United States v. SteeleUnited States v. Steele
William O. Steele, a pharmacist, was indicted for “knowingly and intentionally dispens[ing]” controlled substances “in violation of
We granted en banc review to decide whether the indictment under which Steele was convicted is defective because it does not negate the course of professional practice exception. A pаnel of this Court answered that question in the affirmative and reversed Steele‘s conviction, United States v. Steele, 117 F.3d 1231 (11th Cir.1997), superceding, 105 F.3d 603 (1997), because it was bound to do so by the prior panel decision in United States v. Outler, 659 F.2d 1306 (5th Cir. Unit B 1981). Because we are sitting en banc, we are not bound by the Outler decision. Being free to
The panel‘s opinion, 117 F.3d at 1232-33, sets out the relevant facts, the most pertinent of which concern the contents of the four-сount indictment returned against Steele for actions occurring while he was authorized as a pharmacist to dispense controlled substances in the course of his professional practice. Count one of the indictment charged:
That from on or about July 1, 1993, and continuously thereafter, up to аnd including on or about November 2, 1993, in the Northern District of Florida, the defendant, William O. Steele, did knowingly and intentionally dispense hydromorphone hydrochloride, a schedule II controlled substance, commonly known as Dilaudid, in violation of
Title 21, United States Code, Section 841(a)(1) .
117 F.3d at 1233. Counts two, three, and four are identical except that the controllеd substances named in them were Xanax, Valium, and Percodan, respectively. The government‘s theory of prosecution was that on numerous occasions during the specified period, Steele dispensed those controlled substances pursuant to prescriptions he knew to be forged. Steele maintained that he did not know they were forged. The jury found that he did and convicted him.
Steele contends there was insufficient evidence to convict, but the panel did not reach that issue. Instead, it held that the indictment was defective because it failed to allege that Steele dispensed the drugs оutside the course of his professional practice as a pharmacist. See, 117 F.3d at 1232, 1235. The panel reached that holding reluctantly, because it believed that the plain language of
One of the authorized exceptions to the proscription against dispensing controlled substances is contained in
The upshot of all those provisions is that because Steele was acting as an agent of a registered pharmacy, he was authorized to dispense controlled substances in the course of his professional practice as a pharmacist, but only pursuant to a рrescription issued by a practitioner. See
It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any ... indictment ... or in any trial ... and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.
The meaning of that provision, as it relates to the issue before us, is evident from its plain language: an indictment charging a violation of
“In construing a statute we must begin, and often should end as well, with the language of the statute itself.” Merritt v. Dillard, 120 F.3d 1181, 1185 (11th Cir.1997). Where the language Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent because we must presume that Congress said what it meant and meant what it said. See, e.g., Connecticut Nat‘l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)
Steele argues that United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), stands for the proposition that a practitioner may be convicted for distributing and dispensing controlled substances only if the govеrnment pleads and proves that those activities were outside the course of professional practice. That is not what that case holds. Certiorari was granted in Moore to review a court of appeals decision that
Steele also seeks support in United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1961), in which the Supreme Court stated: “It is a general guide to the interpretation of criminal statutes that when an exception is incorporated in the enacting clause of a statute, the burden is on the prosecution to plead and prove that the defendant is not within the exception.” Id. at 70, 91 S.Ct. at 1298. The government counters by quoting the general rule announced in McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301 (1922), that: “[A]n
Both the Vuitch and the McKelvey rules are rules of statutory construction, or “general guide[s] to the interpretation of criminal statutes,” Vuitch, 402 U.S. at 90, 91 S.Ct. at 1298, and as such they are useful when Congress has not made its intent clear. In this case we have no need to rely upon such rules of construction, because Congress has explicitly and unambiguously stated in
Steele protests that Congress could not have meant what it said in
Steele does not explain why busy government prosecutors would want to indict any case that they are certain to lose when it goes to trial, if not sooner. We seriously doubt that thе Department of Justice would tolerate the continued employment of any prosecutor who would do that. Steele‘s argument about government prosecutors indicting pharmacists and doctors for possessing and dispensing controlled substances in the course of their professional practice also fails to explain why
It is not the courts but Congress that defines crimes and defenses in the United States Code. Subject only to constitutional constraints, it has the authority to specify whether a given factor must be pleaded by the government in the indictment as an element of an offense, or affirmatively raised by the defense as part of its case. Steele contends that Congress overstepped its bounds with
An indictment is sufficient “if it: (1) presents the essential elements of the charged offense, (2) notifies the accused of the charges to be defended agаinst, and (3) enables the accused to rely upon a judgment under the indictment as a bar against double jeopardy for any subsequent prosecution for the same offense.” United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir.1998). Because the indictment in this case does all of that, it is not defective.
In holding that an indictment charging a practitioner with violating
We have decided only a pleading issue—that the course of professional practice exception is an affirmative defense which need not be negated in the indictment. We have no occasion to address the issue of who bears the burden of persuasion, and how heavy that burden is, once the
Steele does raise other issues relating to his conviction that have not yet been addressed because the panel did not reach them. We express no view on those other issues, choosing instead to let the panel decide them. The same is true of the sentencing issue raised in the government‘s cross-appeal.
Having decided the issue on which we granted en banс review, this case is REMANDED TO THE PANEL for decision of the other issues raised in the appeal and the cross-appeal.
EDMONDSON, Circuit Judge, concurring:
Today‘s court relies heavily on what we see as the plain language of the pertinent statute. I agree with the opinion and with the result. But I point out that we do not have before us today а statute that was enacted long ago. When those much older statutes are being construed by modern courts, our response as modern readers to the words of the statute may not be what the words meant to the Congress speaking at a very different time; and the idea of plain meaning becomes far more complicated.