United States v. Arthur R. Black

Arthur R. Black appeals from a judgment convicting him of three counts of unlawfully distributing a controlled substance. 21 U.S.C. § 841 (a)(1).

The first of his two assignments is in the nature of a claim of variance.

21 U.S.C. § 841 (a)(1) reads, in pertinent part:

Black contends, in substance, that his violations — if any were established — were those of dispensing not distributing (with which he was charged). Although recognizing that the quoted provision proscribes both acts, he argues that because he was — as the government itself proved — a duly licensed “practitioner,” defined in § 802(20) as “a physician licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute [or] dispense a controlled substance in the course of professional practice . . ” and because the deliveries here were pursuant to his prescriptions, that the matters came within the purview of 21 U.S.C. § 802 (10), which reads: “The term ‘dispense’ means to deliver a controlled substance to an ultimate user pursuant to the lawful order of, a practitioner, including the prescribing . . of a controlled substance . ” and…