United States v. William O. Steele, Cross-Appellee
147 F.3d 1316
11th Cir.
1998
Check Treatment

*1 depends upon resolution appeal issue. in an dicta to include Whether unnecessary a matter issues is

related but judge, to of each

within the sound discretion basis, case exercised on case

be my colleagues in no criticism of two

intend sepa- I have written

this instance. not to

rately explain why I have chosen

join them dicta. America, Plaintiff-

UNITED STATES Cross-Appellant,

Appellee, STEELE, Defendant- O.

William Cross-Appellee.

Appellant,

No. 94-3139. Appeals, States Court of

Eleventh Circuit.

July 1998.

(“It necessary not shall be for the United exemption excep- States to subchapter in this in ... tion set forth ”). ... indictment Pensacola, Thomas, FL, H. Leo A. William Mills, Redden, Clark, Birmingham, & opinion, Mills panel’s The 117 F.3d at 1232- AL, Cross-Appel- Defenfant-Appellant, for facts, 33, sets out the relevant the most lee. pertinent of contents which concern the of against returned the four-count indictment Patterson, Nancy Atty., P. Michael occurring he Steele for actions while was Hess, Pensacola, FL, Atty., Wil- Asst. U.S. pharmacist dispense authorized as to con Gainesville, FL, liam for Plaintiff- Wagner, profes in trolled substances the course of his Appellee, Cross-Appellant. practice. sional Count one of the indictment charged: 1, 1993, July That from on or about and thereafter, continuously up to and includ- HATCHETT, Judge, Before Chief and about in on or November EDMONDSON, ANDERSON, TJOFLAT, Florida, Northern District of defen- COX, DUBINA, BLACK, BIRCH, dant, Steele, knowingly William O. did BARKETT, CARNES, HULL and intentionally dispense hydromorphone hy- MARCUS, Judges. Circuit drochloride, a schedule II controlled sub- CARNES, Judge: Dilaudid, stance, commonly as known Steele, Code, pharmacist, in- of Title was United States William O. violation 841(a)(1). “knowingly intentionally dis- dicted for Section “in pensing]” controlled substances violation two, three, 117 F.3d at 1233. Counts Code, Title of Section except four that the are identical 841(a)(1).” governing provides The statute Xanax, named them were Vali- substances pharmacists exception permits which Percodan, um, gov- respectively. The dispense “practitioners” to theory prosecution ernment’s by extent substances “to the authorized specified peri- during occasions numerous registration conformity and in with other od, dispensed those controlled sub- Steele subchapter,” 21 provisions of this U.S.C. knew pursuant prescriptions he stances 822(b), present means purposes for which forged. maintained that he did not be professional practice,” “in the course forged. jury they The found that know were 802(21). U.S.C. convicted him. he did and granted en to de banc review insufficient Steele contends there was which cide whether the indictment under convict, panel did not evidence it convicted defective because Steele was issue. it held reach that not does it failed was defective because panel exception. A this Court practice drugs out allege dispensed that Steele question in the answered that affirmative practice of his the course side conviction, reversed United States Steele’s pharmacist. See 117 F.3d at 1235. Steele, Cir.1997), F.3d 1231 su holding reluctantly, panel reached that The perceding, 105 F.3d language because it believed that the prior panel deci to do so was bound 885(a)(1) for such an alle obviated need Outlet, 659 F.2d 1306 sion United States Nonetheless, gation. panel felt bound to 1981). B we are Cir. Unit Because Outlet, holding was to follow the banc, by sitting are not bound en (“The n. 5 contrary. at 1235 & See it, Being free Outlet decision. to overrule apparent holding in Outlet stands in conflict practitioner hold an indictment of a 885(a)(1) ... ... even if it [but] section drugs unlawfully dispensing need law, statutory we are bound conflicts done outside the course aver that it was overruled.”). time it is Outlet until such this con professional practice. We believe respects. in both Un- panel was correct compelled clusion is U.S.C. distribute, research, ... rule, dispense precedent [or] prior our cannot der prior though profes- even the course overrule one’s controlled substance See, e.g., Cargill wrong. it is convinced research.” U.S.C. sional (11th Cir.1997) Turpin, 802(21). (“The ‘emphatic’ circuit is law *3 provisions of all upshot The those sitting only Supreme or this Court court acting agent of a was as because Steele judicially prior panel can en banc overrule to registered pharmacy, he was authorized — decision.”), denied, -, U.S. 118 cert. dispense in the course controlled substances 1529, (1998); 140 L.Ed.2d 680 S.Ct. pharmacist, professional as his 1364, Hogan, 986 1369 prescription by issued only to pursuant Cir.1993) (“[I]t firmly rule is the established 829(a)-(b). § 21 practitioner. See U.S.C. succeeding panel this each is Circuit that disputed undisputed. That What is be- is by holding panel of the to bound first parties meaning is the and effect tween the law, unless and until that address issue 885(a)(1), provides: §of which banc, by or holding is overruled en the Su necessary It shall not be for Court.”). However, bound preme we any exemption excep- or States to Outlet, and our examination of the rele any subchapter in this ... tion forth set statutory provisions leads us to con vant ... or in trial ... and the clude, did, ease as the this that going burden of forward with evidence wrongly was decided. Outlet respect exemption or with to such 841(a) provides: “Except § 21 U.S.C. as upon person claim- exception shall be subchapter, it shall be authorized ing its benefit. any person knowingly for inten- unlawful or meaning provision, that it relates The to (1) tionally dispense ... a ... us, is from its issue before evident subchapter The referred to substance....” charging a violation language: an indictment 21, Subchapter Chapter 13 of and is Title § § subchapter through from that runs 801 professional practice exception contained in § 904. 822(b). § exceptions of the One authorized dispensing construing proscription against “In a statute must 822(b), well, § is in U.S.C. begin, substances contained often should end as and specifies registered by that “Persons which Merritt language of the statute itself.” Attorney subchapter under this General Dillard, 1181, Cir.1997). 120 F.3d dispense ... to ... controlled substances are language Congress chose to ex Where the possess dispense ... or authorized to such press unambiguous, clear its intent and ... substances to the extent authorized go its that is as far as we to ascertain intent registration conformity their and presume must that said because we subchapter.” provisions “Dis- other of this See, what and meant what it said. it meant pense” means “to deliver a controlled sub- Germain, e.g., Connecticut Nat’l Bank v. to an user or sub- stance ultimate research 253-54, U.S. S.Ct. of, ject by, pursuant the lawful order (“We (1992) L.Ed.2d 391 have stated time practitioner, including prescribing and presume that again and that courts must administering of a controlled substance.” says legislature in a what it statute means 802(10). An “ultimate user” is “a U.S.C. there.”). says and in a statute what it means person lawfully who obtained ... a con- has Moore, argues that United States use trolled substance for his own or for the 96 S.Ct. 46 L.Ed.2d 333 household,” of a member of 21 U.S.C. use his prac- proposition for the that a stands 801(27), practi- by prescription from a may distributing titioner be convicted for and “practitioner” tioner. The term is defined to only dispensing controlled if substances dentist, veterinarian, physician, “a include government pleads proves those pharmacy, hospital, investigator, scientific profes- activities were outside the course of licensed, person registered, or other- That practice. sional is not what case permitted, by the United States or the wise granted in Moore jurisdiction practices he or does holds. Certiorari prosecutors mean in- appeals court decision that cause would could review a apply registered every pharmacist 841 does not each U.S.C. dict doctor physician in that practitioners, such as the country simply carrying out their case, distributing regardless words, of whether In other if duties. dispensing profes in the course of were written, fall, apply sky the statute as will practice. Supreme Court re sional pharmacists at least on and doctors. Of versed, reg apply does course, sky falling, just if the starts it could fall practitioners when their activities istered as well fall on research scientists prac the usual course of outside legitimately those who manufacture at tice. See id. at 96 S.Ct. 336. Howev substances, transport controlled as well as on er, the issue of the Court did not address every legitimate, prescription-holding ulti- profession the outside the course of whether user, all mate are saved from the *4 practice factor an element of the al 841(a)(1) 844(a) §§ broad terms of or ex- government offense or whether the was re subject ceptions provi- that are also to the quired plead it in the indictment. It is 885(a)(1). § sions of worthy of note that the indictment in the explain why busy govern does not Steele alleged nothing about the course Moore ease prosecutors any ment would want to indict professional practice. See United States of they ease that are certain to lose when (D.C.Cir. Moore, 426, 2 505 F.2d 446 n. v. trial, seriously goes to if not sooner. We 1973) (dissenting opinion). Department doubt that the of Justice would support seeks in States Steele also employment any tolerate the continued of Vuitch, 62, 1294, 28 v. 402 U.S. S.Ct. prosecutor do that. who would Steele’s ar Supreme in which the L.Ed.2d gument government prosecutors in- about general guide “It is a to the Court stated: dieting pharmacists possess and doctors for interpretation of criminal statutes that when dispensing controlled substances in enacting in exception incorporated an the professional practice of their also the course statute, the is on the clause of a burden explain why fails to that has not been a prosecution plead prove that the de problem in the three circuits where the con exception.” at fendant is not within the Id. today long has been the law. clusion we reach 70, government at 1298. The coun S.Ct. Twenty years ago the Seventh Circuit said by quoting general the rule announced ters charging physician States, 353, that an indictment with McKelvey in v. United (1922), dispensing controlled substances need not al 357, 43 67 L.Ed. 301 S.Ct. pleading lege prescriptions other that the he wrote were that: indictment or “[A]n general provision defining professional prac founded on a outside the course of his negative of an offense ... need not Roya, 'elements tice. See United States v. 574 F.2d exception by proviso (7th Cir.1978) (“An made 386, the matter of an indictment clause.” or other distinct general provision of a statute founded on exception made McKelvey rules Both the Vuitch and clause, proviso-or other distinct whether construction, “gen- statutory of are rules elsewhere.”). Eighteen section or same guide[s] interpretation of criminal eral years ago the Circuit held that an Vuitch, 90, Sixth statutes,” at at 402 U.S. S.Ct. charging pharmacists illegal indictment 1298, they and as such are useful when Con- ly distributing substances need not its intent clear. In this gress has not made rely upon allege they such rules acted outside the usual case we have no need to that construction, Congress explic- has of because course of conduct. See United 885(a)(1) § unambiguously itly stated 211-12 Seelig, 622 F.2d States charging an indictment defendant with Cir.1980). rule has been in effect The same required § violating is not years. in the Third Circuit for six See Unit professional practice exception. course of (3rd Polan, 970 F.2d ed States any scarcely have been clear- Congress could Cir.1992) (indictment physician for distrib of er about that. conspiring uting and to distribute allege for failure to substance not defective protests Congress could not reason). 885(a)(1), legitimate medical be- absence of have meant what it said circuits, part three prosecutors Act. Like report been no of There has jurisdictions. position on running company amuck in of those with the Ninth Circuit’s event, puts issue, for- King, In the concerns Steele see this Cir.1978) (two-to-one policy judgments implicate ward 962-65 province Congress. decision). of within the with the Ninth Cir problem One King, majority Third opinion cuit’s It is not courts but Polan, out, pointed has see in the United crimes defenses defines analysis specific of at its Subject only to constitutional States Code. 885(a)(1), key upon issue fails focus constraints, authority specify it has upon provision which the issue turns. The given pleaded by factor must be whether Outler, is true same in the as an government ele today. which we overrule decision offense, affirmatively raised ment of part con its case. Steele the defense only pleading have issue— decided Congress overstepped its bounds tends that professional practice course ex- that the 885(a)(1), pro the course ception is an affirmative defense which need practice factor is an element fessional negated have not be in the indictment. We 841(a)(1) offense, must be and all elements occasion to the issue who bears no address see, indictment, e.g., alleged in the Russell v. heavy and how persuasion, the burden *5 States, 82 S.Ct. United is, goes for- that burden once the defendant (1962). An essen 8 L.Ed.2d 240 evidence about it ward premise syllogism of that tial 885(a)(1) requires. persua- The burden of professional practice factor is an course of significance to the sion issue is no convic- defense, that is and not not element case, tion under review this definitively exer Congress said it what when jury district court instructed say. right cised its government bore that burden could dis- course of said that the charge only by beyond it proof reasonable exceptions prohi all to the exception, indeed a defendant is entitled to doubt. Whether against manufacturing, distributing, bition an instruction is an issue have no such possessing dispensing, and controlled sub occasion to address. elements, stances, are defenses not relating does raise other issues alleged in inapplicability need not be yet his conviction that have been ad- the indictment. panel did dressed because the not reach (1) “if it: An indictment is sufficient express no view on those other them. presents the essential elements issues, choosing instead to let de- (2) offense, charged the accused of notifies true of the cide them. same is sentenc- (3) charges against, and to be defended government’s issue raised in the cross- rely upon judgment the accused enables appeal. against double under the indictment as bar Having the issue on which we decided prosecution for jeopardy subsequent review, granted en this case RE- banc Dabbs, offense.” States v. the same United MANDED TO THE PANEL for decision of (11th Cir.1998). Because appeal other issues in the raised that, all in this case does the indictment cross-appeal. is not defective. charging In EDMONDSON, Judge, concurring: practitioner violating 21 U.S.C. Today’s heavily court what relies we see plain language pertinent of the as the stat- join practice exception, agree with the and with the ute. Sixth, Circuits, Third, Ro- see Seventh point IBut out that we do not have result. lan, Seelig, Roya, return to and we today that was before us a statute enacted pre-Outler position predecessor our Court long ago. When those much older statutes Ramzy, 446 States v. took courts, Cir.1971), being construed modern our which involved earlier response as modern readers to words of of the current Controlled Substances version may words not be what the meant the statute very Congress speaking at a different

time; meaning becomes the idea complicated.

far more Plaintiff-Appellant, BARNETT,

Sabrina CAPITAL

GENERAL ELECTRIC

CORPORATION, Defendant-

Appellee.

No. 97-8171. Appeals, States Court

Eleventh Circuit.

July 29, 1998. *6 Lithonia, GA,

Regina Myers, Eugene L. Felton, Robins, Jr., GA, for Plaintiff- Warner Appellant. Smith, Dent, Weyand

Leslie A. Naomi Wil- Paul, Hill, Jr., Janofsky Hastings, B. & liam Walker, Atlanta, GA, Defendant-Appel- lee. BIRCH,

Before ANDERSON *, Judges, Senior District and COHILL Judge.

* Jr., Cohill, designation. sylvania, sitting by Senior Maurice B. Honorable Judge for the District of District Western Penn-