United States Court of Appeals,
Eleventh Circuit.
No. 94-3139.
UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,
v.
William O. STEELE, Defendant-Appellant, Cross-Appellee.
Feb. 11, 1997.
Appeals from the United States District Court for the Northern
District of Florida. No. 94-03055RV), Roger Vinson, Judge.
Before TJOFLAT and BIRCH, Circuit Judges, and SMITH*, Senior
Circuit Judge.
BIRCH, Circuit Judge:
This appeal presents the issue of whether an indictment
charging a pharmacist with dispensing controlled substances in
violation of 21 U.S.C. § 841(a)(1) must allege conduct outside the
scope of professional practice. The indictment in this case did
not allege that the pharmacist's conduct was outside the scope of
professional conduct, but the pharmacist was convicted. We
REVERSE.
I. BACKGROUND
Defendant-appellant, William O. Steele, was a registered
pharmacist at North Hill Pharmacy in Pensacola Florida. Allegedly
with full knowledge that the prescriptions for controlled
substances were forged, Steele filled numerous prescriptions for
Larry and Gloria Ellis over the course of several months. The
Ellises, who were convicted for passing forged prescriptions at
*
Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
North Hill Pharmacy, testified against Steele and are serving their
sentences.
A four-count indictment charged Steele with dispensing the
controlled substances commonly known as Dilaudid, Xanax, Valium,
and Percodan in violation of section 841(a)(1). Section 841(a)(1)
provides that "[e]xcept as authorized by this subchapter, it shall
be unlawful for any person knowingly or intentionally—(1) to
manufacture, distribute, or dispense ... a controlled substance."
Each count of the indictment tracks the statutory language and is
identical to the other counts except for the identification of
different controlled substances in each count. Count One, for
example, provides as follows:
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).
Steele filed a motion for a bill of particulars or, alternatively,
for dismissal of the indictment for lack of specificity. The
district court denied the motion.
The first trial ended in a mistrial when the jury could not
reach a verdict. At the conclusion of the government's case in the
second trial, Steele filed a motion for a judgment of acquittal and
alleged in part that the indictment failed to charge that Steele
had dispensed the controlled substances contrary to the ordinary
course of his professional practice as a registered pharmacist.
The court denied the motion, and the defense rested without
presenting evidence. Steele was convicted on all four counts.
Steele raises three issues on appeal: 1) insufficiency of the
indictment, 2) gender bias in the government's peremptory strikes
during jury selection, and 3) insufficiency of the evidence. The
government cross-appeals the court's downward departure from the
Sentencing Guidelines. Because we find that the indictment was
insufficient and reverse the conviction, we do not reach the other
issues raised by Steele or the government's cross-appeal related to
sentencing.
II. DISCUSSION
Whether an indictment sufficiently alleges a crime is a
question of law. Rodriguez v. Ritchey,
556 F.2d 1185, 1191 n. 22
(5th Cir.1977), cert. denied,
434 U.S. 1047,
98 S. Ct. 894,
54
L. Ed. 2d 799 (1978). We review questions of law de novo. United
States v. Shenberg,
89 F.3d 1461, 1478 (11th Cir.1996). Steele
argues that, because he is a registered pharmacist who can lawfully
dispense controlled substances under 21 U.S.C. § 822(b), the
indictment must allege that he dispensed the controlled substances
1
outside the scope of his professional practice. The government
contends that the indictment includes each element of the offense
because it tracks the language of section 841(a)(1) and because the
exception for practitioners is an affirmative defense which must be
raised by the defendant.
Practitioners, such as physicians and pharmacists,2 who
1
Although Steele makes several arguments to support his
allegation that the indictment is insufficient, we need address
only whether the indictment fails to allege each element of the
offense.
2
Physicians and pharmacists are both defined as
"practitioners" in 21 U.S.C. § 802(20).
legally can dispense controlled substances can be convicted under
section 841(a)(1) when their actions fall outside the scope of
legitimate professional practice. The Supreme Court affirmed a
conviction of a physician under section 841(a)(1) because he
exceeded the bounds of legitimate medical practice. United States
v. Moore,
423 U.S. 122,
96 S. Ct. 335,
46 L. Ed. 2d 333 (1975). We
subsequently have held that pharmacists are similarly subject to
conviction under the statute when their activities fall outside the
usual course of professional practice. United States v. Hayes,
595
F.2d 258 (5th Cir.), cert. denied,
444 U.S. 866,
100 S. Ct. 138,
62
L. Ed. 2d 89 (1979). The issue here is whether behavior outside the
scope of professional practice must be alleged in the indictment
when a pharmacist is charged under section 841(a)(1) for dispensing
controlled substances. It is an established rule that each
essential element of an offense must be alleged in an indictment.
E.g., United States v. Debrow,
346 U.S. 374, 376,
74 S. Ct. 113,
114,
98 L. Ed. 92 (1953). Thus, an indictment using only statutory
language is sufficient only if the statute itself sets forth all
essential elements of the offense. United States v. Carll,
105
U.S. 611, 612,
26 L. Ed. 1135 (1881). "If the statute omits an
essential element of the offense, or includes it only by
implication, then pleading the statutory language will not suffice,
and the omitted element must be alleged directly and with
certainty." 1 Charles A. Wright, Federal Practice and Procedure §
125, at 369-70 (2d ed.1982) (collecting cases). In contrast, an
affirmative defense need not be negated in an indictment, United
States v. Sisson,
399 U.S. 267, 288,
90 S. Ct. 2117, 2128,
26
L. Ed. 2d 608 (1970). Thus, in this case, the necessity of including
an allegation of behavior outside the scope of professional
practice in the indictment turns on whether it is an essential
element of the offense or an affirmative defense that should
properly be proved by Steele.
In United States v. Outler,
659 F.2d 1306, 1309 (5th Cir.
Unit B 1981), cert. denied,
455 U.S. 950,
102 S. Ct. 1453,
71
L. Ed. 2d 665 (1982), we held that behavior outside the scope of
professional practice is an essential element of the offense when
a physician is charged under section 841(a)(1). We rejected the
government's argument in Outler that acting within the scope of
legitimate medical practice is an affirmative defense that a
physician must raise because we believed that Congress did not
intend a presumption that physicians who dispense controlled
substances do so without legitimate reasons.
Id. at 1309-1310 & n.
3. We similarly believe that Congress intended no such result for
registered pharmacists who dispense controlled substances and,
thus, reject the argument that behavior within the scope of
professional practice is an affirmative defense for pharmacists
charged under section 841(a)(1).
The government sought to distinguish Outler from the present
case on the basis of language in the Outler indictment that is
lacking in Steele's indictment. The government argued that,
because the indictment in Outler included the phrase "by means of
a prescription," the indictment on its face was misleading to the
grand jury without an allegation that the drugs were prescribed
without a legitimate medical purpose. The government further
argued that use of the word "prescription" in the Outler indictment
implied a practitioner whereas Steele's indictment made no
reference to his status as a pharmacist and was, consequently,
sufficient on its face.
We are unpersuaded by the government's argument for several
reasons. First, the word "dispense," like the word "prescribe,"
implies a practitioner. Section 802(10) defines "dispense" as
"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 and the
packaging, labeling, or compounding necessary to prepare the
substance for delivery." 21 U.S.C. § 802(10) (emphasis added).
Thus, "dispense" by statutory definition is delivery performed by
a practitioner.
Second, the analysis in Outler did not turn on the use of the
language "by means of a prescription." In fact, we used the terms
"prescribe" and "dispense" interchangeably in
Outler, 659 F.2d at
1308 ("Counts One through Fifteen involved charges of prescribing
or, in the language of the [Controlled Substances Act],
"dispensing' controlled drugs.").
Finally, we reject the government's argument because an
indictment which on its face does not identify the defendant as a
practitioner does not change the essential elements of the offense
when a practitioner is prosecuted under section 841(a)(1) for
illegally dispensing controlled substances. In Outler we held that
the element of behavior beyond professional practice must be
alleged in an indictment "whenever a physician is charged with
[dispensing] drugs in violation of 21 U.S.C. § 841(a)." Id. at
1310 (emphasis added). The reasoning in Outler logically extends
to practitioners like pharmacists who "dispense" controlled
substances.
As in Outler, we have little doubt that an indictment alleging
behavior outside the scope of professional practice would have
allowed a grand jury to find probable cause for the offense in this
case. The rule that each essential element must be alleged in an
indictment, however, serves to ensure certain basic protections
3
provided by the Fifth and Sixth Amendments of the Constitution.
We cannot speculate as to the grand jury's decision in view of the
government's failure to allege each essential element of the
offense without potentially "depri[ving] the defendant of a basic
protection which the guarantee of the intervention of a grand jury
was designed to secure."
Outler, 659 F.2d at 1311 (quoting Russell
v. United States,
369 U.S. 749, 770,
82 S. Ct. 1038, 1050,
8 L. Ed. 2d
240 (1962)). Thus, the indictment is insufficient to support the
conviction.
III. CONCLUSION
In this appeal, Steele argues that the indictment was
insufficient to support his conviction under section 841(a)(1).
Each essential element of an offense must be alleged in an
3
The Sixth Amendment provides that the criminal defendant
"be informed of the nature and cause of the accusation." U.S.
Const. amend. VI. The Fifth Amendment guarantees that "[n]o
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury." U.S. Const. amend. V. Requiring that each essential
element be alleged in the indictment serves to inform the
defendant of the alleged offense and to ensure that the grand
jury properly determines probable cause.
indictment, and behavior outside the scope of professional practice
is an essential element of the offense whenever a practitioner is
charged with dispensing drugs in violation of section 841(a)(1).
Thus, as we have analyzed herein, an indictment failing to allege
this essential element when a practitioner is charged with
illegally dispensing controlled substances cannot support a
conviction. Accordingly, we REVERSE.
