U.S. v. Rosenberg

• Decision Date: 31 March 1975
• Docket Number: No. 74-2197,74-2197
• Citation: 515 F.2d 190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maurice W. ROSENBERG, M.D., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 190

515 F.2d 190

33 A.L.R.Fed. 196

UNITED STATES of America, Plaintiff-Appellee, v. Maurice W. ROSENBERG, M.D., Defendant-Appellant.

No. 74-2197.

United States Court of Appeals Ninth Circuit.

March 31, 1975.

Michael D. Nasatir (argued), Beverly Hills, Cal., for defendant-appellant.

Michael Mayoch, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

OPINION

Before LUMBARD, ^* ELY and WRIGHT, Circuit Judges.

LUMBARD, Circuit Judge:

Dr. Maurice W. Rosenberg appeals from a judgment of conviction entered on April 15, 1974, in the Central District of California, following a jury trial at which he was found guilty of 27 counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). ¹ Dr Rosenberg was sentenced to concurrent terms of two years in prison for each violation and was fined $20,000. Imposition of the prison sentences was suspended and payment of the fine was stayed pending appeal. Dr. Rosenberg argues that the statute under which he was convicted is unconstitutional, that there was insufficient evidence to convict him of violating that statute, and that his right against self incrimination was violated. We affirm.

Rosenberg was a seventy-five year old doctor who had been practicing medicine in California for approximately 50 years. During 1973 the doctor was visited by five undercover agents working for the California Bureau of Narcotics, Department of Justice, and Department of Consumer Affairs. ² The investigators used a total of seven names with two agents using the same name.

Of course, we review the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The government established that the following was the mode of operation at Dr. Rosenberg's office: An agent would make an appointment. When he arrived at the office, the doctor's nurse would record his name and address and collect the fee for an office visit. The fee for the first visit was $15 payable in cash; for subsequent visits the charge was $8. The nurse normally took the patient's record into the doctor with the cash clipped to one corner.

At no time did Dr. Rosenberg give any of the agents a physical examination. The agents never voluntarily indicated that they had any medical problem for which they needed medication. For example, when the doctor asked agent Van Diest what was wrong with her, she said that she did not have any problems, that she had been buying pills on the street and wanted a safer source, and that she had heard that she could get them from him. She told Dr. Rosenberg that she wanted some "reds." ³ When Dr. Rosenberg asked her why she wanted them, Ms. Van Diest said that she just liked taking them. The doctor then indicated that he would only give her a month's supply and that the pills could be dangerous. He then asked her if he could do anything else for her and she replied that she would like some "whites." ⁴ At this point the doctor asked her if she would like to say that she wanted to lose weight. Ms. Van Diest told him that she really did not care. The doctor replied, "Well, we'll say that you would like to lose weight." Dr. Rosenberg gave Ms. Van Diest a prescription for both seconal and dexedrine. At the time of her visit Ms. Van Diest was five feet, six inches tall and weighed 127 pounds. The doctor gave her no physical examination. The testimony of the other agents was similar to that of Ms. Van Diest.

On the basis of the above described evidence, Dr. Rosenberg was charged with violating the federal Controlled Substance Act which provides that

(e)xcept 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. § 841(a)(1). Under the statute a "practitioner" is authorized to prescribe controlled substances. 21 U.S.C. § 829(a), (b). "Practitioner" is defined as

a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.

21 U.S.C. § 802(20) (emphasis added). We interpret this combination of sections 802(20), 829, and 841 to mean that a doctor who acts other than in the course of professional practice is not a practitioner under the Act and is therefore not authorized to prescribe controlled substances. Such a physician is therefore subject to the criminal provisions of the Act contained in section 841(a)(1). Accord, United States v. Badia, 490 F.2d 296, 298 (1st Cir. 1973); United States v. Jobe, 487 F.2d 268, 269 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); 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, . . . but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional practice of medicine.") This same interpretation of the Act was made by the Attorney General:

A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.

21 C.F.R. § 1306.04(a) (1974).

Our dissenting brother describes the language of section 802(20) as "vague." However, the terms contained in that section are not vague; courts have often defined the phrase "in the course of professional practice." See pages 197-198 infra. Judge Ely's vagueness argument is more accurately viewed as another statement of his contention that Congress did not intend that doctors registered under 21 U.S.C. §§ 821-29 should be punished under section 841. We reject that contention.

Our examination of the legislative history convinces us that Congress intended section 841(a)(1) to apply to registered doctors. Congress was concerned with the diversion of drugs out of legitimate channels of distribution. The registration system, which requires written records to be maintained of drug transfers from manufacturer to doctor to user was intended to serve as a means of monitoring the flow of drugs in an effort to stop diversion to illegal uses. See H.R.Rep.No.91-1444, 1970 U.S.Code, Cong. & Admin.News 4566, 4571-72, 4590 (hereinafter House Report). This legislative intent is manifested in those penalty provisions of the Act that are applicable only to registrants. Those provisions are focused on proper record keeping. See, e. g., 21 U.S.C. §§ 842(a)(1) (use of prescriptions required), 843(a)(1) (use of order forms required).

There is no suggestion in the legislative history that the registration provisions were intended to be a substitute for the Act's general criminal penalties. The legislative history expressly states that the Act "provides severe criminal penalties for persons engaged in illicit . . . sale of controlled drugs primarily for the profits to be derived therefrom." Since this is what Dr. Rosenberg did, the severe criminal penalties contained in section 841 were appropriately applied to him. This conclusion is buttressed by the facts that physicians were subject to the prior federal drug laws, see, e. g., Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214 (1920), and that one of the three purposes of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (of which the Controlled Substances Act is title II) was stated in the preamble to be "to strengthen existing law enforcement authority in the field of drug abuse." (emphasis added).

One of the findings of the Congress in enacting the Controlled Substances Act was that "(6) Federal control of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic." 21 U.S.C. § 801(6) (emphasis added). If doctors were not subject to section 841(a)(1) the ability of the federal government to counter drug abuse would be greatly reduced. Congress recognized that "the widespread diversion of (controlled substances) out of legitimate channels in to the illegal market" was a serious problem. House Report at 4572. To stop such abuse, Congress determined that "illegal traffic in drugs should be attacked with the full power of the Federal Government." House Report at 4575. Yet, as the dissent recognizes, any doctor can be registered under the Act as a matter of right if he is allowed to dispense controlled substances under state law. House Report at 4590, 21 U.S.C. § 823(f). Revocation of registration is virtually impossible. See 21 U.S.C. § 824(a). Even conviction of the "technical violations" ⁵ of section 842 and 843 is foreclosed as long as a doctor complies with the easily fulfilled requirements of prescription writing, etc., contained in the registration sections. See 21 U.S.C. §§ 842, 843, 825, 827-29. Under the reasoning of the dissent a doctor would not even have to pretend to act as a doctor. He could stand on a street corner and sell prescriptions to passersby and yet he would be immune from federal prosecution. ⁶ To leave the federal government powerless to act against such persons would be to "override common sense" and reject the "evident statutory purpose" of Congress. ⁷

Moreover, we note that the dissent's interpretation of the Act would make superfluous one of its main reform provisions. Title I of the Act deals with rehabilitation of addicts. Section 4 of that title provides that the Secretary of Health, Education, and Welfare, in consultation with the Attorney General, "shall determine the appropriate method of...