United States v. David S. King, United States of America v. Stanley E. Deal, M. D.

587 F.2d 956 UNITED STATES of America, Appellee, v. David S. KING, Appellant. UNITED STATES of America, Appellee, v. Stanley E. DEAL, M. D., Appellant. Nos. 77-2611, 77-2612. United States Court of Appeals, Ninth Circuit. July 31, 1978. Rehearing and Rehearing En Banc Denied Dec. 14, 1978. R. Allen Beck (argued), of Moses, Tolliver & Wright, Billings, Mont., W. Randell Mainor (argued), Las Vegas, Nev., for appellant. Helena S. Maclay, Asst. U. S. Atty. (argued), Billings, Mont., for appellee. Appeals from the United States District Court from the District of Montana. Before ELY and CHOY, Circuit Judges, and HALL, * District Judge. ELY, Circuit Judge: 1 In a jury trial appellants King and Deal were convicted of conspiracy to possess cocaine with intent to distribute it. 21 U.S.C. § 846 (1976). The indictment charged seven persons. Three defendants, including one Shaw, pleaded guilty. Charges against another defendant were dismissed. The jury acquitted a remaining defendant named Bresnahan but convicted King and Deal. 2 King and Deal were sentenced to ten-year terms in custody and five-year special parole terms. On appeal King challenges the admission into evidence of…

In a jury trial appellants King and Deal were convicted of conspiracy to possess cocaine with intent to distribute it. 21 U.S.C. § 846 (1976). The indictment charged seven persons. Three defendants, including one Shaw, pleaded guilty. Charges against another defendant were dismissed. The jury acquitted a remaining defendant named Bresnahan but convicted King and Deal.

King and Deal were sentenced to ten-year terms in custody and five-year special parole terms. On appeal King challenges the admission into evidence of various tape recordings.

Deal presents five arguments which concern the sufficiency of the indictment, the sufficiency of the evidence, the failure of the trial court to give instructions about immunized witnesses, the propriety of a government agent’s pretrial interview of a witness, and the admissibility of character evidence of Deal’s gullability and compassion. Concluding that the first two issues should be resolved in Deal’s favor, we do not address the other three.

FACTS

Dr. Deal is a licensed physician who, apparently, is registered with the Drug Enforcement Agency (DEA) to prescribe drugs for controlled substances. 1 In springtime of 1976, Deal learned that…

concurring in part; dissenting in part:

I concur in that portion of the majority opinion affirming appellant King’s conviction.

However, I respectfully dissent from that portion of the opinion vacating the judgment of conviction as to appellant Deal. The majority holds that:

I. Sufficiency of the Indictment

I conclude that it was not necessary to charge lack of authorization in the indictment. As a medical exception under 21 U.S.C. § 822 (b), lack of authorization was not required to be included in the indictment. 21 U.S.C. § 885 (a)(1) states in part:

(Emphasis added.)

Before the Government assumed the burden of proof on the medical exception carved out in § 822(b), it was imperative that Deal first introduce sufficient evidence to place the applicability of the medical exception in issue. Section 885(a)(1) further requires that “the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit” (in this case, Deal).

Since the Government could not anticipate whether Deal would present sufficient evidence to claim the medical exception, the issue of lack of authorization could only become an element…