendants, Andrew Paul Taylor, James E. Johnson, D.O., and Betty J. Johnson, appeal from their jury convictions for drug-related offenses. All three defendants were convicted on one count each of conspiracy to distribute controlled substances

Page 126

in violation of 21 U.S.C. Sec. 846. 1 Taylor was convicted on ten counts of distribution of controlled substances in violation of 21 U.S.C. Sec. 841(a)(1), 2 and on two additional counts of aiding and abetting. See 18 U.S.C. Sec. 2. 3 Dr. Johnson was also found guilty on three counts of violating section 841(a)(1). The district court, however, having previously reserved judgment on defendants' motion to dismiss, dismissed one of the section 841 counts against both Taylor and Dr. Johnson.

Betty Johnson received a five-year sentence on the conspiracy conviction which was subsequently reduced to three years. Dr. Johnson was also sentenced to five years on the conspiracy charge and fifteen years on each of the two distribution charges, all three of the sentences to run concurrently. Andrew Taylor received two concurrent fifteen-year sentences for aiding and abetting and an additional fifteen-year sentence on the nine counts of distribution to be served consecutively to the sentence imposed for aiding and abetting. Taylor was also sentenced to serve five years for conspiracy concurrent to the time served on his other sentences.

For the following reasons, the convictions and sentences are affirmed.

I.

The defendants' convictions resulted from their involvement in a medical center where prescriptions for controlled substances were illegally dispensed for non-medical purposes. In August of 1981, Andrew Taylor incorporated the Woodward-Peterboro Medical Center. The clinic opened in March of 1982 in Detroit, Michigan. For the most part, the clinic conducted its business activities during the evening hours from 6:30 p.m. to 8:00 p.m. three nights a week. Taylor, who is not a licensed doctor, supervised virtually all the administrative affairs of the clinic. Patients were charged $20 per visit which entitled them to an examination and one prescription (usually of their choice). Additional prescriptions could be obtained for $10 apiece.

The first doctor at the clinic was Dr. Gotham who worked evenings there through the summer of 1982. One of the doctors who subsequently worked there, Dr. Candida Misra, testified that she quit after only a few hours because she objected to the manner in which controlled substances were prescribed to the patients. Another doctor who worked at the clinic in the fall of 1982, Dr. Lonie Ocdol, also quit after only three nights because she refused to prescribe the type of drugs the patients demanded. Defendant, Dr. James Johnson, was hired after Dr. Ocdol left the clinic. From September 29, 1982, to January 5, 1983, Dr. Johnson worked two or three nights a week at the clinic for which he received $500 per week in cash.

The government charged that during Dr. Johnson's tenure at the clinic, he often prescribed Schedule II controlled substances for no legitimate medical purpose. After a perfunctory examination, patients would complain of discomfort and request powerful pain killers or they would express a desire to lose weight in order to obtain amphetamines. Often, the patient would suggest a specific medication such as Percodan, Demerol or Desoxyn. The doctor would fill out the prescription and the patient could pick it up from the receptionist after paying the bill. As many as 40 to 60 patients would crowd into the waiting room on any given night the clinic was open. One of the patients testified that he saw Dr. Johnson signing blank prescriptions after the clinic closed for the evening. The

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clinic continued to issue prescriptions purportedly signed by Dr. Johnson long after he left the clinic in January of 1983.

Later in the clinic's operation, the procedures became even less rigorous and patients would simply pay for a prescription without having to undergo the formality of an examination. Taylor also sold prescriptions outside of the clinic. During a six-month period in 1983, Taylor sold approximately fifty signed prescriptions a week to Betty Johnson who in turn sold them to Loretta Davenport and her sister Wilma Young. The prescriptions were then filled at area pharmacies and the pills were eventually sold on the street. A survey of twenty Detroit area pharmacies revealed that at least 9,599 prescriptions for Schedule II controlled substances had been issued by the clinic during the three years in which it operated. Eventually, several area pharmacies refused to honor the prescriptions issued by the clinic and it finally closed in April of 1985. Defendants raise several issues on appeal and we address each separately.

II.

Defendant Taylor was convicted on nine separate counts of "knowingly, intelligently, and unlawfully distribut[ing] a Schedule II Narcotic Drug Controlled Substance ... by issuing a prescription ... for the drug outside the usual course of medical practice and for no legitimate medical purpose in violation of Title 21, United States Code, Section 841(a)(1)." Taylor was also convicted on two similarly phrased charges of aiding and abetting Dr. Johnson. On appeal, Taylor contends that he cannot be lawfully convicted of distributing controlled substances "by the issuance of prescriptions outside the usual course of medical practice" because such an offense can only be committed by licensed physicians who have improperly issued prescriptions. We reject this argument.

Section 841(a)(1) provides:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance.

21 U.S.C. Sec. 841(a)(1). Thus, the basic proscription in section 841 applies to "any person" except those "authorized by this subchapter" such as physicians registered with the Attorney General pursuant to 21 U.S.C. Sec. 822. In United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Supreme Court limited the scope of this exception by holding that a physician who abuses the privilege by issuing prescriptions outside the usual course of professional practice is subject to punishment under section 841(a)(1) just as any other "drug pusher." Id. 423 U.S. at 139-45, 96 S.Ct. at 343-47. 4

In a somewhat convoluted argument, Taylor seizes on the descriptive phrase "by issuing a prescription ... for the drug outside the usual course of medical practice and for no legitimate medical purpose" which appears in the indictment, and concludes that he was charged with "dispensing" 5 a controlled substance as opposed to

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"distributing" 6 or "delivering." 7 In a further leap of logic Taylor argues that the act of "dispensing" can only be committed by a licensed physician and since he is not a licensed practitioner, he cannot be lawfully convicted under section 841 for issuing bogus prescriptions. We are not persuaded by this argument.

Essentially, Taylor is contending that...

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29 practice notes
  • US v. BIRBRAGHER, No. 08-4004.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Abril 2010
    ...the Moore Court observed, "By its terms, § 841 reaches `any person.'" Id. at 131, 96 S.Ct. 335; see also United States v. Johnson, 831 F.2d 124, 127 (6th Cir.1987) ("The basic proscription in section 841 applies to `any person'...."). It follows that § 841 applies to nonregistrants. The Six......
  • Borders v. U.S.A, CASE NO. 2:09-CV-616
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 8 Diciembre 2010
    ...States v. Moore, 423 U.S. 122, 340 (1975)(criminal liability under 21 U.S.C. §841 reaches any person); see also United States v. Johnson, 831 F.2d 124, 128 (6th Cir. 1987)(same); United States v. Richards, No. 40-10, 2007 WL 2915180 (E.D. Ky. October 5, 2007)(rejecting same argument as rais......
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 21 Noviembre 2008
    ...who did attempt to write prescriptions would be liable for illegally dispensing as opposed to distributing. See United States v. Johnson, 831 F.2d 124 (6th Cir.1987) (upholding conviction for distributing controlled substances by the issuance of prescriptions outside the usual course of med......
  • United States v. Rattini, Case No. 1:19-cr-81
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 5 Marzo 2021
    ...(6th Cir. 1986) (affirming conspiracy conviction for medical clinic president, pharmacist and medical clinic); United States v. Johnson, 831 F.2d 124, 130 (6th Cir. 1987) (affirming conspiracy convictions for nonpractitioners, including clinic director, who participated in conspiracy to sel......
  • Request a trial to view additional results
29 cases
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 21 Noviembre 2008
    ...who did attempt to write prescriptions would be liable for illegally dispensing as opposed to distributing. See United States v. Johnson, 831 F.2d 124 (6th Cir.1987) (upholding conviction for distributing controlled substances by the issuance of prescriptions outside the usual course of med......
  • US v. BIRBRAGHER, No. 08-4004.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 26 Abril 2010
    ...the Moore Court observed, "By its terms, § 841 reaches `any person.'" Id. at 131, 96 S.Ct. 335; see also United States v. Johnson, 831 F.2d 124, 127 (6th Cir.1987) ("The basic proscription in section 841 applies to `any person'...."). It follows that § 841 applies to nonregistrants. The Six......
  • Borders v. U.S.A, CASE NO. 2:09-CV-616
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 8 Diciembre 2010
    ...States v. Moore, 423 U.S. 122, 340 (1975)(criminal liability under 21 U.S.C. §841 reaches any person); see also United States v. Johnson, 831 F.2d 124, 128 (6th Cir. 1987)(same); United States v. Richards, No. 40-10, 2007 WL 2915180 (E.D. Ky. October 5, 2007)(rejecting same argument as rais......
  • United States v. Rattini, Case No. 1:19-cr-81
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 5 Marzo 2021
    ...(6th Cir. 1986) (affirming conspiracy conviction for medical clinic president, pharmacist and medical clinic); United States v. Johnson, 831 F.2d 124, 130 (6th Cir. 1987) (affirming conspiracy convictions for nonpractitioners, including clinic director, who participated in conspiracy to sel......
  • Request a trial to view additional results

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