United States v. Steele , 105 F.3d 603 ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 94-3139 2/17/03
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 96-2461CV-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Cross-Appellant,
versus
WILLIAM O. STEELE,
Defendant-Appellant,
Cross-Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(July 29, 1998)
Before HATCHETT, Chief Judge, TJOFLAT, ANDERSON, EDMONDSON,
COX, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL and
MARCUS, Circuit Judges.
CARNES, Circuit Judge:
William O. Steele, a pharmacist, was indicted for “knowingly and
intentionally dispens[ing]” controlled substances “in violation of Title 21,
United States Code, Section 841(a)(1).” The governing statute provides an
exception which permits pharmacists and other “practitioners” to dispense
controlled substances “to the extent authorized by their registration and in
conformity with other provisions of this subchapter,” 21 U.S.C. § 822(b), which
for present purposes means “in the course of professional practice,” 21 U.S.C.
§ 802(21).
We granted en banc review to decide whether the indictment under which
Steele was convicted is defective because it does not negate the course of
professional practice exception. A panel of this Court answered that question
in the affirmative and reversed Steele’s conviction, United States v. Steele,117
F.3d 1231 (11th Cir. 1997), superceding , 105 F.3d 603 (1997), because it was
bound to do so by the prior panel decision in Outler v. United States, 659 F.2d
1306 (5th Cir. Unit B 1981). Because we are sitting en banc, we are not bound
by the Outler decision. Being free to overrule it, we hold that an indictment of
a practitioner for unlawfully dispensing drugs need not aver that it was done
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outside the course of professional practice. We believe this conclusion is
compelled by 21 U.S.C. §885(a)(1) (“It shall not be necessary for the United
States to negative any exemption or exception set forth in this subchapter in any
. . . indictment . . . ”).
The panel’s opinion, 117 F.3d at 1232 - 33, sets out the relevant facts, the
most pertinent of which concern the contents of the four-count indictment
returned against Steele for actions occurring while he was authorized as a
pharmacist to dispense controlled substances in the course of his professional
practice. Count one of the indictment charged:
That from on or about July 1, 1993, and
continuously thereafter, up to and including on or about
November 2, 1993, in the Northern District of Florida,
the defendant, William O. Steele, did knowingly and
intentionally dispense hydromorphone hydrochloride,
a schedule II controlled substance, commonly known as
Dilaudid, in violation of Title 21, United States Code,
Section 841(a)(1).
117 F.3d at 1233. Counts two, three, and four are identical except that the
controlled substances named in them were Xanax, Valium, and Percodan,
respectively. The government’s theory of prosecution was that on numerous
occasions during the specified period, Steele dispensed those controlled
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substances pursuant to prescriptions he knew to be forged . Steele maintained
that he did not know they were forged. The jury found that he did and convicted
him.
Steele contends there was insufficient evidence to convict, but the panel
did not reach that issue. Instead, it held that the indictment was defective
because it failed to allege that Steele dispensed the drugs outside the course of
his professional practice as a pharmacist. See, 117 F.3d at 1232, 1235. The
panel reached that holding reluctantly, because it believed that the plain
language of 885(a) (1) obviated the need for such an allegation. Nonetheless, the
panel felt bound to follow the holding in Outler, which was to the contrary. See
117 F.3d at 1235 & n.5 (“The holding in Outler stands in apparent conflict with
section 885(a)(1) . . . [but] . . . even if it conflicts with statutory law, we are
bound by Outler until such time as it is overruled.”) The panel was correct in
both respects. Under our prior precedent rule, a panel cannot overrule a prior
one’s holding even though convinced it is wrong. See, e.g., Cargill v. Turpin,
120 F.3d 1366, 1386 (11th Cir. 1997) (“The law of this circuit is ‘emphatic’ that
only the Supreme Court or this court sitting en banc can judicially overrule a
prior panel decision .”), cert. denied, ___ U.S. ___, 118 S. Ct. 1529 (1998);
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United States v. Hogan , 986 F.2d 1364, 1369 (11th Cir. 1993) (“[I]t is the firmly
established rule of this Circuit that each succeeding panel is bound by the
holding of the first panel to address an issue of law, unless and until that holding
is overruled en banc, or by the Supreme Court.”). However, we are not bound
by Outler, and our examination of the relevant statutory provisions leads us to
conclude, as the panel in this case did, that Outler was wrongly decided.
21 U.S.C. § 841(a) provides: “Except as authorized by this subchapter,
it shall be unlawful for any person knowingly or intentionally (1) to . . .
dispense . . . a controlled substance . . . .” The subchapter referred to is
Subchapter I of Chapter 13 of Title 21, and that subchapter runs from § 801
through § 904.
One of the authorized exceptions to the proscription against dispensing
controlled substances is contained in 21 U.S.C. § 822(b), which specifies that
“Persons registered by the Attorney General under this subchapter to . . .
dispense controlled substances are . . . authorized to possess . . . or dispense
such substances . . . to the extent authorized by their registration and in
conformity with the other provisions of this subchapter.” “Dispense” means
“to deliver a controlled substance to an ultimate user or research subject by,
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or pursuant to the lawful order of, a practitioner, including the prescribing and
administering of a controlled substance.” 21 U.S.C. § 802(10). An “ultimate
user” is “a person who has lawfully obtained . . . a controlled substance for his
own use or for the use of a member of his household,” 21 U.S.C. § 801(27), as
by prescription from a practitioner. The term “practitioner” is defined to include
“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, [or]
dispense . . . a controlled substance in the course of professional practice or
research.” 21 U.S.C. § 802(21).
The upshot of all those provisions is that because Steele was acting as an
agent of a registered pharmacy, he was authorized to dispense controlled
substances in the course of his professional practice as a pharmacist, but only
pursuant to a prescription issued by a practitioner. See 21 U.S.C. § 829 (a) -
(b). That is undisputed. What is disputed between the parties is the meaning and
effect of § 885(a)(1), which provides:
It shall not be necessary for the United States to
negative any exemption or exception set forth in this
subchapter in any . . . indictment . . . or in any trial . . .
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and the burden of going forward with the evidence with
respect to any such exemption or exception shall be
upon the person claiming its benefit.
The meaning of that provision, as it relates to the issue before us, is evident from
its plain language: an indictment charging a violation of § 841(a) (1) need not
negate the course of professional practice exception contained in § 822(b).
“In construing a statute we must begin, and often should end as well,
with the language of the statute itself.” Merritt v. Dillard, 120 F.3d 1181, 1185
(11th Cir. 1997). Where the language Congress chose to express its intent is
clear and unambiguous, that is as far as we go to ascertain its intent because we
must presume that Congress said what it meant and meant what it said. See,
e.g., Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253 - 54, 112 S. Ct.
1146, 1149 (1992) (“We have stated time and again that courts must presume
that a legislature says in a statute what it means and means in a statute what it
says there.”).
Steele argues that United States v. Moore, 423 U.S. 122, 96 S. Ct. 335
(1975), stands for the proposition that a practitioner may be convicted for
distributing and dispensing controlled substances only if the government pleads
and proves that those activities were outside the course of professional practice.
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That is not what that case holds. Certiorari was granted in Moore to review a
court of appeals decision that 21 U.S.C. § 841 does not apply to registered
practitioners, such as the physician in that case, regardless of whether their
distributing and dispensing were in the course of professional practice. The
Supreme Court reversed, holding that § 841 does apply to registered
practitioners when their activities fall outside the usual course of professional
practice. See id. at 124, 96 S. Ct. at 336. However, the Court did not address
the issue of whether the outside the course of professional practice factor was
an element of the offense or whether the government was required to plead it in
the indictment. It is worthy of note that the indictment in the Moore case
alleged nothing about the course of professional practice. See Moore v. United
States, 506 F.2d 426, 446 n.2 (D.C. Cir. 1973) (dissenting opinion).
Steele also seeks support in United States v. Vuitch, 402 U.S. 62, 91 S. Ct.
1294 (1961), in which the Supreme Court stated: “It is a general guide to the
interpretation of criminal statutes that when an exception is incorporated in the
enacting clause of a statute, the burden is on the prosecution to plead and prove
that the defendant is not within the exception.” Id. at 70, 91 S. Ct. at 1298. The
government counters by quoting the general rule announced in McKelvey v.
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United States, 260 U.S. 353, 357, 43 S. Ct. 132, 134 (1922), that: “[A]n
indictment or other pleading founded on a general provision defining the
elements of an offense . . . need not negative the matter of an exception made by
proviso or other distinct clause.”
Both the Vuitch and the McKelvey rules are rules of statutory
construction, or “general guide[s] to the interpretation of criminal statutes,”
Vuitch, 402 U.S. at 90, 91 S. Ct. at 1298, and as such they are useful when
Congress has not made its intent clear. In this case we have no need to rely
upon such rules of construction, because Congress has explicitly and
unambiguously stated in § 885(a)(1) that an indictment charging a defendant
with violating § 841(a)(1) is not required to negate the course of professional
practice exception. Congress could scarcely have been any clearer about that.
Steele protests that Congress could not have meant what it said in § 885(a)
(1), because that would mean prosecutors could indict each and every
pharmacist and doctor in the country for simply carrying out their professional
duties. In other words, if we apply the statute as written, the sky will fall, at
least on pharmacists and doctors. Of course, if the sky starts falling, it could just
as well fall on research scientists and on those who legitimately manufacture and
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transport controlled substances, as well as on every legitimate, prescription-
holding ultimate user, because all are saved from the broad terms of §§
841(a)(1) or 844(a) by exceptions that are also subject to the provisions of §
885(a)(1).
Steele does not explain why busy government prosecutors would want to
indict any case that they are certain to lose when it goes to trial, if not sooner.
We seriously doubt that the Department of Justice would tolerate the continued
employment of any prosecutor who would do that. Steele’s argument about
government prosecutors indicting pharmacists and doctors for possessing and
dispensing controlled substances in the course of their professional practice also
fails to explain why that has not been a problem in the three circuits where the
conclusion we reach today has long been the law. Twenty years ago the Seventh
Circuit said that an indictment charging a physician with dispensing controlled
substances need not allege that the prescriptions he wrote were outside the
course of his professional practice. See United States v. Roya, 574 F.2d 386,
391 (7th Cir. 1978) (“An indictment founded on a general provision of a statute
need not negative an exception made by a proviso or other distinct clause,
whether in the same section or elsewhere.”). Eighteen years ago the Sixth
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Circuit held that an indictment charging pharmacists with illegally distributing
controlled substances need not allege that they acted outside the usual course of
professional conduct. See United States v. Seelig, 622 F.2d 207, 211-12 (6th Cir.
1980). The same rule has been in effect in the Third Circuit for six years. See
United States v. Polan, 970 F.2d 1280, 1282 (3rd Cir. 1992) (indictment of
physician for distributing and conspiring to distribute controlled substance not
defective for failure to allege absence of legitimate medical reason). There has
been no report of prosecutors running amuck in any of those jurisdictions. In any
event, the concerns Steele puts forward implicate policy judgments that are
within the province of Congress.
It is not the courts but Congress that defines crimes and defenses in the
United States Code. Subject only to constitutional constraints, it has the
authority to specify whether a given factor must be pleaded by the government
in the indictment as an element of an offense, or affirmatively raised by the
defense as part of its case. Steele contends that Congress overstepped its bounds
with §885(a)(1), because the course of professional practice factor is an
element of the § 841(a)(1) offense, and all elements must be alleged in the
indictment, see, e.g., Russell v. United States, 369 U.S. 749, 763, 82 S. Ct.
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1038, 1047 (1962). An essential premise of that syllogism is that the course of
professional practice factor is an element and not a defense, but that is not what
Congress said when it definitively exercised its right to say. Instead, Congress
said that the course of professional practice exception, indeed all exceptions to
the prohibition against manufacturing, distributing, dispensing, and possessing
controlled substances, are defenses not elements, and that their inapplicability
need not be alleged in the indictment.
An indictment is sufficient “if it: (1) presents the essential elements of the
charged offense, (2) notifies the accused of the charges to be defended against,
and (3) enables the accused to rely upon a judgment under the indictment as a
bar against double jeopardy for any subsequent prosecution for the same
offense.” United States v. Dabbs, 134 F.3d 1071, 1079 (11th Cir. 1998).
Because the indictment in this case does all of that, it is not defective.
In holding that an indictment charging a practitioner with violating 21
U.S.C. § 841(a)(1) need not negative the course of professional practice
exception, we join the Third, Sixth, and Seventh Circuits, see Polan, Seelig, and
Roya, and we return to the pre-Outler position our predecessor Court took in
United States v. Ramzy, 446 F.2d 1184 (5th Cir. 1971), which involved an earlier
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version of the current Controlled Substances Act. Like the other three circuits,
we part company with the Ninth Circuit’s position on this issue, see United
States v. King, 587 F.2d 956, 962-65 (9th Cir. 1978) (two-to-one decision). One
problem with the Ninth Circuit’s majority opinion in King, as the Sixth Circuit
has pointed out, see Polan, 970 F.2d at 1283, is that its analysis of this specific
issue fails to focus upon § 885(a)(1), the key provision upon which the issue
turns. The same is true of the opinion in Outler, the decision which we overrule
today.
We have decided only a pleading issue – that the course of professional
practice exception is an affirmative defense which need not be negated in the
indictment. We have no occasion to address the issue of who bears the burden
of persuasion, and how heavy that burden is, once the defendant goes forward
with the evidence about it as § 885(a)(1) requires. The burden of persuasion
issue is of no significance to the conviction under review in this case, because
the district court instructed the jury that the government bore that burden and
could discharge it only by proof beyond a reasonable doubt. Whether a
defendant is entitled to such an instruction is an issue we have no occasion to
address.
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Steele does raise other issues relating to his conviction that have not yet
been addressed because the panel did not reach them. We express no view on
those other issues, choosing instead to let the panel decide them. The same is
true of the sentencing issue raised in the government’s cross-appeal.
Having decided the issue on which we granted en banc review, this case
is REMANDED TO THE PANEL for decision of the other issues raised in the
appeal and the cross-appeal.
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EDMONDSON, Circuit Judge, Concurring:
Today’s court relies heavily on what we see as the plain language
of the pertinent statute. I agree with the opinion and with the result.
But I point out that we do not have before us today a statute that was
enacted long ago. When those much older statutes are being construed
by modern courts, our response as modern readers to the words of the
statute may not be what the words meant to the Congress speaking at
a very different time; and the idea of plain meaning becomes far more
complicated.
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