Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75-Cr-800 - Alfred Y. Kirkland, judge.
Cummings and Pell, Circuit Judges, and Campbell, Senior District Judge.*fn*
4=P1102*388 PELL, Circuit Judge.
Appellant, Dr. Ray Roya, was convicted after a bench trial on all counts of a 24 count indictment which charged him with dispensing and attempting to dispense Schedule II controlled substances*fn1 from February 21, 1975 to April 26, 1975, in violation of 21 U.S.C. §§ 841(a)(1) and 846.*fn2
The Government's evidence included the testimony of eight agents from the Illinois Bureau of Investigation who, over a 63-day period, obtained 24 prescriptions from Roya for either Preludin or Tuinal. The testimony was similar for each of the counts, so we will summarize the testimony of one of the agents to provide the flavor of Dr. Roya's practice insofar as it related to his contacts with the agents.
On February 21, 1975, agent Paula Riccio telephoned Roya for an appointment, and then went to his office. The office consisted of a large waiting room with 20 to 25 chairs for patients. While she waited, she observed other people enter Roya's inner office and emerge five to ten minutes later holding a white piece of paper. When she entered the inner office for her appointment she observed no examining table or weight scale. After a brief conversation she told Roya that she wanted a prescription for Preludin. She also said that her boyfriend would share the Preludin with her and that he would pay for the prescription. She did not indicate to him that she desired to reduce her weight, a recognized legitimate medical use for Preludin. Roya asked her no questions about her medical history, did not take her blood pressure, and did not listen to her heartbeat; he conducted no physical examination. He wrote and gave her a prescription for 30 Preludin tablets (Count 5), a normal monthly supply. She paid him $10.00 and left.
Three days later, she returned and told him that she had shared the Preludin tablets with her boyfriend over the weekend and had used all 30 tablets. She asked for another prescription. He told her he could not write another prescription in her own name because the authorities were closely monitoring usage of the drug. He agreed instead to write a prescription in the name of her boyfriend, Steve Miller (Count 6). Riccio paid $10.00 for the prescription and left. During the interview, Roya did not refer to a patient file, again asked no questions about her medical history, and again failed to give her a physical examination. Obviously, he made no clinical determination as to Steve Miller.
On March 1, 1975, Riccio and agent Steve Miller visited Roya's office. Miller requested a prescription for Tuinal. Although Miller did not indicate that he was having difficulty sleeping, Roya wrote and gave a prescription to him for 30 Tuinal capsules (Count 1). He asked Miller no questions about his medical history and conducted no physical examination. Riccio asked for another Preludin prescription. She was given the prescription after she gave Roya the name of someone over 30 years of age to place on the prescription. She chose "Joyce Jones" (Count 8). They paid Roya $20.00 for the two prescriptions and left.
In this appeal, Roya argues that the district court erred in not dismissing the indictment in its entirety or at least as to the counts dealing with Preludin. He also contends that the Government's evidence was insufficient to sustain his conviction on Counts 1, 2, 3, 4, 5, 7, 9, 10, 11, 14, 15, 20, 21, and 22.
Roya argues that the indictment was vague, uncertain, and failed to inform him of the nature and cause of the accusations against him with the certainty required by law. Specifically, he argues that the indictment should have been dismissed because (1) it failed to cite the regulation, the violation of which was the essence of the charge against him, (2) it failed to state an element of the offense which was included in the regulation, and (3) it failed to state the names and addresses of the persons to whom the controlled substances were dispensed or attempted to be dispensed.
Appellant's first argument to support the vagueness of the indictment is that each count fails to cite the regulation which proscribed the conduct for which he was charged. The 24 count indictment consisted of four counts charging him with violations of 21 U.S.C. § 841(a)(1) and 20 counts charging him with violations of 21 U.S.C. §§ 841(a)(1) and 846.*fn3 All 24 counts stated either that he dispensed or that he attempted to dispense controlled substances "pursuant to a prescription not written in the course of professional practice . . . ." Neither § 841(a)(1) nor § 846, however, includes or refers to this phrase. Appellant argues that this language of the indictment indicated that the conduct for which he was indicted and convicted was that proscribed in part by 21 C.F.R. § 1306.04(a).*fn4 That regulation provides in pertinent part:
A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. . . . An order purporting to be a prescription issued not in the usual course of professional treatment. . . . is not a prescription within the meaning and intent of section 309 . . . .*fn5 and the . . . . person issuing it, shall be subject to the penalties provided for violations of the law relating to controlled substances.
[Emphasis added.] Because the indictment failed to include a reference to this regulation, appellant argues that the indictment failed to inform him with ...