423 U.S.

122
96 S.Ct. 335
46 L.Ed.2d 333

UNITED STATES, Petitioner,

v.
Thomas W. MOORE, Jr.
No. 74-759.
Argued Oct. 7, 1975.
Decided Dec. 9, 1975.

Syllabus
Respondent, a licensed physician registered under the Controlled
Substances Act (CSA), 21 U.S.C. 801 et seq., was convicted of knowing
and unlawful distribution and dispensation of methadone (a controlled
substance or addictive drug used in the treatment of heroin addicts) in
violation of 21 U.S.C. 841(a)(1), which makes it unlawful for "any
person" knowingly or intentionally to distribute or dispense a controlled
substance, except as authorized by the CSA. The evidence disclosed that
respondent prescribed large quantities of methadone for patients without
giving them adequate physical examinations or specific instructions for its
use and charged fees according to the quantity of methadone prescribed
rather than fees for medical services rendered. The Court of Appeals,
however, reversed the conviction on the grounds that respondent was
exempted from prosecution under 841 by virtue of his status as a
registrant and that a registrant can be prosecuted only under 842 and
843, which prescribe less severe penalties than 841. Held: Registered
physicians can be prosecuted under 841 when, as here, their activities
fall outside the usual course of professional practice. Pp. 131-145.
(a) Only the lawful acts of registrants under the CSA are exempted from
prosecution under 841. That section by its terms reaches "any person"
and does not exempt (as it could have) "all registrants" or "all persons
registered under the Act." The language of the qualified authorization of
822(b), which authorizes registrants to possess, distribute, or dispense
controlled substances to the extent authorized by their registration and in
conformity with other CSA provisions, and which was added merely to

ensure that persons engaged in lawful activities could not be prosecuted,

cannot be fairly read to support the view that all activities of registered
physicians are beyond the reach of 841 simply because of their status.
Pp. 131-133.
(b) There is no indication in the operative language of 841-843 that
Congress intended to establish two mutually exclusive penalty systems,
with nonregistrants to be punished under 841 and registrants under
842 and 843, the fact that the term "registrants" is used in some
subsections of 842 and 843 but not in 841 being of limited
significance. Moreover, the legislative history indicates that Congress was
concerned with the nature of the drug transaction, rather than with the
defendant's status. Pp. 133-135.
(c) It is immaterial whether respondent also could have been prosecuted
for the relatively minor offense of violating 829 with respect to the
issuing of prescriptions, since there is nothing in the statutory scheme or
the legislative history that justifies a conclusion that a registrant who may
be prosecuted for violating 829 is thereby exempted from prosecution
under 841 for the significantly greater offense of acting as a drug
"pusher." Pp. 135-138.
(d) The scheme of the CSA, viewed against the background of the
legislative history, reveals an intent to limit a registered physician's
dispensing authority to the course of his "professional practice." Pp. 138143.
(e) Congress was concerned that the drug laws not impede legitimate
research and that physicians be allowed reasonable discretion in treating
patients, but it did not intend to exempt from serious criminal penalties
those acts by physicians that go beyond the limits of approved
professional practice. Pp. 143-145.
(f) Where the statutory purpose is clear, the canon of strict construction of
criminal statutes favoring the accused will be satisfied if the words of the
statute are "given their fair meaning in accord with the manifest intent of
the lawmakers." United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct.
376, 379-380, 92 L.Ed. 442. P. 145.
164 U.S.App.D.C. 319, 505 F.2d 426, reversed and remanded.
Paul L. Friedman, Washington, D. C., for petitioner.
Raymond W. Bergan, Washington, D. C., for respondent.

Mr. Justice POWELL delivered the opinion of the Court.

The issue in this case is whether persons who are registered under the
Controlled Substances Act (CSA or Act), 84 Stat. 1242, 21 U.S.C. 801 et seq.,
can be prosecuted under 841 for dispensing or distributing controlled
substances. The United States Court of Appeals for the District of Columbia
Circuit reversed the conviction of respondent, a licensed physician registered
under the Act, on the ground that he was exempted from prosecution under
841 by virtue of his status as a registrant. We reverse and hold that registered
physicians can be prosecuted under 841 when their activities fall outside the
usual course of professional practice.

* Dr. Moore was charged, in a 639-count indictment, with the knowing and
unlawful distribution and dispensation of methadone (Dolophine), a Schedule II
controlled substance,1 in violation of 21 U.S.C. 841(a)(1). That subsection
provides:

"Except as authorized by this subchapter, it shall be unlawful for any person

knowingly or intentionally

"(1) to manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance . . . ."

The indictment covered a 51/2 month period from late August 1971 to early
February 1972. It was reduced before trial to 40 counts, and the jury convicted
respondent on 22 counts. He was sentenced to concurrent terms of five to 15
years' imprisonment on 14 counts, and to concurrent terms of 10 to 30 years on
the remaining eight counts. The second set of sentences was to be consecutive
with the first. Fines totaling $150,000 were also imposed.2

Methadone is an addictive drug used in the treatment of heroin addicts. If taken

without controls it can, like heroin, create euphoric "highs," but if properly
administered it eliminates the addict's craving for heroin without providing a
"high." The two principal methods of treating heroin addicts with methadone
are "detoxification" and "maintenance." Under a maintenance program, the
addict is given a fixed dose once a day for an indefinite period to keep him
from using heroin. In detoxification the addict is given a large dose of
methadone during the first few days of treatment to keep him free of
withdrawal symptoms. Then the dose is gradually reduced until total abstinence
is reached.

Maintenance is the more controversial method of treatment. During the period

covered by the indictment, registration under 822, in itself, did not entitle a
physician to conduct a maintenance program. In addition to a 822 registration,
the physician who wished to conduct such a program was required to obtain
authorization from the Food and Drug Administration for investigation of a
new drug. Dr. Moore's authorization by the FDA was revoked in the summer of
1971, and he does not claim that he was conducting an authorized maintenance
program. Instead, his defense at trial was that he had devised a new method of
detoxification based on the work of a British practitioner. He testified that he
prescribed large quantities of methadone to achieve a "blockade" condition, in
which the addict was so saturated with methadone that heroin would have no
effect, and to instill a strong psychological desire for detoxification. The
Government's position is that the evidence established that Dr. Moore's conduct
was inconsistent with all accepted methods of treating addicts, that in fact he
operated as a "pusher."

Respondent concedes in his brief that he did not observe generally accepted
medical practices. He conducted a large-scale operation. Between September
1971 and mid-February 1972 three District of Columbia pharmacies filled
11,169 prescriptions written by Dr. Moore. These covered some 800,000
methadone tablets. On 54 days during that period respondent wrote over 100
prescriptions a day. In billing his patients he used a "sliding-fee scale" pegged
solely to the quantity prescribed, rather than to the medical services performed.
The fees ranged from $15 for a 50-pill prescription to $50 for 150 pills. In five
and one-half months Dr. Moore's receipts totaled at least $260,000.

When a patient entered the office he was given only the most perfunctory
examination. Typically this included a request to see the patient's needle marks
(which in more than one instance were simulated) and an unsupervised
urinalysis (the results of which were regularly ignored). A prescription was
then written for the amount requested by the patient. On return visits for which
appointments were never scheduled no physical examination was performed
and the patient again received a prescription for whatever quantity he
requested. Accurate records were not kept, and in some cases the quantity
prescribed was not recorded. There was no supervision of the administration of
the drug. Dr. Moore's instructions consisted entirely of a label on the drugs
reading: "Take as directed for detoxification." Some patients used the tablets to
get "high"; others sold them or gave them to friends or relatives. Several
patients testified that their use of methadone increased dramatically while they
were under respondent's care.3

10

The Court of Appeals, with one judge dissenting, assumed that respondent

10

acted wrongfully, but held that he could not be prosecuted under 841.4 164
U.S. App.D.C. 319, 505 F.2d 426 (1974). The court found that Congress
intended to subject registered physicians to prosecution only under 842 and
843,5 which prescribe less severe penalties than 841. 6 The court reasoned:

11

" . . . Congress intended to deal with registrants primarily through a system of

administrative controls, relying on modest penalty provisions to enforce those
controls, and reserving the severe penalties provided for in 841 for those
seeking to avoid regulation entirely by not registering." 164 U.S.App.D.C., at
323, 505 F.2d, at 430.

12

It said, further, that 842 and 843 were enacted to enforce that scheme, while
841 was reserved for prosecution of those outside the "legitimate distribution
chain." Persons registered under the Act were "authorized by (the) subchapter"
within the meaning of 841 and thus were thought to be immunized against
prosecution under that section.7

13

Respondent advances two basic arguments, contending that each requires

affirmance of the Court of Appeals: (i) as that court held, registered physicians
may be prosecuted only under 842 and 843; and (ii) in any event, respondent
cannot be prosecuted under 841 because his conduct was "authorized by (the)
subchapter" in question. We now consider each of these arguments.

II
14

Section 841(a)(1) makes distribution and dispensing of drugs unlawful "(e)

xcept as authorized by this subchapter . . . ." Relying on this language, the
Court of Appeals held that a physician registered under the Act is per se
exempted from prosecution under 841 because of his status as a registrant.
We take a different view and hold that only the lawful acts of registrants are
exempted. By its terms 841 reaches "any person." It does not exempt (as it
could have) "all registrants" or "all persons registered under this Act."

15

The Court of Appeals relied also on 822(b), which provides: "Persons

registered . . . under this subchapter to . . . distribute, or dispense controlled
substances are authorized to possess, . . . distribute, or dispense such substances
. . . to the extent authorized by their registration and in conformity with the
other provisions of this subchapter." This is a qualified authorization of certain
activities, not a blanket authorization of all acts by certain persons. This
limitation is emphasized by the subsection's heading "Authorized activities,"
which parallels the headings of 841-843 "Unlawful acts." We think the

statutory language cannot fairly be read to support the view that all activities of
registered physicians are exempted from the reach of 841 simply because of
their status.
16

If 822(b) were construed to authorize all such activities, thereby exempting

them from other constraints, it would constitute a sharp departure from prior
laws. But there is no indication that Congress had any such intent. Physicians
who stepped outside the bounds of professional practice could be prosecuted
under the Harrison Act (Narcotics) of 1914, 38 Stat. 785, the predecessor of the
CSA. In Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed.
214 (1920), the Court affirmed the conviction of a physician on facts
remarkably similar to those before us (e. g., no adequate physical examination,
the dispensing of large quantities of drugs without specific directions for use,
and fees graduated according to the amount of drugs prescribed). A similar
conviction was upheld in United States v. Behrman, 258 U.S. 280, 42 S.Ct.
303, 66 L.Ed. 619 (1922), where the defendant-doctor had prescribed heroin,
morphine, and cocaine to a person whom he knew to be an addict.

17

In enacting the CSA Congress attempted to devise a more flexible penalty

structure than that used in the Harrison Act. H.R.Rep.No.91-1444, Pt. 1, pp. 1,
4 (1970), U.S.Code Cong. & Admin.News 1970, p. 4566.8 Penalties were
geared to the nature of the violation, including the character of the drug
involved. But the Act was intended to "strengthen," rather than to weaken,
"existing law enforcement authority in the field of drug abuse." 84 Stat. 1236
(1970) (preamble). See also H.R.Rep.No.91-1444, p. 1.

18

Section 822(b) was added to the original bill at a late date 9 to "make it clear
that persons registered under this title are authorized to deal in or handle
controlled substances." H.R.Rep.No.91-1444, p. 38, U.S.Code Cong. &
Admin.News 1970, p. 4606. It is unlikely that Congress would seek, in this
oblique way, to carve out a major new exemption, not found in the Harrison
Act, for physicians and other registrants. Rather, 822(b) was added merely to
ensure that persons engaged in lawful activities could not be prosecuted.

B
19

Respondent nonetheless contends that 841 and 822(b) must be interpreted in

light of a congressional intent to set up two separate and distinct penalty
systems: Persons not registered under the Act are to be punished under 841,
while those who are registered are to be subject only to the sanctions of 842
and 843. The latter two sections, the argument goes, establish modest penalties
which are the sole sanctions in a system of strict administrative regulation of

registrants.
20

The operative language of those sections provides no real support for the
proposition that Congress intended to establish two mutually exclusive systems.
It is true that the term "registrants" is used in 842 and 843, and not in 841.
But this is of limited significance. All three sections provide that "(i)t shall be
unlawful for any person . . . (to commit the proscribed acts)." Two of the eight
subsections of 842(a), one of the five subsections of 843(a), and 842(b)
further qualify "any person" with "who is a registrant." The other subsections of
842 and 843 are not so limited. In context, "registrant" is merely a limiting
term, indicating that the only "persons" who are subject to these subsections are
"registrants."10 There is no indication that "persons" means "nonregistrants"
when introducing the other subsections.

21

There are other indications that 841, and 842 and 843, do not constitute
two discrete systems. Section 843(b), for example, makes it unlawful for any
person to use a communication facility in committing a felony under any
provision of the subchapter. But violations of both 841 and 843 lead to
felony convictions; criminal violations of 842 are misdemeanors. 11 ss 842(c)
(2)(A), 802(13); 18 U.S.C. 1. And counsel for respondent agreed at oral
argument that registrants can be prosecuted under 841(a)(2), which prohibits
the creation, distribution, dispensing, or possession with intent to distribute or
dispense of a "counterfeit substance."

22

The legislative history indicates that Congress was concerned with the nature of
the drug transaction, rather than with the status of the defendant. The penalties
now embodied in 841-843 originated in 501-503 of the Controlled
Dangerous Substances Act of 1969. The Report of the Senate Judiciary
Committee on that bill described 501 (the counterpart of 841) as applying to
"traffickers." S.Rep.No.91-613, p. 8 (1969). Section 502 provided "(a)
dditional penalties . . . for those involved in the legitimate drug trade," and "
(f)urther penalties . . . for registrants" were specified in 503. S.Rep.No.91613, p. 9. The House Committee Report on the bill that was to become the CSA
explains: "The bill provides for control . . . of problems related to drug abuse
through registration of manufacturers, wholesalers, retailers, and all others in
the legitimate distribution chain, and makes transactions outside the legitimate
distribution chain illegal." H.R.Rep.No.91-1444, p. 3, U.S.Code Cong. &
Admin.News 1970, p. 4569. Although this language is ambiguous, the most
sensible interpretation is that the penalty to be imposed for a violation was
intended to turn on whether the "transaction" falls within or without legitimate
channels. All persons who engage in legitimate transactions must be registered
and are subject to penalties under 842 and 843 for "(m)ore or less technical

violations." H.R.Rep.No.91-1444, p. 10. But "severe criminal penalties" were

imposed on those, like respondent, who sold drugs, not for legitimate purposes,
but "primarily for the profits to be derived therefrom." Ibid.
C
23

Congress was particularly concerned with the diversion of drugs from

legitimate channels to illegitimate channels. Id., at 6; S.Rep.No.91-613, p. 4;
116 Cong.Rec. 996 (1970) (remarks of Sen. Dodd). It was aware that
registrants, who have the greatest access to controlled substances and therefore
the greatest opportunity for diversion, were responsible for a large part of the
illegal drug traffic. See id., at 1663 (remarks of Sen. Hruska); id., at 998
(remarks of Sen. Griffin).

24

Recognizing this concern the Court of Appeals suggested that Dr. Moore could
be prosecuted under 842 (a)(1) for having violated the provisions of 829
with respect to the issuing of prescriptions.12 Whether Dr. Moore could have
been so prosecuted is not before the Court.13 We note, however, that the
penalties for such a violation could hardly have been deemed by Congress to be
an appropriate sanction for drug trafficking by a registered physician. Indeed,
the penalty for conviction under 842 would be significantly lighter than, for
example, that applicable to a registrant convicted under 843 for using a
suspended registration number.14 Moreover, a physician who wished to traffic
in drugs without threat of criminal prosecution could, if violation of 829 were
the sole basis for prosecution, simply dispense drugs directly without the
formality of issuing a prescription. Direct dispensing is exempt from 829 and
thus is not reached by any subsection of 842 or s 843 so long as the technical
requirements are complied with.

25

But we think it immaterial whether Dr. Moore also could have been prosecuted
for his violation of statutory provisions relating to dispensing procedures. There
is nothing in the statutory scheme or the legislative history that justifies a
conclusion that a registrant who may be prosecuted for the relatively minor
offense of violating 829 is thereby exempted from prosecution under 841
for the significantly greater offense of acting as a drug "pusher."15

III
26

Respondent argues that even if Congress did not intend to exempt registrants
from all prosecutions under 841, he cannot be prosecuted under that section
because the specific conduct for which he was prosecuted was "authorized by
(the) subchapter" and thus falls within the express exemption of the section.

27

The trial judge assumed that a physician's activities are authorized only if they
are within the usual course of professional practice. He instructed the jury that
it had to find

28

"beyond a reasonable doubt that a physician, who knowingly or intentionally,

did dispense or distribute (methadone) by prescription, did so other than in good
faith for detoxification in the usual course of a professional practice and in
accordance with a standard of medical practice generally recognized and
accepted in the United States." App. 123.

29

The Court of Appeals did not address this argument because it concluded that
registrants could not be prosecuted under 841 under any circumstances. But it
suggested that if a registrant could be reached under 841 he could not be
prosecuted merely because his activities fall outside the "usual course of
practice." 164 U.S.App.D.C., at 322 n. 11, 505 F.2d, at 429 n. 11.

30

Under the Harrison Act physicians who departed from the usual course of
medical practice were subject to the same penalties as street pushers with no
claim to legitimacy. Section 2 of that Act required all persons who sold or
prescribed certain drugs to register and to deliver drugs only to persons with
federal order forms. The latter requirement did not apply to "the dispensing or
distribution of any of the aforesaid drugs to a patient by a physician . . .
registered under this Act in the course of his professional practice only." 38
Stat. 786. As noted above, Congress intended the CSA to strengthen rather than
to weaken the prior drug laws. There is no indication that Congress intended to
eliminate the existing limitation on the exemption given to doctors.16 The
difficulty arises because the CSA, unlike the Harrison Act, does not spell out
this limitation in unambiguous terms.

31

Instead of expressly removing from the protection of the Act those physicians
who operate beyond the bounds of professional practice, the CSA uses the
concept of "registration." Section 822(b) defines the scope of authorization
under the Act in circular terms: "Persons registered . . . under this subchapter . .
. are authorized (to dispense controlled substances) . . . to the extent authorized
by their registration and in conformity with the other provisions of this
subchapter." But the scheme of the statute, viewed against the background of
the legislative history, reveals an intent to limit a registered physician's
dispensing authority to the course of his "professional practice."

32

Registration of physicians and other practitioners17 is mandatory if the

applicant is authorized to dispense drugs or conduct research under the law of

the State in which he practices.18 823(f). In the case of a physician this

scheme contemplates that he is authorized by the State to practice medicine and
to dispense drugs in connection with his professional practice.19 The federal
registration, which follows automatically, extends no further. It authorizes
transactions within "the legitimate distribution chain" and makes all others
illegal. H.R.Rep.No.91-1444, p. 3. Implicit in the registration of a physician is
the understanding that he is authorized only to act "as a physician."
33

This is made explicit in 802(20), which provides that "practitioner" means

one who is "registered . . . by the United States or the jurisdiction in which he
practices or does research, to distribute, dispense, conduct research with respect
to, administer, or use in teaching or chemical analysis, a controlled substance in
the course of professional practice or research." This section defines the term
"practitioner" for purposes of the Act. It also describes the type of registration
contemplated by the Act. That registration is limited to the dispensing and use
of drugs "in the course of professional practice or research."

34

Other provisions throughout the Act reflect the intent of Congress to confine
authorized medical practice within accepted limits. Section 812(b)(2) includes
in its definition of Schedule II drugs a requirement that "(t)he drug (have) a
currently accepted medical use with severe restrictions." Registration under the
CSA to dispense or to conduct research with Schedule I drugs, which are
defined as having "no currently accepted medical use in treatment in the United
States," 812(b)(1)(B), does not follow automatically from state registration as
it does with respect to drugs in Schedules II through V, all of which have some
accepted medical use. 823(f). The record and reporting requirements of 827
are made inapplicable with respect to narcotic drugs in Schedules II through V
when they are prescribed or administered "by a practitioner in the lawful
course of his professional practice." 827(c)(1) (A). Section 828(a) prohibits
the distribution of Schedule I and II drugs unless pursuant to specified order
forms; 828(e) makes it unlawful for "any person" to obtain drugs with these
order forms "for any purpose other than their use, distribution, dispensing, or
administration in the conduct of a lawful business in such substances or in the
course of his professional practice or research." Section 844(a) prohibits
possession of controlled substances unless the drug was obtained "from a
practitioner, while acting in the course of his professional practice, or except as
otherwise authorized . . . ." See also 885(a)(2).

35

The evidence presented at trial was sufficient for the jury to find that
respondent's conduct exceeded the bounds of "professional practice."20 As
detailed above, he gave inadequate physical examinations or none at all. He
ignored the results of the tests he did make. He did not give methadone at the

clinic and took no precautions against its misuse and diversion. He did not
regulate the dosage at all, prescribing as much and as frequently as the patient
demanded. He did not charge for medical services rendered, but graduated his
fee according to the number of tablets desired. In practical effect, he acted as a
large-scale "pusher" not as a physician.
IV
36

Respondent further contended at trial that he was experimenting with a new

"blockade" theory of detoxification. The jury did not believe him. Congress
understandably was concerned that the drug laws not impede legitimate
research and that physicians be allowed reasonable discretion in treating
patients and testing new theories. But respondent's interpretation of the Act
would go far beyond authorizing legitimate research and experimentation by
physicians. It would even compel exemption from the provisions of 841 of all
"registrants," including manufacturers, wholesalers, and pharmacists in addition
to physicians.

37

In enacting the Comprehensive Drug Abuse Prevention and Control Act of

1970, 84 Stat. 1236, Title II of which is the CSA, Congress faced the problem
directly. Because of the potential for abuse it decided that some limits on free
experimentation with drugs were necessary. But it was also aware of the
concern expressed by the Prettyman Commission:

38

"(A) controversy has existed for fifty years over the extent to which narcotic
drugs may be administered to an addict solely because he is an addict.

39

"The practicing physician has . . . been confused as to when he may prescribe

narcotic drugs for an addict. Out of a fear of prosecution many physicians
refuse to use narcotics in the treatment of addicts except occasionally in a
withdrawal regimen lasting no longer than a few weeks. In most instances they
shun addicts as patients."21

40

Congress' solution to this problem is found in 4 of Title I of the 1970 Act, 42

U.S.C. 257a. That section requires the Secretary of Health, Education, and
Welfare, after consultation with the Attorney General and national addict
treatment organizations, to "determine the appropriate methods of professional
practice in the medical treatment of . . . narcotic addiction . . . ." It was
designed "to clarify for the medical profession . . . the extent to which they
may safely go in treating narcotic addicts as patients." H.R.Rep.No.91-1444, p.
14, U.S.Code Cong. & Admin.News 1970, p. 4580. Congress pointed out that

"criminal prosecutions" in the past had turned on the opinions of federal

prosecutors. Under the new Act, "(t)hose physicians who comply with the
recommendations made by the Secretary will no longer jeopardize their
professional careers . . . ." Id., at 15, U.S.Code Cong. & Admin.News 1970, p.
4581. The negative implication is that physicians who go beyond approved
practice remain subject to serious criminal penalties.
41

In the case of methadone treatment the limits of approved practice are

particularly clear. As Dr. Moore admitted at trial,22 he was authorized only to
dispense methadone for detoxification purposes. His authorization by the FDA
to engage in a methadone maintenance program had been revoked. Nor was
respondent unfamiliar with the procedures for conducting a legitimate
detoxification program. Charges arising out of his 1969 treatment program,
which involved a combination of "long term" and "short term" detoxification,
were dropped after he testified before a grand jury and agreed to abide by
certain medical procedures in future methadone programs. These included
obtaining a medical history of each patient, conducting a reasonably thorough
physical examination, abiding by the results of urine tests, recording times and
amounts of dosages, and either administering the methadone in his office or
prescribing no more than a daily dosage.23 At trial respondent admitted that he
had failed to follow these procedures.24

V
42

Respondent argues finally that the statute is sufficiently ambiguous that it must
be construed in his favor despite the clear intent of the Congress. It is true that
"when choice has to be made between two readings of what conduct Congress
has made a crime, it is appropriate, before we choose the harsher alternative, to
require that Congress should have spoken in language that is clear and
definite." United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221222, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). In this case, however, the
principle set forth in United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376,
380, 92 L.Ed. 442 (1948), is appropriately followed:

43

"The canon in favor of strict construction (of criminal statutes) is not an

inexorable command to override common sense and evident statutory purpose. .
. . Nor does it demand that a statute be given the 'narrowest meaning'; it is
satisfied if the words are given their fair meaning in accord with the manifest
intent of the lawmakers." The judgment of the Court of Appeals is reversed.
Because of its disposition of the case, that court did not reach the question
whether respondent could be sentenced under 21 U.S.C. 845, which provides
a higher penalty for distribution of controlled substances to persons under 21

years of age. We remand for the sole purpose of considering respondent's claim
that he was improperly sentenced under that section.
44

So ordered.

45

Judgment of Court of Appeals reversed.

A substance listed in Schedule II has "a high potential for abuse," "a currently
accepted medical use in treatment in the United States or a currently accepted
medical use with severe restrictions," and is a drug the abuse of which "may
lead to severe psychological of physical dependence." 21 U.S.C. 812(b)(2).
Methadone is listed as a Schedule II drug in 812(c), Schedule II (b)(11).

In addition, Dr. Moore's license to practice medicine was revoked pursuant to

D.C.Code Ann. 2-131 (1973), which authorizes revocation upon the
conviction of "any felony." An appeal from the conviction acts "as a
supersedeas to the judgment . . . revoking his license . . . ."

One patient testified that he was taking approximately two to three pills per day
when he started visiting Dr. Moore. By the end of his visits he was taking 30 to
35 pills a day. Id. at 43. Another patient increased his intake from five to 10
pills a day to almost 70. Id., at 53-54. A third addict, relying on Dr. Moore for
drugs, increased his intake from seven pills a day to over 100. Tr. 310.

Section 841(a) provides, in full:

"Except as authorized by this subchapter, it shall be unlawful for any person
knowingly or intentionally
"(1) to manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance; or
"(2) to create, distribute, or dispense, or possess with intent to distribute or
dispense, a counterfeit substance."
"Dispense" is defined in 802(10) to mean "to 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 . . . ."
Section 802(11) defines "distribute" to mean "to deliver (other than by
administering or dispensing) a controlled substance." "Administer" refers to
"the direct application of a controlled substance to the body of a patient . . . ."
802(2).

Section 842 in relevant part provides:

"(a) Unlawful acts.
"It shall be unlawful for any person
"(1) who is subject to the requirements of part C to distribute or dispense a
controlled substance in violation of section 829 of this title;
"(2) who is a registrant to distribute or dispense a controlled substance not
authorized by his registration to another registrant or other authorized person or
to manufacture a controlled substance not authorized by his registration;
"(3) who is a registrant to distribute a controlled substance in violation of
section 825 of this title;
"(4) to remove, alter, or obliterate a symbol or label required by section 825 of
this title;
"(5) to refuse or fail to make, keep, or furnish any record, report, notification,
declaration, order or order form, statement, invoice, or information required
under this subchapter or subchapter II of this chapter;
"(6) to refuse any entry into any premises or inspection authorized by this
subchapter or subchapter II of this chapter;
"(7) to remove, break, injure, or deface a seal placed upon controlled
substances pursuant to section 824(f) or 881 of this title or to remove or dispose
of substances so placed under seal; or
"(8) to use, to his own advantage, or to reveal, other than to duly authorized
officers or employees of the United States, or to the courts when relevant in any
judicial proceeding under this subchapter or subchapter II of this chapter, any
information acquired in the course of an inspection authorized by this
subchapter concerning any method or process which as a trade secret is entitled
to protection.
"(b) Manufacture.
"It shall be unlawful for any person who is a registrant to manufacture a
controlled substance in Schedule I or II which is
"(1) not expressly authorized by his registration and by a quota assigned to him
pursuant to section 826 of this title; or

"(2) in excess of a quota assigned to him pursuant to section 826 of this title."
Section 843 provides:
"(a) Unlawful acts.
"It shall be unlawful for any person knowingly or intentionally
"(1) who is a registrant to distribute a controlled substance classified in
schedule I or II, in the course of his legitimate business, except pursuant to an
order or an order form as required by section 828 of this title;
"(2) to use in the course of the manufacture or distribution of a controlled
substance a registration number which is fictitious, revoked, suspended, or
issued to another person;
"(3) to acquire or obtain possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge;
"(4) to furnish false or fraudulent material information in, or omit any material
information from, any application, report, record, or other document required to
be made, kept, or filed under this subchapter or subchapter II of this chapter; or
"(5) to make, distribute, or possess any punch, die, plate, stone, or other thing
designed to print, imprint, or reproduce the trademark, trade name, or other
identifying mark, imprint, or device of another or any likeness of any of the
foregoing upon any drug or container or labeling thereof so as to render such
drug a counterfeit substance.
"(b) Communication facility.
"It shall be unlawful for any person knowingly or intentionally to use any
communication facility in committing or in causing or facilitating the
commission of any act or acts constituting a felony under any provision of this
subchapter or subchapter II of this chapter. Each separate use of a
communication facility shall be a separate offense under this subsection. For
purposes of this subsection, the term 'communication facility' means any and all
public and private instrumentalities used or useful in the transmission of
writing, signs, signals, pictures, or sounds of all kinds and includes mail,
telephone, wire, radio, and all other means of communication."
6

Violations of 841, under which respondent was convicted, carry sentences of

up to 15 years, fines as high as $25,000, or both. 841(b). Knowing violators of
842 are subject at most to imprisonment for one year, a fine of $25,000, or

both. There also may be a civil penalty of $25,000 for violation of 842.
842(c). The penalties for violation of 843 are imprisonment for not more than
four years, a fine of not more than $30,000, or both. 843(c). All three sections
impose higher penalties for violations after the first conviction.
7

The decision below stands alone. At the time it was issued it conflicted with the
rulings of four other Circuits. Courts of Appeals for the First, Fifth, and Tenth
Circuits had held squarely that physicians may be prosecuted under 841. See
United States v. Badia, 490 F.2d 296 (CA1 1973); United States v. Collier, 478
F.2d 268 (CA5 1973); United States v. Leigh, 487 F.2d 206 (CA5 1973);
United States v. Bartee, 479 F.2d 484 (CA10 1973); United States v. Jobe, 487
F.2d 268 (CA10 1973). The Ninth Circuit also had affirmed the conviction of a
physician under 841(a)(1). United States v. Larson, 507 F.2d 385 (1974).
Since the ruling in this case, two other decisions have considered the issue and
expressly rejected the analysis of the Court of Appeals for the District of
Columbia Circuit. See United States v. Rosenberg, 515 F.2d 190 (CA9 1975);
United States v. Green, 511 F.2d 1062 (CA7 1975). The Sixth Circuit has
implicitly agreed. It reversed the conviction of a physician and remanded the
case for a new trial because the trial court had failed to instruct the jury that
physicians are exempt from prosecution under 841(a)(1) when they dispense
or prescribe controlled substances in good faith to patients in the regular course
of professional practice. United States v. Carroll, 518 F.2d 187 (6 Cir. 1975).

To this end controlled substances were classified in five categories according to

their potential for abuse, their promise for treatment, and their psychological
and physical effects. 812.

Section 822(b) was added by the House Committee on Interstate and Foreign
Commerce. No comparable section was in the Act when it passed the Senate on
January 28, 1970.

10

This represents a commonsense recognition by Congress that only a registrant

could, for example, distribute drugs "not authorized by his registration,"
842(a)(2); or manufacture substances "not authorized by his registration" or "in
excess of (his) quota." 842(b)(1), (2). Nor would there be any reason to
apply to nonregistrants the penalties for distributing drugs without complying
with the labeling and order-form requirements of the Act, 842(a)(3), 843(a)
(1), for nonregistrants are barred from making any distributions whatsoever.

11

Another subsection which can be sensibly interpreted only if it reaches

nonregistrants is 842(a)(1), which is limited to "any person who is subject to
the requirements of part C." Part C of the Act, 821-829, covers the
provisions for registration and applies to "(e)very person who manufactures,

distributes, or dispenses any controlled substance or who proposes" to do so.

822(a). Presumably, 842(a)(1) is so phrased in order to reach those who
should have registered but failed to do so.
12

Section 829 provides, in part:

"(a) Schedule II substances.
"Except when dispensed directly by a practitioner, other than a pharmacist, to
an ultimate user, no controlled substance in schedule II, which is a prescription
drug as determined under the Federal Food, Drug, and Cosmetic Act, may be
dispensed without the written prescription of a practitioner, except that in
emergency situations, as prescribed by the Secretary by regulation after
consultation with the Attorney General, such drug may be dispensed upon oral
prescription in accordance with section 353(b) of this title. Prescriptions shall
be retained in conformity with the requirements of section 827 of this title. No
prescription for a controlled substance in schedule II may be refilled.
"(b)Schedule III and IV substances.
"Except when dispensed directly by a practitioner, other than a pharmacist, to
an ultimate user, no controlled substance in schedule III or IV, which is a
prescription drug as determined under the Federal Food, Drug, and Cosmetic
Act, may be dispensed without a written or oral prescription in conformity with
section 353(b) of this title. Such prescriptions may not be filled or refilled more
than six months after the date thereof or be refilled more than five times after
the date of the prescription unless renewed by the practitioner.
"(c) Schedule V substances.
"No controlled substance in schedule V which is a drug may be distributed or
dispensed other than for a medical purpose."
The Attorney General's regulations enacted pursuant to 829 required that:
"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. The responsibility for the proper prescribing
and dispensing of controlled substances is upon the prescribing practitioner, but
a corresponding responsibility rests with the pharmacist who fills the
prescription. An order purporting to be a prescription issued not in the usual
course of professional treatment or in legitimate and authorized research is not a
prescription within the meaning and intent of section 309 of the Act (21 U.S.C.
829) and the person knowingly filling such a purported prescription, as well as

the person issuing it, shall be subject to the penalties provided for violations of
the provisions of law relating to controlled substances." 21 CFR 306.04(a)
(1973) (redesignated as 21 CFR 1306.04(a) (1975)).
The court below suggested that a violation of the "medical purpose"
requirement of 306.04(a) makes a prescription something other than the
"written prescription" required by 829. The dissent, which agreed that Dr.
Moore could be prosecuted under 842(a)(1), did not rely on the regulations. It
found inherent in the statutory term "prescription" a requirement that the order
be issued for a valid medical purpose.
13

On its face 829 addresses only the form that a prescription must take. A
written prescription is required for Schedule II substances. 829(a). Either a
written or an oral prescription is adequate for drugs in Schedules III and IV.
829(b). The only limitation on the distribution or dispensing of Schedule V
drugs is that it be "for a medical purpose." 829(c). The medical purpose
requirement explicit in subsection (c) could be implicit in subsections (a) and
(b). Regulation 306.04 makes it explicit. But 829 by its terms does not limit
the authority of a practitioner.

14

In addition, a doctor who dispenses a controlled substance not authorized by his

registration to another registrant is also covered by 842 and would thus be
punished as severely as a doctor who sold drugs solely for financial profit to
nonregistrants. 842(a)(2).

15

Respondent argues that the proper sanction for trafficking physicians is not
criminal prosecution, but deregistration or refusal to reregister. But, under
respondent's analysis, at the time he was convicted neither penalty could be
imposed as a sanction for the conduct in which he engaged. Registration was
mandatory for practitioners with state licenses, 823(f), and could only be
suspended or revoked if the state license was revoked or suspended, if the
practitioner had "materially falsified" an application under the Act, or if he had
been convicted of a drug-related felony. 824(a). Conviction for a
misdemeanor under 842 would be insufficient to support revocation.

16

The Narcotic Addict Treatment Act of 1974 (NATA), 88 Stat. 124, 21 U.S.C.
802, 823, 824 (1970 ed., Supp. IV), modified the registration and revocation
procedures provided in the CSA in order to facilitate "more expeditious"
criminal prosecutions by making revocation easier.
There was no indication that Congress thought that trafficking doctors could
escape felony prosecution altogether under pre-NATA law. Rather, it sought to
"cure the present difficulty in such prosecutions because of the intricate and
nearly impossible burden of establishing what is beyond 'the course of

professional practice' for criminal law purposes when such a practitioner

speciously claims that the practices in question were ethical and humanitarian
in nature." S.Rep.No.93-192, p. 14 (1973). Dr. Moore's conviction was cited to
illustrate that successful criminal actions could be brought only "in the most
aggravated of circumstances . . . after prolonged effort to make undercover
penetrations." Id., at 13.
17

"Practitioner" means "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, dispense, conduct research with respect to, administer, or use in
teaching or chemical analysis, a controlled substance in the course of
professional practice or research." 802(20).

18

Under 823, registration of manufacturers and nonpractitioner distributors

(such as suppliers) is discretionary with the Attorney General. He first must
make a finding that registration is consistent (in the case of manufacturers of
Schedule I and II drugs) or not inconsistent (in the case of manufacturers of
Schedule III-V drugs and all distributors) with the public interest. In evaluating
the public interest the Attorney General is to consider, for example,
"maintenance of effective controls against diversion," compliance with
applicable state and local law, prior conviction record in drug-related charges,
past experience, and (in the case of manufacturers) promotion of technical
advances in manufacturing and the development of new substances.
Practitioners and pharmacies are automatically entitled to registration to handle
drugs in Schedules II-V "if they are authorized to dispense . . . under the law of
the State in which they practice." 823(f).

19

The House Report described the rationale behind 823(f) as follows:

"Practitioners . . . engaged in the distribution chain would be required to be
registered, but registration would be as a matter of right where the individual or
firm is engaged in activities involving these drugs which are authorized or
permitted under State law . . . ." H.R.Rep.No.91-1444, p. 23 (1970), U.S.Code
Cong. & Admin.News 1970, p. 4590 (emphasis added).

20

The jury was instructed that Dr. Moore could not be convicted if he merely
made "an honest effort" to prescribe for detoxification in compliance with an
accepted standard of medical practice. App. 124.

21

Report of the President's Advisory Commission on Narcotic and Drug Abuse

56-57 (1963), quoted in H.R.Rep.No.91-1444, pp. 14-15.

22

App. 101.

23

Id., at 97-100, 116, 136-138.

24

Id., at 97-100.