U.S. v. Norris, No. 84-2602

CourtU.S. Court of Appeals — Fifth Circuit
Writing for the CourtBefore GARWOOD, PATRICK E. HIGGINBOTHAM and W. EUGENE DAVIS; W. EUGENE DAVIS
Citation780 F.2d 1207
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James Ted NORRIS, M.D., Defendant-Appellant.
Docket NumberNo. 84-2602
Decision Date17 January 1986

Page 1207

780 F.2d 1207
UNITED STATES of America, Plaintiff-Appellee,
v.
James Ted NORRIS, M.D., Defendant-Appellant.
No. 84-2602.
United States Court of Appeals,
Fifth Circuit.
Jan. 17, 1986.

Page 1208

Charles T. Conway, court appointed, San Antonio, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., Sidney Powell, Steven C. Hilbig, Asst. U.S. Attys., San Antonio, Tex., Thomas E. Booth, Atty., Appellate Section Criminal Div. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

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

Before GARWOOD, PATRICK E. HIGGINBOTHAM and W. EUGENE DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this appeal, Dr. Norris challenges his conviction on ten counts of dispensing non-narcotic and narcotic Schedule II controlled substances in violation of 21 U.S.C. Sec. 841(a)(1) 1. We affirm.

I.

Dr. Norris was a practicing physician in a health clinic owned by him in San Antonio, Texas. Between August and October 1982, the Texas state board of medical examiners assigned three investigators to attend Norris' clinic as patients.

The investigators testified that upon arrival they were asked to fill out personal data forms and were then directed to a room in which Dr. Norris addressed them along with a number of other patients. In his address, Dr. Norris lectured the patients on his theories of exercise, consciousness, and the reasons for prescribing drugs. Dr. Norris then called out each patient's name and asked him which drug he desired. Afterward, Dr. Norris met briefly with each investigator, checked his pulse and chest, and then gave him a prescription for the drug he had requested. The investigators testified that Dr. Norris never inquired about their medical history or their reasons for wanting the prescribed drug. Norris never instructed them on the use of the drug.

On November 17, 1982, Drug Enforcement Administration agents searched Dr. Norris' office and seized his records. On April 10, 1984, Dr. Norris was indicted on

Page 1209

fifteen counts of illegally dispensing Schedule II controlled substances in violation of 21 U.S.C. Sec. 841(a)(1). Following a trial, a jury found him not guilty on five of the counts and guilty on ten counts. The court sentenced Norris to a five-year prison term to be followed by a five-year parole term on each of the ten counts, and permitted the sentences on the ten counts to be served concurrently.

Norris contends that the district court committed the following errors: (1) the jury was instructed to use an objective standard rather than a subjective standard to determine whether he acted in the usual course of a professional practice; (2) his constitutional right to a public trial was denied; (3) his motion for appointment of a new standby counsel should have been granted; (4) his sixth amendment right to a speedy trial was violated; (5) the court's order restricting the parties from making public comment on the trial resulted in prejudicial press coverage of his trial; and (6) the court failed to grant a mistrial sua sponte when evidence of extraneous offenses was admitted.

II.

A.

To convict Dr. Norris of violating 21 U.S.C. Sec. 841(a)(1), the government was required to prove "(1) that he distributed or dispensed a controlled substance, (2) that he acted knowingly and intentionally, and (3) that he did so other than for a legitimate medical purpose and in the usual course of his professional practice." U.S. v. Rosen, 582 F.2d 1032, 1033 (5th Cir.1978). Although the third element is not expressly required by Sec. 841, pertinent regulations provide that a controlled substance can be dispensed by a prescription "issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 C.F.R. Sec. 1306.04(a)(1985).

Relying on the phrase, "usual course of his professional practice," contained in the regulations, Norris argues that the jury should have been instructed that a professional practice is to be judged subjectively, not objectively as the court instructed. 2 Norris asserts that the use of the word "his" in the regulation requires the government to prove that he prescribed the drugs for a purpose that was contrary to Norris' own standards of reasonable medical practice. One person's treatment methods do not alone constitute a medical practice. The district court therefore correctly rejected Norris' proposed charge premised on a theory that a standard medical practice may be based on an entirely subjective standard.

In United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Court, in affirming the conviction of a physician under 21 U.S.C. 841, implicitly approved the following instruction:

[You must find] beyond a reasonable doubt that a physician, who knowingly or intentionally, did dispense or distribute [methadone] by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.

423 U.S. at 139, 96 S.Ct. at 343-44. In this case, the district court carefully modelled its charge after the Moore charge and properly directed the jury to consider: 1) Whether Dr. Norris prescribed the drugs for what he subjectively considered a legitimate medical purpose and 2) from an objective standpoint whether the drugs were dispensed in the usual course of a professional practice. The charge was a correct statement of the law.

B.

Dr. Norris complains that several important proceedings were held in chambers

Page 1210

and at private bench conferences in violation of his sixth amendment right to a public trial. 3 The meetings with Norris and counsel that were conducted in chambers concerned problems raised by various jurors, 4 evidentiary questions, proposed jury charges, and the court's ex parte interview of Dr. Norris regarding witnesses he wished to subpoena for his defense. Several bench conferences were held outside the hearing of the jury on various procedural and evidentiary questions. Norris made no contemporaneous objection to any of the...

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90 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
    ...other than for a legitimate medical purpose and in the usual course of [ ] professional practice." United States v. Norris, 550 F.3d 397 780 F.2d 1207, 1209 (5th Cir.1986) (quoting United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir.1978)). The third element is not expressly required by th......
  • U.S. v. Campbell, No. 87-2013
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 9, 1989
    ...See McKaskle, 465 U.S. at 184-85, 104 S.Ct. at 954; Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46; United States v. Norris, 780 F.2d 1207, 1211 (5th Garrity would have been ill-prepared to advise the defendant concerning defense matters or to take over the presentation of the defen......
  • United States v. Evans, No. 17-20158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 12, 2018
    ...of his professional practice." See United States v. Brown , 553 F.3d 768, 780-81 (5th Cir. 2008) (quoting United States v. Norris , 780 F.2d 1207, 1209 (5th Cir. 1986) ). Evans does not quarrel with the evidence on elements one and two, so all the action turns on the last element—whether th......
  • State v. Sublett, No. 84856-4
    • United States
    • United States State Supreme Court of Washington
    • November 21, 2012
    ...her impartiality given her daughter's new job did not deprive the defendant of his right to a public trial; United States v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986), where the court held that the right to a public trial does not extend to benchPage 9conferences during trial "between cou......
  • Request a trial to view additional results
79 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
    ...other than for a legitimate medical purpose and in the usual course of [ ] professional practice." United States v. Norris, 550 F.3d 397 780 F.2d 1207, 1209 (5th Cir.1986) (quoting United States v. Rosen, 582 F.2d 1032, 1033 (5th Cir.1978)). The third element is not expressly required by th......
  • U.S. v. Campbell, No. 87-2013
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • January 9, 1989
    ...See McKaskle, 465 U.S. at 184-85, 104 S.Ct. at 954; Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46; United States v. Norris, 780 F.2d 1207, 1211 (5th Garrity would have been ill-prepared to advise the defendant concerning defense matters or to take over the presentation of the defen......
  • United States v. Evans, No. 17-20158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 12, 2018
    ...of his professional practice." See United States v. Brown , 553 F.3d 768, 780-81 (5th Cir. 2008) (quoting United States v. Norris , 780 F.2d 1207, 1209 (5th Cir. 1986) ). Evans does not quarrel with the evidence on elements one and two, so all the action turns on the last element—whether th......
  • State v. Sublett, No. 84856-4
    • United States
    • United States State Supreme Court of Washington
    • November 21, 2012
    ...her impartiality given her daughter's new job did not deprive the defendant of his right to a public trial; United States v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986), where the court held that the right to a public trial does not extend to benchPage 9conferences during trial "between cou......
  • Request a trial to view additional results
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