United States v. Roy A. Bartee (1973)

See United States v. Smurthwaite, 590 F.2d 889 (10th Cir.1979) (counts of "dispensing and distributing"); United States v. Fellman, 549 F.2d 181, 182-83 (10th Cir.1977) (per curiam) (distributing); United States v. Jobe, 487 F.2d 268, 269 (10th Cir.1973), cert. denied, 416 U.S. 955 , 94 S.Ct. 1968 , 40 L.Ed.2d 305 (1974) (distributing); United States v. Bartee, 479 F.2d 484, 488 (10th Cir.1973) (dispensing).

In United States v. Bartee, 479 F.2d 484, 488 (10th Cir. 1973) (emphasis in original), the court specifically held that when a medical practitioner issues a prescription which is not for a legitimate medical purpose and is not in the usual course of his professional practice, he is subject to prosecution under section 401.

See United States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th Cir.1994) (noting that a criminal conviction “requires more” than a showing of malpractice, and defining the standard as “proof beyond a reasonable doubt that the doctor was acting outside the bounds of professional medical practice, as his authority to prescribe controlled substances was being used not for treatment of a patient, but for the purpose of assisting in the maintenance of a drug habit or of dispensin…

See United States v. Tran Trong Cuong, 18 F.3d 1132, 1137 (4th Cir. 1994) (noting that a criminal con- viction “requires more” than a showing of malpractice, and defining the standard as “proof beyond a reasonable doubt that the doctor was acting outside the bounds of professional medical practice, as his authority to prescribe controlled sub- stances was being used not for treatment of a patient, but for the purpose of assisting in the maintenance of a drug habit or of disp…

Dictum in one of our earlier cases, United States v. Bartee, 479 F.2d 484, 488 (10th Cir. *1233 1973) ("when a medicai practitioner issues a prescription which is not for a legitimate medical purpose and is not in the usual course of his professional practice, then he does violate the statute”) (emphasis added; original emphasis omitted), which was followed in United States v. Jobe, 487 F.2d 268, 269 (10th Cir.1973), would have supported the argument of defendant in the inst…

Nelson was charged under the relevant conspiracy statute, 21 U.S.C. § 846 , with committing the substantive offense proscribed under 21 U.S.C. § 841 (a)(1): “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally to . . . distribute[] or dispense[] a controlled substance . . . .” In turn, 21 U.S.C. § 822 (b) authorizes practitioners to dispense controlled substances “to the extent authorized by their registration and in confor…

See United States v. Jamieson , 806 F.2d 949, 950-51 (10th Cir. 1986); United States v. Varma , 691 F.2d 460 (10th Cir. 1982); United States v. Bartee , 479 F.2d 484, 485-86, 488-89 (10th Cir. 1973).

See also United States v. Davis, 564 F.2d 840 (9th Cir.1977), cert. denied, 434 U.S. 1015 (1978) (a physician distributes within the meaning of section 841(a) by merely writing a prescription outside the usual course of professional practice that is not intended for a legitimate medical purpose); United States v. Bartee, 479 F.2d 484, 488 (10th Cir.1973) (writing the prescription completes all the elements of the crime in a section 841(a)(1) case). 12 Accordingly, the govern…

United States v. Bartee, supra, at 488.

Further, “the jury is not bound by such expert testimony and may, of course, consider all of the facts and circumstances surrounding the prescribing as related by lay witnesses.” United States v. Bartee, 479 F.2d 484, 488 (10th Cir.1973) (emphasis added) (cited with approval by this Court in Rosen, 582 F.2d at 1037 n. 10).

See, e. g., United States v. Seelig, 622 F.2d 207, 213 (6th Cir. 1980), cert. denied, 449 U.S. 869 , 101 S.Ct. 206 , 66 L.Ed.2d 89 (1981), (“[Registered doctors (or other practitioners) are exempt from criminal liability under § 841(a)(1) unless they were acting outside the usual course of professional practice.”); United States v. Smurthwaite, 590 F.2d 889, 891 (10th Cir.1979); United States v. Kirk, 584 F.2d 773, 784 (6th Cir.), cert. denied, 439 U.S. 1048 , 99 S.Ct. 726 ,…

See United States v. Hayes, 595 F.2d 258, 259 (5th Cir.), cert. denied, 444 U.S. 866 , 100 S.Ct. 138 , 62 L.Ed.2d 89 (1979); United States v. Roya, 574 F.2d 386, 390 (7th Cir.), cert. denied, 439 U.S. 857 , 99 S.Ct. 172 , 58 L.Ed.2d 165 (1978); United States v. Pastor, 557 F.2d 930, 939 (2d Cir. 1977); United States v. Rosenberg, 515 F.2d 190, 196-97 (9th Cir.), cert. denied, 423 U.S. 1031 , 96 S.Ct. 562 , 46 L.Ed.2d 404 (1975); United States v. Green, 511 F.2d 1062, 1069-70…

See United States v. Larson, 507 F.2d 385, 387-88 (9 Cir. 1974); United States v. Bartee, 479 F.2d 484, 489 (10 Cir. 1973). 6 .

United States v. Bartee, supra, at 488.

Green, et al., supra, at 1073, cert. den. 423 U.S. 1031 , 96 S.Ct. 561 , 46 L.Ed.2d 404 ; U. S. v. Davis, 564 F.2d 840, at 845 (9th Cir. 1977), cert. den. 434 U.S. 1015 , 98 S.Ct. 733 , 54 L.Ed.2d 760 (1978); U. S. v. Bartee, 479 F.2d 484, at 488 (10th Cir. 1973).

(All the prescriptions in evidence were obtained from appellant by government agents who falsely pretended they were “patients,” or wanted to become such, while never intending to be such.) The difficulty with appellant’s argument is that the appellant was charged with distributing controlled substances in violation of § 841(a)(1). 21 U.S.C. § 802 (11) states that: “The term ‘distribute’ means to deliver (other than administering or dispensing) a controlled substance”; and 2…

In view of this teaching, we note the Supreme Court’s declaration in Jin Fuey Moy v. United States, 254 U.S. 189, 192 , 41 S.Ct. 98, 100 , 65 L.Ed. 214 (1920), a Harrison Act case involving conviction of a physician for dispensing large quantities of drugs without adequate physical examinations or instructions for use: “. . . it is easy to see that one may take a principal part in a prohibited sale of an opium derivative belonging to another person by unlawfully issuing a pr…

United States v. Bar-tee, 479 F.2d 484, 488 (10th Cir. 1973); Heller v. United States, 104 F.2d 446, 449 (4th Cir. 1939).

In this connection, we regard certain of the utterances attributed to Dr. Bartee by Baker and Coller to be particularly damning and the overall facts and circumstances of the case are such as in our view permit the inference that Dr. Bartee in thus prescribing was not acting for a legitimate medical purpose and such was not within the usual course of l his professional practice.” Id. at 488-489 (Emphasis added.) In Bartee , the evidence against the Doctor was deemed sufficie…

See United States v. Hicks, 529 F.2d 841, 844 (5th Cir. 1976); United States v. Green, 511 F.2d 1062, 1072 (7th Cir. 1975), cert. denied, 423 U.S. 1031 (1976); United States v. Leigh, 487 F.2d 206, 207-208 (5th Cir. 1973); United States v. Bartee, 479 F.2d 484, 486-488 (10th Cir. 1973).

Courts have upheld convictions where there was sufficient evidence of physician behavior that demonstrated prescription without legitimate medical purpose and outside the bounds of professional practice, including the following situations: United States v. Elder, 682 F.3d 1065, 1071 (8th Cir.2012) (where defendant did not maintain medical files of patients and rarely saw patients himself); United States v. Singh, 390 F.3d 168, 179 (2d Cir.2004) (where physician-defendant dev…

See United States v. Smurthwaite, 590 F.2d 889, 892 (10th Cir. 1979); United States v. Rosen, 582 F.2d 1032,1036 (5th Cir. 1978); United States v. Bartee, 479 F.2d 484, 489 (10th Cir. 1973).

See also United States v. Moore, 423 U. S. 122, 127 (1975); United States v. Warren, 453 F.2d 738, 741 (2d Cir.), cert. denied, 406 U. S. 944 (1972); United States v. Bartee, 479 F.2d 484, 486, 489 (10th Cir. 1973); United States v. Green, 511 F.2d 1062, 1066 (7th Cir.), cert. denied, 423 U. S. 1031 (1975); United States v. Rosenberg, 515 F.2d 190, 192 (9th Cir.), cert. denied, 423 U. S. 1031 (1975); United States v. Ellzey, 527 F.2d 1306, 1307 (6th Cir. 1976); United States…

See United States v. Word, 806 F.2d 658 (6th Cir.1986), cert. denied, 480 U.S. 922 , 107 S.Ct. 1383 , 94 L.Ed.2d 697 (1987); accord United States v. Bartee, 479 F.2d 484, 488 (10th Cir.1973).

See also United States v. Green, 511 F.2d 1062, 1072 (7th Cir.), cert. denied, 423 U.S. 1031 , 96 S.Ct. 561 , 46 L.Ed.2d 404 (1975), United States v. Bartee, 479 F.2d 484, 488 (10th Cir.1973) (writing the prescription completes all the elements of the crime in a section 841(a)(1) case).

See United States v. Bartee, 10 Cir. 1973, 479 F.2d 484, 488-89 ; 2 K.

See United States v. Bartee, 479 F.2d 484 (10th Cir. 1973).

See, e.g., United States v. Bartee, 479 F.2d 484, 489 (10th Cir. 1973); United States v. Badia, 490 F.2d 296, 297 (1st Cir. 1973); United States v. Larson, 507 F.2d 385, 387-388 (9th Cir. 1974); United States v. Green, 511 F.2d 1062, 1066 (7th Cir. 1975), cert, denied, 423 U.S. 1031 (1976); United States v. Rosenberg, 515 F.2d at 199 ; United States v. Ellzey, 527 F.2d 1306 (6th Cir. 1976).

See United States v. Bartee, 479 F.2d 484 (10th Cir. 1973).