UNITED STATES v. MOORE
Legal provision: 21 U.S.C. 801
Argument of Paul L. Friedman
Chief Justice Warren E. Burger: We will hear arguments next in number 74-759, United States against Moore.
Mr. Friedman, you may proceed whenever you are ready.
Mr. Paul L. Friedman: Mr. Chief Justice and may it please the Court.
This case is here in a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
The question is whether a physician, and it also applies to other practitioners including pharmacist, registered under the Controlled Substances Act to prescribe and dispense drugs for legitimate medical purposes is immune merely because he is so registered from prosecution under the Section of the Act which prohibits the unlawful distribution of controlled substances.
The evidence at trial was overwhelming that respondent was really no different from any street-corner drug pusher and that he engaged in the indiscriminant sale of prescriptions for profit without really providing any type of medical treatment for his so-called patients.
And yet the Court of Appeals concluded that Congress intended to exempt someone like respondent because he was a doctor from penalties applicable to other traffickers in narcotic drugs.
In reaching this conclusion, the District of Columbia Circuit stands alone, because of this, the First Circuit, the Fifth Circuit, the Seventh Circuit, the Ninth Circuit and the Tenth Circuit, and we think by implication the Sixth Circuit had concluded that Congress intended that doctors, pharmacies, hospitals, veterinarians and other practitioners, who after all had the greatest access to drugs and the greatest opportunity to divert them, would be treated the same as any other persons when they traffic in narcotics.
Briefly, the facts, are that respondent was indicted at first in 639 counts, each involving a sale of a prescription, but he went to trial on 40 counts, 38 were presented to the jury and they have convicted in 22 counts.
The evidence at trial showed that methadone, which is the controlled substance involved in this case, is a synthetic narcotic drug, it is a morphine substitute and it can be as physically and psychologically addictive as heroin can.
In fact because it is cheaper and it is often more readily available than heroin, some heroin addicts use it as a substitute for heroin when they cannot get heroin.
But at the same time, under proper supervision and control, it can be very useful in the treatment of addicts either through “detoxification” or “maintenance.”
Detoxification, which is what respondent say he was involved in here, involves giving the addict a large of dose of methadone at first in order to keep him free from withdrawal symptoms and gradually reducing the dosage until he obtains -- attains abstinence from all drugs.
Maintenance on the other hand, really substitutes methadone addiction for heroin addiction, a fixed dosage is given for an indefinite period of time.
Now, respondent had run a detoxification program in the District of Columbia in 1969, but he was ultimately arrested for violating the Harrison Narcotics Act, an Act that this Court said maybe violated by physicians when they sell prescriptions or drugs indiscriminately and not for legitimate medical purpose.
He promised at that time that an exchange for the dismissal of charges, he promised the Grand Jury that he would change his ways in the manner in which he conducted his program.
That he would obtain medical histories from all of his patients, that he would conduct reasonably thorough physical examinations, that he would abide by the results of urinalysis, which can show whether or not there are narcotics in the bloodstream.
That he would record the times and the amounts of the dosages of methadone given and that he would either give the methadone at his clinic or he would prescribe only so much as necessary for daily dosage.
At trial in this case, he admitted that he did not follow these agreements.
In a five and one-half month period, which is the time involved in the indictment here, from September 1, 1971 to February 11, 1972, it is true that respondent was registered under the Controlled Substances Act to conduct the methadone detoxification program.
He did not give physical examinations to his so-called patients.
He did not take urine samples under supervision.
He ignored the results of his urine samples and he did not give the methadone at his clinic and he did not prescribe only a daily dosage.
Rather, he sold prescriptions and he charged as our brief indicates and as the record clearly shows, depending upon the amount of tablets prescribed.
If you got a 50-tablet prescription you pay $15.00, if you got a 75-tablet prescription you would pay $25.00, for a 100-tablet prescription you pay $35.00, you could come back as often as you wanted to.
Some of witnesses testified they came back every day or every other day, a few came back on occasion, more than once in a single day.
Justice William H. Rehnquist: Did he fill the prescriptions himself?
Mr. Paul L. Friedman: No, what did was he wrote out the prescription for whatever amounts you want it and you paid for the prescription, you then went to a drug store and had the prescription filled and paid again for the druggist's fee.
There were three particular drugstores involved here, none of which were charged with any criminal offenses, but the 11,000 prescriptions filled in this period were all filled at these particular drugstores.
Justice William H. Rehnquist: So his escalating rate for the difference in numbers in the prescription could not be attributed to the filling of the prescription by him?
Mr. Paul L. Friedman: That is right, it had nothing to do with the cost of the particular tablet.
It was the cost of him writing a hundred rather than fifty that was involved.
In five-and-half months, he sold prescriptions for 800,000 Dolophine tablets, which is a form of methadone and he took in over a quarter of a million dollars.
He gave no treatment.
Chief Justice Warren E. Burger: In what period?
Mr. Paul L. Friedman: Five-and-one-half month period from September ’71 to February of ’72 when he was closed down.
Chief Justice Warren E. Burger: How did that relate to the appearance before the Grand Jury?
Mr. Paul L. Friedman: The appearance before the Grand Jury was back in ’69 when he promised to make the change in his form of treatment and for a time he apparently did or at least was not detected, if he did not and he did have a registration to engage in detoxification.
But then in ’71 it came to the attention of the authorities that he was not following these promises and through the use of undercover agents and otherwise, they found that he was not doing any of the things that he promised that he would do and so he was arrested, closed down and indicted in these 639 counts indictment.
There was some feeling I gather that back in ’69 that because detoxification could be useful if properly run and supervised and controlled, that Dr. Moore should be given a chance to do it under proper conditions because he could make a contribution to the community in helping addicts.
But apparently as the evidence showed at trial that was not his desire or intention at all, because less than two-years later he was --
Justice Thurgood Marshall: Mr. Friedman, was not all that agreed to in the Court of Appeals?
Mr. Paul L. Friedman: All these facts, absolutely, Mr. Justice Marshall.
Justice Thurgood Marshall: There is one about the time he spent and all?
Mr. Paul L. Friedman: Well I think it is important to put this in a proper factual context and to show really how Congress could not possibly have intended, that people that engage in this kind of a egregious conduct should be exempt from felony prosecution for distributing or selling narcotics.
Congress was well aware of the potential for abuse, the dangers that treatment programs have, the fact that doctors are the largest source, doctors and pharmacies, of diversion of drugs into illicit channels.
And they could not possibly, in light of the opinions of this Court, have intended without ever saying so to have exempted physicians because the law was clear at the time they enacted the Controlled Substances Act that physicians were covered by the old Harrison Narcotic Act, and we do not think that given what Congress knew, they by their silence intended to exempt the physicians.
Unknown Speaker: Well, I gather in the Court of Appeals, the conclusion was, admitting all this things that you have say that Doctor did, that the, nevertheless he could not be prosecuted for violation of this statue, but if for any, it would have to be for non-compliance with the provisions governing his registration under 822, is it not that it?
Mr. Paul L. Friedman: Yes, well --
Unknown Speaker: I mean is that essentially what the Court --
Mr. Paul L. Friedman: Essentially, what the Court of Appeals said is that, that he could only be prosecuted under 842 or possibly 843 if he did things like -- they were covered by that statute.
842 (a) (1) is what the Court of Appeals particularly referred to which is a statute which prescribes someone, which makes it originally a civil penalty unless you do it knowingly, to distribute or dispense a controlled substance without the prescription of 829.
Now, Judge McKinnon (ph) in his dissent said that if you are not prescribing for legitimate medical purpose then it is not really a prescription, and therefore, you could be punished under 842 (a) (1).
We are not so sure that it is not the prescription.
It still looks like a prescription and a pharmacist sees it, he relies upon it and he prescribes.
But perhaps more importantly than that, the legislative history in the whole statutory scheme makes clear that 842, and to some extent 843, really intends to get at the kinds of technical violations of a registration scheme.
And the anomaly is that if he writes a prescription, as Dr. Moore did, he may be punishable under 842 (a) (1), but if he gives away drugs indiscriminately, the analogy or the contrast that Judge Lombard used in the Rosenberg case in the Ninth Circuit was, if he stands in a street corner giving out drugs or giving out prescriptions, he cannot be prosecuted at all.
But if he writes it in a piece of paper, which may or may not be for a legitimate medical purpose, he can be punished up to one year.
Now, that does not make any sense.
If he is really selling drugs, and by selling prescriptions he is selling drugs, he ought to be treated like any other trafficker like any narcotics pusher because he is really no better than that.
And we think that Congress intended that.
Now, very briefly, the way we read the statute and we think the more logical way to read the statute, is not to say that when 21 U.S.C. 841 (a) (1) says, except as authorized by this subject, they intend to wholly exempt a whole class of people, but they are talking about his conduct that maybe authorized by the subchapter because they say that it shall be unlawful for any person to distribute or dispense a controlled substance, except as authorized by the subchapter.
Now, the kind of conduct involved is then defined by other provisions of the subchapter, beginning with Section (a) (22) which requires a registration.
But the registration does not authorize a person so registered to do anything he wants to with the controlled substance, but rather he is permitted to dispense or distribute only to the extent authorized by his registration and in conformity with other provisions of the subchapter.
Now, the registration, which Dr. Moore had permitted him to dispense for detoxification, the evidence at trial showed that that is not what he was doing, he was not dispensing for any legitimate form of medical treatment.
But we do not rely solely on that, we rely on the -- in conformity with other provisions of this subchapter language, and the other provisions of the sub --
Justice Thurgood Marshall: Which statement, you have given up the regulations?
Mr. Paul L. Friedman: Well, we have not given up the regulations, the way we view the regulations --
Justice Thurgood Marshall: I can see it in your brief?
Mr. Paul L. Friedman: Well, it is in our reply brief because we do not think that he was prosecuted or convicted for violating a regulation.
We think that the regulation was used really as a helpful means for the prosecutor, on short notice without any request for bill of particulars, to explain to the Court exactly what its theory was because 306.404 (a) of the regulations defines in a little more fully what it is meant by in the course of professional practice, which is for a legitimate medical purpose.
Justice Thurgood Marshall: And you have not abandoned that?
Mr. Paul L. Friedman: We have not abandoned our reliance upon as a useful way of describing what he did in violating the statute.
We do not agree that it was used by the prosecutor to set out the criminal offense.
In other words Mr. Bergan argues that, that one of the problems in this case is that respondent was convicted of violating a regulation.
We say he was not convicted of violating a regulation.
He was convicted of violating a statute, which by its terms explain what was authorized.
Prosecutor used the regulation before the Court to explain more fully, what the statute meant to the extent that he referred to 306.04 (c) which referred to methadone maintenance; that described what Dr. Moore’s particular registration permitted him to do and not to do.
He was permitted to detoxify, not to maintain, but I am pointing a fact, the theory of trial, was that he did not engage in any bona fide medical practice.
The expert said he did not engage in practice which was acceptable either for detoxification or maintenance.
The lay testimony made clear to anybody listening to it that this was not legitimate medical practice for any purpose, and that we say is what the jury found, and that is a violation 841.
Chief Justice Warren E. Burger: Did he not rest whole his defense or largely on the idea that that is the way he did it under the statute --
Mr. Paul L. Friedman: That is exactly right.
Chief Justice Warren E. Burger: -- what is practiced, and he says that is the way he does things, even though no one else does?
Mr. Paul L. Friedman: That is exactly right, and he relied on two textbooks, one of which he had taken out from the library on the morning the first day of the trial to support this theory, which no else viewed as a legitimate form of medical practice.
He said at trial, and it is in appendix of page 113, that it was never his intention to maintain patients.
My intent was to detoxify patients and to get them completely off of all drugs.
I never wanted to maintain patients on methadone.
I want them to make them completely drug-free and so to the extent that we relied on the regulation, there was no inconsistency, no prejudice to respondent, and yet his testimony of trial was, what he did was he gave them as much as they wanted to go out, fill themselves up with methadone, and a new theory of blockading and then they would come back to him and say I am ready now to detoxify, that is the second stage, I cannot take anymore methadone, I cannot take anymore heroin.
But when asked about the second stage, which would obviously be the crucial stage in that kind of so-called “treatment” psychological counseling, there was none.
A typical visit lasted from 30 to 60 seconds, on one day he prescribed he wrote 271 prescriptions, and he was asked how he could do that in a single day, how he could, counsel he said, I either write very fast or I talk very fast and possibly both.
That is the kind of practice that was involved here and the statue we think by its terms, by its definition of dispensing limited to a practitioner, by its definition of practitioner, which allows dispensing solely in the course of professional practice which means for a legitimate medical purpose.
Congress intended that this kind of drug trafficker should be covered by the felony provision, which makes it unlawful to distribute or to sell.
Justice Potter Stewart: Are you not in a little -- are we not embarking on kind of dubious grounds when we impose criminal -- serious criminal liability based upon professional disagreements among physicians?
This defendant was a physician, was he not?
Mr. Paul L. Friedman: Yes, he was.
Justice Potter Stewart: And is it not true that historically most, if not all of the great breakthroughs and advances in medical science have been made by people who did not follow the conventional way of doing things.
They followed a new way, their way, and most of the conventional physicians of their day would have disagreed with them because this is not the way it has always been done.
And if that is the new -- it bothers me that this kind of evidence can send a person to prison for as long as this has been going, some many, many years, but in any event, that that is the sort of evidence that is the basis for criminal liability.
This man was a physician, he was not a fraud?
Mr. Paul L. Friedman: No question he was a physician, and no question he had --
Justice Potter Stewart: And he had his way of doing it and he testified as to what that way was and it may have been quite wrong, and it might ultimately turn out to be very -- a very good way, but the fact that other physicians said that that was not their way should hardly make a criminal out of this person?
Mr. Paul L. Friedman: Well, except that Congress when it wrote the Controlled Substances Act was aware of that very kind of problem.
There is some language in legislative history that originally appeared on the Prettyman Commission report said that one of the problems with the Harrison Act was that we are allowing federal prosecutors to make judgments as to what is a legitimate medical practice and what ought not to be.
And so with the Controlled Substances Act, what Congress said in writing the Controlled Substances Act is we agree that ought not to be, but on the other hand drug abuse is too significant a problem to allow this kind of experimentation by just any physician.
So what we are going to do is we are going to have a provision in the statute, which allows the Secretary of Health, Education and Welfare rather than the Attorney General to set out what kinds of things can be done.
If you want to try a new form of treatment -- a new form of treatment that you want to experiment with, well, go to the Secretary of H.E.W and he will give you a special registration to do it under the statute and he will run it by the Attorney General, but he will make the judgment.
Now, we do not like the idea, said Congress, of having any official in the Federal Government defining what is and is not permissible, but better it should be the Secretary of H.E.W than the Attorney General, but it has to be somebody.
It cannot be left to the individual practitioner because the potential for abuse is simply too great and so in 21 U.S.C. 823 (f), there were provision made -- there was provision made for new kinds of research.
If you went to the Secretary of H.E.W and said, I want to try this kind of method instead and in the new Act, the Narcotic Addict Treatment Act of 1974, Congress took it upon itself to put some specifics into the law by saying that you could never prescribe for detoxification or maintenance.
The implication of the regulation, which was passed after the Narcotic Addict Treatment Act of 1974, is that it can only be given out in clinics.
It cannot be prescribed to go to pharmacist.
So the Public Health Agency was given the authority under the Controlled Substances Act to set standards.
If one complies with those standards he obviously cannot be prosecuted.
That solves the problem of the Katzenbach Commission I mentioned -- I mean, said the Prettyman Commission -- I meant Katzenbach Commission, had noted --
Justice Potter Stewart: But that does not really solve.
That sort of approach, under that approach the world would still be flat, if Galileo had to go and get permission to --[Laughter]
Mr. Paul L. Friedman: It seems to us that the statute is talking about a problem of drug abuse and how to control it.
It recognized that doctors, pharmacies are the greatest sources of the illegitimate distribution of narcotics, It is amply supported in the legislative history.
How does it deal with it?
Does Congress set out what can and cannot be done?
Congress said in the course of professional practice for a legitimate medical purpose.
These are terms which this Court had no trouble with under the Harrison Act, and on the evidence of this case and in fact, if you compare the facts of some of the early Harrison cases, Jin Fuey Moy and Webb (ph), as opposed to Linder which was the latter case in which -- what was involved was four morphine tablets, we think that under a definition of good faith effort to treat, legitimate medical purpose in the course of professional practice, judges and juries can make those kinds of judgments and evidence before them.
And that the facts of this case are so blatant, so blatant that no one could honestly believe that this man was engaged in legitimate medical practice in the course of his professional practice.
And the fact that Congress has set up a mechanism to define what can and cannot be done, and there are ways to find out what you can and cannot do helps to solve the problem.
Now, to the extent that it does not -- it may not permit every single kind of experimentation in a clinic program as opposed to in a laboratory or on an experimental basis, we think it is legitimate for Congress to have made that judgment because of the tremendous potential for abuse and danger and because of what we see in this case, of the addicts, the methadone addicts who came into court and testified as to what Dr. Moore did to them, and how much more soft they were after they went into his program than when they started in his program.
Justice William H. Rehnquist: Galileo went to jail, did he not?
Mr. Paul L. Friedman: I am afraid [Laughter] well, my history is not as good as it should be --
Justice William H. Rehnquist: But he did, you know, why should not this guy go to jail?
Justice Potter Stewart: Have you ever thought of, subsequent history had thought that it was such a great thing that Galileo had gone to jail, however that is --
Chief Justice Warren E. Burger: Galileo --
Justice Potter Stewart: Galileo is not in this case --
Chief Justice Warren E. Burger: Yes.
Justice Potter Stewart: He is not part of this.
Mr. Paul L. Friedman: [Laughter]
Chief Justice Warren E. Burger: Galileo did not issue 271 prescriptions for drugs in one day --
Mr. Paul L. Friedman: No, he did not.
Chief Justice Warren E. Burger: I do not think he helps us very much one way or the other.
Mr. Paul L. Friedman: Well, in any event, our position in brief is that Congress intended that people like respondent, who engaged in the kind of conduct that respondent has engaged in, are covered by 841.
That the technical provisions of the statue are really not enough and the anomaly of relying solely on the technical provisions, as opposed to the provision for a drug trafficker, makes clear that Congress really intended that as does the legislative history.
There is no indication in the legislative history despite an obvious awareness of some of the problems we have talked about, despite an awareness of what the law was under the Harrison Act, there is no indication that Congress intended to differentiate between practitioners on the one hand and other drug traffickers on the other hand.
If they had wanted to change the prior law, we think they would have been much more explicit in doing so.
Indeed, their awareness of physicians being the primary source of diversion of drugs indicates just the contrary.
They intended to give the drug pusher, the drug trafficker, no matter who he was and the statutory language, the scheme, and the legislative history all support that.
We think that the Court of Appeals for the District of Columbia Circuit ignored the plain language of the statute and the legislative history in concluding that as it did and we ask that its judgment be reversed and the case remanded to that Court for the sole purpose of considering the problem relating to the sentencing.
Chief Justice Warren E. Burger: Very well, Mr. Friedman.
Argument of Raymond W. Bergan
Mr. Raymond W. Bergan: Mr. Chief Justice and may it please the Court.
The Assistant Solicitor General’s essentially accurate if somewhat lured account of the record, which was conceded by the respondent in the Court of Appeals as it is conceded in this Court, cannot be permitted to deter us from the very narrow scope of the decision of the Court of Appeals for the District of Columbia Circuit.
I would like to focus on just what that narrow scope was for a moment and the reason given by the Court of Appeals for its decision.
At the very first page of the prevailing opinion in the Court below, Chief Judge Bazelon writing for the majority of that Court, after noting that they found Section 841 inapplicable to the appellant, Dr. Moore, and reversed his conviction, wrote as follows.
“Our conclusion is reached by forced of the established principle that when a 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, citing Universal CIT and United States versus Brown cases from this Court couple of decades ago.”
The Court then went on to hold --
Chief Justice Warren E. Burger: Are you suggesting that he may have not known that the statue was not clear enough --
Mr. Raymond W. Bergan: No, I am not suggesting --
Chief Justice Warren E. Burger: -- known he was violating it?
Mr. Raymond W. Bergan: I am suggesting that the statute itself is not only susceptible of and permits of the interpretation of the Court below, but I suggest requires it, Mr. Chief Justice.
The particular --
Chief Justice Warren E. Burger: Do you relate that to how he acted on it, I am trying to see whether you are relating that in some way --
Mr. Raymond W. Bergan: I am having difficulty with your word, he, you mean Judge Bazelon or Dr. Moore?
Chief Justice Warren E. Burger: No, no, Dr. Moore.
Mr. Raymond W. Bergan: First of all let me preface by saying that I think no one, either the counsel who represented Dr. Moore in the Trial Court or those of us who represented upon appeal, are going to seek to justify what Dr. Moore did.
The question is, what is --
Chief Justice Warren E. Burger: Was he misled by the statute, that is the only one, I am not concerned --
Mr. Raymond W. Bergan: Dr. Moore was not misled by the statute.
Chief Justice Warren E. Burger: That is all I am interested --
Mr. Raymond W. Bergan: No, I am not suggesting for a moment that Dr. Moore was misled by the statute.
What I am suggesting Mr. Chief Justice, is that the statute, particularly Section 841 and the other provisions of the subchapter, does not proscribe the conduct of which Dr. Moore was adjudged guilty as criminal under Section 841.
Now, it may proscribe it under Section 842 or possibly under Section 843, but it does not proscribe it under Section 841 and that is the narrow holding of the Court of Appeals for the District of Columbia Circuit --
Justice William J. Brennan: Mr. Bergan, I gather there are four other Circuits who reached the opposite conclusion, did they not?
Mr. Raymond W. Bergan: Mr. Justice Brennan, I think the number is six --
Justice William J. Brennan: Was it six, well, I know First, Fifth, Tenth and Ninth so the two --
Mr. Raymond W. Bergan: I believe the Seventh Circuit has recently so held and I am unclear about the Sixth, but I believe that is the other one, Mr. Justice Stewart.
Justice William J. Brennan: So that leaves the District Columbia Circuit standing alone --
Mr. Raymond W. Bergan: The District of Columbia Circuit stands alone with a dissenting opinion from Judge Eli in the Ninth Circuit recently in the Rosenberg case, which was decided, well, probably about the time that this Court granted certiorari in this case.
Justice William J. Brennan: I gather the question that you see it is, the one you just, before I asked my question, whether or not the prescription limits a registered physician to whatever may be the penalties for violation of this legislation?
Mr. Raymond W. Bergan: That is right, Mr. Justice Brennan, I think that is the precise issue.
What the Section 841 -- Section 841 (a) of the statute mean when it says, “except as provided by this subchapter, it shall be unlawful for any person, and then we skip down to subsection (1), to distribute a controlled substance.”
In a situation in which we have a licensed physician in the District of Columbia, who is registered by the Bureau of Narcotics and Dangerous Drugs, to prescribe controlled substances, in this instance Schedule II narcotic, dolophine, or methadone as it is commonly called.
Judge Bazelon wrote in the Court below and we believe it to be the correct analysis of what the legislative history in this case looks toward or leads to, that Congress in passing the Controlled Substances Act, aware of the Prettyman Commission and the Katzenbach Commission reports, aware of the difficulties suggested by some of the cases which this Court had in the 1920s and 1930s under the Harrison Act, the problems of physicians in allowing a lay prosecutor and a jury of laymen to determine what was in effect criminal or civil or proper medical practice divided the drug universe, if one may use that expression, into two sub-universes if you wish, those registered to deal in drugs and those not so registered.
And indeed the House Committee report precisely says that, and this is quoted at an early page of our brief in this Court, it is quoted at page 9; the bill, and that describes the bill which became the Controlled Substances Act, the bill provides for control by the Justice Department of problems related to drug abuse through registration of manufacturers, wholesalers, retailers and all others in the legitimate distribution chain as doctors, pharmacists, those authorized to deal in narcotics.
Justice William H. Rehnquist: Mr. Bergan.
Mr. Raymond W. Bergan: Yes sir.
Justice William H. Rehnquist: Before you get to the legislative history, how do you, in the statute itself, discern this division into two universes as you are speaking?
Mr. Raymond W. Bergan: Primarily, Mr. Justice Rehnquist, in the language of Section 841 --
Justice William H. Rehnquist: That is 401 in US code?
Mr. Raymond W. Bergan: Mr. Justice I am sorry, I do not know, my friend says the answer to that is yes, but I am using the references in the -- that were used in the opinion of the court below and the ones that we have used in the brief.
The language of Section 841, the “except as authorized” language, suggests it seems to us that when you read that subchapter, one has to read “except as authorized” by this subchapter --
Justice William H. Rehnquist: By this title?
Mr. Raymond W. Bergan: Right, by this title.
In the original it was subchapter, but as it was codified it becomes that title. You find in that title in Section 822 (b) a provision for registration.
Dr. Moore was of course concededly registered with the Bureau of Narcotics and Dangerous Drugs as the Agency was called at that time, at all times through the course of the conduct, for which he was prosecuted, convicted and sentenced.
Section 822 (b) provides that persons registered by the Attorney General to dispense controlled substances, and I may alluding a few words in this quote, are authorized to dispense such substances to the extent so authorized, I believe that is the precise language of Section 822 (b).
Now, he was authorized, other --
Justice William H. Rehnquist: Does not 401 (a) except as authorized, by this title it shall be unlawful for any person and then proscribes a series of acts, does not that suggest that the exception is in terms of acts, or conduct, rather than in terms of persons?
Mr. Raymond W. Bergan: No, I think not, Mr. Justice Rehnquist, and I think not for the reason that those Acts and I take it you are referring to the provisions of subdivision-1 and subdivision-2, manufacture, distribute, dispense that particular language, those are the acts which are covered by the classes of persons who are permitted to register to do those acts under the preceding sections of the statute.
For example, Section 822, picks up almost the same language, Section 822 (a) refers to annual registration.
Every person who manufactures, distributes, or dispenses any controlled substance or who proposes to engage in the manufacturing, distribution or dispensing of any controlled substance shall annually obtain a registration issued by the Attorney General in accordance with the rules promulgated.
Justice William H. Rehnquist: Subsection-2 of 841, where it is made unlawful to create, distribute or dispense or posses with intent to distribute or dispense a counterfeit substance.
Your position that doctors are authorized to distribute counterfeit substances?
Mr. Raymond W. Bergan: No, there is no provision that I know of in the statute that would authorize the registration of physicians or anyone else, pharmacists or manufacturers, or whatever to create, distribute, or dispense counterfeit substances.
Justice William H. Rehnquist: But they could not be prosecuted, a doctor could not be prosecuted under 841 (2) under your theory, even though he dispenses a counterfeit substance.
Mr. Raymond W. Bergan: No, I suggest that --Mr. Justice Rehnquist, perhaps I have not made my theory clear, let me put it this way.
A doctor could not, under my theory, under our theory and as I think the Court of Appeals below held, a doctor could not be prosecuted under 841 (a) (2), which I believe is the counterfeit substance situation, could not be prosecuted under that for creating, distributing, or dispensing a counterfeit substance if he was authorized by another section of this title so to do, but he could not so be authorized.
Justice William H. Rehnquist: But then it is conduct that you are talking about, it is authorization of conduct, not just the fact that the guy has an MD license?
Mr. Raymond W. Bergan: It is not the fact that he has an MD license.
It is the fact that he is authorized by the Bureau of Narcotics and Dangerous Drugs to dispense certain narcotics, as he was in this case authorized to dispense dolophine or all Schedule II narcotics for off the record shows, I am not sure that it shows it one way or the other.
Justice Harry A. Blackmun: The statue with be more helpful to you if it instead it is referring to any person, it referred to any person other than a registrant I suppose?
Mr. Raymond W. Bergan: I suggest that if the statute said that, Mr. Justice Blackmun, there would be no ambiguity and the answer to your suggestion is yes, it would be more helpful to me if I said that.
I wish that it said that.
It does not unfortunately, but I believe that the manner in which the statute is written creates an ambiguity, which requires the kind of liberalized, if that is the correct word, construction placed on it by Judge Bazelon, for the reason that the earlier cases from this Court so hold that before one can say that the Congress intended the more severe of two or more possible alternatives to result, they should have spoken so -- spoken to that with more clarity than they did in this case.
Justice Thurgood Marshall: Suppose Dr. Moore, in his office, dispensed methadone at $25.00 a shot, could he be guilty?
Would it be an exception because he is authorized?
Mr. Raymond W. Bergan: I am sorry now, I am not sure I understand your question --
Justice Thurgood Marshall: Anybody off the street, he has got a big sign out, “methadone for sale” cheap drug dispensed it within his neighborhood, Dr. Moore.
Mr. Raymond W. Bergan: He has got a BNDD registration?
Justice Thurgood Marshall: Yes.
Mr. Raymond W. Bergan: I suggest, Mr. Justice Marshall, that as long as that BNDD is in effect, the answer is to revoke that registration and then prosecute him if he keeps doing it because that is the dichotomy, which I suggest that the Congress set up.
Justice Thurgood Marshall: You mean Congress deliberately set that up?
Mr. Raymond W. Bergan: I believe that Congress --
Justice Thurgood Marshall: Set that up that the doctors are the only that can violate the law and sell the drug --
Mr. Raymond W. Bergan: No.
Justice Thurgood Marshall: -- and not violate the statute?
Mr. Raymond W. Bergan: No, no, it would apply to wholesalers, manufacturers, pharmacists, all others who are authorized or who can be authorized by Bureau of Narcotic and Dangerous Drug registration to deal in narcotics.
Justice Thurgood Marshall: A wholesaler can sell a million dollars worth of methadone to the mafia and that he cannot be convicted?
Mr. Raymond W. Bergan: No I -- you put a case, Mr. Justice Marshal, that I have never focused on, I would --
Justice Thurgood Marshall: I am only -- well, he sells a quarter of a million which is what this case is about, you mean, he could not be touched?
Mr. Raymond W. Bergan: I am not at all sure that I can answer that question.
I am not at all certain that he could be touched under 841 as long as he had authorization. That authorization can be revoked.
It could be revoked at the time.
The means of revocation are now more easily set forth in the new Narcotic Addicts -- Narcotic Addict Treatment Act, it is an annual registration.
Justice Thurgood Marshall: So he just takes his quarter of a million and goes to Europe again?
Mr. Raymond W. Bergan: He --
Justice Byron R. White: Mr. Bergan, it seems to me that the -- you rest on the provisions of 841 which say, except as authorized, and then 822 (b) has headed authorized activities.
So you look for this under your theory, even though your theory you would look to what the scope of the authorized activity was, and 822 (b) says, to the extent authorized by their registration?
Mr. Raymond W. Bergan: That is correct.
Justice Byron R. White: Now let us -- now it seems to me we must then ask what did the -- what did their registration authorized them to do, right under the plain words of 822 (b).
Now, you would not suggest that their registration just on its face authorized them to sell methadone without a prescription for example?
Mr. Raymond W. Bergan: No, obviously it is not a willy-nilly authorization to do everything.
Justice Byron R. White: Well, then it seems to me that the except as authorized language at 841 does not held you at all, although if you do something in selling methadone that is not authorized by your registration?
Mr. Raymond W. Bergan: But my registration, or Dr. Moore’s registration in this case, authorized him to dispense methadone, that was the limitation of it, sir.
Justice Byron R. White: It authorized him to dispense methadone, in some way other than by prescription?
Mr. Raymond W. Bergan: Oh! No, by prescription, well I suppose --
Justice Byron R. White: Let us take Justice -- Mr. Justice Marshall’s example.
Assume he just -- did he not just sold methadone other than by prescription, now that was not authorized by his registration?
Mr. Raymond W. Bergan: Assuming his registration was limited to by prescription that would not be authorized.
He would be outside the authorized chain.
Justice Byron R. White: Well then, he can be prosecuted under 841, even under your theory?
Mr. Raymond W. Bergan: Because he was not authorized to do what he then did.
Justice Byron R. White: That is the answer to Mr. Justice Marshall, he just was not authorized to do that.
Mr. Raymond W. Bergan: Well, if that is the situation, yes, to the extent so authorized.
Justice Byron R. White: Well, now think of a situation where -- where he gives prescriptions, but he just does not act like a doctor.
Now, I suppose his registration assumes that he is going to act like a doctor, he is authorized as a physician to practice medicine and to dispense methadone connection with his practice in medicine?
Mr. Raymond W. Bergan: One must be a physician to be -- to have the type of authorization, which Dr. Moore had.
I would assume that --
Justice Byron R. White: At least the Government is contending, I gather, that he just acted outside the scope of the ordinary conduct of a physician?
Mr. Raymond W. Bergan: I think that is the heart and soul of the Government’s contention.
Justice Byron R. White: And therefore is no more covered by the exception in 841, then would be selling without a prescription?
Mr. Raymond W. Bergan: Well, I believe that is what their case comes down to, Mr. Justice White.
Justice Byron R. White: But you apparently agree that he could be breached under 841 if he sold without a prescription?
Mr. Raymond W. Bergan: Yes, on the assumption that his -- that his, let us take an easy example, if he went to the playground at Central High School and sold methadone then the answer to your question would be, yes.
The extent of his registration was to prescribe and dispense with controlled substances in that way and he was then acting outside the scope of his registration and he does not fall within the except as otherwise authorized language of Section 841.
Chief Justice Warren E. Burger: Mr. Bergan, on this question of what a doctor can do, I suppose hypothetically you would agree that, or perhaps you would not, that the old practice of bleeding patients which was done 150 to 200 years ago is, let us assume it is no longer accepted in medical practice, I --
Mr. Raymond W. Bergan: I suppose we can assume that together, I would take that --
Chief Justice Warren E. Burger: -- because I do not know, but there was doctor who just simply took his some kind of a knife and cut-up one of his patient’s arteries and then just went out to play golf and let the patient die on the place where he had left him.
Do you suppose that the -- some suggestion that this was not his medical practice to his way of treating patients would help him on a manslaughter case?
Mr. Raymond W. Bergan: I think not at all.
I think the case you have put, Mr. Chief Justice, would be a classic manslaughter situation.
Chief Justice Warren E. Burger: Undoubtedly, in such a case the prosecution would bring in physicians who would testify that that was not accepted practice.
Presumably, or let us assume in defense he would bring in some kind of a textbook material or some expert evidence that this was a new idea and that it might be coming back again, the bleeding process, then the jury would decide that question, how does that differ in terms of what was submitted to the jury here?
Mr. Raymond W. Bergan: I think it differs markedly, Mr. Chief Justice.
First of all, let me say to you that as we have developed in the brief, and as was developed at some minor extent by the opinion in the Court below, not to any great extent because it was not necessary to reach that point, this kind of a situation, the kind of a situation with which we are dealing here, Section 841 of the Controlled Substances Act, ought not to depend upon conflicting medical opinions as to what is or what is not valid.
A fellow ought not to be, and I suggest that the statute does not permit a fellow to be prosecuted, convicted, sentenced to a long period of incarceration, in the answer to your question Mr. Justice Stewart, is that it was 45 years, because of conduct which is subject to conflicting views among physicians.
Now, we are dealing in an area and that Congress has been wrestling with this area for several decades, and that is the area of narcotics.
The Schedule I narcotic for example, no one would dispute that is heroin and others which have no real medical value, and that Congress has in this statute and in others in effect said, thou shalt not use it.
The Schedule II, Schedule III, Schedule IV, and they go down in order of difficulty to handle are narcotics as to which all persons would perhaps say, as to some, that there is some legitimate medical value.
Perhaps fewer persons would say as to some of them that there is greater or less legitimate medical value.
That is why I suggest, and this is laid out at some length in the Prettyman report, it has troubled this Court from time-to-time over the last 35 or 40 years beginning with a case, which I regret that I can never pronounce, Jin Fuey Moy, I think is the case and leading up to Linder, perhaps even more recently, it is laid out in the Prettyman report and the Katzenbach report, and that is why I suggest that in this particular statute as the Congress itself said, as the House report itself says, the world of the drug universe is divided into those registered to do certain things, and those who are not registered to do certain things.
We deal more harshly with the ones who are not registered to do these things because they are outside the chain where we can keep an eye on them and see what they do, and to revoke their registration or refuse to re-register, pardon me, Sir.
Justice Harry A. Blackmun: Even though such an 841 refers to any person?
Mr. Raymond W. Bergan: Yes, yes.
Justice Harry A. Blackmun: So that in effect you are saying, and I guess I am trying to be facetious, that a physician is not a person within the meaning of that Section at least?
Mr. Raymond W. Bergan: No, I am not saying that.
What I am saying is that when that Section goes on to say, Mr. Justice Blackmun, except as authorized by this subchapter or by this title as Mr. Justice Rehnquist indicated --
Justice William J. Brennan: Mr. Bergan even though I was thinking, that certainly is -- was a subject of congressional concern so also, was it not a concern that among the worst abusers in the drug traffic field were physicians.
Mr. Raymond W. Bergan: There was that concern.
It was expressed by the Congress in the passage of this very Act and having so been expressed that Congress then went on, I suggest Mr. Justice Brennan, to divide the world of those who deal with drugs and to those who do so under the watchful eye of the Bureau of Narcotics and Dangerous Drugs or now the drug enforcement --
Justice William J. Brennan: But to do it I suppose, Congress must have thought consistently with the authorization they had to do?
Mr. Raymond W. Bergan: And the authorization, if Your Honor please in this instance, was to dispense by means of prescription a Schedule II narcotic.
Chief Justice Warren E. Burger: Do you think there is any significance, Mr. Bergan, in the fact that 841 is entitled, “Prohibited Acts?”
Mr. Raymond W. Bergan: No, I do not find any significance in the title.
It has been a long time Mr. Chief Justice, since I dealt with codified statutes.
But I -- those titles are normally put in by the codifier and it is clear that it does in fact deal with, when we come directly to the question which I think you are asking, it does deal with prohibited acts.
It does deal with prohibited acts and if this man was operating beyond his registration, as for example going across to the front steps of the Capitol, and handing out heroin, the fact that he was registered with the Bureau of Narcotics and Dangerous Drugs to do something else, the fact that he was a physician would not immunize him from prosecution.
In this case, however, because he was registered to do what he did, the remedy was two-fold, together or one at a time.
De-registration or refusal to register on an annual basis when he came for re-registration and or prosecution under 842 or 843 of the statute for the various things, which registrants are precluded from doing.
Justice Byron R. White: Just let me ask you.
Do you think that he was a, do you think 842 or 843 would proscribe the conduct for which he was prosecuted in this case?
Mr. Raymond W. Bergan: Yes, I think it could Mr. Justice White --
Justice Byron R. White: Do you think the Government is wrong in saying that unless he is liable under 841, he is not liable at all for the specific conduct that for which he was convicted in this case?
Mr. Raymond W. Bergan: Well I am not terribly sure that the Government is taking that position.
Maybe that -- I am not just sure that that is the position they are taking.
For example though, Section 842 makes it criminal to fail to keep records, and defines the types of records which were required to be kept, the evidence in the Court below is certainly susceptible of the -- of a finding if a Section 842 charge had been made and submitted to the Jury, that adequate records were not kept.
Justice Thurgood Marshall: Mr. Bergan, he did more than that.
He did more than just not keep records?
Mr. Raymond W. Bergan: I quite agree, Mr. Justice Marshall, but he did not do more which the Congress said he could be prosecuted for.
Justice Thurgood Marshall: You mean if he had sold himself a quarter of a million of dollars worth of methadone to anybody in the world, in his office, he could not be prosecuted?
Mr. Raymond W. Bergan: If that is what he was -- if that is what he was authorized by BNDD to do, Mr. Justice Marshall, then I would answer that question he could not be prosecuted under 841 (a).
Justice Thurgood Marshall: What statue authorized him to dispense methadone to anybody under any circumstances?
Mr. Raymond W. Bergan: His registration by the Attorney General of the United States, pursuant to Section 822 (b) of the statute, authorized him to dispense or prescribe methadone without limitation.
Now that --
Justice Thurgood Marshall: In my case, what it was not prescribed, he just sold it?
Mr. Raymond W. Bergan: He prescribed methadone.
Justice Thurgood Marshall: I said assuming that he just sold it, you said it would be the same?
Mr. Raymond W. Bergan: Well, I am sorry, I have misinterpreted your question then, if your --
Justice Thurgood Marshall: If the people come in and he says, here I will sell you $35.00 worth of methadone, it violates the statute, the same doctor with the same registration, right?
Mr. Raymond W. Bergan: If he sold it without the prescription, and if his authorization was to prescribe --
Justice Thurgood Marshall: No, no, he got the same authorization he has got now, and the man comes in and says I would like to buy some methadone for 35 bucks, and he says okay here is $35.00 worth of methadone, did he or did he not violate the statute?
Mr. Raymond W. Bergan: That is a different case than we have, Mr. Justice Marshal, but the answer to your question I think very candidly is yes, the Government would have a better case of prosecuting that particular person --
Justice Thurgood Marshall: But if you have a good case, he could be prosecuted?
Mr. Raymond W. Bergan: The Government would have a better case of prosecuting him under Section 841, it would depend sir --
Justice Thurgood Marshall: If the man comes in and says I want $35.00 worth of methadone, he says I cannot give you the methadone, but he had the prescription, that is it and he could, he cannot be prosecuted?
Mr. Raymond W. Bergan: One would have to examine the particular facts of that case, but as you put the case, if he is authorized by BNDD so to do, he could not be prosecuted under 841.
Now, it would depend, sir, it would depend upon the precise limits of his authorization, but in this case the --
Justice Thurgood Marshall: Doctors have different authorizations?
They all have the exact same authorization.
Mr. Raymond W. Bergan: I am not sure of that, Mr. Justice Marshall, I do not know the answer to that.
I do not know whether -- the answer is yes, some of them do differ.
For example, there are clinical investigative authorizations which require that the --
Justice Thurgood Marshall: I am talking about medical doctor?
Mr. Raymond W. Bergan: I am talking of a medical doctor, sir.
Justice Thurgood Marshall: If he practices as a physician, you mean each physician has a different authorization?
Mr. Raymond W. Bergan: No, I do not mean that each has a different authorization, but there are differing types of authorizations.
For example, physicians may be authorized to conduct clinical programs in their office, and that authorization even back at the time here in question frequently --
Justice Thurgood Marshall: What did Dr. Moore had?
Mr. Raymond W. Bergan: My answer to your question is the same, sir, that the question that you posed, that doctor who sold did not prescribe could be subject to prosecution under 841.
Justice William H. Rehnquist: Mr. Bergan, you are not seeking to uphold the reasoning of the Court of Appeals there, are you, your argument does not track that of the Court of Appeals?
Mr. Raymond W. Bergan: It does not track it directly, Mr. Justice Rehnquist, I think it parallels it, but --
Justice William H. Rehnquist: But the Court of Appeals in effect said that if you are a registrant, you could not be prosecuted under 841 and you are saying that if you are a registrant, you might be prosecuted under 841 if you exceed the authority conferred by your registration?
Mr. Raymond W. Bergan: If you act outside your registration.
I am not really sure we are saying anything differently, but that is what I am saying, if you act beyond your --
Justice Byron R. White: The Court of Appeals spoke much more broadly than your theory?
Mr. Raymond W. Bergan: Well they painted it with a very broad brush, I certainly have to concede that Mr. Justice White.
Chief Justice Warren E. Burger: Thank you Mr. Bergan.
Do you have anything further --
Rebuttal of Paul L. Friedman
Mr. Paul L. Friedman: Just two quick comments.
Mr. Bergan’s main point I think was that administrative controls ought to be used instead of criminal prosecution.
I think it bears emphasizing that under 823 (f), all doctors must be registered if they are licensed to practice medicine, so it is not a discretionary thing to deny them their registration.
And that there were only three reasons for revoking registrations prior to the Narcotic Addict Treatment Act of 1974, that is that a registrant has materially falsified an application, that he has been convicted of a felony, and that he has had his state license or registration suspended, revoked or denied.
It seems --
Justice William J. Brennan: (Inaudible) that the Government suggests how prosecutors ought to know what registrants may be prosecuted under 841 and what registrants may not?
Mr. Paul L. Friedman: I am not sure I understand that.
Justice William J. Brennan: Well, I gather your position here is that this one is so beyond the pale of the registration that the clearly he may be prosecuted under 841.
Well, there must be any number of cases of registrants whose conduct may not go this far, well how is the line to be drawn?
Mr. Paul L. Friedman: I think you have to look at the evidence of the case, in each case, and if you look at the evidence in the cases that are now pending under cert in this Court, the Rosenberg case and the Green case and the Jin Fuey Moy case, you will find that in each case it is completely blatant, and that the uncover agents where they were at --
Justice William J. Brennan: (Inaudible) was completely blatant?
Mr. Paul L. Friedman: Well, there is no legitimate medical purposes of the test outside the course of professional practice.
Justice Byron R. White: You are not -- on your theory of the relationship between 841 and 822, it seems to me that you could just as well argue that any violation of the provisions of regulating a registrant would be reachable under 841, anyone, you do not suggest that?
Mr. Paul L. Friedman: No, there are two --
Justice William J. Brennan: (Inaudible) you do not suggest that?
Mr. Paul L. Friedman: Yes.
Justice William J. Brennan: You are representing that Government does not suggest?
Mr. Paul L. Friedman: Yes.
Justice Byron R. White: That for some violations that their registration, they may not be prosecuted under 841?
Mr. Paul L. Friedman: They are permitted to dispense --
Justice William J. Brennan: No, my question is whether for some violation registrants nevertheless may not be prosecuted under 841?
Mr. Paul L. Friedman: If it is a technical and formal violation of their registrations, they are liable under 842 and 843 --
Justice William J. Brennan: What is technical and formal (Voice Overlap)
Mr. Paul L. Friedman: Well, Congress set it out in the legislative history.
There are certain things that are technical violations.
Not using an order form, not prescribing with, not using a prescription, in those kinds of things, there are lesser penalties, one year --
Justice Byron R. White: Not using a prescription?
Mr. Paul L. Friedman: Let me give you the exact --
Justice Byron R. White: Your colleague here suggested that if he does not dispense with the prescription, he would be reached under 841?
Mr. Paul L. Friedman: 842 (a) (1) says that you are subject to one-year penalty if you distribute or dispense in violation of 829, and 829 requires that you cannot dispense without the written prescription?
Justice Byron R. White: You would say that is a technical violation, and if you just started, if you just put up the sign and just start selling --
Mr. Paul L. Friedman: No, because then it is not for any legitimate medical purpose in the course of professional practice.
But if --
Justice William J. Brennan: What if another criteria --
Mr. Paul L. Friedman: Well it is in the statute -- but that is in the statue.
What we are saying is that the statute has two requirements that what is authorized under 841 is what is authorized to the extent authorized by your registration and some registration permit you to detoxify, some registration permits you to do other things, some registration say you can use methadone, but you cannot use other forms of drugs, and secondly, you may only -- the only authorized activities are those which are in conformity with other provisions of the subchapter.
Now, the other provisions of the subchapter use the language in the course of professional practice and for legitimate medical purpose, and if what you are doing is not in the course of professional practice and not for a legitimate medical purpose, then we say you clearly violate 841.
And that gets I think to Mr. Justice Marshall’s hypothetical, if someone sets up a sign and sells methadone and gives no treatment of any kind --
Justice Byron R. White: You say this is no worst -- no tougher test on the physicians than just the ordinary law on any kind of practice.
He is going to be subject to some kind of liability unless he uses -- conforms ordinary standards of medical practice?
Mr. Paul L. Friedman: I think that is right.
Justice Potter Stewart: Well, Civil liability is one thing and 45 years in penitentiary is something a little different.
Civil liability for negligence or malpractice --
Mr. Paul L. Friedman: Yes, but we are not talking about negligence or malpractice --
Justice Potter Stewart: But that is what Justice White I think was talking about, maybe I misunderstood.
Mr. Paul L. Friedman: Well, maybe I misunderstood.
Justice Byron R. White: Then what you are suggesting though in these other provisions that if for no legitimate medical purpose?
Mr. Paul L. Friedman: That is right, that is what the regulation say, that is what the statue says and that is what the decisions of this Court say.
But we have been able to distinguish what is legitimate and what is not legitimate, and what is within the scope of legitimacy, and what is so far beyond the pale that under no interpretation could it be considered legitimate medical practice within the course.
Chief Justice Warren E. Burger: Thank you Mr. Bergan, thank you Mr. Friedman.
The case is submitted.