United States v. Maurice W. Rosenberg, M.D.

Dr. Maurice W. Rosenberg appeals from a judgment of conviction entered on April 15, 1974, in the Central District of California, following a jury trial at which he was found guilty of 27 counts of distributing a controlled substance in violation of 21 U.S.C. § 841 (a)(1). 1 Dr. *192 Rosenberg was sentenced to concurrent terms of two years in prison for each violation and was fined $20,000. Imposition of the prison sentences was suspended and payment of the fine was stayed pending appeal. Dr. Rosenberg argues that the statute under which he was convicted is unconstitutional, that there was insufficient evidence to convict him of violating that statute, and that his right against self incrimination was violated. We affirm.

Rosenberg was a seventy-five year old doctor who had been practicing medicine in California for approximately 50 years. During 1973 the doctor was visited by five undercover agents working for the California Bureau of Narcotics, Department of Justice, and Department of Consumer Affairs. 2 The investigators used a total of seven names with two agents using the same name.

Of course, we review the evidence in the light most favorable to the government.…

(dissenting):

I respectfully dissent.

In my view, the clear holding of United States v. Moore, 505 F.2d 426 (D.C. Cir.1974), cert. granted, - U.S. -, 95 S.Ct. 1166 , 43 L.Ed.2d 392 (1975), completely destroys any statutory basis for Dr. Rosenberg’s convictions. Moore holds, with one judge dissenting, that Congress did not intend to subject licensed, registered physicians to the harsh, generally-applicable penal sanctions of 21 U.S.C. § 841 for alleged offenses arising from their prescribing controlled substances that have accepted uses in medical treatment. My intensive review of the complete structure of Title II of the Drug Abuse Prevention and Control ■ Act of 1970 (hereinafter “the Act” or “the 1970 Act”), 21 U.S.C. § 801 et seq., in which section 841 1 appears, convinces me, beyond question, that the conclusion reached by the majority in Moore is correct and that, hence, the majority’s disposition of the present appeal cannot be logically sustained.

I. Statutory Analysis

In the 1970 Act, Congress undoubtedly intended to strike a hard blow at drug traffickers. Nevertheless, Congress had before it a competing consideration, which is listed first among its findings and…

515 F.2d 190 33 A.L.R.Fed. 196 UNITED STATES of America, Plaintiff-Appellee, v. Maurice W. ROSENBERG, M.D., Defendant-Appellant. No. 74-2197. United States Court of Appeals, Ninth Circuit. March 31, 1975. Michael D. Nasatir (argued), Beverly Hills, Cal., for defendant-appellant. Michael Mayoch, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee. OPINION Before LUMBARD, * ELY and WRIGHT, Circuit Judges. LUMBARD, Circuit Judge: 1 Dr. Maurice W. Rosenberg appeals from a judgment of conviction entered on April 15, 1974, in the Central District of California, following a jury trial at which he was found guilty of 27 counts of distributing a controlled substance in violation of 21 U.S.C. § 841 (a)(1). 1 Dr. Rosenberg was sentenced to concurrent terms of two years in prison for each violation and was fined $20,000. Imposition of the prison sentences was suspended and payment of the fine was stayed pending appeal. Dr. Rosenberg argues that the statute under which he was convicted is unconstitutional, that there was insufficient evidence to convict him of violating that statute, and that his right against self incrimination was violated. We affirm. 2 Rosenberg was a…