U.S. v. Roya

• Decision Date: 14 April 1978
• Docket Number: No. 77-1401,77-1401
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ray ROYA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 386

574 F.2d 386

UNITED STATES of America, Plaintiff-Appellee, v. Ray ROYA, Defendant-Appellant.

No. 77-1401.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 4, 1977.

Decided April 14, 1978.

Donald N. Novelle, Chicago, Ill., for defendant-appellant.

Thomas P. Sullivan, U. S. Atty., Terry A. Zitek, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS and PELL, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

PELL, Circuit Judge.

Appellant, Dr. Ray Roya, was convicted after a bench trial on all counts of a 24 count indictment which charged him with dispensing and attempting to dispense Schedule II controlled substances ¹ from February 21, 1975 to April 26, 1975, in violation of 21 U.S.C. §§ 841(a)(1) and 846. ²

The Government's evidence included the testimony of eight agents from the Illinois Bureau of Investigation who, over a 63-day period, obtained 24 prescriptions from Roya for either Preludin or Tuinal. The testimony was similar for each of the counts, so we will summarize the testimony of one of the agents to provide the flavor of Dr. Roya's practice insofar as it related to his contacts with the agents.

On February 21, 1975, agent Paula Riccio telephoned Roya for an appointment, and then went to his office. The office consisted of a large waiting room with 20 to 25 chairs for patients. While she waited, she observed other people enter Roya's inner office and emerge five to ten minutes later holding a white piece of paper. When she entered the inner office for her appointment she observed no examining table or weight scale. After a brief conversation she told Roya that she wanted a prescription for Preludin. She also said that her boyfriend would share the Preludin with her and that he would pay for the prescription. She did not indicate to him that she desired to reduce her weight, a recognized legitimate medical use for Preludin. Roya asked her no questions about her medical history, did not take her blood pressure, and did not listen to her heartbeat; he conducted no physical examination. He wrote and gave her a prescription for 30 Preludin tablets (Count 5), a normal monthly supply. She paid him $10.00 and left.

Three days later, she returned and told him that she had shared the Preludin tablets with her boyfriend over the weekend and had used all 30 tablets. She asked for another prescription. He told her he could not write another prescription in her own name because the authorities were closely monitoring usage of the drug. He agreed instead to write a prescription in the name of her boyfriend, Steve Miller (Count 6). Riccio paid $10.00 for the prescription and left. During the interview, Roya did not refer to a patient file, again asked no questions about her medical history, and again failed to give her a physical examination. Obviously, he made no clinical determination as to Steve Miller.

On March 1, 1975, Riccio and agent Steve Miller visited Roya's office. Miller requested a prescription for Tuinal. Although Miller did not indicate that he was having difficulty sleeping, Roya wrote and gave a prescription to him for 30 Tuinal capsules (Count 1). He asked Miller no questions about his medical history and conducted no physical examination. Riccio asked for another Preludin prescription. She was given the prescription after she gave Roya the name of someone over 30 years of age to place on the prescription. She chose "Joyce Jones" (Count 8). They paid Roya $20.00 for the two prescriptions and left.

In this appeal, Roya argues that the district court erred in not dismissing the indictment in its entirety or at least as to the counts dealing with Preludin. He also contends that the Government's evidence was insufficient to sustain his conviction on Counts 1, 2, 3, 4, 5, 7, 9, 10, 11, 14, 15, 20, 21, and 22.

I. THE INDICTMENT

Roya argues that the indictment was vague, uncertain, and failed to inform him of the nature and cause of the accusations against him with the certainty required by law. Specifically, he argues that the indictment should have been dismissed because (1) it failed to cite the regulation, the violation of which was the essence of the charge against him, (2) it failed to state an element of the offense which was included in the regulation, and (3) it failed to state the names and addresses of the persons to whom the controlled substances were dispensed or attempted to be dispensed.

Appellant's first argument to support the vagueness of the indictment is that each count fails to cite the regulation which proscribed the conduct for which he was charged. The 24 count indictment consisted of four counts charging him with violations of 21 U.S.C. § 841(a)(1) and 20 counts charging him with violations of 21 U.S.C. §§ 841(a)(1) and 846. ³ All 24 counts stated either that he dispensed or that he attempted to dispense controlled substances "pursuant to a prescription not written in the course of professional practice . . . ." Neither § 841(a)(1) nor § 846, however, includes or refers to this phrase. Appellant argues that this language of the indictment indicated that the conduct for which he was indicted and convicted was that proscribed in part by 21 C.F.R. § 1306.04(a). ⁴ That regulation provides in pertinent part:

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 . . . . An order purporting to be a prescription issued not in the usual course of professional treatment . . . is not a prescription within the meaning and intent of section 309 . . . ⁵ and the . . . person issuing it, shall be subject to the penalties provided for violations of the law relating to controlled substances.

(Emphasis added.) Because the indictment failed to include a reference to this regulation, appellant argues that the indictment failed to inform him with sufficient clarity of the charges against him.

It is true that the disputed language tracks some of the language in the regulation. This regulation, however, has been held by this court in United States v. Green, 511 F.2d 1062 (7th Cir. 1975), not to broaden improperly § 841 in its applicability to a practitioner. In Green, which was written the better part of a year prior to the filing of the indictment in the present case, there was a challenge to the inclusion of reference to the regulation in the indictment. Here the converse is true proving perhaps, if nothing else, the ingenuity of defense counsel.

In any event, looking at the indictment here involved we note that it clearly stated the essential elements of the offense and that the disputed language merely clarified the grand jury's position that the accused did not fit within an exemption to the charged offense. We have difficulty comprehending a claim that because there was not specific reference by citation to the regulation when there was language from that regulation in the indictment, there would be a failure to inform the defendant with clarity of the charge against him. The clear import of the disputed language was that the defendant could not escape conviction under § 841(a)(1) by use of § 829(a).

In any event, the disputed language, in our opinion, was not essential to a properly drawn indictment. An indictment founded on a general provision of a statute need not negative an exception made by a proviso or other distinct clause, whether in the same section or elsewhere. McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301 (1922). Addition of such language, therefore, should not render an indictment defective. United States v. DiPietroantonio, 289 F.2d 122, 124 (2d Cir. 1961). Finally, on this phase of the case, there may well have been some chronological significance in the fact that in a unanimous Supreme Court decision, United States v. Moore, 423 U.S. 122, 124, 96 S.Ct. 335, 337, 46 L.Ed.2d 333 (1975), the Court stated, "We . . . hold that registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice." Moore was decided on December 9, 1975. The present indictment was filed on December 16, 1975.

The appellant also argues that the indictment should have been dismissed because it failed to contain the essential element of the regulation that the dispensing was without "a legitimate medical purpose." Because of our holding that neither citation to the regulation nor inclusion of its language was necessary to charge the defendant with a violation of §§ 841 and 846, we reject this corollary contention. Essentially, putting aside the verbiage claims, the issue remains whether the indictment properly charged this physician, in a manner making the charge sufficiently clear to him, that he had dispensed in a manner not exempted under the statute. We are satisfied that it did. Because of our holding, we find no merit in the additional contention in the present area that the district court incorrectly denied his motion for a bill of particulars seeking an explanation of the phrase "not written in the course of professional practice." We later herein will discuss the applicable standards; it suffices now to say that the denial of that motion cannot be said to have rendered the defendant unable to prepare a defense adequately, to have caused him surprise at trial, or to have placed him in double jeopardy.

Roya also argues that the district court should have dismissed the indictment because of its failure to state in each count the names and addresses of persons to whom he allegedly dispensed or attempted to dispense controlled substances. The test is whether the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial. United States v. Jeffers, 532 F.2d 1101, 1112-13 (7th Cir. 1976), aff'd in part, vacated in part on...