United States v. Leigh, 73-1615.

• Decision Date: 11 January 1974
• Docket Number: No. 73-1615.,73-1615.
• Citation: 487 F.2d 206
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Henry Thomas LEIGH, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 206 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Henry Thomas LEIGH, M.D., Defendant-Appellee.

No. 73-1615.

United States Court of Appeals, Fifth Circuit.

November 8, 1973.

Rehearing Denied January 11, 1974.

William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellant.

Leland D. Sutton, Odessa, Tex., John R. Lee, Kermit, Tex., for defendant-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Rehearing and Rehearing Denied January 11, 1974.

Rehearing and Rehearing En Banc Denied January 11, 1974.

COLEMAN, Circuit Judge:

Henry Thomas Leigh is a duly licensed doctor of medicine and since December 15, 1959 has practiced as such in Andrews, Texas.

On October 16, 1972 he was indicted in multiple counts for "knowingly and intentionally distributing controlled substances, 21 U.S.C., § 841(a)(1), and for causing the same to be distributed, 18 U.S.C., § 2(b)".

Each of the counts described the defendant as a medical doctor (M.D.) and charged that he "did knowingly and intentionally distribute and cause to be distributed the particular prohibited substance by means of a prescription signed by said defendant".¹

In essence the defendant was charged with the basic offense of unlawfully distributing controlled substances, 21 U.S.C., § 841(a)(1). The additional charge that he caused it to be done rests on the general statute defining principals: "Whoever wilfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a crime", 18 U.S.C., § 2(b). Therefore, the whole matter comes right back to unlawful distribution.

On motion of the defendant the District Court dismissed the indictment for failure to charge an offense, Rule 12(b)(2) F.R.Cr.P.

The United States appeals the dismissal. We affirm.

It has been decided that a doctor can be indicted, tried, and convicted for the unlawful dispensing of a controlled substance, if his prescription is not for a legitimate medical purpose in the usual course of his professional practice, United States v. Bartee, 10 Cir., 1973, 479 F.2d 484, 487.

The appellee, however, has not been indicted for unlawful dispensing. The charge is unlawful "distribution".

One hundred and sixty years ago Mr. Chief Justice Marshall wrote that an indictment must specify the crime which is to be proved, that the conduct alleged must be an offense against the law, and that one may not be charged with one crime and convicted of another, The Schooner Hoppet & Cargo v. United States, 7 Cranch 389, 11 U.S. 389, 3 L.Ed. 380.

This leads to an examination of the statutory definitions of what constitutes distributing and dispensing controlled substances.

Section 841(a)(1) of 21 U.S.C. begins by saying that:

"Except 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; or"

It will be noted that the activities separately referred to in this section are: (1) "manufacture", (2) "distribute", and (3) "dispense". A fourth factor is possession with the intent to do any of the three.

Section 802(10) of 21 U.S.C. defines the word "dispense":

"The term `dispense\' means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance, and the packaging, labeling, or compounding necessary to prepare the substance for such delivery.

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