US v. Averi, Cr. No. 88-208-N.

• Court: United States District Courts. 11th Circuit. Middle District of Alabama
• Writing for the Court: James Wilson, U.S. Atty., and Patricia Conover, Asst. U.S. Atty., for U.S
• Citation: 715 F. Supp. 1508
• Parties: UNITED STATES of America v. Robert M. AVERI.
• Decision Date: 25 May 1989
• Docket Number: Cr. No. 88-208-N.

715 F. Supp. 1508

UNITED STATES of America
v.
Robert M. AVERI.

Cr. No. 88-208-N.

United States District Court, M.D. Alabama, N.D.

May 25, 1989.

James Wilson, U.S. Atty., and Patricia Conover, Asst. U.S. Atty., for U.S.

Ira DeMent, Montgomery, Ala., for Averi.

ORDER

MYRON H. THOMPSON, District Judge.

On January 6, 1989, a federal jury convicted defendant Robert M. Averi of one court of failure to keep and maintain adequate records of controlled substances, specifically Halcyon, a violation of 21 U.S.C.A. §§ 842(a)(5), 842(c)(2)(A). The matter before the court is Averi's January 17, 1989, motion for judgment of acquittal notwithstanding the verdict or in the alternative motion for a new trial, with amendments filed January 30, 1989. For the reasons set out below, this motion is due to be denied.

I.

Averi was a licensed podiatrist, or foot specialist, practicing in Montgomery at the time of the offense. Federal law requires medical practitioners who are authorized to dispense controlled substances by a state to register as well with the federal Drug Enforcement Agency. 21 U.S.C.A. § 823(f). Averi was so registered during the period covered by the indictment in this case. As a requirement of federal registration, registrants must maintain, and furnish to the federal government when requested, certain "records, reports, notifications, declarations, orders or order forms, statements, invoices or other information" as described in the United States Code relating to dispensing controlled substances.

715 F. Supp. 1509

§ 842(a)(5).¹ This provision facilitates the government's monitoring of the use of such substances on a nationwide basis by establishing a "closed system of drug distribution for legitimate handlers of such drugs." H.Rep. No. 1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 4566, 4571-72.² The government charged Averi with "knowingly" failing to maintain records as required by § 842(a)(5), an offense which constitutes a misdemeanor violation under § 842(c)(2)(A).³

Averi's arguments supporting his motion for judgment of acquittal and for a new trial both revolve around the mental element of the charged offense. With respect to his request for judgment of acquittal, Averi argues that the government did not prove by sufficient evidence that he "knowingly" committed the offense. He bases his request for a new trial on certain "newly discovered evidence" which, he contends, bears on his lack of knowledge of the record-keeping requirements.

II.

Under Averi's view of the misdemeanor provisions of § 842(c)(2)(A), the government must prove as an element of the offense that Averi was aware of the record-keeping requirements of § 842(a)(5). Upon consideration of the statutory language of § 842, as well as the more decisive public policy concerns underlying the statute, the court disagrees.

The courts have long recognized that Congress bears responsibility for defining federal criminal offenses, including the mental conditions placed on those proscriptions. See, e.g., United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). The court's function is to divine, as best it can, the intent of Congress as to the mental states applying to each element of a criminal offense.

In this instance, the statutory language, which is the starting point for the interpretive method, is ambiguous. The statute requires that the finder of fact determine that the defendant "knowingly" committed the offense of failure to keep and maintain adequate records. By using this term, Congress may have intended to require the prosecution to show that a person covered by the statute failed to maintain adequate records with the specific intent or purpose of violating the statutory duty. For instance, federal law imposes reporting requirements on persons entering the United States with certain monetary instruments. 31 U.S.C.A. § 5316. Congress set criminal penalties for anyone "willfully violating" § 5316. 31 U.S.C.A. § 5322. This circuit's predecessor has read this language synonymously with "knowingly violating" the reporting requirements, and has further recognized as an element of the § 5322 offense the defendant's knowledge of the reporting requirements at the time of the infraction. See, e.g., United States v. Warren, 612 F.2d 887 (5th Cir.) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980).⁴

Alternatively, Congress may have used the term "knowingly" in § 842(c)(2)(A) to mean only that the defendant must have been aware that he was not maintaining reasonably informative records on his usage of controlled substances. Under this interpretation of "knowingly," a defendant

715 F. Supp. 1510

need only be aware of his failure to keep such records. The defendant need not know of the duty imposed on him by the statute, nor must he even know that the statute exists. E.g., United States v. Diecidue, 603 F.2d 535, 548 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980) (approving jury instruction of "knowingly" as meaning "that the act was done voluntarily and intentionally and not because of mistake or accident")

The key to resolution of this ambiguity lies in the purposes Congress sought to achieve in the passage of the record-keeping provision. The provision constitutes an attempt to regulate closely the distribution of certain substances determined by Congress to pose dangers, if freely available, to the public at large. See United States v. Moore, 423 U.S. 122, 134-35, 96 S.Ct. 335, 342, 46 L.Ed.2d 333 (1975). Thus, this statute falls into "the expanding regulatory area involving activities affecting public health, safety and welfare" in which the traditional rule of guilty purpose or intent has been relaxed. United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 1117, 28 L.Ed.2d 356 (1971). The Supreme...