B. Clarence Mayfield, Robert E. Barker, Savannah, Ga., for defendant-appellant.

R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., Savannah, Ga., for plaintiff-appellee.

Before COLEMAN and SIMPSON, Circuit Judges, and ESTES, District Judge.

Dr. Henry M. Collier, Jr., a physician authorized to dispense controlled substances, pleaded guilty to six counts of violating 21 U.S.C. Sec. 841(a)(1) by distributing a controlled substance, methadone, a synthetic opiate,1 while not acting in the usual course of his professional practice and was fined $20,000. Dr. Collier's appeal consists exclusively of a multi-faceted attack upon the constitutionality of 21 U.S.C. Sec. 841(a)(1) as applied to physicians.

Dr. Collier's primary contention is that Sec. 841(a)(1), as applied to physicians, is unconstitutionally vague. This argument centers on the basis that Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the regulations issued pursuant to the act2 make it illegal for a physician to dispense directly to the ultimate user a schedule II controlled substance other than "in the course of his professional practice." Appellant contends that those words do not warn the physician of what conduct is proscribed, and that the statute is without objective standards and is subject to diverse interpretation. Although this issue has not been previously determined concerning the present act, the same standard has been judicially interpreted in prior federal drug statutes.3 Manifestly the language "in the course of professional practice" is intended to limit the immunity of a licensed practitioner. It is apparent that a licensed practitioner is not immune from the act solely due to his status, White v. United States, 399 F.2d 813 (8 Cir. 1968), but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional practice of medicine. A physician is restricted to dispensing or prescribing drugs in the bona fide treatment of a patient's disease, including a dispensing of a moderate amount of drugs to a known addict in a good-faith attempt to treat the addiction or to relieve conditions or suffering incident to addiction. Linder v. United States, 268 U.S. 5, 45 S. Ct. 446, 69 L. Ed. 819 (1925); Boyd v. United States, 271 U.S. 104, 46 S. Ct. 442, 70 L. Ed. 857 (1926); United States v. Brandenburg, 155 F.2d 110 (3 Cir. 1946); Strader v. United States, 72 F.2d 589 (10 Cir. 1934). However, under the guise of treatment a physician cannot sell drugs to a dealer nor distribute drugs intended to cater to cravings of an addict. Jin Fuey Moy v. United States, 254 U.S. 189, 41 S. Ct. 98, 95 L. Ed. 214 (1920); United States v. Doremus, 249 U.S. 86, 39 S. Ct. 214, 63 L. Ed. 493 (1919); Webb v. United States, 249 U.S. 96, 39 S. Ct. 217, 63 L. Ed. 497 (1919); United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L. Ed. 619 (1922). Congress did not intend for doctors to become drug "pushers." United States v. Warren, 453 F.2d 738 (2 Cir.), cert. denied, 406 U.S. 944, 92 S. Ct. 2040, 32 L. Ed. 2d 331 (1972); White v. United States, 399 F.2d 813 (8 Cir. 1968).

*****

* * *

*****

* * *

*****

* * *

*****

* * *

In making a medical judgment concerning the right treatment for an individual patient, physicians require a certain latitude of available options. Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 747, 35 L. Ed. 2d 201 (1973). Hence, "[w]hat constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances." Linder v. United States, supra, 268 U.S. at 18, 45 S. Ct. at 449.

That statutes affecting medical practice need not delineate the precise circumstances constituting the bounds of permissible practice is clearly illustrated by two recent cases in which the Supreme Court was called upon to consider whether certain abortion statutes were unconstitutionally vague in distinguishing between legal and illegal abortions. In United States v. Vuitch, 402 U.S. 62, 91 S. Ct. 1294, 28 L. Ed. 2d 601 (1971), a District of Columbia statute made abortions illegal unless "necessary for the preservation of the mother's life or health." The Court held that the term "health" included psychological as well as physical well-being and, holding that the statute presented no problem of vagueness, concluded:

"Indeed, whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered."

402 U.S. at 72, 9 S. Ct. at 1299.

In Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), a Georgia statute which provided that it was illegal for a physician to perform an abortion except "based upon his best clinical judgment that an abortion is necessary" was attacked as vague because the word "necessary" was undefined. The Court held the language not vague because "whether . . . 'an abortion is necessary,' is a professional judgment that the Georgia physician will be called upon to make routinely." 93 S. Ct. at 747. Similarly here the physician must make a professional judgment as to whether a patient's condition is such that a certain drug should be prescribed.

Appellant next contends that the statute violates the Tenth Amendment by invading the state's residual police powers, in particular the power to control medical practice. The Tenth Amendment does not operate upon a valid exercise of power delegated to Congress by the Commerce Clause. Similar attacks upon Sec. 841(a)(1) as invading the police power reserved to the states because the statute does not require a showing that the individual acts prosecuted affected interstate commerce have already been rejected by both the Fifth and Sixth Circuits. United States v. Lopez, 459 F.2d 949 (5 Cir. 1972); United States v. Scales, 464 F.2d 371 (6 Cir. 1972). These cases held that Sec. 841(a) clearly constituted a permissible exercise of Congress's powers under the Commerce Clause. Since Congress itself has already determined that local distribution and possession of controlled substances have a substantial and direct effect upon interstate commerce, 21 U.S.C. Sec. 801, the only function of the courts is to determine whether the particular class of activities regulated is within the federal power. Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971); United States v. Lopez, supra. Appellant is a member of a class with legal access to drugs and a legal right to deliver or authorize delivery of drugs to other persons. An absolute exemption of this class from appropriate controls would enable drugs to be diverted from legitimate channels to an illegal market. For this very purpose Congress fashioned the Comprehensive Drug Control Act to provide "a 'closed' system of drug distribution for legitimate handlers of such drugs. Such a closed system should significantly reduce the widespread diversion of these drugs out of legitimate channels into the illicit market, while at the same time providing the legitimate drug industry with a unified approach to narcotic and dangerous drug control." H.R.Rep.No.91-1444, 91st Cong. 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4571-4572 (1970). Congress could reasonably decide that in order to effectively regulate interstate commerce in drugs, it was necessary to insure that persons within legitimate distribution channels, including the dispensing physicians and pharmacists, did not divert drugs into the illicit market.4

Another contention of Dr. Collier is that the Act unconstitutionally negates the presumption of innocence. Title 21 U.S.C. Sec. 885(a)(1) provides that it shall not be necessary for the prosecution to negative any exemption in the indictment or trial and 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 considering the issue of burden of proof, one must distinguish between the burden of persuasion and the burden of going forward with the evidence. Of course, the burden of persuading the jury beyond a reasonable doubt that the defendant committed every essential element of the offense charged remains upon the prosecution throughout the trial. This precise constitutional attack on the predecessor to the present act was rejected by this Circuit in United States v. Ramzy, 446 F.2d 1184 (5 Cir. 1971). See also, United States v. Rowlette, 397 F.2d 475 (7 Cir. 1968).

Appellant next contends that the maximum punishment established by 21 U.S.C. Sec. 841(b)(1)(A) for violation of Sec. 841(a), 15 years of imprisonment or a $25,000 fine or both for cases involving a schedule II controlled substance, is a cruelly excessive punishment when applied to physicians prescribing methadone for the treatment of heroin addicts. It is unnecessary for us to decide this contention, since appellant was not sentenced to any confinement. Nor can appellant rely upon a Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962), argument that any punishment would be cruel and unusual for he was prosecuted not on the basis of his status as a physician but on the basis that he illegally distributed controlled substances other than in the course of his professional practice. Hence this case does not come within the penumbra of the Robinson decision.5

Dr. Collier's last contention is that there is a constitutionally protected right to privacy in the physician-patient relationship which is violated by the Comprehensive Drug Control Act. We find this contention meritless. Appellant has ignored the fact that the statute does not invade the legitimate doctor-patient relationship when the doctor may dispense or prescribe drugs for medical reasons, but bars only activities outside the physician's professional practice, where a physician acts, in essence, as a "pusher." There is no constitutional protection of such activity.

Therefore, the conviction of Dr. Collier is

Affirmed.