CALVIN PRICE, PETITIONER V. UNITED STATES OF AMERICA No. 90-7030 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-5) is not reported. JURISDICTION The judgment of the court of appeals was entered on December 7, 1990. The petition for a writ of certiorari was filed on February 6, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner, a licensed physician, was properly charged with distributing a controlled substance. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted on two counts of distribution of cocaine (Counts 1-2) and 37 counts of distribution of other controlled substances (Counts 6-42), in violation of 21 U.S.C. 841(a)(1), and on 30 counts of mail fraud (Counts 43-72), in violation of 18 U.S.C. 1341. He was sentenced to 87 months' imprisonment and three years' supervised release for Counts 1-2, 31-42, and 60-72; to concurrent terms of four years' and three years' supervised release on Counts 6-30; and a concurrent two year term on Counts 43-59. The court of appeals affirmed. Pet. App. 1-5; Gov't C.A. Br. 2. The evidence at trial showed that petitioner, a doctor of osteopathy, prescribed cocaine, Tylenol #4 with codeine, percocet, and valium even though there was no medical reason for the prescriptions. During September 1986 to January 1989, private investigator Sharon Bentley posed as a patient and initially said that she suffered from frequent headaches. Over the course of her visits, petitioner prescribed Tylenol #4 with codeine, percocet, and valium, and also gave her cocaine. Petitioner never examined her or took her medical history. A doctor testified that there was no legitimate reason for the prescriptions issued by petitioner to Bentley. In addition, petitioner billed Medicare for tests that were neither necessary nor actually performed. Pet. App. 1-2. The court of appeals affirmed. Relying on prior circuit precedent, it held that petitioner was properly charged with illegal distribution of controlled substances and rejected petitioner's argument that he should have been charged instead with illegal dispensing. Pet. App. 4-5. /1/ ARGUMENT Petitioner contends (Pet. 2-4) that he was improperly charged with illegal distribution of controlled substances, when, as a physician, he should have been charged instead with illegal dispensing. Petitioner's claim lacks substance. The indictment alleged, among other things, that petitioner, a doctor, did "knowingly, intentionally, and unlawfully distribute outside the usual course of medical practice and for no legitimate medical purpose (a controlled substance) by prescription," in violation of 21 U.S.C. 841(a)(1). E.g., 1 C.A. App. 35. Section 841(a)(1) makes it unlawful "for any person," except as authorized by statute, to "knowingly or intentionally * * * manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Section 802(10) defines "dispense" as the delivery of a controlled substance to a user or researcher by, or pursuant to the lawful order of, a practitioner. /2/ Section 802(11) defines "distribute" as the delivery (other than by administering or dispensing) of a controlled substance. /3/ Petitioner relies entirely on a purported conflict between the court of appeals in this case and the Fifth Circuit. Pet. 2-3. Petitioner mischaracterizes the law in the Fifth Circuit, however. Despite petitioner's claim, the Fifth Circuit clearly permits the prosecution of a physician for "distributing" under 21 U.S.C. 841(a). See, e.g., United States v. Harrison, 651 F.2d 353 (5th Cir.), cert. denied, 454 U.S. 1126 (1981). As petitioner points out, one Fifth Circuit decision held that an indictment alleging only that a physician had illegally distributed drugs did not sufficiently state an offense. United States v. Leigh, 487 F.2d 206 (5th Cir. 1973). In Harrison, however, the Fifth Circuit explicitly distinguished Leigh because, unlike the indictment in Leigh, the indictment in Harrison alleged that the physician distributed the drugs outside the course of medical practice and for no legitimate medical purpose. 651 F.2d at 354. The same is true of the indictment in this case. The position of the court of appeals here is strongly supported by the case law. In Moore v. United States, 423 U.S. 122, 124 (1975), this Court upheld the conviction of a physician for the "knowing and unlawful distribution and dispensation" of a controlled substance. Like the court of appeals decision here, many court of appeals decisions have held that a physician may be charged with distribution. See, e.g., United States v. Fellman, 549 F.2d 181 (10th Cir. 1977); United States v. Black, 512 F.2d 864 (9th Cir. 1975); United States v. Ellzey, 527 F.2d 1306 (6th Cir. 1973); United States v. Badia, 490 F.2d 296 (1st Cir. 1973). /4/ Although it is not mentioned by petitioner, it should be pointed out that one court of appeals has suggested that a medical practitioner should be charged with dispensing, rather than distributing, drugs. United States v. Nechy, 827 F.2d 1161, 1168-1169 (7th Cir. 1987). Even the court adopting that view, however, did not reverse the conviction of the medical practitioner (a pharmacist) charged with distribution because it held that any variance between the indictment and the proof was nonprejudicial. As the court explained (id. at 1169): (T)here is no difference in proof, penalty, etc. between the crimes of distributing and of dispensing a controlled substance. The only difference is nomenclature; a pharmacist is a dispenser while someone who is not a pharmacist, doctor, etc. is a distributor. * * * (Defendant) was not impeded in his defense by the fact that he was charged with distributing rather than dispensing. The government was not trying to prosecute him for a crime for which the grand jury had not indicted him. And there is no danger that, having been convicted of distributing, (defendant) may some day be prosecuted for having dispensed -- the crime he actually committed, but not the crime charged in the indictment. Conviction or acquittal of either crime bars prosecution for the other, under the principle of double jeopardy. Accordingly, even if petitioner's contention were correct (which it is not), he would not have been prejudiced by his conviction for distributing drugs instead of dispensing them, and his claim would not warrant review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS E. BOOTH Attorney APRIL 1991 /1/ The court of appeals also rejected petitioner's contentions that the district court erred in refusing to grant his motion for acquittal on the mail fraud charges (Pet. App. 2-3), and that tapes of discussions between petitioner and the investigator were improperly admitted (id. at 3-4). Petitioner does not raise either claim in this Court. /2/ Section 802(10) provides: The term "dispense" means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling, or compounding necessary to prepare the substance for such delivery. The term "dispenser" means a practitioner who so delivers a controlled substance to an ultimate user or research subject. In addition, Section 802(21) defines a "practitioner," in pertinent part, as a "physician, dentist, * * * or other person licensed * * * to distribute (or) dispense * * * a controlled substance in the course of professional practice or research." /3/ Section 802(11) provides: The term "distribute" means to deliver (other than by administering or dispensing) a controlled substance or a listed chemical. The term "distributor" means a person who so delivers a controlled substance or a listed chemical. /4/ As the Tenth Circuit has pointed out, courts of appeals have advanced different positions on the availability of "dispensing" as a ground for prosecution. See United States v. Genser, 710 F.2d 1426, 1430 (10th Cir. 1983). But any differences on that issue do not help petitioner in his claim -- that it was impermissible to charge him with disbtirution.