Summary
striking explanatory "background" section of Indictment against pharmacist because section "does not recite any of the essential elements of the charge and because the legal principles defined in these paragraphs may lead to confusion of issues"
Summary of this case from U.S. v. JardineOpinion
Cause No. IP01-0152-CR-01-B/F
April 24, 2002
ENTRY ON PRETRIAL MOTIONS
This matter comes before the Court on several of Defendant's pretrial motions. Defendant moves to dismiss Counts One and Two of the Indictment, charging him with violations of 21 U.S.C. § 841(a)(1), based on alleged deficiencies in the phrasing of the charges; to receive a Bill of Particulars regarding the charges set out in the Indictment; and to strike surplusage from Count One of the Indictment. For the reasons set out in detail below, we DENY Defendant's Motion to Dismiss, we DENY Defendant's Motion for Bill of Particulars, but we GRANT Defendant's Motion to Strike Surplusage.
Legal Issues
1. Failure to allege essential elements
Defendant contends that Counts One and Two of the Indictment must be dismissed because they fail to allege the essential elements of the offenses charged, in violation of the Grand Jury Clause of the Fifth Amendment to the U.S. Constitution. The Fifth Amendment establishes certain requirements for an indictment, which the Seventh Circuit recently summarized:
The Fifth Amendment provides, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury."
First, it must adequately state all of the elements of the crime charged; second, it must inform the defendant of the nature of the charges so that he may prepare a defense; and finally, the indictment must allow the defendant to plead the judgment as a bar to any future prosecution for the same offense. In setting forth the offense, the indictment should generally "track" the words of the statute itself, "so long as those words expressly set forth all the elements necessary to constitute the offense intended to be punished." It is required, at a minimum, that an indictment provide the defendant with some means of "pinning down the specific conduct at issue." The absence of any particular fact is not necessarily dispositive of the issue. Further, we review indictments "on a practical basis and in their entirety, rather than in a hypertechnical manner."
U.S. v. Anderson, 280 F.3d 1121, 1123 (7th Cir. 2002), citing U.S. v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (internal citations omitted).
Here, Count One of the Indictment alleges that "James O. Spalding, . . . a registrant authorized to dispense controlled substances, did knowingly manufacture a Schedule II, Controlled Substance . . . without a prescription calling for the compounding of said substances for a legitimate medical purpose." Indictment at 1. Count Two contains nearly identical language, but alleges that Defendant compounded certain Schedule III controlled substances. Id. at 4. Each of these statements alleges conduct in violation of 21 U.S.C. § 841(a)(1), which provides, in relevant part:
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.
Under the statute, the term "manufacture"
means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container; except that such term does not include the preparation, compounding, packaging, or labeling of a drug or other substance in conformity with applicable State or local law by a practitioner as an incident to his administration or dispensing of such drug or substance in the course of his professional practice. The term "manufacturer" means a person who manufactures a drug or other substance.21 U.S.C. § 802(15) (emphasis added).
Defendant argues that Counts One and Two of the Indictment fail to allege an essential element of the charge in that they fail to specify the state or local law Defendant allegedly violated by compounding the controlled substances under the circumstances set out in the Indictment. We disagree. By its terms, 21 U.S.C. § 841(a)(1) criminalizes the manufacture, dispensation, and creation of controlled substances with the intent to distribute or dispense such substances, but excludes from criminal liability these same actions when taken in conformity with state or local law. Violation of state or local law is not an essential element of the offense, but adherence to such law constitutes an affirmative defense that a defendant may raise in response to such charges. It has long been accepted that the Government need not frame an indictment to include facts negating exclusionary conditions. McKelvey v. U.S., 260 U.S. 353, 357 (1922) ("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 . . . need not negative the matter of an exception made by a proviso or other distinct clause . . . and that it is incumbent on one who relies on such an exception to set it up and establish it."). In U.S. v. Roya, 574 F.2d 386, 391 (7th Cir. 1978), the Seventh Circuit applied this principle and found that an indictment under 21 U.S.C. § 841(a)(1) need not include a citation to the law violated by the defendant's conduct in order to properly allege the essential elements of the charge.
We note that, although not explicitly cited in the Indictment, Indiana law prohibits dispensation of Schedule II and Schedule III drugs without prescription by a practitioner. Ind. Code. 35-48-3-9. To "dispense" such drugs includes the act of "compounding [as] necessary to prepare the substance for that delivery." Id. 35-48-1-12.
We face the same challenge to the Indictment in this case, and we arrive at the same conclusion. Accordingly, the Motion to Dismiss Counts One on Two on this ground is DENIED.
2. Vagueness
Defendant also argues that 21 U.S.C. § 841(a)(1) is void for vagueness because the statute's prohibition of "manufacturing" could not readily be understood by an average person to include the activities of a pharmacist compounding controlled substances without a prescription directing such. "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983); U.S. v. Lobue, 751 F. Supp. 748, 754 (N.D.Ill. 1991). To prevail on a vagueness challenge, a defendant must establish that the text of the statute fails to "establish minimal guidelines to govern the discretion of law enforcement officials." Kolender, 461 U.S. at 358; U.S. v. Antzoulatos, 962 F.2d 720, 726 (7th Cir. 1992). Although numerous cases in this circuit and others have examined other provisions of 21 U.S.C. § 841 for vagueness, the parties did not identify and we have not found any cases addressing alleged vagueness in the general prohibitions expressed in § 841(a). Finding no cases directly on point, we turn our consideration to the statutory language. If the language is clear, the court need go no further in its analysis.
Defendant contends that "an ordinary person, or even an ordinary pharmacist, who read [the applicable state and federal statutes] would have no idea that a pharmacist was committing a major federal crime if he compounded a drug without a prescription from a physician which specifically directed him to compound that drug." D's Reply to Govt's Combined Response at 7. Based on the plain text of § 841(a)(1) and, as discussed above, its obvious reference to and interaction with Indiana law, we find Defendant's arguments unpersuasive. The statute clearly sets out the range of activities it seeks to prohibit and includes a detailed definition highlighting the forms those activities may take. Defendant asserts, but offers no textual support for the proposition, that the statute fails to provide reasonable notice of the conduct it proscribes.
Defendant cites a policy statement drafted by the Food and Drug Administration in 1992 (and still in effect in 1997) and the Drug Modernization Act of 1997 to suggest that neither Congress nor the federal agency viewed the conduct alleged in this case as being criminal at the time of the events underlying the charge. We do not find these materials to support Defendant's position. Both the FDA policy statement and the Drug Modernization Act, extracted from their original contexts presumably for Defendant's argumentative purposes, address a completely separate regulatory and congressional initiative, namely the manufacture, distribution, and promotion of adulterated, misbranded, or unapproved drugs for human use and the dissemination of information regarding labeled drugs and devices respectively. Defendant cites nothing in these materials that addresses the unique concerns of Schedule II and Schedule III controlled substances, as are at issue in the present case. Moreover, it is not at all clear from the cited passages that the FDA or Congress ever contemplated that their statements would be applied to the more specialized realm of controlled substances. Because the terms of the statute are clear on their face, we need not and do not rely on these secondary materials for insight into their meaning. Accordingly, Defendant's Motion to Dismiss Counts One and Two of the Indictment for vagueness is DENIED.
Defendant also contends that "[t]he Government's Combined Response does not cite a single case in which a pharmacist was prosecuted in federal court for compounding a Schedule II controlled substance without an explicit direction from a physician that the drug be compounded," and that "extensive research" into federal reporting systems yielded no such cases. D's Reply to Govt's Combined Response at 11. However, the lack of any reported cases involving such prosecutions does not necessarily indicate that the law is not being enforced, nor does it suggest that Congress intended other than that which the statute explicitly requires or that any ambiguity exists as to what the law prohibits.
3. Duplicity
Defendant argues that Count One of the Indictment must be dismissed as duplicitous because it alleges more than one offense under 21 U.S.C. § 841(a)(1). The Government responds that the multiple acts alleged in Count One do not constitute separate charges but instead represent a continuing course of conduct supporting the broader charge. Duplicity is the joinder of two or more distinct offenses in the same count of an indictment. Federal Rule of Criminal Procedure 8(a) requires that indictments charging multiple offenses state each offense in a separate count. Fed.R.Crim.P. 8(a); U.S. v. Berardi, 675 F.2d 894, 897 n. 5 (7th Cir. 1982). Duplicitous indictments are disfavored because of numerous risks: 1) lack of adequate notice to the defendant of the nature of the charges against which he must defend; 2) possible prejudice in evidentiary rulings at trial; 3) double jeopardy complications resulting from unclear trial records; and 4) the possibility that a jury may convict a defendant by a nonunanimous verdict. U.S. v. Kimberlin, 781 F.2d 1247, 1250 (7th Cir. 1985). Notwithstanding these risks, however, an indictment may charge multiple acts in the same count, even where such offenses could be charged separately, if such acts "comprise a continuing course of conduct that constitutes a single offense." U.S. v. Buchmeier, 255 F.3d 415, 420 (7th Cir. 2001), citing U.S. v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982). "A count is not duplicitous if it simply charges the commission of a single offense by different means." U.S. v. Tanner, 471 F.2d 128, 138 (7th Cir. 1972). An indictment may properly include multiple factual scenarios to establish a single charged offense. U.S. v. Folks, 236 F.3d 384, 391 (7th Cir. 2001). "The line between multiple offenses and multiple means to the commission of a single continuing offense is often a difficult one to draw. The decision is left, at least initially, to the discretion of the prosecution." Berardi, 675 F.2d at 898; U.S. v. Steurer, 942 F. Supp. 1183, 1187 (N.D.Ill. 1996).
Here, the Indictment is not fatally duplicitous. Count One charges Defendant with violating 21 U.S.C. § 841(a)(1) by a variety of alleged acts, any one of which would support a guilty finding. These multiple acts do not represent separate charges, but separate factual scenarios offered to support the charged offense. Moreover, the risks with which the duplicity doctrine is concerned are not present in this case. The highly specific allegations contained in Count One provide adequate notice to Defendant of the conduct for which he is to be tried. Moreover, any risk of a nonunanimous jury verdict would be reduced by instructions limiting the jury's inquiry to the elements constituting a violation of each separate offense charged. See Kimberlin, 781 F.2d at 1251. Therefore, Defendant's Motion to Dismiss the Indictment based on duplicity is DENIED.
4. Motion for Bill of Particulars
The grant of a Bill of Particulars falls within the trial court's broad discretionary powers. U.S. v. Wells, 387 F.2d 807, 808 (7th Cir. 1968). To overcome the denial of a request for a Bill of Particulars, a defendant must show that the indictment does not sufficiently apprise him of the pending charges or that some other prejudice exists, such as the risk of violation of double-jeopardy principles. U.S. v. Wilson, 506 F.2d 1252, 1261 (7th Cir. 1974); Wells, 387 F.2d at 808.
Defendant contends that the Indictment's lack of citation to any particular Indiana law severely cripples his ability to mount a defense to the charges. However, as discussed above, the statute sets out compliance with state law as an exception to criminal liability, not an essential element of the charge. Therefore, because the Government bears no burden at trial to prove noncompliance with any particular state law, Defendant cannot be prejudiced by any lack of such a citation. He is free to avail himself of the affirmative defense as set out in the statute, based on the particular state or local law with which he contends he complied. Further, the Indictment references the Indiana laws relevant to the alleged conduct, if not by citation then at least by content, such that Defendant has reasonably been put on notice of the Government's theory as to the state law with which he allegedly failed to comply. Other than some generalized assertions that misstate the essential elements of the charges, Defendant has not made any showing of prejudice justifying the issuance of a Bill of Particulars. Accordingly, Defendant's Motion for a Bill of Particulars is DENIED.
5. Motion to Strike Surplusage
Defendant moves the Court to strike surplusage from the Indictment, specifically paragraphs 2 and 3 under Count One, arguing that they are "inaccurate conclusions of law which would be prejudicial to the defendant" when read to the jury at trial. D's Motion to Strike Surplusage at 1. Federal Rule of Criminal Procedure 7(d) provides that "[t]he court on motion of the defendant may strike surplusage from the indictment or information." It lies within the Court's discretion to strike surplusage it finds immaterial, irrelevant, or prejudicial. U.S. v. Marshall, 985 F.2d 901, 905 (7th Cir. 1997); U.S. v. Colon, 1998 WL 214714, at *4 (N.D.Ill. 1998). The standard is "rather exacting" and, as a result, motions to strike surplusage from an indictment are rarely granted." U.S. v. Chaverra-Cardona, 667 F. Supp. 609, 611 (N.D.Ill. 1987) (internal quotations omitted).
In response to Defendant's Motion to Strike Surplusage, the Government initially contends that paragraphs 2 and 3 represent accurate statements of the law as applied to the facts of the case, but later suggests that, if necessary, the Court may simply delete the entire Background section from Count One of the Indictment. Because this Background section does not recite any of the essential elements of the charge and because the legal principles defined in these paragraphs may lead to confusion of issues and, in any event, will be furnished in proper form to the Jury in the final instructions, we GRANT Defendant's Motion to Strike Surplusage, amending the Indictment in accordance with the recommendations of the Government, such that paragraphs 1, 2, and 3 of the Background section under Count One shall be deleted.
Conclusion
Defendant filed several pretrial motions, seeking dismissal of Counts One and Two of the Indictment, the issuance of a Bill of Particulars, and the removal of surplusage from Count One of the Indictment. For the reasons set out in detail above, we find that 1) the Indictment does not fail to allege any essential element of the charge; 2) the statute under which Defendant has been charged, namely 21 U.S.C. § 841(a), is not void for vagueness; 3) the multiple acts alleged in Count One of the Indictment do not render it improperly duplicitous; 4) Defendant has not shown any prejudice justifying a Bill of Particulars; but 5) certain surplusage may properly be eliminated from Count One of the Indictment.
Accordingly, Defendant's Motion to Dismiss the Indictment is DENIED, as is the motion for a Bill of Particulars, but the Motion to Strike Surplusage is GRANTED.
It is so ORDERED this day of April, 2002.