885(a)(1), but the court still found it was bound by precedent to conclude that "scope of professional practice" is an essential element of Section 841(a)(1).
The reasoning of the Outler court is not persuasive. The plain language of Section 885(a)(1) is clear. The Seventh Circuit has rejected the requirement that indictments under Section 841(a)(1) allege the dispensing of controlled substances is without a legitimate medical purpose. Like the Steele court, I find that status as a practitioner is an affirmative defense that need not be negated by the words of the indictment. The government's indictment is sufficient to allege a violation of Section 841(a)(1).
Dr. Ronan argues that a lengthy pre-indictment delay warrants the dismissal of his indictment. The acts charged in the indictment occurred in August and September, 1992, but Dr. Ronan was not indicted until August, 1997. The government's indictment was brought within the applicable statute of limitations. Further, Dr. Ronan has not asserted any prejudice based on the pre-indictment delay.
Dr. Ronan may establish a due process violation based on the pre-indictment delay if he can prove "the delay caused actual and substantial prejudice to his fair trial rights, and...that the government delayed indictment to gain a tactical advantage or some other impermissible reason." United States v. Sowa, 34 F.3d 447, 450 (7th Cir. 1994). "Allegations of prejudice must be specific, concrete and supported by the evidence--vague, speculative, or conclusion allegations will not suffice." United States v. Fuesting, 845 F.2d 664, 669 (7th Cir. 1988)(citations omitted). Dr. Ronan has presented absolutely no evidence that he suffered any prejudice due to the pre-indictment delay. Indeed, he admits he does not assert any substantial prejudice. (Df. Pretrial Mot. at 13). Instead, Dr. Ronan argues I have plenary power to dismiss the indictment based on the facts of his case and other authorities, mainly dealing with the Sixth Amendment. Dr. Ronan is wrong.
The case law is clear regarding pre-indictment delay. Dr. Ronan has not presented facts which amount to a due process violation based on pre-indictment delay.
Dr. Ronan next argues that his indictment should be dismissed pursuant to Federal Rule of Criminal Procedure 48(b), which permits a court to dismiss an indictment if there has been an "unnecessary delay in presenting [a] charge to a grand jury...against a defendant who has been held to answer to the district court...." Rule 48(b) is limited to post-arrest situations where after arrest there is an "unnecessary delay" in bringing charges before the grand jury. United States v. Marion, 404 U.S. 307, 320, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971); accord United States v. Juarez, 561 F.2d 65, 68 (1977). Dr. Ronan has not alleged he suffered a substantial post-arrest pre-indictment delay. Indeed, it appears Dr. Ronan was not actually arrested until after the indictment was returned. (Gov. Brief at 12). Accordingly, Rule 48(b) is inapplicable to Dr. Ronan's case.
For the foregoing reasons, Dr. Ronan's motion to dismiss his indictment is denied.
Elaine E. Bucklo
United States District Judge
Dated: October 15, 1997