U.S. v. Seelig, s. 79-5232

Citation622 F.2d 207
Decision Date08 May 1980
Docket NumberNos. 79-5232,s. 79-5232
Parties6 Fed. R. Evid. Serv. 141 UNITED STATES of America, Plaintiff-Appellee, v. Richard SEELIG, Terry Hawkins, and Donald Primmer, Defendants-Appellants. to 79-5234.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Eugene L. Matan, Columbus, Ohio, for defendants-appellants.

James C. Cissell, U. S. Atty., Columbus, Ohio, William E. Hunt, Asst. U. S. Atty., Columbus, Ohio, for plaintiff-appellee.

Before KENNEDY and JONES, Circuit Judges, and PHILLIPS, Senior Circuit Judge.


Appellants are three pharmacists who appeal their misdemeanor convictions for distributing codeine-based cough medicines and felony convictions for distributing Dextropropoxyphene (brand name Darvon) and Diazepam (brand name Valium) in violation of the Controlled Substances Act, 21 U.S.C. § 841(a)(1). Appellants claim the indictments fail to state a crime with respect to the misdemeanor counts and fail to allege facts which would constitute a crime with respect to the felony counts and that the court should have granted their motion for acquittal as there was no evidence of intent. They claim certain evidence was erroneously admitted and other evidence erroneously rejected.

I. Sufficiency of the Indictments

Appellants are pharmacists duly licensed to practice pharmacy in Ohio. All are employed by Seelig Pharmacy, Inc., which has two stores in Columbus, Ohio. The indictment consists of 174 counts, each for a separate distribution of a controlled substance. Count One charged Richard Seelig with knowingly or intentionally and unlawfully distributing a schedule V controlled substance by distributing without a prescription more than four ounces of Robitussin A/C within a 48-hour period, as prohibited by 21 C.F.R. § 1306.32, in violation of 21 U.S.C. § 841(a)(1). Counts 2-165 list other similar sales of Robitussin A/C, Terpin Hydrate Codeine, or Histadyl E/C, schedule V controlled substances. The remaining counts charge the appellants with knowingly or intentionally and unlawfully distributing schedule IV controlled substances by unlawfully refilling prescriptions for Diazepam (brand name Valium) or Dextropropoxyphene (brand name Darvon).

Appellants raise two challenges to the indictment. First, that counts 1-165 do not charge appellants with a crime but with only a violation of a regulation. Second, that counts 166-174 do not allege sufficient facts to constitute a crime as there is no allegation that the substances were not distributed within the usual course of professional practice.

COUNTS 1-165

Appellants argue that the sale of more than four ounces of Robitussin (or other schedule V substance) within 48 hours to one person, while it violates the regulation, does not violate the Controlled Substances Act, that the Act does not make violations of the regulations criminal, and that the Attorney General, who promulgates the regulations, does not have the authority to expand the criminal liability determined by Congress in the statute. According to appellants, the statute must explicitly state that a violation of the regulations constitutes an offense. Appellants rely upon United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911), which upheld a criminal conviction for using the Sierra Forest Preserve for sheep grazing without a permit as required by regulations, where the statute authorizing the promulgation of the regulations explicitly stated that anyone who violated the statute or the rules and regulations thereunder would be subject to criminal penalties. The Supreme Court distinguished a previous case, United States v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591 (1892), which involved a violation of regulations requiring certain books to be kept of oleomargarine sales. In Eaton, the statute required one kind of book be kept, but imposed no penalty for failing to do so. The Commissioner went further and required another kind of book. To hold someone criminally liable for violating the regulation in Eaton, said the Grimaud Court, "manifestly . . . was putting the regulations above the statute." 220 U.S. at 519, 31 S.Ct. at 484. Thus, a person may be held criminally liable for the violation of a regulation, but only if the statute which authorizes the promulgation of the regulations makes the violation of the regulations a crime.

The Controlled Substances Act defines what drugs are subject to control of their manufacture and distribution and lists these drugs in schedules, with different provisions pertaining to each schedule. See 21 U.S.C. §§ 811, 812, 823, 829. Section 841(a)(1) provides:

(a) Except as authorized by this subchapter (The Controlled Substances Act), 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; . . .

Appellants claim that they need only comply with other statutory provisions to fit within the exception stated in § 841(a)(1) and are not, as the government argues, required to comply with the regulations promulgated under the subchapter in order to distribute "as authorized by this subchapter".

Section 829(c) provides:

No controlled substance in schedule V which is a drug may be distributed or dispensed other than for a medical purpose.

Appellants claim this section authorizes them to distribute or dispense schedule V drugs such as Robitussin for medical purposes regardless of whether more than four ounces of the drug is given to one person within a 48-hour period, despite the prohibition of 21 C.F.R. § 1306.32. Appellants' argument rests on a negative implication from § 829(c). Were there no other provisions which explicitly stated when the distribution or dispensing of schedule V drugs were authorized, this Court might accept appellants' argument. However, § 822(b) does provide the express authorization. It states:

Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense controlled substances are authorized to possess, manufacture, distribute, or dispense such substances (including any such activity in the conduct of research) to the extent authorized by their registration and in conformity with the other provisions of this subchapter.

The combination of § 829(c) and § 822(b) thus requires a person to dispense or distribute a schedule V drug for a medical purpose and to be within the authority of their registration as determined by the Attorney General. Section 822(a) requires every person who distributes or dispenses controlled substances to register with the Attorney General. Section 821 authorizes the Attorney General to promulgate rules and regulations relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances. Section 871(b) authorizes the Attorney General to promulgate and enforce rules, regulations, and procedures that he deems necessary for the efficient execution of his functions.

Although Congress was not as clear in this statute as in the one involved in Grimaud, this Court is satisfied that the statute does expressly, albeit in a convoluted fashion, provide that a violation of the promulgated rules constitutes an unlawful act under the Controlled Substances Act. Thus, counts 1-165 do charge crimes. 1

COUNTS 165-174

Appellants object to counts 165-174 because the indictment failed to charge appellants with distributing schedule IV substances "not in the usual course of professional practice." Appellants claim that pharmacists are exempt from the criminal sanctions of § 841(a)(1) if they dispense drugs in the usual course of professional practice. The facts as alleged do not amount to a crime, appellants argue, as the counts do not allege appellants acted outside the usual course of professional conduct. The government argues the indictment need not charge that the exemption does not apply.

An indictment is sufficient if it contains the elements of the offense charged and fairly informs a defendant of the charge against him and enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974).

The counts in question allege that certain drugs were distributed by unlawfully refilling certain prescriptions. The prescriptions are identified by date, serial number, and issuing doctor. The counts further allege these distributions were in violation of 21 U.S.C. § 841(a)(1). Surely, enough facts are alleged to enable appellants to plead acquittal or conviction in bar of future prosecutions for the same offense since the precise acts which constitute the offense have been alleged. The only problem is whether by failure to allege the distributions were not in the usual course of professional practice the indictment fails to allege all the elements of the crime.

In Hamling, the Court held that as the definition of obscenity was a matter of law, not of fact, the indictment charging use of the mails to carry an obscene book and an obscene advertisement was sufficient even though the indictment did not allege the constitutional components of the definition of obscenity.

In United States v. Ellzey, 527 F.2d 1306 (6th Cir. 1976), this Court held that an indictment charging the defendant with illegally distributing controlled substances in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 was sufficient even though it alleged "distribute" rather than "dispense". The Court held that the defendant did distribute rather than dispense as the evidence showed the defendant did not follow generally accepted medical procedures.

The indictments in the present case also charge appellants with illegal distributions in violation of § 841(a)(1). As a matter of law, a registered doctor is subject to the criminal penalties...

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