United States v. Moore, No. 74-759

CourtUnited States Supreme Court
Writing for the CourtPOWELL
Citation46 L.Ed.2d 333,96 S.Ct. 335,423 U.S. 122
Decision Date09 December 1975
Docket NumberNo. 74-759
PartiesUNITED STATES, Petitioner, v. Thomas W. MOORE, Jr

423 U.S. 122
96 S.Ct. 335
46 L.Ed.2d 333
UNITED STATES, Petitioner,

v.

Thomas W. MOORE, Jr.

No. 74-759.
Argued Oct. 7, 1975.
Decided Dec. 9, 1975.
Syllabus

Respondent, a licensed physician registered under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., was convicted of knowing and unlawful distribution and dispensation of methadone (a controlled substance or addictive drug used in the treatment of heroin addicts) in violation of 21 U.S.C. § 841(a)(1), which makes it unlawful for "any person" knowingly or intentionally to distribute or dispense a controlled substance, except as authorized by the CSA. The evidence disclosed that respondent prescribed large quantities of methadone for patients without giving them adequate physical examinations or specific instructions for its use and charged fees according to the quantity of methadone prescribed rather than fees for medical services rendered. The Court of Appeals, however, reversed the conviction on the grounds that respondent was exempted from prosecution under § 841 by virtue of his status as a registrant and that a registrant can be prosecuted only under §§ 842 and 843, which prescribe less severe penalties than § 841. Held: Registered physicians can be prosecuted under § 841 when, as here, their activities fall outside the usual course of professional practice. Pp. 131-145.

(a) Only the lawful acts of registrants under the CSA are exempted from prosecution under § 841. That section by its terms reaches "any person" and does not exempt (as it could have) "all registrants" or "all persons registered under the Act." The language of the qualified authorization of § 822(b), which authorizes registrants to possess, distribute, or dispense controlled substances to the extent authorized by their registration and in conformity with other CSA provisions, and which was added merely to ensure that persons engaged in lawful activities could not be prosecuted, cannot be fairly read to support the view that all activities of registered physicians are beyond the reach of § 841 simply because of their status. Pp. 131-133.

(b) There is no indication in the operative language of §§ 841-843 that Congress intended to establish two mutually exclusive

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penalty systems, with nonregistrants to be punished under § 841 and registrants under §§ 842 and 843, the fact that the term "registrants" is used in some subsections of §§ 842 and 843 but not in § 841 being of limited significance. Moreover, the legislative history indicates that Congress was concerned with the nature of the drug transaction, rather than with the defendant's status. Pp. 133-135.

(c) It is immaterial whether respondent also could have been prosecuted for the relatively minor offense of violating § 829 with respect to the issuing of prescriptions, since there is nothing in the statutory scheme or the legislative history that justifies a conclusion that a registrant who may be prosecuted for violating § 829 is thereby exempted from prosecution under § 841 for the significantly greater offense of acting as a drug "pusher." Pp. 135-138.

(d) The scheme of the CSA, viewed against the background of the legislative history, reveals an intent to limit a registered physician's dispensing authority to the course of his "professional practice." Pp. 138-143.

(e) Congress was concerned that the drug laws not impede legitimate research and that physicians be allowed reasonable discretion in treating patients, but it did not intend to exempt from serious criminal penalties those acts by physicians that go beyond the limits of approved professional practice. Pp. 143-145.

(f) Where the statutory purpose is clear, the canon of strict construction of criminal statutes favoring the accused will be satisfied if the words of the statute are "given their fair meaning in accord with the manifest intent of the lawmakers." United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 379-380, 92 L.Ed. 442. P. 145.

164 U.S.App.D.C. 319, 505 F.2d 426, reversed and remanded.

Paul L. Friedman, Washington, D. C., for petitioner.

Raymond W. Bergan, Washington, D. C., for respond-

Page 124

ent.

Mr. Justice POWELL delivered the opinion of the Court.

The issue in this case is whether persons who are registered under the Controlled Substances Act (CSA or Act), 84 Stat. 1242, 21 U.S.C. § 801 et seq., can be prosecuted under § 841 for dispensing or distributing controlled substances. The United States Court of Appeals for the District of Columbia Circuit reversed the conviction of respondent, a licensed physician registered under the Act, on the ground that he was exempted from prosecution under § 841 by virtue of his status as a registrant. We reverse and hold that registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice.

I

Dr. Moore was charged, in a 639-count indictment, with the knowing and unlawful distribution and dispensation of methadone (Dolophine), a Schedule II controlled substance,1 in violation of 21 U.S.C. § 841(a)(1). That subsection provides:

"Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally

"(1) to manufacture, distribute, or dispense, or

Page 125

possess with intent to manufacture, distribute, or dispense, a controlled substance . . . ."

The indictment covered a 51/2 month period from late August 1971 to early February 1972. It was reduced before trial to 40 counts, and the jury convicted respondent on 22 counts. He was sentenced to concurrent terms of five to 15 years' imprisonment on 14 counts, and to concurrent terms of 10 to 30 years on the remaining eight counts. The second set of sentences was to be consecutive with the first. Fines totaling $150,000 were also imposed.2

Methadone is an addictive drug used in the treatment of heroin addicts. If taken without controls it can, like heroin, create euphoric "highs," but if properly administered it eliminates the addict's craving for heroin without providing a "high." The two principal methods of treating heroin addicts with methadone are "detoxification" and "maintenance." Under a maintenance program, the addict is given a fixed dose once a day for an indefinite period to keep him from using heroin. In detoxification the addict is given a large dose of methadone during the first few days of treatment to keep him free of withdrawal symptoms. Then the dose is gradually reduced until total abstinence is reached.

Maintenance is the more controversial method of treatment. During the period covered by the indictment, registration under § 822, in itself, did not entitle a physician to conduct a maintenance program. In addition to a § 822 registration, the physician who wished to conduct such a program was required to

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obtain authorization from the Food and Drug Administration for investigation of a new drug. Dr. Moore's authorization by the FDA was revoked in the summer of 1971, and he does not claim that he was conducting an authorized maintenance program. Instead, his defense at trial was that he had devised a new method of detoxification based on the work of a British practitioner. He testified that he prescribed large quantities of methadone to achieve a "blockade" condition, in which the addict was so saturated with methadone that heroin would have no effect, and to instill a strong psychological desire for detoxification. The Government's position is that the evidence established that Dr. Moore's conduct was inconsistent with all accepted methods of treating addicts, that in fact he operated as a "pusher."

Respondent concedes in his brief that he did not observe generally accepted medical practices. He conducted a large-scale operation. Between September 1971 and mid-February 1972 three District of Columbia pharmacies filled 11,169 prescriptions written by Dr. Moore. These covered some 800,000 methadone tablets. On 54 days during that period respondent wrote over 100 prescriptions a day. In billing his patients he used a "sliding-fee scale" pegged solely to the quantity prescribed, rather than to the medical services performed. The fees ranged from $15 for a 50-pill prescription to $50 for 150 pills. In five and one-half months Dr. Moore's receipts totaled at least $260,000.

When a patient entered the office he was given only the most perfunctory examination. Typically this included a request to see the patient's needle marks (which in more than one instance were simulated) and an unsupervised urinalysis (the results of which were regularly ignored). A prescription was then written for the amount requested by the patient. On return visits for

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which appointments were never scheduled no physical examination was performed and the patient again received a prescription for whatever quantity he requested. Accurate records were not kept, and in some cases the quantity prescribed was not recorded. There was no supervision of the administration of the drug. Dr. Moore's instructions consisted entirely of a label on the drugs reading: "Take as directed for detoxification." Some patients used the tablets to get "high"; others sold them or gave them to friends or relatives. Several patients testified that their use of methadone increased dramatically while they were under respondent's care.3

The Court of Appeals, with one judge dissenting, assumed that respondent acted wrongfully, but held that he could not be prosecuted under § 841.4 164 U.S.

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App.D.C. 319, 505 F.2d 426 (1974). The court found that Congress intended to subject registered physicians to prosecution only under §§ 842 and 843,5 which pre-

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scribe less severe penalties than § 841.6 The court reasoned:

" . . . Congress intended to deal with registrants pri-

Page 130

marily through a system of administrative controls, relying on modest penalty provisions to enforce those controls,...

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372 practice notes
  • Decisions and Orders:
    • United States
    • Federal Register October 03, 2011
    • October 3, 2011
    ...to patients who crave the drugs for those prohibited uses.'' Gonzales v. Oregon, 546 U.S. 243, 274 (2006) (citing United States v. Moore, 423 U.S. 122, 135 \85\ The OSC explicitly alleges violations of 21 CFR 1306.04(a) and 21 U.S.C. 841(a)(1). (ALJ Ex. 1.) \86\ 21 CFR 1306.04(a) (2010). As......
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    ...is a qualified authorization of certain activities, not a blanket authorization of all acts by certain persons.'' United States v. Moore, 423 U.S. 122, 131 (1975). The statute grants a registrant authority only to perform those acts ``authorized by their registration.'' 21 U.S.C. Contrary t......
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    • Federal Register April 06, 2009
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    ...medical purpose by a practitioner acting in the usual course of professional practice.\21\ \21\ 21 CFR 1306.04(a); United States v. Moore, 423 U.S. 122 (1975). This requirement has been a part of federal law since Harrison Narcotic Act of 1914. Id. at 131. For a detailed explanation of the ......
  • U.S. v. Armstrong, No. 07-30286.
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    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...outside the usual course of professional practice is subject to punishment under § 841(a)(1) just as any other "drug pusher." Moore, 423 U.S. 122, 138, 142-43, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). Thus, Armstrong contends that a charge for dispensing controlled substances outside the scope ......
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  • U.S. v. Armstrong, No. 07-30286.
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    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...the usual course of professional practice is subject to punishment under § 841(a)(1) just as any other "drug pusher." Moore, 423 U.S. 122, 138, 142-43, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). Thus, Armstrong contends that a charge for dispensing controlled substances outside the scop......
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    • U.S. District Court — District of Columbia
    • August 4, 2016
    ...between the CSA's administrative scheme and its criminal prohibitions was illuminated by the Supreme Court in United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). In Moore, a physician argued that he was registered under the administrative provisions of Part C of the A......
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    • September 10, 1998
    ...60 L.Ed.2d 755 (1979). See also Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); United States v. Moore, 423 U.S. 122, 138, 96 S.Ct. 335, 46 L.Ed.2d 333 Ordinarily, general criminal provisions remain available to supplement a specific statutory scheme unless t......
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    • April 13, 2021
    ......."). "Congress intended [for] the CSA to strengthen rather than to weaken the prior drug laws." United States v. Moore, 423 U.S. 122, 139, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). The CSA separates controlled substances into five schedules based on their accepted medical uses,......
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    ...also commended McGuireWoods for the “exceptional quality” of its powerhouse white collar litigation practice. [1] United States v. Moore, 423 U.S. 122, 124 (1975). [2] 21 U.S.C. § 841(a)(1); 21 C.F.R. § 1306.04(a). See also United States v. Chube II, 538 F.3d 693, 697–98 (7th Cir. 2008); Un......
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    ...ignored outside legal counsel's advice.Id. at ¶ 10. 14. Id. at ¶ 16(b). 15. Id. at ¶¶ 28-29. 16. Id. at ¶ 39(a). 17.UnitedStates v. Moore, 423 U.S. 122, 130 18. James T. O'Reilly,Food and Drug Administration§ 8.1, 8.2 (2d ed. 2005). 19. SeeUnited States v. Park, 421 U.S. 658, 672-73 (1975) ......

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