U.S. v. Rosen, 78-5025

Decision Date30 October 1978
Docket NumberNo. 78-5025,78-5025
Citation582 F.2d 1032
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Isadore I. ROSEN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Jack Peebles, New Orleans, La., for defendant-appellant.

John P. Volz, U. S. Atty., Robert J. Boitmann, Ronald A. Fonseca, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, AINSWORTH and VANCE, Circuit Judges.

VANCE, Circuit Judge.

Dr. Isadore I. Rosen was charged, in a twenty-five count indictment, with dispensing and distributing controlled substances 1 in violation of 21 U.S.C. § 841(a)(1). Dr. Rosen waived a jury and was tried by the court, which found him guilty on all twenty-five counts. He was sentenced to imprisonment for a period of five years with a two year special parole term under each of eleven counts and to imprisonment for a period of three years and a one year special parole term under each of the remaining fourteen counts. The sentences under all counts were ordered to run concurrently. He appealed to this court contending that the evidence against him was not sufficient to support his conviction.

Dr. Rosen is a sixty-eight year old physician who had been practicing medicine in Amite, Louisiana, a rural community, since 1951. He says that he gave up a general surgery and obstetrics practice because of his age. He began an obesity practice approximately seven years ago and testified that it grew until it amounted to approximately sixty percent of his total practice.

On separate occasions between April 29, 1976 and March 17, 1977, Dr. Rosen was visited by six law enforcement agents posing as patients. 2 The agents all utilized undercover names. The controlled substances which were mentioned in the indictment were either distributed to the agents by Dr. Rosen or obtained by them through use of prescriptions provided by Dr. Rosen.

To convict Dr. Rosen, it was necessary for the government 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. See United States v. Bartee, 479 F.2d 484 (10th Cir. 1973). Dr. Rosen admits the first two elements of the charged offenses. The only contested issue is whether the evidence was sufficient to support a verdict of guilty of dispensing and distributing controlled substances other than in the course of professional practice and for a legitimate medical purpose.

Dr. Rosen contends that all of the Drug Enforcement Administration (DEA) agents who came to his office and solicited diet drugs under the guise of being diet patients 3 presented symptoms for which the drugs prescribed or dispensed were appropriate. 4 He argues that there was a medical reason in each case for their dispensation and that no substantial evidence was presented that the drugs were dispensed for any other reason. 5 The government, however, argues that the pattern of distribution clearly indicates that the dispensation was not done in good faith for legitimate medical treatment.

It is settled that this court does not weigh the evidence or determine the credibility of witnesses. It is equally settled that in reviewing the sufficiency of the evidence we must take the view most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The district court made findings of fact 6 as to the mode of operation at Dr. Rosen's office. The extract from these findings set out below conveys the overall flavor of Dr. Rosen's operation as reflected in the record. 7

Dr. Rosen argues that the court below relied upon what it considered an inadequate quality of medical practice 8 to find criminal intent. He contends that the evidence relating to his general procedures is not sufficient to establish criminal intent.

The overweight government agents seen by Dr. Rosen received controlled substances medically indicated and approved for weight therapy or for resulting side effects. This superficial appearance of legitimacy tends to complicate the resolution of the ultimate issue. We must determine whether the evidence was sufficient to support a finding that the drugs prescribed or dispensed to these six agents were not prescribed or dispensed in good faith for a legitimate medical purpose and in the course of the doctor's professional practice.

A frequently quoted statement of the standard to be used in making this determination 9 was announced by this court in the case of United States v. Collier, 478 F.2d 268, 271-72 (5th Cir. 1973):

It is apparent that a licensed practitioner is not immune from the act solely due to his status, White v. United States, 399 F.2d 813 (8th Cir. 1968), but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional practice of medicine. A physician is restricted to dispensing or prescribing drugs in the bona fide treatment of a patient's disease, including a dispensing of a moderate amount of drugs to a known addict in a good-faith attempt to treat the addiction or to relieve conditions or suffering incident to addiction. (Citations omitted.) However, under the guise of treatment a physician cannot sell drugs to a dealer nor distribute drugs intended to cater to cravings of an addict. (Citations omitted.) Congress did not intend for doctors to become drug "pushers." (Citations omitted.)

In making a medical judgment concerning the right treatment for an individual patient, physicians require a certain latitude of available options. Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973). Hence, "(w) hat constitutes Bona fide medical practice must be determined upon consideration of evidence and attending circumstances." Linder v. United States, supra, 268 U.S. (5) at 18, 45 S.Ct. (446) at 449, (69 L.Ed. 819 (1925)).

Our facile quotation of general principle does not diminish the difficulty in its application. A majority of cases have dealt with facts which were so blatant that a statement of clearcut criteria in a form useful in other cases would have been superfluous to the decision. We are, however, able to glean from reported cases certain recurring concomitance of condemned behavior, examples of which include the following:

(1) An inordinately large quantity of controlled substances was prescribed. United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922); United States v. Warren, 453 F.2d 738 (2nd Cir.), Cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972); United States v. Brandenburg, 155 F.2d 110 (3rd Cir. 1946).

(2) Large numbers of prescriptions were issued. United States v. Abdallah, 149 F.2d 219 (2nd Cir.), Cert. denied, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429 (1945).

(3) No physical examination was given. United States v. Warren, supra; White v. United States, 399 F.2d 813 (8th Cir. 1968); Brown v. United States, 250 F.2d 745 (5th Cir.), Cert. denied, 356 U.S. 938, 78 S.Ct. 779, 2 L.Ed.2d 812 (1958); United States v. Brandenburg, supra.

(4) The physician warned the patient to fill prescriptions at different drug stores. United States v. Abdallah, supra.

(5) The physician issued prescriptions to a patient known to be delivering the drugs to others. United States v. Warren, supra.

(6) The physician prescribed controlled drugs at intervals inconsistent with legitimate medical treatment. United States v. Brandenburg, supra.

(7) The physician involved used street slang rather than medical terminology for the drugs prescribed. United States v. Larson, 507 F.2d 385 (9th Cir. 1974).

(8) There was no logical relationship between the drugs prescribed and treatment of the condition allegedly existing. See United States v. Behrman, supra; Webb v. United States, 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497 (1919); United States v. Warren, supra; White v. United States, supra; United States v. Brandenburg, supra.

(9) The physician wrote more than one prescription on occasions in order to spread them out. United States v. Bartee, 479 F.2d 484 (10th Cir. 1973); United States v. Larson, supra.

The evidence against Dr. Rosen demonstrates a fairly consistent pattern. Many of the factors which courts have considered critical appear throughout the transactions encompassed by these counts. Viewing the evidence in the manner required by Glasser, supra, we will highlight illustrative occurrences.

On March 10, 1977, Dr. Rosen prescribed for agent Claude Smith, 90 Phendimetrazines (Count XVIII), 58 Ionamin (Count XIX), and 60 Placidyl (Count XVI), an inordinately large quantity of controlled substances by any standard.

No physical examination was given to any patient/agent other than the taking of the individual's blood pressure and weight.

On June 28, 1976, agent Antoine informed Dr. Rosen that he had lost only one pound because he had given the pills to his girl friend. Dr. Rosen responded, "I don't care what you do with them, let the cops bust you. . . . I'm going to keep you on these." He then reached into his drawer and got two more bags of the Phendimetrazine.

Dr. Rosen on various occasions told the agents where to get their prescriptions filled. During his testimony, agent Boyce recalled that Dr. Rosen said, "Take these to independents (sic) to get them filled." Two days later, after giving agents Munster and Boyce an inordinately large quantity of drugs (60 yellow capsules and 60 capsules of Ionamins each) Dr. Rosen told them to tell the police if they were stopped that they had gotten a two months' supply because they were going out of town. On the same occasion, minutes later, the two agents returned to the office and each received a prescription for 60 Placidyls. Agent Boyce recalled that Dr. Rosen again told them to get the prescriptions filled at the "...

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