United States v. Thomas W. Moore, Jr.

apparently accepted the inter- You have

esting concocted clever lies

Company. poor reprimanded for

I have never been

job performance. wage

My was awarded increase latest 28, Nov. and I terminated Oct. MERIT, not increase was 1968. The erroneously.

automatic, you stated physically impossible overboost

It is pumps. respect the N.

vacuum in- technical

L.R.B. has demonstrated evaluating

competence in evidence. charging all officials of I am further anything to do with who had N.L.R.B. case, OFFICIAL with COLLUSIVE in concert with offi-

LAWLESSNESS, McDonnell-Douglas Corporation.

cials of indictments, ask for criminal I will also against those officials applicable,

where

involved. truly yours,

Very H. MOURNING ROBERT

/&/ Mourning By H. Robert

UNITED STATES of America

v. Jr., MOORE, Appellant.

Thomas W.

No. 73-1192.

United Appeals, States Court District of Columbia Circuit.

Argued Oct. 1973.

Decided Oct. Certiorari Granted Feb. Bergan, Raymond Washington, D. W. See 95 S.Ct. 1116. , appellant. Edward Bennett C. Wil- Washington, Umin, M. liams Steven C., appellant. D. on the were brief C., Kuhns, Washington, also D. John B. appellant. appearance for

entered an Atty., Schaumber, Peter U. S. C. Asst. Jr., Titus, U. whom Harold H. S. Terry Atty., R. and Vincent John A. Alto, brief Attys., were on the U. S. Asst. appellee. 427 general approaches BAZELON, Judge, are two and There Before Chief treating MacKINNON, in addicts and Circuit use of methadone McGOWAN Judges. —maintenance and detoxification. Un- system large maintenance, der a Judge: BAZELON, day Chief given dose of once a methadone is keep period for an indefinite in order to physician, Appellant, a licensed patient taking heroin. In de- registered 822 of the Con § ap- toxification, the less controversial prescribe trolled Substances Act1 large proach, a dose of methadone is methadone. He was convicted violat given days for the first few in order to ing pre Act, of the which forbids 841 § keep patient free of withdrawal scriptions without authorization. We symptoms. gradually The is then dose inapplicable appellant find 841 § reduced, ultimately to achieve abstinence reverse his conviction. drugs. from all is Our conclusion reached appellant’s at evidence trial estab- principle force of the established that August, lished that from 1971 to Febru- “when choice has to be made be [a] appellant ary, prescribed metha- readings tween two of what conduct patients: done to numerous Under the Congress crime, appro had made a it is only Controlled Substance Act those doc- priate, before we choose harsher al registration tors who have obtained ternative, require Congress that Attorney pre- from the General can language spoken have in should scribe a “controlled such as substance” rule, is clear and definite.”2 course, This Appellant methadone.5 had obtained cannot serve to “override period ques- for the purpose.”3 statutory evident during tion and it was never revoked statutory In the for an “evident search period. purpose,” analysis necessarily our covers complex language, statutory a regulatory provisions, maze of Appellant contended at trial that he leg- previous prescribed good methadone faith for islation. government argued detoxification. The appellant was no more than a I “pusher”:

Methadone an addictive is which can be used in the treatment of narcot- physician’s used the cloak as a [H]e ics addiction.4 A heroin addict who cover to sell . . There may experience switches to methadone purpose was no medical behind this— craving neither a heroin nor a eu- purpose: money. there was one phoric “high.” Moreover, methadone appellant As concedes his brief to day, orally can be taken once a while court,6 injected at trial estab- heroin evidence must often be several day. engaged highly times a lished that in certain he description 1. All sections of the Controlled Substances 4. brief follows repro- opinion referred are and use nature of methadone based on n expert testimony given Appendix appellant’s duced in I References trial. infra. codified, 21 to section numbers of the Act as 822(b), Appendix 5. 21 I § U.S.C. § infra. seq. U.S.C. 801 et 812 divides controlled into five substances drug’s potential “schedules” based on the 2. v. I. T. United States Universal C. Credit abuse, accepted like, medical use Corp., 218, 221-222, 344 U.S. 73 S.Ct. drug. Methadone is a schedule II See (1952). L.Ed. 260 812(c), 11(b) (11). For Schedule U.S.C. drug, properties II see schedule Brown, 18, 25, v. United States 333 U.S. 812(b) (2), Appendix I infra. (1948). S.Ct. 92 L.Ed. Appellant’s Brief at 4-5. during legitimate period medi- practices issued for irregular must be practi- purpose cal an individual question: tioner, acting the usual prescribed ) methadone 1. He practice.” professional patient quantities re- whatever ; It is the Government’s contention quested theory that Dr. the conduct graduated in ac- ) His were 2. fees giving prescrip- these Moore in out quantity of metha- with the cordance legitimate not for a medical tions was purpose, prescribed; done secondly, he was not and that ) make that not certain He did 3. pro- acting in the usual of his pre- he patients whom was the scribing practice. fessional were addicts. methadone regulation aspect second of that not, some delivered and were Some (c), part: part which in “A states non-patients. their methadone prescription may for the not be issued indictment filed In a 639-count June drug dispensing to a of narcotic charged 27, 1972,7appellant vi- was continuing purposes addict for olating 841(a) of the Controlled Sub- upon drugs.” dependence his Act; stances It is the Government’s contention (a) Except as authorized prescriptions issued that these were subchapter, it be unlawful for drug as maintain these addicts person knowingly or intentional- issuing addicts, and that he was ly— detoxify them, prescriptions these distribute, to . . or dis- retaining them but addicts. pense is, prescribe] [that really So, that boils down to end a controlled substance. stated, what I that he result appellant arraigned, When conducting methadone maintenance or judge prosecutor trial theory told the that maintaining drug rather than addicts government’s of the would case only detoxifying them he was au- spelled greater to be detail have out regulations, thorized to do his “the doesn’t tell de- since indictment regulations violation of these anything.” Accordingly, at a fendant 841(a) he violated of the CSA. hearing government pre-trial of- counsel THE COURT: I will take that particulars. oral fered an bill of Coun- you Alto, made, statement which Mr. provision that to a sel noted Particulars, in the nature of a Bill of the Controlled the Attor- Substances your proof accordingly, and limit regula- ney promulgated had General of notice coun- will be to [defense registered governing pre- tions those theory as to the of the case. sel] gov- substances. The scribe controlled Yes, your alleged appellant’s [Government Counsel]: ernment relied on vio- regulations: Honor. of one of lation those Appellant’s trial commenced on Octo- Gov- [Government Counsel]: [T]he prosecution ber After rely ernment would on Section judg- rested, defense for a moved And,

numbered the two main 306.04. gov- noting acquittal, ment parts that main sections the two of that ap- that is, ernment had failed establish apply case, to this pre- pellant specific was not authorized to write of the theories Govern- scriptions The motion for methadone. case, ment’s is section rested, After part: was denied. the defense prescription “A states for a govern- keeping court, with the to be controlled substance effective forty-count retyped September 26, A was subse- indictment tlie an- On Government filing. accepted by quently the court for its to sever nounced intention 588 counts. case, physician registered prescribe theory metha- instructed ment’s done, wrongfully. are jury had to acted We that it find: consequences of such concerned with the beyond doubt a reasonable action. physician knowingly inten- tionally dispense distribute did support language There is in the by prescription, did so [methadone] history appel- 822 of the Act for good for detoxi- other than faith ap- lant’s contention that 841 does not pro- fication the usual course of a ply 822(b) specifically pro- to him. § practice and in accordance fessional registered persons vides that the At- practice with a standard of medical torney General recognized generally accepted in substances “authorized do [to so] the United States. registra- the extent authorized their guilty jury returned a verdict conformity tion and with the other Appellant on 22 counts. was sentenced provisions subchapter.” The lan- prison years to terms of five to fifteen guage “except the echoes as authorized” counts, on concurrently, of fourteen all to run each language 841, suggesting immunity of § thirty years and ten to on registrants penal from the sanctions remaining eight counts, to each of the provided course, in that section. Of concurrently run to each other but con- registrant that a is “authorized . secutively to the of sentences. first set to the extent authorized” some lends $150,000 totalling also im- Fines were Congress theory credence did posed.8 registrants intend authorization for beyond compliance to extend with the II provisions reg- and Act the

Appellant promulgated contends that his indictment ulations thereunder. be dismissed 841 of the must because § legislative history The of how- § ap- does not Controlled Substances Act ever, weighs against theory. such a The registered ply to doctors Act, originally passed by as was the argues methadone. that if he acted He Senate,9 compa- did not contain a section unlawfully subject only he was to trial 822(b). provision rable to The was § sections of the statute those inserted the In- House Committee on specifically govern which the activities Foreign Commerce, terstate and registered of with less doctors—sections flatly report pur- stated in its that the penalties in severe than those 841. § pose of the addition “to make it was only we ad- This contention is the one registered persons clear that under this cir- dress. We do not decide under what title are authorized in to deal or handle cumstances, any, if individual such as 10 controlled substances.” Commit- appellant lawfully administer a could explanation suggestion tee’s no contains program. methadone maintenance Nor regis- that it intended to authorize appellant do we decide whether complied every way trants who maintaining addicts, detoxifying fact responsibilities drugs. established under other them, pushing simply We appellant, assume that a licensed of sections the Act.11 Appellant’s practice report suggest 1 8. 1. The license to medicine Committee’s does registrants’ pur- the District of authorization is limited to what Columbia also revoked 2 suant their authorizes them to do. Id. § D.C.Code 131. suggestion But even if this is taken as clari fying point, (1970). Congress’ 9. Cong., S. 91st 2d intent on this the Sess. passed prosecution’s January theory the Senate on of the case did not rest 1970. Cong.Rec. appellant’s 116 1671. of the terms of on violation registration, broadly on his but much more H.R.Rep. 91-1444, Cong., alleged “usual No. 91st 2d activities outside accompanying (1970), Cong.Admin.News practice.” Sess. 38 text U.S.Code See 1970, p. Appellee supra; note Brief for at 61. 13

430 imprison- years’ reading gathers punishable four Appellant’s are 841 § place $30,000fine. ment and a support in the its further in- The Act Act. overall scheme of the and 841 § In contrast §§ registrants. regulation of sures the close “registrants” mention does not Attorney gives 822(f) Gen- Section pro- provisions. It its focus authority inspect offices eral up and vides for sentences procedures registrants. Standards $25,000. up This broad out- fines of revoking or are forth set § Congress suggests in- strongly line registration; suspending an individual’s registrants primari- deal with tended to suspension, tools for revocation and system ly through a of administrative the flow of control of the administrative drugs, penalty pro- controls, relying on modest strengthened recently been have controls, re- enforce those visions passage Addict of the Narcotic provided serving penalties the severe Act.12 Under Treatment §§ regu- seeking to avoid in 841.for those 829, requirements detailed for registering. entirely by not lation prescriptions in proper forms order regulations already noted, As drugs. prescription of distribution as a bill served Government which particulars appear appellant’s trial machinery is This administrative regulations implementing 306.04 penalties up provided for backed specifically lim- Part the statute. issu- 842 and 843. outlaws §§ to: ited 829, ing prescriptions in of violation § issuance, filling, [rjules governing the mislabelling drugs and similar miscon- filing prescriptions to of and subject duct. Violators of 842 are to a § 13 . . 829 . ... 21 U.S.C. § $25,000 and, penalty civil of if a viola- spe for violation of 829 is Punishment § knowing, penalty of a tion is a criminal Against cifically provided for in 842. § year imprisonment and a fine of background statutory which we have the $25,000. of- 843 defines more serious § sketched, to cannot have been evident it registrants, fenses for such as distribut- punisha appellant also be that he would ing a there is controlled substance when 841(a), ref makes no which under ble § using proper obligations no order form and a ficti- which to the erence 829 § registrants.14 registration imposes tious on number. Violations Congress’ appro- May 14, 1974, 93-281, event, that 12. Act it seems to us of Pub.L.No. is not conviction of Dr. Moore’s 88 124. bation Stat. passing purpose strong 824, § of its evidence That Act 822 §§ amended and which incidentally provides suspension enacted some was the revocation and differently registrations. years requires special regis- constitut- four earlier of It fact, practitioners administering Section and House. tration for main- ed Senate programs or House in the is considered Senate tenance or au- detoxification and reason, good NATA, Attorney Reports and with on thorizes tlie General to revoke this passage Congress’ in the central concern failure meet standards to prosecutions at promulgate. was not criminal of that Act which he is authorized to The deregistration The legislative history abusers. of all the dissent but contends the perfectly step consistent reading took is which it of NATA refutes our of 841. The intent, the from view that its broad case of Dr. the Moore is discussed the Senate with through registrants outset, Report with was to deal on NATA as a ex- “most notorious” ample the drugs rather controls administrative of the diversion for illicit use of provisions penal registered practitioner, §of harsh and sale his length conviction and the of his sentence are (1971). Fed.Reg. 7799 apparent S.Rep.No. approval. with noted 93-192, Cong., (1973). decide whether and do not 14. We need not 1st Sess. 7 sufficiently spe- regulations NATA, course, passed is 306.04 of after sanctions, appeal argued criminal the invocation of cific for had been briefed and in our Congress court, that viola- question intended nor whether and there is a therefore prosecu- regulations trigger history criminal tions of how much its can be relied on meeting appellant’s arguments. Act. Substances under Controlled tions Ill a distribution intended to cater satisfy craving appetite of government justify its The seeks drug. one addicted the use of the appellant by prosecution reference to “prescription” A issued for either judicial Harrison construction of purposes protects the latter neither 1914,15 predecessor Narcotic Act physician who issues it nor the In or- of the Controlled Substances Act. knowingly accepts dealer fills must der evaluate this contention we it.17 Harrison consider structure of the persons government Act. Section The maintains selling prescribing foregoing “analogously principles narcotics certain register dispositive” internal with “collector of and dictate that under the pay appellant an revenue district” and [their] Controlled Act Substances stripped exemption annual tax. Section 2 unlawful made it of his from 841 prescribe except unprofessional to sell or narcotics conduct. persons with order forms issued Act, The how- Controlled Substances Commissioner of Sec- Internal Revenue. ever, fundamentally different exempted prescribing tion 2 “of Indeed, the Harrison Narcotic Act. drugs patient by of the aforesaid legislative history indicates, its the Con- physican [regularly] regis- . . . replaces trolled Substances Act the Har- tered in the of his single penalty provision rison Act’s professional practice . .” penalty provisions specifical- a series of punished All violations of the Act were ly designed registered to treat and un- by imprisonment up under Section 9 registered differently. individuals $2,000. up to five fines penalty provisions now embodied government 1969. 501-503 the Senate bill19 §§ Moy Fuey to decisions such as Jin v. contained the identical offenses as §§ States, Supreme United in which the drug dealing 841-843: 501 outlawed § Court held in 1920 that: by those not “authorized” under the Manifestly phrases patient” the “to a Act; prohibited, alia, 502 inter actions § professional “in and the by registrants “prescriptions” which violated the practice only” are intended confine to n;20 prohib and 503 § sectio immunity registered .physi- the of a ited, alia, regis inter distribution cian, dispensing drugs the narcotic proper in the order trants absence strictly act, mentioned in the within pen severity forms. The relative appropriate physi- the bounds of a present identical the professional alties was also practice, cian’s not to and penalty it vi extend severe for include a sale to a dealer Act: the most Appellee’s 15. 38 Stat. 785. Harrison at Sections of the 18. Brief 23. opinion repro- referred to in Act the Cong., (1970), 3246, is 19. 91st 2d Sess. S. Appendix II, duced infra. Cong.Ree. (1970). reproduced 116 at 1671 government portions 16. The 501-503 §§ cites cases as Unit Relevant of the Sen- Behrman, 280, reproduced Appendix in- ed v. 42 III States 258 U.S. S.Ct. ate bill are 303, (1921) ; 66 L.Ed. 619 States v. United fra. Doremus, 86, 214, 249 L. U.S. 39 S.Ct. 63 detailing bill, 20. 309 of the Senate See also § (1919) ; States, Ed. 493 Linder v. United requirements prescriptions, reproduced in 5, 268 U.S. 45 L.Ed. S.Ct. 69 819 Appendix language III Its is com- infra. (1925). Appellee’s See Brief at 61-63. parable language current in 21 U.S.C. to the 189, 194, 98, 100, | 17. 254 U.S. 41 65 L. S.Ct. 829. (1920). 214 Ed. 432 manager of the bill and chairman of the for vio the least olation of severe § subcommittee, that relevant noted §§ lation of 502. § penalties provided in- “for those 502-503 Report Judiciary on The Committee’s 26 legitimate trade.” volved ap- 501§ that while bill states Senate leading proponent Hruska, 21 Senator “traffickers,” plies contains 502 § the bill and member of Senator Dodd’s “penalties for those involved . . . subcommittee, emphasized 22 that the Har- drug trade,” legitimate and § explained He rison Act was outdated.27 penalties . 503 contains “further the Senate bill “we are not mere- that in illegal registrants distribution ” ly existing legal redecorating the 23 struc- The . . . Sec- [controlled] Rather have laid a foun- ture. we new Analysis Report tion-By-Section in the ” 28 fur- . . Hruska dation Senator makes it unlawful states that 502 § “the noted in the bill ther Senate

prescribe “con- a controlled substance penalties are tailored to fit the crime registration trary to the terms of person and the who committed that 24 requirements,” and makes it un- 503 29 apply- crime.” He described 501 as sub- lawful to distribute ing “traffickers,” and §§ “contrary to re- stances quirements defining committed 503 as “offenses contrary forms order registrants.” Attorney established General.” 28, 1970, January Controlled it was time of the On Thus clear passed Dangerous Report (§§ Senate 502-503 842- Substances §§ hearings 843) regulate regis- designed held Senate. The House then were September legitimate in the field. trants —those within the On 841) on Interstate and For- (§ House Committee business—while eign reported legitimate the bill Commerce out those outside of channels. present The Act.32 which became the on debtate the floor of Senate passed provisions Dodd, penalty three confirms view. Senator S.Rep. 91-613, Cong., that have been 21. nessed various amendments 1st No. 91st Sess. particularly law, (1969). penalty in the basic made to that described establishes penalties penology, well as This field of § 501 under discussion. method very necessary new substances. These were some unsatisfactory. identification is used when brought up legislative history It must be discussion date, in- has to modernized to follows. many and substances new substances chide 22. at 9. Id. yet use, dangerous and not considered goes Then, develop Id. on. which will time system of must there be some scheme Id. at 25. obey regu- penalties do not for those who 25. Id. requirements stat- the lations the things in the bill. covered ute and other Oong.Rec. 26. (remarks include in the bill would features Other Ilodd). Senator importation, expor- distribution, dispensing, Senator Dodd was chairman of the Juve- provisions tation, as well as administrative Delinquency nile Subcommittee of the Judici- provisions. We have and enforcement ary Committee —the subcommittee that held things, virtually all of have most of these hearings legislation. on narcotics ef- write an immediate and them order to (remarks 27. Hruska) Id. at 975 of Senator : law enforcement statute. fective drug Insofar as the enforcement the 28. at Id. 1663. concerned, they laws of America are now, basically exist we know the Id. 29. at 1664. penalties illegal sanctions and for the acts 30. Id. at 1665. pretty are much based on a law that al- years old, most 60 the Harrison Narcotic 31. Id. Act. H.R.Rep. In 91-1444, supra, the tenure of both the 32. Senator from No. U.S.Code Cong. Connecticut 1970, p. and this Senator we have wit- & Admin.News 4566. self-explanatory Senate were retained in the House bill.33 penalty —the Report empha- knowing The House Committee’s violation of 842 includes a § unique pro- year imprisonment, sized the implying structure of the Con posed legislation: gress was concerned with serious misb ehavior.36 provides The bill for control the Department problems Justice relat- Report provides The House further through registration ed to abuse support for the view that the Controlled manufacturers, wholesalers, of ers, retail- fundamentally Substance Act revises the legitimate and all others penalty structure of the Harrison Act. chain, distribution and makes transac- Report, in its discussion of the need legitimate

tions outside the chain for medical treatment for narcotics illegal.34 addicts,37 approval reports cites with of two Presidential Commissions—the Thus Committee was House Prettyman Commission of 196338 and aware, was, a distinc as the Senate the Katzenbach Commission of 1967.39 841, unau tion between which covers § Both Commissions noted the 843, difficulties individuals, thorized §§ physicians faced under “legitimate Harrison which cover those in dis Act, pre- where a controversial Report tribution chain.” The House scription patient for a could result in a notes that “more or less viola technical being punished pusher40 doctor as a are set forth in 35—there is tions” § Report quoted length The House at comparable phrase explanatory no con Prettyman Commission’s discussion cerning find 841 or 843. no We § § problem, including its government’s references merit in the view that this very to the line of cases on relied phrase appellant tried mandates that government appeal: in this under 841 were not since violations might phrase most, “technical.” At passage Since the of the Harrison 843, se indicate has more Act of Federal narcotics penalties vere be used expressly permitted laws physi- have certain serious offenses committed prescribe cian to narcotic for a legitimate patient those within the distribution “professional in the course of any event, phrase practice chain. In “more only” “legitimate and for hardly or less technical violations” is “legitimate medical uses” and medical bill, they II.R.Rep. 33. 91-1444, the House II.R. supra 14-15, 37. at U.S. 401, 402, Cong. §§ numbered and 403. II.R. 1970, p. See Code & Admin.News 4566. Rep. 91-1444, supra 40-^48, No. at U.S.Code Advisory 38. The President’s Commission on Cong. 1970, p. They & Admin.News 4566. Drug Abuse, Narcotics id. at 16. provisions are the same as the Senate purposes appeal. 39. President’s relevant to this Commission on Law Enforce- Justice, ment and Administration of id. II.R.Rep. supra 91-1444, 34. No. U.S. Cong. 1970, p. 40. Code & For Admin.News 4569. observations of the Katzenbach Commission, Report, see Task Force Nar- 10-11, Cong. Id. at U.S.Code & Admin. Drug Abuse, cotics and the President’s Com- 1970, p. (“More News or less techni- mission on Law Enforcement and Adminis- cal violations set forth section 402 [§ (1967), tration of Justice at 18-19: punishable by 842] of the bill are less severe right What limits does law set on the penalties.”) physician prescribe of a or administer passage by House, 36. After drugs the bill the re- narcotic a narcotic addict? Senate, turned to question the where Senator Hruska This short raises that issues have expressly during warmly long noted floor debate that the been debated for a time —is- penalty structure was the same as in the sues that are not resolved reference to original supported. general proposition statutory Senate bill he had 116 the the Cong.Rec. (remarks regulatory 3502-03 of and Senator measures for the control of Hruska). penalty drugs The same structure narcotic are not intended to inter- through conference, drugs retained as the bill went fere with the administration of such passed finally Houses, signed legitimate practice. both and was medical . by the President. 434 statutory provides lan-

purposes.” the Act which for the determi- Under physi- “appropriate guage a no doubt that nation of methods of treat- there drugs “clarify prescribe narcotic ment for addicts” in order to cian suffering pain profession or from the patient acute medical the United they may But painful disease. the extent to which and incurable States safe- years ly treating controversy go existed 50 has narcotic addicts as patients.”43 publication which narcotic of extent Yet the ac- over the response ceptable methods, ad- drugs may to an to the be administered as one impact solely holding, he addict. does not is an the Linder because of dict implementation of other re- exclude the following During first 10 the including sponses well, exemption Act, Harrison enactment registered practitioners from some of Supreme con- affirmed several Court event, penalty provisions. In involving the act under victions general Congress expressed concern of prescribing of narcotic indiscriminate together here, as- taken other however, 1925, In for addicts. legislative history pects of the Act’s States, 268 U.S. in Linder v. United reviewed, forcibly under- we which have L.Ed. Court 45 69 S.Ct. position mines the Government’s dispensing of nar- indicated that precedents the Harrison drugs by physician cotic “analogously dis- should be considered relieving purpose conditions inci- 44 positive.” every in- not in dent to addiction Reversed. stance a violation of the act. regulations of the Bureau Narcotics, however, do not seem to be I APPENDIX in accord with [Linder] Provisions of the Controlled Selected practicing physician thus has 21 Act of U.S.C. Substances may pre- been he confused to when seq. 801 et § drugs for an addict. scribe narcotic 802. Definitions. § prosecution many Out a fear of “dispense” (10) The term means physicians refuse to use narcotics in deliver a controlled substance to ulti- except treatment addicts occa- subject by, or mate user research sionally regimen in a withdrawal last- of, prac- to the lawful order ing longer no than a few weeks. titioner, including prescribing they most instances shun addicts as administering of a controlled substance patients.41 packaging, labeling, and the or com- aware, notes,42 We are as the necessary dissent pounding prepare the sub- passage appears delivery. House stance for such The term “dis- Report’s consideration of a section penser” practitioner de- means so supra H.Rep. 91-1444, 14-15, parties provisions exempting Xo. U.S. that “the medi- Cong. 1970, p. & Admin.Xews practitioners Code cal in 21 are found U.S.C. § (b) 306.04.” § 21 C.F.R. p. 42. See 455 infra. Id. at 488. The never court therefore con- 822, providing sidered the effect for the §of (1970).

43. 42 U.S.C. 257a dispensing physicians, ju relies, way appellant’s 44. The Government also is the cornerstone claim of ex- authority, emption dicial on three decisions in in this case. The later cases of holding Jobe, (10th circuits in conflict with our here. v. F.2d 268 United States 1973), Leigh, The first of these is United v. Bar v. States Cir. and United States tee, (10th 1973), (5th 1973), rely solely upon 479 F.2d 484 Cir. F.2d wherein Cir. apply respond physi was held to licensed Bartee. As we a line of reason- ing explored cian found to be in violation of which was not of these regulations persuasive cases, thereunder. The court’s rea we do not consider them soning agreement authority. rested on an between the name, name, an ulti- substance to chemical or brand name livers controlled designated: subject. or research mate user of controlled sub- 812. Schedules stances. SCHEDULE II (a) Establishment. specifically excepted or Unless There established five are schedules schedule, any unless listed in another substances, be known following whether substances I, III, II, IV, and schedules V. Such directly indirectly by produced or ex- initially schedules shall consist of vegetable traction from substances of substances listed this section. The independently origin, or means schedules established section this synthesis, or chemical combina- updated republished and on a syn- tion of extraction and chemical during two-year semiannual basis thesis : year period beginning one after the date (1) Opium opiate, and and subchapter enactment of and prepa- salt, compound, derivative, or updated republished shall be on an opium opiate. ration of or annual basis thereafter. (2) Any salt, deriva- compound, (b) schedules; findings Placement on tive, preparation or thereof which is required. chemically equivalent or identical Except where control is referred substances obligations United States under an in- (1), except to in clause that these treaty, proto- ternational convention, or substances shall not include the iso- col part, effect on the effective date of this quinoline opium. alkaloids except in the case of an imme- (3) Opium poppy poppy drug precursor, diate or other sub- straw. may placed stance not be schedule any salt, Coca leaves and findings required unless the for such compound, derivative, prepara- or respect schedule drug made with are to such leaves, any salt, tion of coca findings or other substance. The compound, derivative, prepara- or required for each of the schedules chemically tion thereof which is follows: equivalent or identical with except substances, these (2) SCHEDULE II.— substances shall not include deco- (A) drug or other substance cainized coca leaves or extraction of high potential has a for abuse. leaves, coca which extractions do ecgonine. not contain cocaine or (B) or other substance currently accepted has medical use (b) specifically excepted Unless in treatment in the United States schedule, any unless listed in another currently accepted medical use with following including opiates, severe restrictions. isomers, ethers, their esters, salts, and (C) Abuse of the or other isomers, ethers, salts of esters and psycho- substances lead to sever whenever the existence of such iso- logical physical dependence. mers, ethers, esters, possi- and salts is specific desig-

ble within the chemical nation (c) : Initial schedules of controlled sub- stances. (1) Alphaprodine. II, I, III, shall, IV, Schedules and V (2) Anileridine. and until unless amended (3) Bezitramide. title, 811 of consist (4) Dihydrocodeine.

following substances, by name, whatever official Diphenoxylate. common or usual 436 regulations promulgated Fentanyl. rules and

(6) him. (7) Isomethadone. (b) activities. Authorized Levomethorphan. (8) Attorney registered by the Persons Levorphanol. (9) subehapter to manu- under this General (10) Metazocine. distribute, facture, or con- (11) Methadone. pos- trolled substances are authorized to - Intermediate, (12) Methadone distribute, manufacture, or dis- sess, 4-diphe- 4-cyano-2-dimethylamino-4, any (including pense such substances

nyl butane. activity research) such in the conduct regis- 2- Moramide-Intermediate, (13) their the extent - - - - dip- 1,1 conformity morpholino methyl tration and with the provisions subehapter. acid. henylpropane-earboxylic (c) Exceptions. (14) Pethidine. - - following persons (15) The re- Intermediate shall not be Pethidine quired register may lawfully pos- 4-cyano-l-methyl-4-phenylpiperi-

A, any sess controlled under this substance dine. subchapter: Pethidine-Intermediate-B, (16) - - - - agent (1) employee any 4 car- ethyl phenylpiperidine An or registered manufacturer, distributor, boxylate. dispenser or controlled sub- Pethidine-Intermediate-C, agent employee if - stance such or - - - - methyl phenylpiperidine acting in the usual course of busi- carboxylic acid. employment. ness .or (18) Phenazocine. (2) A common or carrier contract (19) Piminodine. warehouseman, or employee or an (20) Racemethorphan. thereof, possession whose of the con- (21) Racemorphan. trolled substance inis the usual course employment. of his business or excepted or (c) specifically Unless schedule, possesses unless in another listed An ultimate user who injectable liquid contains purpose specified for a substance methamphetamine, quantity includ- 802(25) in section title. ing isomers, salts, of iso- and salts its (d) Waiver. mers. Attorney by regula- may, The General regulations. Rules and tion, registra- requirement waive the Attorney manufacturers, General is authorized to tion of certain distribu- regulations promulgate and to tors, dispensers rules or if he finds it consist- charge relating safety. reasonable fees public ent with health and registration and control of the manufac- Separate registration. (e) ture, dispensing distribution, of con- separate registration A shall be re- trolled substances. quired principal place at each of busi- register. 822. Persons professional practice or ness where the registration. (a) Annual applicant distributes, manufactures, Every person manufactures, who dis- dispenses controlled substances. tributes, dispenses any controlled sub- (f) Inspection. engage proposes stance or Attorney is authorized to distribution, dispensing General manufacture, inspect registrant the establishment of a substance, obtain applicant registration annually accord- issued the At- regulations torney pro- ance with rules and in accordance with the General mulgated by ceedings 91-513, suspend deny, revoke, Pub.L. title him. or II, pursuant Oct. 84 Stat. 1253. shall be conducted to this sec- subchapter tion in accordance with II of revocation, Denial, suspension or chapter proceedings 5 of Such Title registrations. of independent of, shall be and not in lieu (a) Grounds. of, prosecutions criminal pro- or other registration pursuant ceedings to section 823 subchapter any A under this or distribute, manufacture, title to law of the United States. may substance or a controlled (d) Suspension registration of in cases Attorney by suspended the revoked or danger. of imminent regis- finding upon the General Attorney may, The General in his dis- trant— registration cretion, suspend any simul- any ap- (1) materially falsified has taneously pro- with the institution of plication pursuant to or filed ceedings under section, this cases subchapter subchapter by or II of this where he finds that there is an immi- chapter; this danger public nent ty. to the health or safe- felony (2) convicted of a been suspension has Such shall continue in subchapter subchapter or under this effect until pro- the conclusion of such chapter ceedings, or other law of including II of this judicial review there- States, State, of, re- or of the United by unless sooner withdrawn the At- lating defined in this torney substance by General or dissolved a court of substance; subchapter competent as a controlled jurisdiction. or 828. Order forms. (3) or had his State license has (a) Unlawful distribution of controlled registration suspended, revoked, de- or substances. authority by competent nied State It person shall be unlawful longer State law no is distribute a controlled substance in engage manufacturing, dis- to tribution, the schedule except I or II to another dispensing or of controlled pursuance per- of a written order of the substances. son to whom such substance is distrib- (b) suspension. of revocation or Limits uted, made on a form to be issued the may Attorney limit revo- The General Attorney General in blank in accordance registration suspension of a cation or (d) with subsection of this section and particular controlled substance with the regulations prescribed by pursuant him respect grounds to which for revocation to this section. suspension or exist. (b) Nonapplicability provisions. (c) order; pro- Service of ceedings. cause show Nothing (a) in subsection of this sec- apply tion shall to— pursuant taking Before action to this (1) exportation of such sub- section, regis- or to a denial of stances from the United in con- States title, tration under 823 of this formity subchapter with II of this Attorney upon shall serve General chapter; registrant applicant or an order to (2) why delivery show cause should not such a substance denied, revoked, suspended. to or or or common contract carrier carriage order to show cause shall contain a the lawful and usual business, thereof statement of its basis upon registrant storage applicant call warehouseman in the law- appear Attorney ful business; before the usual course of General at its carriage place storage order, time and stated in the but where such but thirty days no event connection less than after distribution receipt the date owner of the order. of the substance Pro- to a third thereby procure the distribution paragraph shall not re- person, compliance such substances. distributor lieve (a) of section. with subsection (e) acts. Unlawful availability. (c) charge Preservation Attorney General fees for issuance such reasonable pursuance Every person inwho may pre- forms amounts as he required under subsection an order covering purpose scribe a controlled distributes section of this issuing of to the such cost United States preserve for a such order substance shall necessary in forms, and other activities years, shall make such period and two of connection therewith. copy- inspection and order available any person shall be unlawful for to It employees ing of by and officers by of order obtain means forms issued duly for that United States under this section controlled substances by Attorney General, and by purpose use, purpose other than their employees or their of States or officers distribution, dispensing, or administra- charged political who are subdivisions tion in a the conduct of lawful business or of local State with the enforcement in in such substances or the course of regu- regulating production, or laws professional practice or research. lating of dispensing, or the distribution Prescriptions. autho- and who are controlled substances inspect such or- (a) under laws rized such to II Schedule substances. ders. Except directly dispensed when a Every gives (2) person practitioner, pharmacist, an order other a than (a) of user, this under subsection an ultimate no controlled substance shall, time of II, prescription

section or in before schedule ais giving order, drug to be such make cause under determined the Federal duplicate Food, Drug, Act, may on a form to be made a thereof and Cosmetic be Attorney dispensed prescrip- in issued blank General without the written (d) except in with of tion a in practitioner, accordance subsection of regulations emergency prescribed by prescribed situations, this section and pursuant section, Secretary by regulation him this after consul- shall, accepted, preserve Attorney if with General, such order is tation such years may dispensed duplicate period drug upon such a pre- two be oral inspection scription and make it available for accordance with section employees copying 353(b) Prescriptions the officers and of this title. shall paragraph conformity mentioned in this be retained in the re- quirements subsection. of section 827 this title. prescription No for a controlled sub- (d) Issuance. may in schedule II refilled. stance be Attorney General shall issue (b) III Schedule and IV substances. forms subsections (c)(2) persons Except directly by dispensed of this section when a registered validly practitioner, pharmacist,- under section 823 of other a than (or exempted user, this title an ultimate no controlled substance 822(d) IV, title). pre- a schedule III which is drug scription Whenever such form is as determined under issued to a person, Attorney Food, Drug, Act, shall, Federal and Cosmetic General be- delivery may dispensed fore thereof, be written or insert therein the without a conformity person, prescription name of such and it oral with sec- un- 353(b) prescrip- person (A) lawful for Such tion title. use purpose obtaining such form filled or refilled more tions not be (B) six thereof substances or months after the date furnish any person such form refilled more than five times after with intent prisonment years, prescription of not more than 30 unless re- the date $50,000, practitioner. fine of not more than or both. newed Any imposing impris- sentence a term of (c) substances. Schedule V paragraph shall, onment under No controlled substance schedule V conviction, prior absence such drug may be distributed which is impose special parole term of at least dispensed pur- for a medical other than years in addition to term of im- such pose. prisonment shall, if there was such (d) Non-prescription with abuse prior conviction, impose special pa- potential. role term of at least 6 addition appears imprisonment. Attorney to such term of Whenever to the that a General not considered to be (B) In the ease a controlled sub- prescription drug under the Federal stance in schedule I or II which is not a Food, Drug, and Cosmetic should be narcotic or in the case of con- poten- so considered because its abuse III, trolled substance schedule tial, Secretary he shall so advise person shall be sentenced to a term of furnish to him all available data rele- imprisonment years, of not more than 5 vant thereto. $15,000, a fine of not more than or both. 841. Prohibited acts A. any person If commits such a violation (a) acts. prior Unlawful after one more or convictions of punishable him for an under offense this Except subchap- as authorized this any paragraph, felony or for a under ter, any person it shall be unlawful for provision subchapter other of this or knowingly intentionally— or subchapter chapter II of this or other (1) manufacture, distribute, or relating law of the United States to nar- possess dispense, or with intent drugs, marihuana, depressant cotic or or manufacture, distribute, dispense, or a substances, final, stimulant have become substance; or person such shall term be sentenced to a (2) create, distribute, or dis- imprisonment of not more than 10 pense, possess or with intent to dis- years, $30,000, a fine of not more than dispense, tribute or a counterfeit sub- Any imposing or both. sentence a term stance. imprisonment paragraph under this (b) Penalties. shall, prior in the absence of a con- such Except provided viction, otherwise impose special parole in sec- a term of title, person tion any of this years who vi- in least addition to such term olates imprisonment shall, subsection of this section of if there was shall be prior conviction, sentenced as impose special follows: such a a parole years term of at least addi- (1)(A) In the case of a controlled imprisonment. tion to such term of substance schedule I or II which is a drug, person narcotic such (2) shall be sen- In the case of a controlled sub- imprisonment tenced to a term IV, person not stance schedule such shall years, more than 15 imprisonment fine of not more be sentenced to a term of $25,000, than any person years, or both. If of not more than 3 a fine of not commits such a $10,000, per- violation any after one or more than or If both. prior more convictions of him for an of- son commits such a one violation after punishable fense paragraph, prior under this or more of him for an convictions felony any or for provi- punishable under para- other offense under this subchapter sion subchapter graph, felony of this any or or II for a under other chapter of this provision or subchapter subchap- other law of the Unit- or relating drugs, ed marihuana, chapter States to narcotic ter II of this or other law of the depressant relating drugs, or or stimulant United States to narcotic substances, final, per- marihuana, depressant have become such or or stimulant son shall be substances, final, per- sentenced to a term of im- have become such registrant (3) to a term of im- who is a to distribute

son shall be sentenced years, prisonment more than 6 a controlled substance violation of of not title; $20,000, or both. section 825 of fine of not more Any this impris- imposing a term of sentence (4) remove, alter, or obliterate a shall, paragraph onment under this symbol required or label conviction, prior of such a absence title; this impose special parole term of at least (5) make, keep, to refuse or fail to year im- to such term of one addition any record, report, or furnish notifi- shall, prisonment there if was such cation, declaration, order or order pa- conviction, impose special prior form, statement, invoice, or informa- in addition role term of at least subchapter tion under this imprisonment. term of such subchapter chapter; or II of this (6) entry of a controlled sub- case to refuse into V, premises person inspection such stance schedule imprisonment subchapter subchapter sentenced to a term of this II of year, chapter; of not more than one fine of $5,000, per- more than or both. If break, injure, remove, or de- son commits a violation after one placed upon face a seal controlled sub- or more of him for an of- convictions 824(f) stances to section punishable paragraph, fense under this 881 of this title or to remove or dis- pose provision or for a crime under placed of substances so subchapter subchapter II of seal; or chapter this law of the or other United use, advantage, (8) to to his own or relating drugs, States narcotic mari- reveal, duly other than to autho- huana, depressant or or stimulant sub- employees rized officers or of the stances, final, person have such become States, United or to the courts when imprison- shall to term of be sentenced any judicial proceeding un- relevant years, ment of not more fine of than subchapter subchapter der this or II of $10,000, not more than or both. chapter, any acquired this information (4) (1) Notwithstanding paragraph inspection in the of an autho- (B) any person subsection, of this concerning by subchapter rized this (a) violates subsection of this section any process method or which as by distributing a small amount mari- protection. trade secret entitled to huana for no remuneration shall be (b) Manufacture. provided treated as subsections any person It shall be unlawful for (b) of this title. section 844 registrant who is a to manufacture a substance schedule I or II B. 842. Prohibited Acts which is— (a) Unlawful acts. (1) expressly by not authorized his any person— It shall be unlawful for registration quota assigned (1) subject require- who is to the pursuant to him to section 826 of this part ments of C to distribute or dis- title; or pense a controlled substance in viola- assigned quota in excess of a title; tion of section of this him ti- section 826 registrant (2) who is a to distribute tle. or a controlled not substance (c) Penalties. authorized his to an- registrant (1) Except provided paragraph other or other authorized (2), any person person who violates this section or to manufacture a controlled shall, any violation, regis- respect such substance penalty subject ; to a civil of not more tration $25,000. or an district courts of the to quired order order form as re- than title; (or, no where there is section 828 of this States United any territory in the case of such court (2) to in the course of the man- use States, possession then or of the United of a con- or distribution ufacture territory possession or the court in such registration num- trolled substance a having jurisdiction of a district revoked, fictitious, which is sus- ber of the in cases aris- court ing United States pended, person; or issued to another and laws of under Constitution posses- acquire or obtain States) jurisdic- have the United of a sion controlled substance mis- in accordance with section 1355 tion fraud, forgery, representation, decep- paragraph. Title to enforce this tion, subterfuge; or (2) (A) If a violation of this section is (4) to furnish false or fraudulent prosecuted by an information or indict- in, any material information or omit alleges the violation ment any appli- from, material information knowingly and the trier was committed cation, report, record, other docu- or specifically of fact finds that the viola- made, kept, ment to be or committed, person tion was so shall, except subchapter filed under this or sub- provided in otherwise chapter chapter; II or (B) subparagraph paragraph, of this (5) make, distribute, possess or imprisonment of not more sentenced die, punch, plate, stone, or other year than one or a fine of not more thing designed print, imprint, $25,000 or both. reproduce name, trademark, trade (B) If a violation referred to sub- identifying mark, imprint, or other paragraph (A) was committed after one device of another or any likeness of prior or more convictions of offend- foregoing upon punishable er for an offense paragraph (2), under this labeling container or thereof so toas or for crime render such a counterfeit sub- provision subchapter stance. subchapter chapter II of this or other facility. (b) Communication relating law of the United to nar- States any person It shall be unlawful for marihuana, depressant drugs, or cotic or knowingly any intentionally or to use substances, final, stimulant have become committing facility communication or person such shall be sentenced to a term causing facilitating or the commission imprisonment of not of more than any constituting felony of act or acts years, $50,000, a fine of or both. any provision subchapter under this of Except (3) speci- under the conditions subchapter chapter. or separate II of this Each paragraph subsection, fied in of this facility use of a communication a violation of not con- does separate shall be offense under this crime, judgment stitute a and a for the purposes subsection. For of this subsec- imposition United States and of a civil tion, facility” the term “communication penalty pursuant paragraph (1) shall any public private means and in- all and give any legal disability not rise to or used or in the strumentalities useful signs, signals, disadvantage based on conviction for a writing, of transmission pictures, criminal offense. of all in- or sounds kinds and 843. Prohibited Acts C. mail, telephone, wire, radio, and cludes all other of (a) means communication. Unlawful acts. (c) any person It shall be unlawful Penalties. knowingly intentionally— or Any person who violates this section registrant imprison- who is a to distribute shall be sentenced to a term of years, of a controlled substance ment not more than 4 a fine of classified II, $30,000, both; except I or not schedule the course of his more than or legitimate business, except pursuant any person that if commits such a viola- drugs, any pre- prior of the aforesaid shall tion one or more convictions after period section, for a of this or serve such order of two of him for violation years way any readily felony provision as to be such a ac- for a other any officer, inspection subchapter II of cessible to subchapter or Treasury employee or of the De- chapter agent, law of the United or other relating drugs, duly pur- partment for that mari- to narcotic States State, Territorial, District, pose, huana, depressant or stimulant sub- or final, person stances, municipal, officials such and insular named have become Every person imprison- term of section five of this Act. shall to a be sentenced give years, pro- as herein a fine of who shall an order ment not more than of person $60,000, vided to of the or both. more drugs shall, aforesaid at or before the giving order, of make time such or cause II APPENDIX duplicate to be thereof on made a a form of the Harrison Act Selected Provisions purpose for that to be issued in blank Stat. Revenue, Internal Commissioner of Be it enacted SEC. 1. Senate acceptance and in of or- case of the such Representatives House der, duplicate preserve shall such Congress America in United States of way period in such said of two assembled, on and after That first readily inspection be accessible day March, hundred and fif- nineteen officers, agents, employees, by the teen, every produces, person who im- mentioned. officials hereinbefore Noth- ports, manufactures, compounds, deals ing ap- contained this section shall gives in, sells, distributes, dispenses, or ply— away opium leaves or coca or com- salt, derivative, manufacture, pound, dispensing or To the or distribution preparation thereof, register drugs pa- shall aforesaid to a of the dentist, physician, collector internal revenue of or tient veteri- style, place surgeon nary registered name or district his busi- under this Act ness, places place professional practice in the where such of his Provided, only: Provided, physician, on: business is to be carried That such office, none, dentist, veterinary surgeon keep That or if res- then the any person drugs dispensed idence of shall be considered a record of all purposes showing distributed, for the of this Act to amount dis- place pensed distributed, date, At the time of such business. and the day registry patient and on or the first name before and address thereafter, every July, annually per- dispensed whom such or dis- imports, tributed, produces, son who manufac- except such as dis- tures, in, compounds, dispenses, pensed patient upon deals or to a distributed sells, distributes, gives any away physician, or or of whom such dentist veteri- drugs nary attend; pay surgeon personally the aforesaid to the said shall shall kept special peri- for collector a tax at the rate of such shall be record $1 per years annum od of the date dis- two distributing pensing drugs, such sub- or 2. That it shall be SEC. unlawful ject provided inspection, in as any person sell, barter, exchange, or Act. give drugs away any of the aforesaid ex- cept pursuance sale, (b) dispensing, To or of written order of the distri- person sold, any by to whom bution of of the aforesaid such article is bartered, pur- exchanged, given, under and in or form a dealer to a consumer on a prescription purpose to be blank for suance a written issued issued by dentist, veterinary by physician, or the Commissioner of Reve- sur- Internal Every geon registered person any accept nue. Pro- who shall under this Act: order, pursuance vided, however, prescription such and in That such thereof day exchange, sell, give away barter, shall on or shall be dated as of signed by physi- prescription signed date and shall be unless renewed surgeon dentist, veterinary by practitioner. cian, who pro- or And have issued the same: shall (c) dangerous No controlled substance further, dealer shall That such vided may included schedule IV be distrib- period preserve prescription such for a dispensed uted or other medi- than for a day from the on which of two purpose. cal way prescription filled in such a is (d) appears to the Attor- Whenever readily inspection to be accessible as by drug ney General that considered officers, employees, agents, drug prescription to be a Fed- hereinbefore mentioned. officials Food, Drug, eral and Cosmetic Act person 9. That who violates SEC. should be so considered because of its comply with of the re- or fails to potential, abuse he so shall advise shall, quirements on of this Act convic- Secretary Health, Education, tion, $2,000 be fined than or not more Welfare and to him all furnish available years, imprisoned not more than five be data relevant thereto. both, in or the discretion of court.

PROHIBITED ACTS A—PENALTIES III APPENDIX Except (a) SEC. 501. as S.3246, Act, 91st Selected Provisions it shall be unlawful person intentionally— Cong., knowingly 2d Sess. or distribute, manufacture, or dis- PRESCRIPTIONS pense, possess with intent to manu- (a) Except when dis- SEC. 309. facture, dispense, distribute, or a con- pensed practitioner, directly dangerous trolled substance: user, pharmacist, than a an ultimate ' (cid:127)X* -X- -X- -X* -X* -X- dangerous in- no controlled substance (e) Any person who violates subsec- pre- II, ' cluded schedule which is a respect (b) tion to— scription drug under the as determined (1) a substance in schedules classified Act, Drug, Food, Federal and Cosmetic I or II which a narcotic shall be is may dispensed be written without imprisonment sentenced to a term of Provided, prescription practitioner: of a years, a fine of not more than twelve pre- emergency situations, That $25,000, not more ad- both. reg- Attorney scribed General imprisonment, any dition to term of drug may dispensed ulation such special imposed sentence shall include upon prescription oral in accordance parole years. term of at least three 503(b) with section Pre- Act. * * * * * * scriptions shall be retained in conformi- ty requirements with the of section 307 B—PENALTIES PROHIBITED ACTS prescription for a Act. No (a) It be unlawful SEC. schedule refilled. II substance any person— (b) Except dispensed directly when subject require- is practitioner, pharma- other than a to distrib- ments of title II of this Act cist, user, no ultimate dangerous a controlled ute dangerous substance included sched- of section 309 substance violation prescription ule III which [prescriptions]; Food, determined under the Federal (2) registrant manufac- who is a to Act, may Drug, and be dis- Cosmetic distribute, ture, or a controlled pensed pre- a or oral without written dangerous by not authorized substance scription conformity to with section registration registrant or his to another 503(b) prescription of that Act. Such person; other authorized may not be filled or refilled more than dangerous bring (3) a controlled to six months after the date thereof or be II, I, or substance classified schedule refilled more than five times after II, in the course I or special in schedule or States into the United III pursuant business, except legitimate to jurisdiction of territorial or maritime by required section 308 form as transhipment to an order States the United Act; of this or tran- country, to transfer or another ship to vessel from one substance (2) a manu- such use in the to im- States the United another within of a controlled facture or distribution dangerous any other or for exportation registration num- mediate purpose a substance suspend- of section fictitious, revoked, violation is which ber —in Act; ed, person; this to or issued another registrant omit from to (4) possession is a (3) acquire to or obtain dangerous any by of a controlled dangerous container mis- a controlled substance symbol required fraud, decep- representation, forgery, substance Act; subterfuge; this tion, 305 of or alter, remove, obliterate (5) or to (4) ma- false fraudulent to furnish or this symbol required any section 305 in, omit mate- or terial information Act; from, any application, rial information report, required other or document keep, make, or (6) or fail refuse kept any Act, or filed under this notification, or record, report, any furnish Act; kept by required this record invoice, statement, infor- or form, order Act; or facility under this (5) any mation communication to use causing committing or facilitat- or in any any entry (7) into to refuse any ing or acts commission of act inspection premises authorized or constituting provi- any offense under this Act. separate Each of a Act. use sion this any person (b) It be lawful for sepa- facility shall be a communication registrant to manufacture who is a For rate offense under this section. dangerous substance subsection, purposes term of this is— facility” means “communication (1) expressly by his not public private instrumentalities all assigned quota transmission of used or useful Act; pursuant him to section of this signals, pictures, writing, signs, or or kinds; mail, all includes sounds of assigned (2) quota excess of telephone, radio, wire, and all other him Act. to section communications; and, means of - Any pei’son (c) who violates sec- distribute, possess make, or punishable tion is a civil fine of not stone, die, plate, any punch, other or Provided, $25,000: if more than That thing designed imprint, print, or re- prosecuted by is an infor- violation name, produce trademark, trade or alleges mation or indictment which identifying mark, imprint, or de- knowingly the violation was committed likeness of vice another or intentionally, or and the trier of fact foregoing upon contain- specifically finds the violation labeling er or thereof so as to render intentionally, knowingly committed drug a controlled dan- such counterfeit person punishable by imprison- is gerous substance. year, ment for not more than one (b) Any person who violates sec- $25,000, fine of more than both. punishable by imprisonment tion years, of not not more than fine three PROHIBITED ACTS C—PENALTIES $30,000, more than or both. SEC. It shall be unlawful Judge, any person knowingly MacKINNON, dissent- Circuit or intentional- ly— ing: today registrant majority con- who is a reverses to distribute dangerous clearly prov- doctor, controlled viction of a medical substance classified legitimate purpose consist- drug pusher (trafficker), on for a medical to a en ent with the terms of prosecuted under ground he that the The remainder of this under the Act. Sub- wrong the Controlled of section the opinion points the de- out that terms of the They result reach stances Act. Act, legislative prior subsequent aimed its is the section spite fact the plain “traffickers,” history, and common sense demon- drug pushers at fallacy majority’s ap- clearly ma- strate the of the The was. Moore which Dr. proach respect- a I this case. therefore authorization jority the holds fully dissent. dispense substances controlled doctor purposes absolute- legitimate medical I prosecution un- from ly him immunizes Act, 401(a) 21 U.S.C. Moore, physician registered Dr. un der dispenses (1970), he 841(a) when even der the Act to methadone for illegitimate clearly charged purposes,1 narcotic detoxification majority holds that thus purposes. a 639-count indictment2 filed June trafficking exempt Congress knowing intended with the and unlawful they doc- merely were doctors, dispensation because metha distribution and applicable to penalties tors, (dolophine), the done II narcotic a Schedule defect drug substance, The fatal traffickers. in violation recognize holding failure 841(a) is the 401(a), of section 21 U.S.C. § 401(a) provision of section (1970). by jury Dr. Moore was tried on does excepts retyped containing conduct thirty- which indictment persons im- special eight original class not create a counts of the indictment trafficking; prosecution for twenty-two mune from and was convicted on recognizes legality of the rather, those counts.4 **Hewas sentenced to con he physician when conduct of a prison acts current of five to fifteen terms drug good counts, faith on fourteen and ten to dispenses a narcotic Columbia, knowingly the District is Methadone detoxification 1. Tr. at 711-12. dispensed practice unlawfully accepted currently distributed and medical de- a signed specified his addic- hereinafter gram dolophine tablets, amounts of 10 milli- a narcotic addict of to cure stage” II, initially “holding nar- a Schedule involves tion. It necessary drug to, Bobby dosage cotic controlled substance the methadone determined, King, symptoms prevent [etc.]. is J. follows: withdrawal dosage gradually reduced which such is after 3. II.'—- Schedule drug- hopefully patient reaches until drug (A) The or other substance has a See text as 447-448 free state. infra. high potential for abuse. was recent- The Controlled Substances (B) drug or other substance has a specific ly definition of amended to include accepted currently medical use in treat- purposes of the Act: detoxification for currently ment in the United States means treatment The term ‘detoxification accepted medical use with severe restric- period dispensing, in ex- tions. twenty-one days, of a narcotic cess (C) Abuse of the. or other sub- decreasing an individual doses to psychological stances lead severe physiological alleviate adverse order to physical dependence. psychological to with- effects incident 812(b) Act, 202(b) (2), (2). U.S.C. from the continuous sustained drawal suggestion court, 4. At the of the district drug and as a method of use of a narcotic original pared forty drug- indictment was bringing a narcotic the individual counts; dismissed two Government period. free state within such and the ease counts at the close of its case finally Addict Treatment Act of 1974 § Narcotic jury on the was submitted to 14, 1974), (May No. 88 Stat. Pub.L. 93-281 remaining thirty-eight All other counts. original indictment counts of the 639-count (Tr. typical were dismissed the Government one of the indictment Count 1002). jury charges grand as to all Dr. Moore was convicted : persons speci- in- named but one of the nine dates hereinafter about On or illegally recipients count, dis- dictment as pensed W. each THOMAS fied herein, JR., MOORE, within methadone. the defendant remaining eight finally would ask Moore. see Dr. Moore thirty years on the tences. other but $150,000, cense trict of Columbia counts, to hallway, carried a .45 caliber fice, concurrently and his “treatment” hands with at a .22 caliber which employed was pistol 376). belt, shepherd are indicative of what and 376), and (Tr. (Tr. The conditions at D.C.Code§ perspective. 129). floor standing place at one of at was a loaded which he The other 375). 374), and a practice medicine a He dog held at consecutively on On two imposed his run special parole he whom carried at as handgun another 2-131. his inner office which sat was armed Dr. Moore dispensing kept least one occasion he had to all For muzzle concurrently shotgun, held guard, was on each beside example, fined hallway Dr. of narcotic ready counts, occasion guards at blackjack (Tr. revoked on pointed transpired there stationed term beside Moore’s office had a the other sen- of methadone his desk him in count, a total in the outside the Doctor .38 caliber and with of twelve his hand handgun upwards in both German (Tr. him on patient his addicts his li- in the each Dis- (Tr. run of- at at was lished patient patient then ask what as he could afford. eral receive a generally and any physical examination. The estab- $35 follows: dolophine pills. wanted; put my price; Appointments would take you know; I and He would ask how 50, call me in the office 265.) (Tr. patient return visits followed the and 150 ^[*] pattern would $15, 75 or a pattern when it was II would that a 285.) prescription for and would ^[*] folder go and as initial visits but pills pills my name; on ask for a he I hundred, display on return prescription for 50 Moore would ^[*] request told him how much I I out top could do for were never there, paid many wanted, my and of the other ^[*] $50. $25, track prescription for he told me the turn, him. and and she would put visits I ^[*] .... marks and inform the many pills invariably him. same it in he secretary pills without (Tr. was as patient would # ones; gen-, line, pills and for II by guard office and told to move. procure pre- Each witness able to respond, When he did not “fists [start- scription dolophine number of flying,” guard and ed] “knocked him pills for he which had sufficient cash on steps” down the the office out generally inquire hand. Moore did not (Tr. 130-32). at daily dosages patients about the of his unnecessary It is give recount here did not as to their directions testimony proper of all the witnesses for the use. beyond Government which established Bobby twenty-two year King, James illegal activity doubt of Dr. University (Tr. old student at Howard Moore, substantially since it was cumu- 57), at first went to with Dr. Moore Rather, general pattern lative. friend who had visited Moore before. emerges from the evidence detailed pills they The friend obtained the representative and then several case his- shared, paying then each half. He re- tories are discussed. (Tr. turned to Dr. Moore’son his own at patient’s On 60) cheaper first visit to Dr. because methadone “was Moore's office identification, give request get high” a nurse would [than (Tr. could heroin] [he] patient 88). several at He went to not for Moore complete, forms to weight, procure take his detoxification but height pressure, and blood request possible much methadone as from the get unsupervised specimen. (Tr. 90-91), urine After Doctor at since he could standing higher line one two hours on on methadone than heroin up patients, (Tr. 85). he would through (Tr. King 146), procedure went narcotics at Moore never re- pro- join program (Tr. 141). included ferred to test results at Dr. Moore’s ducing prove he was identification Forris Ensor went from 5 to dolo- giving twenty-one an unsu- or over and phines per day while under Dr. Moore’s (Tr. 61). pervised specimen urine at program (Tr. “detoxification” treatment pressure may Blood have been taken 171), at questioned but Moore never him (Tr. height 94-95) 61, and and at ever-increasing dosages (Tr. about the weight King noted, finally and saw Dr. 194). Roger gave at “just Wheeler him Moore, track who examined arms for money got prescription” and (Tr. 63, 95). marks at He then received (Tr. 200), always dolophines at used the liquid methadone and a half bottle get high (Tr. 203) bought and at dolophine prescription pills. On sub- many (Tr. 200, as he could afford at typically sequent Doctor visits the would 202). Ivan Gower not was examined for you?” ask, I do for and “What can (Tr. 240); track marks at asked he King respond pills de- would “100 detoxify Moore to him and Moore re- pending money upon the amount of I plied many patients that he had too (Tr. filling 113). had.” After at enough attempt not time to detoxifica- King ingested prescription, a suffi- (Tr. 231). Burgee tion at William “doc- get high dolophines cient number of unsupervised specimen tored” his urine on street sold rest at $1.50 (Tr. since he was not a narcotics addict began by per pill (Tr. 67). He tak- at 247), simply purchased at prescrip- but ing dolophines per day two to three (Tr. 248). tions for a friend at Moore at the end of his “detoxification” treat- patients never instructed his on the daily dosage ment his was 30-35 dolo- proper dolophine (Tr. 254). use of at phines. King several Id. On occasions just Herbert Holland would Moore see day visited Moore on one twice and re- long enough to inform Moore prescription ceived his second for the money amount of he had available and day (Tr. any questions without asked at prescription (Tr. 286). obtain a at 69). finally quit He methadone after initially John Mann was on seven dolo- just Moore’s office was closed down: “I phines daily, and at the end of detoxifi- turkey (Tr. 78.) cold kicked it.” at cation treatment Dr. Moore he was taking Bryan, pills (Tr. plain police- per over day Karen clothes at 310). Metropolitan James Frazier woman with the Police De- asked Moore how assigned detoxify partment “you and Moore undercover said narcot- have to you down, duty, detox, know, down,” cut ics visited the Doctor an as- cut 133-35). give but (Tr. pre- Moore sumed continued to Frazier name at She was scriptions (Tr. not, course, dolophines amount of a narcotics user at (Tr. 323). 136) desired at but nonetheless able to was obtain prescriptions dolophine pills by expert As established medical testi- Moore. After usual minimal exami- mony trial, at the above evidence conclu- nation she saw Moore for minutes, three about sively demonstrates that Dr. Moore’s de- “tracks,” placed exhibited her toxification was not treatment “consist- police clinic, there in a and Moore wrote through- ent with method . . prescription dolophines. for 50 When accepted out the United States that is leaving, Bryan nurse, Officer asked the profession country.” the medical in this visit?”, “How much for a the nurse (Tr. 447-50). Nothing at in Dr. laughed said, (Tr. “nothing.” at procedures suggest Moore’s would 137-38.) subsequent On her con- visits “new, effective, good-faith technique in versations with Dr. Moore were limited treatment, detoxificational cure telling many pills him how she de- (Tr. 474.) an addict.” at Moore’s fee (Tr. Although 139). arrangement sired at her uri- increasing prices for a nalysis negative prescription solely types as to all based on the number prescribed Thus evidence at dolophines character- credited trial jury conclusively expert Dr. as follows: establishes that ized one medical beyond operated pale acceptable Moore accepted far medical not not “That is practice. clearly prac- medical He

practice; medical that is unethical 396-97.) (Tr. did methadone for detoxifi- tice.” quite purposes, rather, cation but sim- procedures, to Dr. Moore’s contrast cravings ply, preyed upon the insatiable accepted practice in the treat- medical purport- of those unfortunate victims he drug dictates a com- ment of addicts solely get money. ed to treat to their In thorough plete, physical examination short, drug pusher, was Moore a a traf- correctly 387, 447), to (Tr. at illegal ficker narcotics.5 diagnose addiction but also because their generally subject are to other addicts II (Tr. at diseases that need treatment 447-48). then, What sanction does im- the law of a The initial evaluation pose pusher masquerading on this desiring professed in- addict treatment profession in the honorable of medi- (1) fact cludes a determination as to majority opines cine? The addiction, (2) ad- the nature congressional pros- manifest intent is to (3) diction, the under- the nature of drug-pushing ecute doctors under a sec- lying led to difficulties that addiction violations, tion reserved for determining “technical” (Tr. 386-87). at After normally contemplates only one that daily dosage civil necessary prevent to with- penalties may but which result misde- begins symptoms, drawal by detoxification penalties meanor if reducing dosage the violation is done by approximate- “knowingly” penalties or milligrams more severe if ly (the equivalent (4 5-10 repeater. a offender is This is fa- every days (Tr. dolophines) to 1 three cially absurd. 443). 441, at The methadone is admin- daily supervi- istered under direct staff provisions The basic criminal addicts, especially early sion since impose types sanctions three stages detoxification, illegal cannot be trust- 401, conduct. Section 21 U.S.C. § (Tr. 389-90, 445). ed at to After four drug pushers is aimed at and traf- proves six an weeks addict who trust- fickers in provides narcotics thus worthy may given privi- be “weekend penalties.6 the most severe Section leges,” is, dosages two be taken regulatory provi- U.S.C. ais supervision (Tr. 445). without staff primarily at sion aimed at “technical viola- prescriptions 5. effect Moore sold for con- tion of this section shall be sentenced drugs by pill trolled and that him makes as follows: price a trafficker. lie also increased the (1) (A) In the case of a controlled sub- per pill requested or individual addict stance in I or schedule II which is a nar- larger pills. Thus, numbers his while drug, person cotic such shall be sentenced “price” pills $15, or $7.50 for 25 imprisonment to a term of of not more pills, price $10 for each additional years, than 15 a fine of not more than pills Accordingly, after first $25,000, any person or both. If commits larger pay price per higher had users a prior such a violation after one or more pill. punisha- convictions of him for an offense (a) Except felony SEC. 401. paragraph, authorized ble under this or for a title, any person provision it shall be unlawful under other or title knowingly intentionally— or title III or law of the United States (1) manufacture, distribute, relating drugs, marihuana, or dis- to narcotic or possess pense, depressant or with substances, intent to manufac- or stimulant have ture, distribute, dispense, final, a person or controlled become such shall be sen- substance; or imprisonment a tenced to term of of not (2) create, distribute, dispense, years, or or more than 30 a fine of not more possess $50,000, Any intent to distribute or dis- than or both. im- sentence pense, posing imprisonment a counterfeit substance. a term of under (b) Except provided paragraph shall, as otherwise in sec- in the absence of such person prior tion conviction, impose special parole who violates subsee- punishment may normally be im- accordingly misdemeanor contem- tions” posed prosecuted indictment penal- if plates criminal rather than a civil Repeat violators; offenders against vi- information.7 such ty but where punishment. subjected greater Like “knowingly,” committed olations break, remove, injure, years or deface a least addition to term of placed upon shall, imprisonment seal pursuant substances if such term of 304(f) conviction, prior impose to section or 511 or to there was such placed dispose special parole so remove or of substances term of at least 6 seal; imprisonment. in addition to such term of use, advantage, (B) to his own In the case of controlled substance narcotic, reveal, duly offi- other than to authorized schedule I or II is not employees States, cers or of the United or in t' e case of controlled sub- III, any judicial person when to the courts relevant stance in schedule III, any proceeding imprisonment under this title or title a term of sentenced to acquired years, information inspection the course of not more than 5 fine of not more person $15,000, this title concern- or both. Tf com- ing any process as method or which a mits such a after one or more violation protection. prior trade secret entitled to of him for an offense convictions (b) any person punishable It shall unlawful for paragraph, be or a fel- under this for registrant ony any provision is a to manufacture a con- who under of this title other substance in schedule I or II trolled or III or other law of the title United relating drugs, is— marihua- States to narcotic (1) expressly by reg- na, depressant substances, not authorized his stimulant or or by quota assigned final, person a him istration pursuant to such be have become shall 306; imprisonment or to section a of of sentenced to term (2) quota assigned in a him years, excess of to a fine not more than 10 of not $30,000, Any to section 306. or sentence more than imposing bot\ Except (c) (1) provided paragraph imprisonment as a term of under (2), any person paragrapli who section shall, violates this this the absence of respect any violation, shall, conviction, prior impose special to such a a such subject penalty parole years a civil of not more to least in addition term of at $25,000. shall, imprisonment The district courts of the to such if term conviction, (or, prior impose where there is no such States United there was a such any territory pos- special parole court in the case of or a term of at least States, . imprisonment. then the session of the United in addition to such term of territory possession 401, hav- (1970). or court such §Act U.S.C. jurisdiction ing of a district court arising any in cases under the United States It SEC. unlawful person— and laws of the the Constitution United jurisdiction States) subject (1) requirements accord- shall have who is to the dispense of title 28 of the part ance with section 1355 a C to distribute or con- para- to enforce this States Code United trolled substance violation of section graph. 309; (A) (2) If a of this section is (2) registrant violation is a to distribute or by prosecuted an information or indict- dispense a substance not autho- controlled alleges regis- violation was by registration ment which t’.e his to another rized knowingly the trier fact person committed specifically or to trant or other authorized so the violation was finds manufacture a controlled substance not except committed, person shall, ; by such 1is authorized (B) provided subparagraph (3) registrant in' otherwise a who is a to distribute impris- paragraph, be sentenced to of this substance in violation of section year title; aor not more than one onment of $25,000, both. (4) alter, sym- more than or remove, fine of not a to or obliterate subpara- (B) by required If a (A) referred violation this section 305 of bol or label graph ; one or more after committed title prior keep, (5) make, of the offender convictions fail or to refuse or paragraph punishable record, notification, any report, under offense furnish provi- any (2), declaration, form, under or for crime state- order or order law ment, invoice, III or other this title or title sion of un- or information relating III; to narcotic of the United States drugs, title der this title or depressant marihuana, any entry prem- or stimu- (6) or into to refuse final, substances, such inspection by have become lant authorized this title ises or person im- III; term shall be sentenced or title expressed language section section 21 U.S.C. thus no intent in regulatory provi- 401(a) absolutely includes number of section to immu- registrants! (some applicable registrants, sions nize person, or prosecution provides but more severe sanctions than terms. its prohibits section and also the use knowing dispensation of con- in the com- communication facilities person trolled substances is made mission offense.8 unlawful unless such act is authorized provides: 401(a) Section provision some other of the Act. Except title, Thus, any person against defend any person shall be unlawful charged violation 401(a) of section knowingly intentionally— proof that the Act elsewhere authorized

(1) manufacture, distribute, case, his conduct. In the instant Moore dispense prove would have if ... a controlled defense he could registrant .... his conduct as substance regis- within the defined limits 841(a) (emphasis added). 21 U.S.C. § tration : language” “plain perspective From registered things immediately Persons two clear: ... 401(a) “any applies distribute, dispense terms con- person” exception trolled substances are authorized to does distribute, “except registrants,” state but rath- er, “except substances as authorized.” ... au- There is extent iug mark, imprint, prisonment years, not 2 or device of more than a of another or any any $50,000, foregoing upon likeness of of both. fine or any drug (3) Except labeling specified or container or under the conditions thereof paragraph (2) subsection, so as to in render such of this a a counterfeit vio- substance. lation of this section does not constitute a crime, judgment and a for the United (b) any person It shall be unlawful for imposition penalty States and of a civil knowingly intentionally any or to use com- pursuant paragraph (1) give to not shall facility committing munication causing in or any disability legal disadvantage to rise or facilitating or the commission of based on conviction for a criminal offense. any constituting felony act or acts a under (1970). Act § § U.S.O. any provision of this title title III. or separate Each use of communication fa- any SEC. It shall be unlawful for cility separate shall be a under offense person knowingly intentionally— or purposes this subsection. Eor of this (1) registrant who is a to distribute a subsection, tire term “communication facil- controlled substance classified schedule ity” any public private means all II, legitimate I or in the course of his instrumentalities used or useful business, except an to order or writing, signs, signals, pic- transmission of required by an order form as section 308 tures, all or sounds of kinds and includes title; of this wire, mail, telephone, radio, and all other (2) to use in the course manufac- means of communication. ture or distribution of sub- (c) Any person who violates this section stance number which is fic- imprison- shall be sentenced to a term of titious, revoked, suspended, issued or years, ment not more than a fine of person; another both; $30,000, except not than more or acquire possession or obtain of a any person that if commits such viola- by misrepresentation, controlled substance prior tion after one or more convictions of fraud, forgery, deception, subterfuge; or section, him for violation of or for a (4) to furnish false fraudulent or mate- felony provision other in, rial information or omit material title or title III other or law of Unit- any application, from, report, information relating drugs, ed States narcotic mari- record, or other document to be depressant huana, or or sub- stimulant made, kept, filed or under this title or ti- person stances, final, have become III; tle or imprison- be sentenced term make, possess any distribute, years, not ment of more than 8 fine of die, punch, plate, stone, thing or other de- $60,000, not more or both. signed reproduce print, imprint, trademark, identify- name, (1970). Act § trade other U.S.C. § 843 dicated its registration and intention to have section by their thorized 401(a) registrants. apply provisions to all conformity with title. Act, The entire thrust of the more- 822(b) (em- 302(b), Act, 21 U.S.C. § § over, registered phy- demonstrates that at added). admitted Moore Dr. phasis are “authorized” sicians con- registration authorized his trial only trolled substances in the course only de- for dispense methadone him to professional is, their practice, that for a purposes toxification professional legitimate purpose. medical The Act is 711-12). (Tr. practice replete provisions with that manifest a proven above, it was As demonstrated congressional regis- intent to limit a Dr. beyond doubt a reasonable trant’s authorization to conduct con- dispensing for methadone Moore was forming accepted practices. medical Rather, purposes. he was detoxification 102(20), 802(20) Section 21 U.S.C. § profit no simply pushing with (“registered . to . dis- effect, of intention, and without pense profes- ... the course of treating “patients” medical practice”); 202(b)(2)(B), sional § 401(a) Thus, purpose. since section (definition 812(b)'(2)(B) U.S.C. § exception provides “to extent drug: Schedule II “The . registra- applicable] [the currently accepted has a medical use violating clearly tion,” Dr. Moore treatment”); 307(c)(1)(A), 21 § U.S.C. 401(a) by dispensing methadone section 827(e)(1)(A) (excepting registrants purposes. than detoxification for other requirement making certain reports respect records and to nar- majority holds prescribed “by cotics regis- administered 401(a) simply apply to does not practitioner in the holding lawful course of his trants. is untenable be- This professional practice”); 308(e), 21 401(a) prohibits knowing cause section 828(e) (“unlawful per- U.S.C. “dispensing” or intentional defi- son to obtain . . controlled sub- registrants practi- nition of the cally any purpose stances other than their only persons capable of who are pro- use ... in the course of his dispensing. practice”); 404(a), fessional 21 U.S. § “dispense” The term deliver means to 844(a) (“unlawful any person C. knowingly for § a controlled substance to an ultimate intentionally possess practi- . . user tioner, including . . . .a . unless . . . obtained di- prescribing the rectly, or prescrip- to a valid administering of a controlled sub- order, practitioner, tion or from a while “dispens- stance The term .... acting professional in the course of his practitioner er” means a who so deliv- practice”); 515(a)(2), 21 U.S.C. § § ers a controlled an ulti- substance to 885(a)(2) (“obtained pursuant to a val- subject. mate user or research prescription practitioner id from a while Act, 102(10), section 21 U.S.C. § acting professional in the his 802(10) (1970) added). (emphasis And practice”). provisions These combine “practitioner” a an establish accurate within context physician profes- a means other [and “except proviso which the authorized” as people] registered sional . . . 401(a) of section must be construed. . . . . . . . . interpre- And that context indicates an a controlled in the course substance registered tation of the Act that limits a professional practice .... physician’s dispen- authorization to the sation of controlled 102(20), (em- in accord- 802(20) substances 21 U.S.C. Id. § § currently accepted ance with added). medical phasis pro- Accordingly, the practices. regis- “dispensing” hibition of unauthorized When conduct the of a as Congress Act, clearly defined in- the trant violates this authorized standard 452 exception 402(a)(1), the ishable under section acts from U.S. he excludes 842(a)(1). Having 401(a) himself and makes C. demonstrated § of section interpre- obvious, penalties. their keen sense subject This ma to its reading Congress plain jority a then conclude that since results tation provi- segment on a not based covered and is section offens statute reasonably susceptible to section es under Dr. Moore must be sions that prior readings” dependent prosecuted on under section 402 it “two because interpreting penalties. Majority Nar- Op. the Harrison has less severe

decisions majority recognize 785. 38 Stat. fail cotic Act 427. registered physician that a that cannot vio perceptively notices majority 401(a) late section without also neces violated section Dr. has Moore violating sarily 402(a)(1).10 829,9 sectipn Act, 21 U.S.C. § pun reasoning, pat such violation Their provides a leads to then, Act Except dispensed patient particular di- a used when to treat his ill- SEC. rectly by practitioner, objective than a a other ness and is the applied manifestation of user, experience. pharmacist, con- no ultimate medical skill and In II, short, specifies prescribed remedy ais which schedule trolled substance prescription drug particular, diagnosed under the as a determined illness and is thus is- Act, Drug, Food, purpose. and Cosmetic sued for a valid Federal may medical Unless pre- dispensed directly dispensed practitioner written be without a other except practitioner, scription jiharmacist, supra, a than a see text at 451 situations, prescribed emergency may II Schedule controlled substance be dis- regulation Secretary by pensed by practitioner only after consultation awith “writ- may drug Attorney General, prescription.” 309(a), ten with the U.S.C. upon prescription 829(a) (1970). dispensed practitioner in ac- oral A be who dis- 503(b) penses of that Act. section a controlled cordance with Prescriptions substance violation of 401(a) diagnosis in conform- shall be retained section without a and not requirements ity of section treatment with the for the of an does so for a illness prescription purpose. doing a con- No of this title. non-medical he so does may “prescribe” remedy, II schedule trolled substance as a even though may he on an refilled. have written words or- directly by Except dispensed form, (b) when der and thus also violates section pharmacist, practitioner, 309(a) by dispensing “prescrip- than a without a user, (1973). no substance an ultimate tion.” tually, See C.F.R. 306.04 Ac- IV, prescrip- paper prescription ais in schedule III or ais fictitious prescription the Federal determined under tion Food, and thus not a valid within the may Act, Drug, meaning and Cosmetic the Act. pre- dispensed oral written or without Conversely, physician may violate section conformity scription subject being necessarily 309 without prescriptions 503(b) Act. of that Such prosecution 401(a). is, That under section than six filled or refilled more not be physician dispenses a controlled sub- re- date or be after thereof months legitimate purpose stance medical date five after the filled more than times professional practice but the course of ply sim- by prescription the unless renewed comply procedural fails to the for- practitioner. prose- malities not be of section 309 could (c) in schedule controlled substance No 401(a). example, if cuted under section For drug may V a be distributed which is good physician legiti- faith and a a pur- dispensed other than for a medical scope purpose the mate medical within pose. detoxification) registration (e. g., “know- Attorney appears (d) to the Whenever dispenses ingly” by an oral rath- methadone be a a General that not considered prescription a written as er than Food, prescription drug under Federal the only pros- 309(a), be section he could under Drug, con- should be so Act Cosmetic a misdemeanor under section ecuted potential, he of its abuse sidered because procedural 402(a)(1), infraction since is Secretary furnish the advise so Also, specifically covered that section. thereto. him all available data relevant be within the substantive conduct would his scope § 21 §Act U.S.C. 401(a) section of his authorization for necessarily physician registered purposes, violates 10. A have but he nevertheless would requirements prescription proeedurally irregular 309 of section the manner in in a acted 401(a). not, is 309(a). This section when he violates is of section This violation prescription however, is order true because the court the situation before to- physician day. to be states the medicine

453 ently dispensation one purpose. absurd conclusion that for a medical 309(c), Id. 829(c). a lesser included offense cannot commits U.S.C. § § greater prosecuted for be the offense be Consistent interpretation, with this pro offense cause the lesser included the House referred to violations of sec- penalties. In for less fact vides severe punishable tion 309 under section 402 as reasoning opin the of their is basic “[m]ore less technical violations.” ion. H.R.Rep.No.91-1444, Cong., 91st 2d (1970), Cong. Sess. 10 U.S.Code Ad-& majority ambiguity That which the 1970, p. min.News 4566. Section professes obvious, however, to find so normally only moreover, contemplates 401(a) does not exist fact. Section proceeding remedy civil violations of clearly registered applies physicians procedural requirements of section scope when their conduct outside the is “knowingly,” 309. ever, If committed how- authorization, of 402(a)(1) their while section may prosecuted the violation be clearly appli- is limited its misdemeanor, 402(c)(2)(A), § cation to those technical less “[m]ore 842(c)(2)(A); 102(13), U.S.C. § id. § violations” outlined in section 309. H. 802(13); 21 U.S.C. 18 U.S.C. § § R.Rep.No.91-1444, Cong., 91st 2d Sess. repeat (1970), may offenders re- Cong. (1970), & Admin. U.S.Code years. up ceive to two contrast 1970, p. demon- 4566. Section 309 News strably sanctions available section regulatory provision purely procedural 401(a) irregularities, section designed compliance to insure with cer- applies to substantive conduct which ex- procedural, in contradistinction to tain scope ceeds of that authorized substantive, requirements of Act. provides one’s for felo- designates the Thus the section form ny prosecution. prescriptions for various sched- issued substances; the more uled controlled To further demonstrate error dangerous more formal the majority’s approach, assume the fol- required. prescription I Schedule lowing hypothetical Suppose situation. from section 309 since are excluded proven existence of all facts they currently have ac- definition “[no] exception with the Dr. case cepted in treatment” and medical use personally Moore sold and delivered the 202(b) may prescribed. Act not be § dolophine pills to the named individuals 812(b)(1)(B). (1) (B), 21 U.S.C. § writing in the indictment rather drugs, which have “a cur- Schedule II prescriptions pharmacy. at a to be filled rently accepted use” but medical permits physician section Since physical psychological result dependence,” id., “severe drugs directly to the ultimate 202(b)(2), 21 U.S.C. § prescription, user without a written Dr. 812(b)(2), may dispensed be § Moore would not have violated section prescription,” “written and such prosecuted 309 and thus could be un- not prescription may Id. refilled. 402(a)(1). der I assume the 309(a), 829(a) (empha- 21 U.S.C. § majority would nevertheless adhere drugs, added). III and IV sis Schedule position Dr. Moore “acted dangerous, relatively id. which are less wrongfully.” Majority Op. at 429. As- 202(b)(3), 812(b)(3), (4), 21 U.S.C. suming predicates majori- all “may dispensed a writ- without , ty opinion then, given, Moore could conformity prescription in ten or oral prosecuted not in this situation under be Food, Drug, and with” the Federal either or 402. section 401 Section Act, prescriptions and such Cosmetic triggered 402(a)(1) would a not be may 309(b), refilled. Id. 21 U.S.C. be § 309, violation and under the of section added). 829(b) (emphasis Schedule § majority’s theory difference between dangerous, drugs, relatively V the least delivery personal prescriptive 812(b) 202(b)(5), 21 id. U.S.C. § meaning- (5) , subject only requirement would to the substances be are 454 registrants subject 401(a) applicable are because not

less sions section to be 401(a). Moore, to registrants, section such as Dr. who scope exceed the of conduct authorized holding majority’s that Dr. Moore registration. Otherwise, their doc- prosecuted for a can be misdemean- who tors trafficked could never or under section rather than for a 402 registrations have their revoked.11 felony 401(a) produces under susceptible easily result not to rational Moreover, majority’s decision that explanation. beyond question, I as- It is registered physician prose- no be can Congress sume, intended the revo- that cuted under section 401 of the Act inis registration any physician cation of direct conflict with recent decisions engaged palpably unlawful First, Fifth, Ninth and Tenth Cir- engaged drug pushing Dr. as that Bartee, cuits. United v. 479 States Revocation, however, Moore. is limited 484, (10th 1973) (empha- F.2d 488 Cir. registrant: those situations where original), specifically sis the court (1) materially ap- has falsified held that plication filed to or practitioner when a medical issues a III; title or title prescription legiti- not is for a has, felony (2) been convicted of a purpose mate medical is not in title oth- or title III or professional the usual his States, er law of the United or of practice, relating State, de- substance subject prosecution he fined in this controlled sub- is title as under sec- ; or tion 401. stance The court also considered that repealed the cases under the now Harri- (3) had State has license analogous, son Narcotics Act were as the registration suspended, revoked, de- argued Government has in this case. by competent authority nied State The Tenth Circuit Bartee in reaffirmed longer no law is State Jobe, United States v. F.2d 487 268 engage manufacturing, dis- (10th 1973). Cir. The Fifth Circuit has tribution, dispensing of controlled aligned indicating Tenth, itself with the substances. registered physician pros- may be Act, 304(a), 824(a). 21 U.S.C. ecuted under section 401 There is no evidence that condition has Dr. been satisfied. Revocation of dispensing unlawful of a con- registration may premis- not Moore’s be substance, prescription trolled if his majority ed on condition since the legitimate purpose medical may only prosecuted holds be un- that he professional in the usual course of his provisions der the misdemeanor sec- practice .... felony tion rather under the Leigh, United States v. 487 F.2d provisions 401(a). of section Nor would (5th 1973). Cir. United States v. appear premis- can be revocation Badia, (1st 1973) F.2d Cir. ed on condition (3), since D.C.Code § Larson, United F.2d States v. similarly requires 2-131 conviction (9th 1974) Cir. the same effect. felony physician’s before a license or reg- four Thus circuits have held that a registration practice medicine physician may prosecuted istered un- premising revoked. Thus section prescrip- der section he 401 when issues felony upon revocation of for controlled in an presuasively suggests tions substances conviction, Congress felony provi- agree. intended I unauthorized manner. ney registrations. 11. The Narcotic Addict Treatment General revoke See (May 14, 1974), Pub.L.No. 93-281 text 457 infra. 124, enlarged powers Stat. of the Attor- As a result of the treatment of addicts. hi difficulties, most instances “[i]n legislative history of the Con- The patients.” they The shun addicts as straight- fairly Act is trolled Substances problem not ab- reacted to house this foregoing supports in- the forward and immunizing registered physi- solutely fundamentally re- terpretation. The Act felony prosecution for traf- cians from penalty the Harri- structure of the vised majority ficking narcotics, the 1914, 785, of 38 Stat. Narcotic Act son holds, by joining with the Senate but and so- by implementing more rational enacting Comprehensive section 4 upon na- phisticated the based sanctions Drug Abuse Prevention and Control the particular violations. Under ture of (em- 257a of 42 U.S.C. § any of the violation of Harrison Act a added): phasis uniformly punisha- provisions was Act’s $2,000 more than a fine ble imprisonment Education, Secretary Health, The five more than for not Welfare, after consultation with contrast, present By years, both. Attorney nation- and with General Act, passed in organizations per- representative of al knowledge and experience sons comprehensive designed to deal in a addicts, the treatment of narcotic growing menace of with the fashion appropriate meth- shall determine by providing drug abuse ... professional practice in the ods of scheme for an overall balanced ad- medical treatment the narcotic penalties involv- for offenses criminal ing drugs. classes of narcotic diction of various addicts, report from thereon and shall ^[*] -x- ^{[*] [*] [*]} time to time to the Congress. structure of The revises the entire bill legislation respect this With involving penalties criminal Report House stated: drugs by providing meth- a consistent reported pro- persons accused 4 of the bill of all Section od of treatment Secretary Health, vides that Education, of violations. Welfare, after consul- Cong., H.R.Rep.No.91-1444, 2d 91st organizations, tation with national Cong. (1970), Ad- & U.S.Code Sess. appropriate methods shall determine 1970, pp. min.News short, professional practice in the medical comprehensive revision treatment the narcotic addiction of designed penalty fit to make addicts, various of narcotic classes crime. report to time to thereon time Congress. purpose The the provision reg- Report indicates that The House clarify is to for the medical physicians were intended to be istered profession in the the ex- United States subject felony prosecution under sec- go they may safely tent to which treating majority 401(a). point, tion misrepresents On patients. narcotic addicts as thrust of the the basic Report to the as it relates House insofar H.R.Rep.No.91-1444, Cong., 91st 2d by only Prettyman Report Commission (1970), Cong. Ad- U.S.Code Sess. & quoting the discussion Commission’s 1970, p. Immediately min.News following noting analyzing the conclu- without paragraph the House Re- by the from that discussion sions drawn Pretty- port quotes portion of the leg- by ignoring specific House and Report cited man Commission Congress. solution enacted islative above, majority and then and discussed Prettyman focused on Commission continues: by physicians the difficulties faced expects that the de- committee determining under which the conditions Secretary made lawfully terminations they narcotics could pushing engaged Health, Education, will Dr. Moore and Welfare 401(a), profession punishable clarify medical the under section are vi- for the drugs regulatory provisions under which narcotic olations of the of conditions may registered prescribed physician may the medical section 402. A be for punished 402(a)(1) Al- addicts. if treatment though narcotic be under section of he concerned the committee is violates section 309. Section sim- having regulates appropriateness ply type pre- of the and nature of about appro- scriptions required Federal officials determine the to be issued when priate practice dispensing method of the of medi- controlled substances. As recognize necessary previously,12 cine, it that discussed im- section 309 poses years precisely purely requirements for the last this is formal —writ- through vary happened, ten, prescription oral or no what has criminal —which prosecution physicians according dangerousness whose meth- to the dispensed. Thus, prescribing ods of narcotic have as the House Re- “ port states, opinions not conformed Fed- these ore or less techni- [m] prosecutors punishable eral of what cal violations by constitutes . . penalties.” appropriate professional less severe methods Id. at U. practice. Cong. situation, 1970, p. In view of this S.Code & Admin.News provide guidelines, Indeed, provides this section will section 402 principal provisions determined a violation of health its does not agency Government, except crime, Federal constitute a when commit- knowingly, appropriate after consultation ted with then a maximum organizations. punishment professional years year, national of one or two physicians comply repeat offenders, imposed. Those who with impose punishment recommendations To drug made Secre- minor on tary longer jeopardize pushers completely will no their would be incon- professional accepting punishments nar- sistent careers with the maximum patients. cotic addicts as the Act for other viola- example, tions. For Cong. Id. at U.S.Code & Admin.News 403(a), registrants 843(a), 21 U.S.C. § 1970, p. (emphasis added). See who distribute controlled substances H.R.Rep.No. 91-1603, Cong., also 2d 91st using proper without order form can (Conference (1970), Report) Sess. 5 U. imprisonment up be sentenced to Cong. 1970, p. S.Code & Admin.News years up four for an initial violation and Congress provided 4657. Thus the eight years for a second offense.13 completely legislative different and ad- Nonetheless, majority here holds problem ministrative solution to the drug pushing registrants can majority than the And it is indicates. prosecuted U02, under section one in which the manifest intent of the principal impose thrust which is to physicians comply Act is that punish- penalties, civil and misdemeanor terms their and other year imprison- ment not to one exceed applicable regulations are “authorized” ment the initial or two offense 401(a). they under section act When subsequent Certainly Con- offenses. clearly outside the defined bounds of gress gross inequali- never intended such registration, they their act in an unau- ty punish penalties which would less- subject pros- thorized manner and are greater severely er offenses more 401(a). ecution under section offenses. Sharply distinguished legisla- Congress in the Further evidence reg- history apply 401(a) tive from the unauthorized intended section 453, supra. supra. 12. See text at 13. See note 8 involv- instances Some of these physicians done. is contained istered unscrupulous physicians ed careless Treatment Act of Addict Narcotic 14, prescribing (May methadone as who were (NATA), No. 93-281 Pub.L. phy- legislative pain involved 1974), killer, while others and its 88 Stat. pushers operating as history. sicians were NATA amended the Controlled guise greater of provide under the a detoxification con- toAct Substances special regis- program, illegal for no against nar- which diversion of trols recog- required. One unscrupulous physicians, tration was cotics that of Dr. nizing notorious cases is most operated a “meth- Moore who Thomas illegal for most diverted methadone program” in the District Col- adone from one of sale is derived use and ille- until final conviction umbia (1) unscrupulous major four sources: gal on an of methadone distribution practi- individual activities of certain alleging separate indictment .... tioners operated his of- Moore counts. years impunity over two fice with Cong., H.R.Rep.No.93-884, 93d 2d Sess. during time obtained (1974), Cong. & Admin. U.S.Code found in him often addicts from were 3031; S.Rep.No.93-192, 1974, p. News in- and the illicit traffic believed Cong., (1973). NATA 93d 1st Sess. of narcotic overdose volved cases objective by implemented requiring deaths. registration separate, special practitioners where successful and maintenance viding fication tration torney specific gitimate and 401(a) would registered General standards. This and maintenance summary physicians under designed dangerous engaged immediately to failure programs either too difficult or felony prosecution of revocation of to enable the in detoxification narcotic detoxi- special comply with and programs halt by pro- section regis- such ille- At- Id. term of 15 to tiously. vided $150,000. However, if the guilty BNDD could dangerous profiteer General had at ^[*] Dr. Moore was on 22 counts and sentenced ^[*] S. have moved had the ^{[*] [*]} eventually found far more authority pro- amended, against this ^[*] Attorney expedi- -x- fined to a time-consuming. Id. too slow only concern manifested 11-15, Cong. & Admin.News Congress felony prosecution U.S.Code of doc- 401(a) p. tors under section to establish that a be too difficult Moreover, Congress spe- continues physician “the course acted outside cifically contemplate prosecution un- thereby exceeding professional practice,” registered 401(a) physi- der section exception of section the authorization engage illegal cians who in such activi- Congress 401(a). indicated its concern Indeed, the ties as Dr. Moore. Senate with Report on NATA used the case of Dr. prosecu- present difficulty in egregious example of Moore as the most tions because of intricate unscrupulous physician operating in an nearly impossible of establish- burden prosecutable under illicit traffic ing beyond pro- “the course what drug-pushing of the Con- practice” for criminal law fessional trolled Substances Act: practitioner purposes when such a practices speciously communities,

In some one or more claims that physicians question have substan- were ethical humanitari- contributed tially traffic metha- the illicit nature.

(cid:127)X- ^{[*] [*]} -X- ^{[*] [*]} America, example UNITED STATES As illustrated Dr. Appellee, Attorney Moore, . . Gener- al take successful crimi- v. was unable to against profiteering practi- nal action Henry SKRYPECK and Joan K. aggravated Appellants. except Cavanagh, the most tioners and then circumstances after No. 74-1888. prolonged to make undercover effort Appeals, United States Court of penetrations. District Columbia Circuit. Argued Sept. 1974. Congress Id. 13.14 Thus the is completely prosecution Decided Oct. 1974. aware trafficking physicians as such and it As Oct. Amended Congress’ clearly was, is, intent that registered physicians prosecuted un- felony provisions der the of section knowingly

401(a) they when or inten-

tionally dispense controlled substances professional other than in course of “the

practice” registra- and in excess their

tion. holding drug trafficking re-

gistrants absolutely immune from

prosecution regular drug under the traf-

ficking “any applicable per-

son,” majority totally has misread legislative

the Act and misconstrued

history. accordingly I would hold to the

contrary having and, considered all the points by appellant raised merit,

found them to without would

affirm the on convictions all counts ex-

cept those in which double sentences imposed dispensing

were to minors allegations being

without such set my

forth in the It indictment. view upon

that the count which a sentence is

imposed allege that the must victim is a punishment

minor if the additional sought adjudged.

sale to a minor is to be counts, I

As these would remand the resentencing.15

case for $10,000 count, investigation on each When the Dr. Moore is, $80,000 finished, proof I would not abundant total. there was lie way require professional the district court to interfere acted outside practice. nature sen- with the consecutive these Dr. also admitted that his Moore counts, tences on the other to the sentences limited to detoxification (Tr. 711-12). but would also correct court of course Thus the acts for which he keeping with the total the ulti- was convicted sentence were outside his authorization. imposed. mate sentences imposed 15. This refers to the sentences on 16, 17, 18, 20, 21, 23, counts 24 and 25 of 10 notes that under the Controlled §§ construing court decisions the Harrison Substances Act were first Con before physician exemption Act a could lose his gress when Senate considered the distributing from Section 2 Dangerous Controlled Substances Act unprofessional They manner.16 refer

Case Details

Case Name: United States v. Thomas W. Moore, Jr.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 18, 1975

Citation: 505 F.2d 426

Docket Number: 73-1192

Court Abbreviation: D.C. Cir.