Respondent, a licensed physician registered under the Controlled
Substances Act (CSA), 21 U.S.C. § 801
et seq., was
convicted of knowing and unlawful distribution and dispensation of
methadone (a controlled substance or addictive drug used in the
treatment of heroin addicts) in violation of 21 U.S.C. § 841(a)(1),
which makes it unlawful for "any person" knowingly or intentionally
to distribute or dispense a controlled substance, except as
authorized by the CSA. The evidence disclosed that respondent
prescribed large quantities of methadone for patients without
giving them adequate physical examinations or specific instructions
for its use and charged fees according to the quantity of methadone
prescribed, rather than fees for medical services rendered. The
Court of Appeals, however, reversed the conviction on the grounds
that respondent was exempted from prosecution under § 841 by virtue
of his status as a registrant and that a registrant can be
prosecuted only under §§ 842 and 843, which prescribe less severe
penalties than § 841.
Held: Registered physicians can be prosecuted under §
841 when, as here, their activities fall outside the usual course
of professional practice. Pp.
423 U. S.
131-145.
(a) Only the lawful acts of registrants under the CSA are
exempted from prosecution under § 841. That section, by its terms,
reaches "any person," and does not exempt (as it could have) "all
registrants" or "all persons registered under the Act." The
language of the qualified authorization of § 822(b), which
authorizes registrants to possess, distribute, or dispense
controlled substances to the extent authorized by their
registration and in conformity with other CSA provisions, and which
was added merely to ensure that persons engaged in lawful
activities could not be prosecuted, cannot be fairly read to
support the view that all activities of registered physicians are
beyond the reach of § 841 simply because of their status. Pp.
423 U. S.
131-133.
(b) There is no indication in the operative language of §§
841-843 that Congress intended to establish two mutually
exclusive
Page 423 U. S. 123
penalty systems, with nonregistrants to be punished under § 841
and registrants under §§ 842 and 843, the fact that the term
"registrants" is used in some subsections of §§ 842 and 843, but
not in § 841, being of limited significance. Moreover, the
legislative history indicates that Congress was concerned with the
nature of the drug transaction, rather than with the defendant's
status. Pp.
423 U. S.
133-135.
(c) It is immaterial whether respondent also could have been
prosecuted for the relatively minor offense of violating § 829 with
respect to the issuing of prescriptions, since there is nothing in
the statutory scheme or the legislative history that justifies a
conclusion that a registrant who may be prosecuted for violating §
829 is thereby exempted from prosecution under § 841 for the
significantly greater offense of acting as a drug "pusher." Pp.
423 U. S.
135-138.
(d) The scheme of the CSA, viewed against the background of the
legislative history, reveals an intent to limit a registered
physician's dispensing authority to the course of his "professional
practice." Pp.
423 U. S.
138-143.
(e) Congress was concerned that the drug laws not impede
legitimate research, and that physicians be allowed reasonable
discretion in treating patients, but it did not intend to exempt
from serious criminal penalties those acts by physicians that go
beyond the limits of approved professional practice. Pp.
423 U. S.
143-145.
(f) Where the statutory purpose is clear, the canon of strict
construction of criminal statutes favoring the accused will be
satisfied if the words of the statute are "given their fair meaning
in accord with the manifest intent of the lawmakers."
United
States v. Brown, 333 U. S. 18,
333 U. S. 25-26.
P.
423 U. S.
145.
164 U.S.App.D.C. 319, 505 F.2d 426, reversed and remanded.
POWELL, J., delivered the opinion for a unanimous Court.
Page 423 U. S. 124
MR. JUSTICE POWELL delivered the opinion of the Court.
The issue in this case is whether persons who are registered
under the Controlled Substances Act (CSA or Act), 84 Stat. 1242, 21
U.S.C. § 801
et seq., can be prosecuted under § 841 for
dispensing or distributing controlled substances. The United States
Court of Appeals for the District of Columbia Circuit reversed the
conviction of respondent, a licensed physician registered under the
Act, on the ground that he was exempted from prosecution under §
841 by virtue of his status as a registrant. We reverse, and hold
that registered physicians can be prosecuted under § 841 when their
activities fall outside the usual course of professional
practice.
I
Dr. Moore was charged, in a 639-count indictment, with the
knowing and unlawful distribution and dispensation of methadone
(Dolophine), a Schedule II controlled substance, [
Footnote 1] in violation of 21 U.S.C. §
841(a)(1). That subsection provides:
"Except as authorized by this subchapter, it shall be unlawful
for any person knowingly or intentionally -- "
"(1) to manufacture, distribute, or dispense, or
Page 423 U. S. 125
possess with intent to manufacture, distribute, or dispense, a
controlled substance. . . ."
The indictment covered a 5 1/2-month period from late August,
1971, to early February, 1972. It was reduced before trial to 40
counts, and the jury convicted respondent on 22 counts. He was
sentenced to concurrent terms of five to 15 years' imprisonment on
14 counts, and to concurrent terms of 10 to 30 years on the
remaining eight counts. The second set of sentences was to be
consecutive with the first. Fines totaling $150,000 were also
imposed. [
Footnote 2]
Methadone is an addictive drug used in the treatment of heroin
addicts. If taken without controls it can, like heroin, create
euphoric "highs," but, if properly administered, it eliminates the
addict's craving for heroin without providing a "high." The two
principal methods of treating heroin addicts with methadone are
"detoxification" and "maintenance." Under a maintenance program,
the addict is given a fixed dose once a day for an indefinite
period to keep him from using heroin. In detoxification, the addict
is given a large dose of methadone during the first few days of
treatment to keep him free of withdrawal symptoms. Then the dose is
gradually reduced until total abstinence is reached.
Maintenance is the more controversial method of treatment.
During the period covered by the indictment, registration under §
822, in itself, did not entitle a physician to conduct a
maintenance program. In addition to a § 822 registration, the
physician who wished to conduct such a program was required to
Page 423 U. S. 126
obtain authorization from the Food and Drug Administration for
investigation of a new drug. Dr. Moore's authorization by the FDA
was revoked in the summer of 1971, and he does not claim that he
was conducting an authorized maintenance program. Instead, his
defense at trial was that he had devised a new method of
detoxification based on the work of a British practitioner. He
testified that he prescribed large quantities of methadone to
achieve a "blockade" condition, in which the addict was so
saturated with methadone that heroin would have no effect, and to
instill a strong psychological desire for detoxification. The
Government's position is that the evidence established that Dr.
Moore's conduct was inconsistent with all accepted methods of
treating addicts, that, in fact, he operated as a "pusher."
Respondent concedes in his brief that he did not observe
generally accepted medical practices. He conducted a large-scale
operation. Between September, 1971, and mid-February, 1972, three
District of Columbia pharmacies filled 11,169 prescriptions written
by Dr. Moore. These covered some 800,000 methadone tablets. On 54
days during that period, respondent wrote over 100 prescriptions a
day. In billing his patients, he used a "sliding fee scale" pegged
solely to the quantity prescribed, rather than to the medical
services performed. The fees ranged from $15 for a 50-pill
prescription to $50 for 150 pills. In five and one-half months Dr.
Moore's receipts totaled at least $260,000.
When a patient entered the office, he was given only the most
perfunctory examination. Typically this included a request to see
the patient's needle marks (which in more than one instance were
simulated) and an unsupervised urinalysis (the results of which
were regularly ignored). A prescription was then written for the
amount requested by the patient. On return visits -- for
Page 423 U. S. 127
which appointments were never scheduled -- no physical
examination was performed and the patient again received a
prescription for whatever quantity he requested. Accurate records
were not kept, and in some cases the quantity prescribed was not
recorded. There was no supervision of the administration of the
drug. Dr. Moore's instructions consisted entirely of a label on the
drugs reading: "Take as directed for detoxification." Some patients
used the tablets to get "high"; others sold them or gave them to
friends or relatives. Several patients testified that their use of
methadone increased dramatically while they were under respondent's
care. [
Footnote 3]
The Court of Appeals, with one judge dissenting, assumed that
respondent acted wrongfully but held that he could not be
prosecuted under § 841. [
Footnote
4] 164 U.S.App.D.C.
Page 423 U. S. 128
319, 505 F.2d 426 (1974). The court found that Congress intended
to subject registered physicians to prosecution only under §§ 842
and 843, [
Footnote 5] which
prescribe
Page 423 U. S. 129
less severe penalties than § 841. [
Footnote 6] The court reasoned:
". . . Congress intended to deal with registrants primarily
Page 423 U. S. 130
through a system of administrative controls, relying on modest
penalty provisions to enforce those controls, and reserving the
severe penalties provided for in § 841 for those seeking to avoid
regulation entirely by not registering."
164 U.S.App.D.C. at 323, 505 F.2d at 430.
It said, further, that §§ 842 and 843 were enacted to enforce
that scheme, while § 841 was reserved for prosecution of those
outside the "legitimate distribution chain." Persons registered
under the Act were "authorized by [the] subchapter" within the
meaning of § 841, and thus were thought to be immunized against
prosecution under that section. [
Footnote 7]
Page 423 U. S. 131
Respondent advances two basic arguments, contending that each
requires affirmance of the Court of Appeals: (i) as that court
held, registered physicians may be prosecuted only under §§ 842 and
843; and (ii) in any event, respondent cannot be prosecuted under §
841 because his conduct was "authorized by [the] subchapter" in
question. We now consider each of these arguments.
II
A
Section 841(a)(1) makes distribution and dispensing of drugs
unlawful "[e]xcept as authorized by this subchapter. . . ." Relying
on this language, the Court of Appeals held that a physician
registered under the Act is
per se exempted from
prosecution under § 841 because of his status as a registrant. We
take a different view, and hold that only the lawful acts of
registrants are exempted. By its terms, § 841 reaches "any person."
It does not exempt (as it could have) "all registrants" or "all
persons registered under this Act."
The Court of Appeals relied also on § 822(b), which
provides:
"Persons registered . . . under this subchapter to . . .
distribute, or dispense controlled substances are authorized to
possess, . . . distribute, or dispense such substances . . . to the
extent authorized by their registration and in conformity with the
other provisions of this subchapter."
This is a qualified authorization of certain activities, not a
blanket authorization of all acts by certain persons. This
limitation is emphasized by the subsection's heading "Authorized
activities," which parallels the headings of §§ 841-843 "Unlawful
acts." We think the statutory language cannot fairly be read to
support the view that all activities of registered physicians
Page 423 U. S. 132
are exempted from the reach of § 841 simply because of their
status.
If § 822(b) were construed to authorize all such activities,
thereby exempting them from other constraints, it would constitute
a sharp departure from prior laws. But there is no indication that
Congress had any such intent. Physicians who stepped outside the
bounds of professional practice could be prosecuted under the
Harrison Act (Narcotics) of 1914, 38 Stat. 785, the predecessor of
the CSA. In
Jin Fey Moy v. United States, 254 U.
S. 189 (1920), the Court affirmed the conviction of a
physician on facts remarkably similar to those before us
(
e.g., no adequate physical examination, the dispensing of
large quantities of drugs without specific directions for use, and
fees graduated according to the amount of drugs prescribed). A
similar conviction was upheld in
United States v. Behrman,
258 U. S. 280
(1922), where the defendant doctor had prescribed heroin, morphine,
and cocaine to a person whom he knew to be an addict.
In enacting the CSA, Congress attempted to devise a more
flexible penalty structure than that used in the Harrison Act.
H.R.Rep. No. 91-1444, Pt. 1, pp. 1, 4 (1970). [
Footnote 8] Penalties were geared to the nature of
the violation, including the character of the drug involved. But
the Act was intended to "strengthen," rather than to weaken,
"existing law enforcement authority in the field of drug abuse." 84
Stat. 1236 (1970) (preamble).
See also H.R.Rep. No.
91-1444, p. 1.
Section 822(b) was added to the original bill at a late date
[
Footnote 9] to "make it clear
that persons registered under
Page 423 U. S. 133
this title are authorized to deal in or handle controlled
substances." H.R.Rep. No. 91-1444, p. 38. It is unlikely that
Congress would seek, in this oblique way, to carve out a major new
exemption, not found in the Harrison Act, for physicians and other
registrants. Rather, § 822(b) was added merely to ensure that
persons engaged in lawful activities could not be prosecuted.
B
Respondent nonetheless contends that §§ 841 and 822(b) must be
interpreted in light of a congressional intent to set up two
separate and distinct penalty systems: persons not registered under
the Act are to be punished under § 841, while those who are
registered are to be subject only to the sanctions of §§ 842 and
843. The latter two sections, the argument goes, establish modest
penalties which are the sole sanctions in a system of strict
administrative regulation of registrants.
The operative language of those sections provides no real
support for the proposition that Congress intended to establish two
mutually exclusive systems. It is true that the term "registrants"
is used in §§ 842 and 843, and not in § 841. But this is of limited
significance. All three sections provide that "[i]t shall be
unlawful for any person . . . [to commit the proscribed acts]." Two
of the eight subsections of § 842(a), one of the five subsections
of § 843(a), and § 842(b) further qualify "any person" with "who is
a registrant." The other subsections of § § 842 and 843 are not so
limited. In context, "registrant" is merely a limiting term,
indicating that the only "persons" who are subject to these
subsections are "registrants." [
Footnote 10] There is no indication that "persons"
Page 423 U. S. 134
means "nonregistrants" when introducing the other
subsections.
There are other indications that § 841 and §§ 842 and 843 do not
constitute two discrete systems. Section 843(b), for example, makes
it unlawful for any person to use a communication facility in
committing a felony under any provision of the subchapter. But
violations of both § 841 and § 843 lead to felony convictions;
criminal violations of § 842 are misdemeanors. [
Footnote 11] §§ 842(c)(2)(A), 802(13); 18
U.S.C. § 1. And counsel for respondent agreed at oral argument that
registrants can be prosecuted under § 841(a)(2), which prohibits
the creation, distribution, dispensing, or possession with intent
to distribute or dispense of a "counterfeit substance."
The legislative history indicates that Congress was concerned
with the nature of the drug transaction, rather than with the
status of the defendant. The penalties now embodied in §§ 841-843
originated in §§ 501-503 of the Controlled Dangerous Substances Act
of 1969. The Report of the Senate Judiciary Committee on that bill
described § 501 (the counterpart of § 841) as applying to
"traffickers." S.Rep. No. 91-613, p. 8
Page 423 U. S. 135
(1969). Section 502 provided "[a]dditional penalties . . . for
those involved in the legitimate drug trade," and "[f]urther
penalties . . . for registrants" were specified in § 503. S.Rep.
No. 91-613, p. 9. The House Committee Report on the bill that was
to become the CSA explains:
"The bill provides for control . . . of problems related to drug
abuse through registration of manufacturers, wholesalers,
retailers, and all others in the legitimate distribution chain, and
makes transactions outside the legitimate distribution chain
illegal."
H.R.Rep. No. 91-1444, p. 3. Although this language is ambiguous,
the most sensible interpretation is that the penalty to be imposed
for a violation was intended to turn on whether the "transaction"
falls within or without legitimate channels. All persons who engage
in legitimate transactions must be registered and are subject to
penalties under §§ 842 and 843 for "[m]ore or less technical
violations." H.R.Rep. No. 91-1444, p. 10. But "severe criminal
penalties" were imposed on those, like respondent, who sold drugs,
not for legitimate purposes, but "primarily for the profits to be
derived therefrom."
Ibid.
C
Congress was particularly concerned with the diversion of drugs
from legitimate channels to illegitimate channels.
Id. at
6; S.Rep. No. 91-613, p. 4; 116 Cong.Rec. 996 (1970) (remarks of
Sen. Dodd). It was aware that registrants, who have the greatest
access to controlled substances, and therefore the greatest
opportunity for diversion, were responsible for a large part of the
illegal drug traffic.
See id. at 1663 (remarks of Sen.
Hruska);
id. at 998 (remarks of Sen. Griffin).
Recognizing this concern, the Court of Appeals suggested that
Dr. Moore could be prosecuted under § 842(a)(1)
Page 423 U. S. 136
for having violated the provisions of § 829 with respect to the
issuing of prescriptions. [
Footnote 12] Whether Dr. Moore could have been so
prosecuted is not before the
Page 423 U. S. 137
Court. [
Footnote 13] We
note, however, that the penalties for such a violation could hardly
have been deemed by Congress to be an appropriate sanction for drug
trafficking by a registered physician. Indeed, the penalty for
conviction under § 842 would be significantly lighter than, for
example, that applicable to a registrant convicted under § 843 for
using a suspended registration number. [
Footnote 14] Moreover, a physician who wished to
traffic in drugs without threat of criminal prosecution could, if
violation of § 829 were the sole basis for prosecution, simply
dispense drugs directly, without the formality of issuing a
prescription. Direct dispensing is exempt from § 829, and thus is
not reached by any subsection of § 842 or
Page 423 U. S. 138
§ 843 so long as the technical requirements are complied
with.
But we think it immaterial whether Dr. Moore also could have
been prosecuted for his violation of statutory provisions relating
to dispensing procedures. There is nothing in the statutory scheme
or the legislative history that justifies a conclusion that a
registrant who may be prosecuted for the relatively minor offense
of violating § 829 is thereby exempted from prosecution under § 841
for the significantly greater offense of acting as a drug "pusher."
[
Footnote 15]
III
Respondent argues that, even if Congress did not intend to
exempt registrants from all prosecutions under § 841, he cannot be
prosecuted under that section because the specific conduct for
which he was prosecuted was "authorized by [the] subchapter," and
thus falls within the express exemption of the section.
The trial judge assumed that a physician's activities are
authorized only if they are within the usual course of professional
practice. He instructed the jury that it had to find
"beyond a reasonable doubt that a physician, who knowingly or
intentionally, did dispense or distribute
Page 423 U. S. 139
[methadone] by prescription, did so other than in good faith for
detoxification in the usual course of a professional practice and
in accordance with a standard of medical practice generally
recognized and accepted in the United States."
App. 123. The Court of Appeals did not address this argument,
because it concluded that registrants could not be prosecuted under
§ 841 under any circumstances. But it suggested that, if a
registrant could be reached under § 841, he could not be prosecuted
merely because his activities fall outside the "usual course of
practice." 164 App.D.C. at 322 n. 11, 505 F.2d at 429 n. 11.
Under the Harrison Act, physicians who departed from the usual
course of medical practice were subject to the same penalties as
street pushers with no claim to legitimacy. Section 2 of that Act
required all persons who sold or prescribed certain drugs to
register and to deliver drugs only to persons with federal order
forms. The latter requirement did not apply to
"the dispensing or distribution of any of the aforesaid drugs to
a patient by a physician . . . registered under this Act in the
course of his professional practice only."
38 Stat. 786. As noted above, Congress intended the CSA to
strengthen, rather than to weaken, the prior drug laws. There is no
indication that Congress intended to eliminate the existing
limitation on the exemption given to doctors. [
Footnote 16] The difficulty
Page 423 U. S. 140
arises because the CSA, unlike the Harrison Act, does not spell
out this limitation in unambiguous terms.
Instead of expressly removing from the protection of the Act
those physicians who operate beyond the bounds of professional
practice, the CSA uses the concept of "registration." Section
822(b) defines the scope of authorization under the Act in circular
terms:
"Persons registered . . . under this subchapter . . . are
authorized [to dispense controlled substances] . . . to the extent
authorized by their registration and in conformity with the other
provisions of this subchapter."
But the scheme of the statute, viewed against the background of
the legislative history, reveals an intent to limit a registered
physician's dispensing authority to the course of his "professional
practice."
Registration of physicians and other practitioners [
Footnote 17] is mandatory if the
applicant is authorized to dispense drugs or conduct research under
the law of the State in which he practices. [
Footnote 18] § 823(f). In the case of a
physician,
Page 423 U. S. 141
this scheme contemplates that he is authorized by the State to
practice medicine and to dispense drugs in connection with his
professional practice. [
Footnote
19] The federal registration, which follows automatically,
extends no further. It authorizes transactions within "the
legitimate distribution chain," and makes all others illegal.
H.R.Rep. No. 91-1444, p. 3. Implicit in the registration of a
physician is the understanding that he is authorized only to act
"as a physician."
This is made explicit in § 802(20), which provides that
"practitioner" means one who is
"registered . . . by the United States or the jurisdiction in
which he practices or does research, to distribute, dispense,
conduct research with respect to, administer, or use in teaching or
chemical analysis, a controlled substance in the course of
professional practice or research."
This section defines the term "practitioner" for purposes of the
Act. It also describes the type of registration contemplated by the
Act. That registration is limited to the dispensing and use of
drugs "in the course of professional practice or research."
Other provisions throughout the Act reflect the intent
Page 423 U. S. 142
of Congress to confine authorized medical practice within
accepted limits. Section 812(b)(2) includes in its definition of
Schedule II drugs a requirement that "[t]he drug [have] a currently
accepted medical use with severe restrictions." Registration under
the CSA to dispense or to conduct research with Schedule I drugs,
which are defined as having "no currently accepted medical use in
treatment in the United States," § 812(b)(1)(B), does not follow
automatically from state registration as it does with respect to
drugs in Schedules II through V, all of which have some accepted
medical use. § 823(f). The record and reporting requirements of §
827 are made inapplicable with respect to narcotic drugs in
Schedules II through V when they are prescribed or administered "by
a practitioner in the lawful course of his professional practice."
§ 827(c)(1)(A). Section 828(a) prohibits the distribution of
Schedule I and II drugs unless pursuant to specified order forms; §
828(e) makes it unlawful for "any person" to obtain drugs with
these order forms
"for any purpose other than their use, distribution, dispensing,
or administration in the conduct of a lawful business in such
substances or in the course of his professional practice or
research."
Section 844(a) prohibits possession of controlled substances
unless the drug was obtained "from a practitioner, while acting in
the course of his professional practice, or except as otherwise
authorized. . . ."
See also § 885(a)(2).
The evidence presented at trial was sufficient for the jury to
find that respondent's conduct exceeded the bounds of "professional
practice." [
Footnote 20] As
detailed above, he gave inadequate physical examinations or none at
all.
Page 423 U. S. 143
He ignored the results of the tests he did make. He did not give
methadone at the clinic, and took no precautions against its misuse
and diversion. He did not regulate the dosage at all, prescribing
as much and as frequently as the patient demanded. He did not
charge for medical services rendered, but graduated his fee
according to the number of tablets desired. In practical effect, he
acted as a large-scale "pusher" -- not as a physician.
IV
Respondent further contended at trial that he was experimenting
with a new "blockade" theory of detoxification. The jury did not
believe him. Congress understandably was concerned that the drug
laws not impede legitimate research, and that physicians be allowed
reasonable discretion in treating patients and testing new
theories. But respondent's interpretation of the Act would go far
beyond authorizing legitimate research and experimentation by
physicians. It would even compel exemption from the provisions of §
841 of all "registrants," including manufacturers, wholesalers, and
pharmacists -- in addition to physicians.
In enacting the Comprehensive Drug Abuse Prevention and Control
Act of 1970, 84 Stat. 1236, Title II of which is the CSA, Congress
faced the problem directly. Because of the potential for abuse, it
decided that some limits on free experimentation with drugs were
necessary. But it was also aware of the concern expressed by the
Prettyman Commission:
"[A] controversy has existed for fifty years over the extent to
which narcotic drugs may be administered to an addict solely
because he is an addict."
"
* * * *"
"The practicing physician has . . . been confused as to when he
may prescribe narcotic drugs for an
Page 423 U. S. 144
addict. Out of a fear of prosecution, many physicians refuse to
use narcotics in the treatment of addicts except occasionally in a
withdrawal regimen lasting no longer than a few weeks. In most
instances, they shun addicts as patients. [
Footnote 21]"
Congress' solution to this problem is found in § 4 of Title I of
the 1970 Act, 42 U.S.C. § 257a. That section requires the Secretary
of Health, Education, and Welfare, after consultation with the
Attorney General and national addict treatment organizations, to
"determine the appropriate methods of professional practice in the
medical treatment of . . . narcotic addiction. . . ." It was
designed "to clarify for the medical profession . . . the extent to
which they may safely go in treating narcotic addicts as patients."
H.R.Rep. No. 91-1444, p. 14. Congress pointed out that "criminal
prosecutions" in the past had turned on the opinions of federal
prosecutors. Under the new Act, "[t]hose physicians who comply with
the recommendations made by the Secretary will no longer jeopardize
their professional careers . . ."
Id. at 15. The negative
implication is that physicians who go beyond approved practice
remain subject to serious criminal penalties.
In the case of methadone treatment, the limits of approved
practice are particularly clear. As Dr. Moore admitted at trial,
[
Footnote 22] he was
authorized only to dispense methadone for detoxification purposes.
His authorization by the FDA to engage in a methadone maintenance
program had been revoked. Nor was respondent unfamiliar with the
procedures for conducting a legitimate detoxification program.
Charges arising
Page 423 U. S. 145
out of his 1969 treatment program, which involved a combination
of "long-term" and "short-term" detoxification, were dropped after
he testified before a grand jury and agreed to abide by certain
medical procedures in future methadone programs. These included
obtaining a medical history of each patient, conducting a
reasonably thorough physical examination, abiding by the results of
urine tests, recording times and amounts of dosages, and either
administering the methadone in his office or prescribing no more
than a daily dosage. [
Footnote
23] At trial, respondent admitted that he had failed to follow
these procedures. [
Footnote
24]
V
Respondent argues finally that the statute is sufficiently
ambiguous that it must be construed in his favor despite the clear
intent of the Congress. It is true that,
"when choice has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in
language that is clear and definite."
United States v. Universal C.I.T. Credit Corp.,
344 U. S. 218,
344 U. S.
221-222 (1952). In this case, however, the principle set
forth in
United States v. Brown, 333 U. S.
18,
333 U. S. 25-26
(1948), is appropriately followed:
"The canon in favor of strict construction [of criminal
statutes] is not an inexorable command to override common sense and
evident statutory purpose. . . . Nor does it demand that a statute
be given the 'narrowest meaning;' it is satisfied if the words are
given their fair meaning in accord with the manifest intent of the
lawmakers. "
Page 423 U. S. 146
The judgment of the Court of Appeals is reversed. Because of its
disposition of the case, that court did not reach the question
whether respondent could be sentenced under 21 U.S.C. § 845, which
provides a higher penalty for distribution of controlled substances
to persons under 21 years of age. We remand for the sole purpose of
considering respondent's claim that he was improperly sentenced
under that section.
So ordered.
[
Footnote 1]
A substance listed in Schedule II has "a high potential for
abuse," "a currently accepted medical use in treatment in the
United States or a currently accepted medical use with severe
restrictions," and is a drug the abuse of which "may lead to severe
psychological or physical dependence." 21 U.S.C. § 812(b)(2).
Methadone is listed as a Schedule II drug in § 812(c), Schedule
II(b)(11).
[
Footnote 2]
In addition, Dr. Moore's license to practice medicine was
revoked pursuant to D.C.Code Ann. § 131 (1973), which authorizes
revocation upon the conviction of "any felony." An appeal from the
conviction acts "as a supersedeas to the judgment . . . revoking
his license. . . ."
[
Footnote 3]
One patient testified that he was taking approximately two to
three pills per day when he started visiting Dr. Moore. By the end
of his visits, he was taking 30 to 35 pills a day. App. 43. Another
patient increased his intake from five to 10 pills a day to almost
70.
Id. at 53-54. A third addict, relying on Dr. Moore for
drugs, increased his intake from seven pills a day to over 100. Tr.
310.
[
Footnote 4]
Section 841(a) provides, in full:
"Except as authorized by this subchapter, it shall be unlawful
for any person knowingly or intentionally -- "
"(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance; or"
"(2) to create, distribute, or dispense, or possess with intent
to distribute or dispense, a counterfeit substance."
"Dispense" is defined in § 802(10) to mean
"to deliver a controlled substance to an ultimate user . . . by,
or pursuant to the lawful order of, a practitioner, including the
prescribing and administering of a controlled substance. . . ."
Section 802(11) defines "distribute" to mean "to deliver (other
than by administering or dispensing) a controlled substance."
"Administer" refers to "the direct application of a controlled
substance to the body of a patient. . . ." § 802(2).
[
Footnote 5]
Section 842 in relevant part provides:
"(a) Unlawful acts."
"It shall be unlawful for any person -- "
"(1) who is subject to the requirements of part C to distribute
or dispense a controlled substance in violation of section 829 of
this title;"
"(2) who is a registrant to distribute or dispense a controlled
substance not authorized by his registration to another registrant
or other authorized person or to manufacture a controlled substance
not authorized by his registration;"
"(3) who is a registrant to distribute a controlled substance in
violation of section 825 of this title;"
"(4) to remove, alter, or obliterate a symbol or label required
by section 825 of this title;"
"(5) to refuse or fail to make, keep, or furnish any record,
report, notification, declaration, order or order form, statement,
invoice, or information required under this subchapter or
subchapter II of this chapter;"
"(6) to refuse any entry into any premises or inspection
authorized by this subchapter or subchapter II of this
chapter;"
"(7) to remove, break, injure, or deface a seal placed upon
controlled substances pursuant to section 824(f) or 881 of this
title or to remove or dispose of substances so placed under seal;
or"
"(8) to use, to his own advantage, or to reveal, other than to
duly authorized officers or employees of the United States, or to
the courts when relevant in any judicial proceeding under this
subchapter or subchapter II of this chapter, any information
acquired in the course of an inspection authorized by this
subchapter concerning any method or process which as a trade secret
is entitled to protection."
"(b) Manufacture."
"It shall be unlawful for any person who is a registrant to
manufacture a controlled substance in Schedule I or II which is --
"
"(1) not expressly authorized by his registration and by a quota
assigned to him pursuant to section 826 of this title; or"
"(2) in excess of a quota assigned to him pursuant to section
826 of this title."
Section 843 provides:
"(a) Unlawful acts."
"It shall be unlawful for any person knowingly or intentionally
-- "
"(1) who is a registrant to distribute a controlled substance
classified in schedule I or II, in the course of his legitimate
business, except pursuant to an order or an order form as required
by section 828 of this title;"
"(2) to use in the course of the manufacture or distribution of
a controlled substance a registration number which is fictitious,
revoked, suspended, or issued to another person;"
"(3) to acquire or obtain possession of a controlled substance
by misrepresentation, fraud, forgery, deception, or
subterfuge;"
"(4) to furnish false or fraudulent material information in, or
omit any material information from, any application, report,
record, or other document required to be made, kept, or filed under
this subchapter or subchapter II of this chapter; or"
"(5) to make, distribute, or possess any punch, die, plate,
stone, or other thing designed to print, imprint, or reproduce the
trademark, trade name, or other identifying mark, imprint, or
device of another or any likeness of any of the foregoing upon any
drug or container or labeling thereof so as to render such drug a
counterfeit substance."
"(b) Communication facility."
"It shall be unlawful for any person knowingly or intentionally
to use any communication facility in committing or in causing or
facilitating the commission of any act or acts constituting a
felony under any provision of this subchapter or subchapter II of
this chapter. Each separate use of a communication facility shall
be a separate offense under this subsection. For purposes of this
subsection, the term 'communication facility' means any and all
public and private instrumentalities used or useful in the
transmission of writing, signs, signals, pictures, or sounds of all
kinds and includes mail, telephone, wire, radio, and all other
means of communication."
[
Footnote 6]
Violations of § 841, under which respondent was convicted, carry
sentences of up to 15 years, fines as high as $25,000, or both. §
841(b). Knowing violators of § 842 are subject, at most, to
imprisonment for one year, a fine of $25,000, or both. There also
may be a civil penalty of $25,000 for violation of § 842. § 842(c).
The penalties for violation of § 843 are imprisonment for not more
than four years, a fine of not more than $30,000, or both. §
843(c). All three sections impose higher penalties for violations
after the first conviction.
[
Footnote 7]
The decision below stands alone. At the time it was issued, it
conflicted with the rulings of four other Circuits. Courts of
Appeals for the First, Fifth, and Tenth Circuits had held squarely
that physicians may be prosecuted under § 841.
See United
States v. Badia, 490 F.2d 296 (CA1 1973);
United States v.
Collier, 478 F.2d 268 (CA5 1973);
United States v.
Leigh, 487 F.2d 206 (CA5 1973);
United States v.
Bartee, 479 F.2d 484 (CA10 1973);
United States v.
Jobe, 487 F.2d 268 (CA10 1973). The Ninth Circuit also had
affirmed the conviction of a physician under § 841(a)(1).
United States v. Larson, 507 F.2d 385 (1974). Since the
ruling in this case, two other decisions have considered the issue
and expressly rejected the analysis of the Court of Appeals for the
District of Columbia Circuit.
See United States v.
Rosenberg, 515 F.2d 190 (CA9 1975);
United States v.
Green, 511 F.2d 1062 (CA7 1975). The Sixth Circuit has
implicitly agreed. It reversed the conviction of a physician and
remanded the case for a new trial because the trial court had
failed to instruct the jury that physicians are exempt from
prosecution under § 841(a)(1) when they dispense or prescribe
controlled substances in good faith to patients in the regular
course of professional practice.
United States v. Carroll,
518 F.2d 187 (1975).
[
Footnote 8]
To this end, controlled substances were classified in five
categories according to their potential for abuse, their promise
for treatment, and their psychological and physical effects. §
812.
[
Footnote 9]
Section 822(b) was added by the House Committee on Interstate
and Foreign Commerce. No comparable section was in the Act when it
passed the Senate on January 28, 1970.
[
Footnote 10]
This represents a common sense recognition by Congress that only
a registrant could, for example, distribute drugs "not authorized
by his registration," § 84(a)(2), or manufacture substances "not
expressly authorized by his registration" or "in excess of [his]
quota." §§ 842(b)(1), (2). Nor would there be any reason to apply
to nonregistrants the penalties for distributing drugs without
complying with the labeling and order form requirements of the Act,
§§ 842(a)(3), 843(a)(1), for nonregistrants are barred from making
any distributions whatsoever.
[
Footnote 11]
Another subsection which can be sensibly interpreted only if it
reaches nonregistrants is § 842(a)(1), which is limited to "any
perform -- who is subject to the requirements of part C." Part C of
the Act, §§ 821-829, covers the provisions for registration, and
applies to "[e]very person who manufactures, distributes, or
dispenses any controlled substance or who proposes" to do so. §
822(a). Presumably, § 842(a)(1) is so phrased in order to reach
those who should have registered but failed to do so.
[
Footnote 12]
Section 829 provides, in part:
"(a) Schedule II substances."
"Except when dispensed directly by a practitioner, other than a
pharmacist, to an ultimate user, no controlled substance in
schedule II, which is a prescription drug as determined under the
Federal Food, Drug, and Cosmetic Act, may be dispensed without the
written prescription of a practitioner, except that, in emergency
situations, as prescribed by the Secretary by regulation after
consultation with the Attorney General, such drug may be dispensed
upon oral prescription in accordance with section 353(b) of this
title. Prescriptions shall be retained in conformity with the
requirements of section 827 of this title. No prescription for a
controlled substance in schedule II may be refilled."
"(b) Schedule III and IV substances."
"Except when dispensed directly by a practitioner, other than a
pharmacist, to an ultimate user, no controlled substance in
schedule III or IV, which is a prescription drug as determined
under the Federal Food, Drug, and Cosmetic Act, may be dispensed
without a written or oral prescription in conformity with section
353(b) of this title. Such prescriptions may not be filled or
refilled more than six months after the date thereof or be refilled
more than five times after the date of the prescription unless
renewed by the practitioner."
"(c) Schedule V substances."
"No controlled substance in schedule V which is a drug may be
distributed or dispensed other than for a medical purpose."
The Attorney General's regulations enacted pursuant to § 829
required:
"A prescription for a controlled substance to be effective must
be issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional
practice. The responsibility for the proper prescribing and
dispensing of controlled substances is upon the prescribing
practitioner, but a corresponding responsibility rests with the
pharmacist who fills the prescription. An order purporting to be a
prescription issued not in the usual course of professional
treatment or in legitimate and authorized research is not a
prescription within the meaning and intent of section 309 of the
Act (21 U.S.C. 829) and the person knowingly filling such a
purported prescription, as well as the person issuing it, shall be
subject to the penalties provided for violations of the provisions
of law relating to controlled substances."
21 CFR § 306.04(a) (1973) (redesignated as 21 CFR § 1306.04(a)
(1975)).
The court below suggested that a violation of the "medical
purpose" requirement of § 306.04(a) makes a prescription something
other than the "written prescription" required by § 829. The
dissent, which agreed that Dr. Moore could be prosecuted under §
842(a)(1), did not rely on the regulations. It found inherent in
the statutory term "prescription" a requirement that the order be
issued for a valid medical purpose.
[
Footnote 13]
On its face, § 829 addresses only the form that a prescription
must take. A written prescription is required for Schedule II
substances. § 829(a). Either a written or an oral prescription is
adequate for drugs in Schedules III and IV. § 829(b). The only
limitation on the distribution or dispensing of Schedule V drugs is
that it be "for a medical purpose." § 829(c). The medical purpose
requirement explicit in subsection (c) could be implicit in
subsections (a) and (b). Regulation § 306.04 makes it explicit. But
§ 829, by its terms, does not limit the authority of a
practitioner.
[
Footnote 14]
In addition, a doctor who dispenses a controlled substance not
authorized by his registration to another registrant is also
covered by § 842, and would thus be punished as severely as a
doctor who sold drugs solely for financial profit to
nonregistrants. § 842(a)(2).
[
Footnote 15]
Respondent argues that the proper sanction for trafficking
physicians is not criminal prosecution, but deregistration or
refusal to reregister. But, under respondent's analysis, at the
time he was convicted, neither penalty could be imposed as a
sanction for the conduct in which he engaged. Registration was
mandatory for practitioners with state licenses, § 823(f), and
could only be suspended or revoked if the state license was revoked
or suspended, if the practitioner had "materially falsified" an
application under the Act, or if he had been convicted of a
drug-related felony. § 824(a). Conviction for a misdemeanor under §
842 would be insufficient to support revocation.
[
Footnote 16]
The Narcotic Addict Treatment Act of 1974 (NATA), 88 Stat. 124,
21 U.S.C. §§ 802, 823, 824 (1970 ed., Supp. IV), modified the
registration and revocation procedures provided in the CSA in order
to facilitate "more expeditious" criminal prosecutions by making
revocation easier.
There was no indication that Congress thought that trafficking
doctors could escape felony prosecution altogether under pre-NATA
law. Rather, it sought to
"cure the present difficulty in such prosecutions because of the
intricate and nearly impossible burden of establishing what is
beyond 'the course of professional practice' for criminal law
purposes when such a practitioner speciously claims that the
practices in question were ethical and humanitarian in nature."
S.Rep. No. 93-192, p. 14 (1973). Dr. Moore's conviction was
cited to illustrate that successful criminal actions could be
brought only "in the most aggravated of circumstances . . . after
prolonged effort to make undercover penetrations."
Id. at
13.
[
Footnote 17]
"Practitioner" means
"a physician, dentist, veterinarian, scientific investigator,
pharmacy, hospital, or other person licensed, registered, or
otherwise permitted, by the United States or the jurisdiction in
which he practices or does research, to distribute, dispense,
conduct research with respect to, administer, or use in teaching or
chemical analysis, a controlled substance in the course of
professional practice or research."
§ 802(20).
[
Footnote 18]
Under § 823, registration of manufacturers and nonpractitioner
distributors (such as suppliers) is discretionary with the Attorney
General. He first must make a finding that registration is
consistent (in the case of manufacturers of Schedule I and II
drugs) or not inconsistent (in the case of manufacturers of
Schedule III-V drugs and all distributors) with the public
interest. In evaluating the public interest, the Attorney General
is to consider, for example, "maintenance of effective controls
against diversion," compliance with applicable state and local law,
prior conviction record in drug-related charges, past experience,
and (in the case of manufacturers) promotion of technical advances
in manufacturing and the development of new substances.
Practitioners and pharmacies are automatically entitled to
registration to handle drugs in Schedules II-V "if they are
authorized to dispense . . . under the law of the State in which
they practice." § 823(f).
[
Footnote 19]
The House Report described the rationale behind § 823(f) as
follows:
"Practitioners . . . engaged in the distribution chain would be
required to be registered, but registration would be as a matter of
right where the individual or firm is engaged in
activities involving these drugs which are authorized or
permitted under State law. . . ."
H.R.Rep. No. 91-1444, p. 23 (1970) (emphasis added).
[
Footnote 20]
The jury was instructed that Dr. Moore could not be convicted if
he merely made "an honest effort" to prescribe for detoxification
in compliance with an accepted standard of medical practice. App.
124.
[
Footnote 21]
Report of the President's Advisory Commission on Narcotic and
Drug Abuse 56-57 (1963), quoted in H.R.Rep. No. 91-1444, pp.
115.
[
Footnote 22]
App. 101.
[
Footnote 23]
Id. at 97-100, 116, 136-138.
[
Footnote 24]
Id. at 97-100.