U.S. v. Outler

• Decision Date: 26 October 1981
• Docket Number: No. 80-7497,80-7497
• Citation: 659 F.2d 1306
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James E. OUTLER, Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1306

659 F.2d 1306

UNITED STATES of America, Plaintiff-Appellee, v. James E. OUTLER, Defendant-Appellant.

No. 80-7497.

United States Court of Appeals,

Fifth Circuit.

Unit B ^*

Oct. 26, 1981.

J. Hue Henry, Athens, Ga., David R. Trippe, Atlanta, Ga., for defendant-appellant.

Denver L. Rampey, Jr., U. S. Atty., Miriam D. Wansley, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before MORGAN, KRAVITCH and ANDERSON, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

Appellant, Dr. James E. Outler, was tried and convicted in United States District Court for the Middle District of Georgia on twenty counts of violating §§ 841(a) and 844 of the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. Counts One through Fifteen involved charges of prescribing or, in the language of the CSA, "dispensing" controlled drugs. Counts Sixteen through Twenty charged appellant with unlawful possession of controlled drugs.

Dr. Outler apparently was abusing his status as a duly licensed and registered physician to prescribe Schedule III and IV drugs in Warner Robbins, Georgia. Several undercover agents, acting as patients, were able to obtain prescriptions for controlled drugs after undergoing little or no physical examination. On several occasions, these "patients" told Dr. Outler that the drugs eventually would be given to others, used at parties, or even resold, but Dr. Outler still continued to issue prescriptions. During the course of this investigation, agents concealed microphones and recorded their conversations with appellant. One agent regularly worked for an Atlanta television station but temporarily was working in conjunction with law enforcement officials. She later incorporated many of the taped conversations and other products of the investigation into a two-part television special report. At the close of the investigation, a United States Magistrate issued a search warrant authorizing federal agents to enter Dr. Outler's office and seize any medical records connected with the investigation. Execution of the search warrant followed immediately, and government agents seized Dr. Outler's medical records. During the process, they observed Schedule II controlled drugs in appellant's office. The agents were aware that Dr. Outler previously had surrendered his license to prescribe Schedule II drugs, and accordingly, also seized the drugs. This event resulted in the five possession counts of the indictment. Prior to trial, and again during trial, Dr. Outler moved to sever the fifteen dispensing counts from the five possession counts. He wished to testify as to the possession counts, but remain silent as to the dispensing charges. The trial court denied both motions.

This appeal raises four issues. First, Dr. Outler charges that the trial court erred in denying his motion to dismiss Counts One through Fifteen of the grand jury indictment for failure to charge an offense. Second, he claims that the entire indictment should have been dismissed because of governmental misconduct in the preparation and dissemination of publicity prior to his arrest. Third, he alleges that medical records and Schedule II drugs were illegally seized from his office because the Magistrate who issued the search warrant was not neutral and detached. Finally, Dr. Outler charges that the trial court's refusal to sever Counts One through Fifteen from Counts Sixteen through Twenty unduly prejudiced his defense. We must agree with appellant on the first issue and reverse the court below. We affirm the trial court's rulings on the remaining issues.

I. The Indictment

Appellant claims that Counts One through Fifteen of his indictment, the dispensing charges, omit an essential element of the crime, and thereby fail to charge an offense under 21 U.S.C. § 841(a). This claim is based on the omission of any language alleging that Dr. Outler prescribed drugs without a legitimate medical reason or beyond the course of professional practice. Each count is virtually identical for purposes of this appeal. Count One states:

That on or about October 12, 1979, in the Macon Division of the Middle District of Georgia, and within the jurisdiction of this Court, James E. Outler did unlawfully and intentionally distribute, dispense, and caused to be distributed and dispensed, a quantity of benzphetamine in the form of Didrex tablets, a Schedule III drug, by means of a prescription to Rita Bragg, in violation of 21 United States Code, Section 841(a).

Appellant moved for dismissal of these counts prior to trial and the motion was denied. At trial, however, the prosecution introduced sufficient evidence to prove that each prescription lacked a legitimate medical reason, and the jury instructions included this element and charged the prosecution with the burden of proof. Therefore, the question before us is narrow: Whether a grand jury indictment which charges a physician with prescribing drugs in violation of 21 U.S.C. § 841(a) must allege that the prescription lacked a legitimate medical reason? The question is one of first impression to this court. ¹ Other circuits have reached inconsistent results. ² For the following reasons, we believe that the lack of a legitimate medical reason is an essential element of this offense, and therefore must be alleged in the indictment.

Congress enacted the CSA in 1970 in order to strengthen federal control over illegal drug traffic. Accordingly, the CSA contains a blanket prohibition against any transaction which involves a controlled substance: "Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance...." 21 U.S.C. § 841(a)(1). Of course, legitimate drug manufacturers and various professionals, such as licensed physicians and pharmacists, are authorized once they have registered with the Attorney General. "Persons registered by the Attorney General ... to manufacture, distribute, or dispense controlled substances are authorized to possess, manufacture, distribute, or dispense such substances ... to the extent authorized by their registration...." 21 U.S.C. § 822(b). A strict reading of these two sections of the CSA would authorize a physician to prescribe drugs freely and without medical reason so long as the physician is registered with the Attorney General; however, the CSA has not been interpreted so mechanically.

In United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Supreme Court held that a physician may be charged with a criminal violation of § 841(a) of the CSA whenever he or she prescribes a controlled substance without a legitimate medical reason. The physician is criminally liable even though registered with the Attorney General and seemingly authorized under § 841(a). The court noted that the qualifying condition of the offense, i. e., the element of behavior beyond professional practice, was not expressly stated in the relevant sections of the CSA, but rather, "implicit" to the statutory scheme. United States v. Moore, 423 U.S. at 141, 96 S.Ct. at 345. The decision did not address the questions of indictment and burden of proof. This court, however, repeatedly has held since Moore that it is incumbent upon the government to prove the lack of a legitimate medical reason in order to convict a registered physician of dispensing drugs in violation of 21 U.S.C. § 841(a). United States v. Rosen, 582 F.2d 1032 (5th Cir. 1978); United States v. Rogers, 609 F.2d 834 (5th Cir. 1980); United States v. Guerrero, 650 F.2d 728 (5th Cir. 1981). We now conclude that this element is essential to a charge of the offense. We recognize that an element is not always an "essential element" simply because the prosecution carries the burden of proof; however, here the element embodies the culpability of the offense. Without behavior beyond professional practice, there is no crime. We believe, therefore, that the lack of a legitimate medical reason is as essential to the offense charged against Dr. Outlar as the requisite mens rea.

The United States Attorney responds that the lack of a legitimate medical reason is not an essential element. The government argues instead that the presence of a legitimate medical purpose is a statutory exception to the general offense stated in 21 U.S.C. § 841(a). ³ The language of the CSA apparently is constructed in this manner. ⁴ We note, however, that an essential element is not always expressed in the statutory definition of the offense, but actually may be the negation of an exception to the offense. In rare instances, an exception can be so necessary to a true definition of the offense that the elements of the crime are not fully stated without the exception. Sutton v. United States, 157 F.2d 661, 666 (5th Cir. 1946). We believe this to be the case whenever a physician is charged with prescribing drugs in violation of 21 U.S.C. § 841(a).

There is no question that a grand jury indictment must set forth each essential element of an offense in order for a resulting conviction to stand. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Huff, 512 F.2d 66 (5th Cir. 1975); United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981). This well settled rule serves a dual function. First, the Sixth Amendment to the Constitution requires that every criminal defendant "be informed of the nature and cause of the accusation." Inclusion of the essential elements of an offense in an indictment provides the accused with the bare minimum of information necessary to meet this requirement. ⁵ Second, the Fifth Amendment guarantees the right of a grand jury indictment to each defendant prosecuted for an "infamous", or serious, crime. A grand jury can perform its function of...