ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Crim. No. 90-00095-01)
Before: Stapleton, Alito and Aldisert, Circuit Judges
The defendant, a physician, was indicted and convicted for one count of conspiracy to distribute oxycodone, a schedule II controlled substance, in violation of 21 U.S.C. § 846, and 31 counts of distributing oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c). The evidence showed that George Wehner, who testified for the prosecution, periodically sent individuals to the defendant's residence and paid the defendant for purportedly examining them; that the defendant gave these individuals prescriptions for oxycodone in the form of percocet tablets; that these individuals subsequently turned over the tablets to Wehner; that Wehner then sold the tablets or bartered them for sexual favors; and that the defendant was aware of this scheme.
The defendant contends that the substantive counts of the indictment were defective, that several prospective jurors should have been dismissed for cause, that his trial did not commence within the time required by the Speedy Trial Act, that disclosure of Wehner's medical records should have been ordered, and that the jury instruction on reasonable doubt was incorrect. We affirm.
We turn first to the defendant's argument that the substantive counts of the indictment failed to charge an essential element of the offense of illegal drug distribution by a physician, i.e., that he lacked a legitimate medical reason for writing the prescriptions. The defendant did not raise this alleged defect before trial, but a motion to dismiss an indictment for failure to charge an offense may be made at any time. Fed. R. Crim. P. 12(b)(2). We have written, however, that "'indictments which are tardily challenged are liberally construed in favor of validity.'" United States v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979 ), quoting United States v. King, 587 F.2d 956, 963 (9th Cir. 1978). We hold that the challenged counts were not defective.
An indictment must charge every essential element of the offense. See Hamling v. United States, 418 U.S. 87, 117, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974); Russell v. United States, 369 U.S. 749, 763-64, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). It has long been established, however, that an indictment need not negative a statutory exception. In McKelvey v. United States, 260 U.S. 353, 357, 67 L. Ed. 301, 43 S. Ct. 132 (1923), the Supreme Court wrote:
By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.
This rule is codified in 21 U.S.C. § 885(a)(1), which states that "in any complaint, information, or indictment" under subchapter I of Title 21 of the United States Code (21 U.S.C. §§ 801-904), "it shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter."
The substantive counts at issue here were based on 21 U.S.C. § 841(a)(1), which is part of this subchapter. Under 21 U.S.C. § 841(a)(1), it is unlawful, "except as authorized by this subchapter," for "'any person' knowingly or intentionally . . . to . . . distribute . . . a controlled substance." The Supreme Court has held that drug distribution by a physician violates this provision and does not fall within the language "except as authorized by this subchapter" when the distribution occurs outside the usual course of professional practice. United States v. Moore, 423 U.S. 122, 46 L. Ed. 2d 333, 96 S. Ct. 335 (1976). Thus, the offense of illegal drug distribution by a physician contains three essential elements: the physician must (1) knowingly or intentionally (2) distribute (3) a controlled substance. The offense also includes an exception for drug distribution by a physician in the usual course of professional practice.
The substantive counts at issue here charged all three of the elements noted above. Each of these counts charged that the defendant, on a particular occasion, "did knowingly, intentionally and unlawfully distribute" oxycodone. While these counts did not expressly allege that the drug distribution was not authorized under subchapter I of Title 21 of the United States Code or that the distribution was not done in the usual course of the defendant's professional practice, such allegations are not required under the pleading rule set out in 21 U.S.C. § 885(a)(1) and McKelvey.
Furthermore, we believe that these counts, particularly when "'liberally construed in favor of validity'" (Wander, 601 F.2d at 1259, quoting King, 587 F.2d at 963), adequately alleged that the distributions were not "authorized" under the federal drug laws and did not occur in the course of the defendant's professional practice. As previously noted, these counts charged that the defendant acted "unlawfully." In addition, these counts employed the term "distribute," and under the statutory definitions a physician cannot "distribute" drugs by means of a prescription unless the prescription was unlawful. Under 21 U.S.C. § 802(11), the term "distribute" means "to deliver (other than by administering or dispensing) a controlled substance." Under 21 U.S.C. § 802(10), the term "dispense" means to deliver a controlled substance to ...