COMMONWEALTH vs. MICHAEL R. BROWN.

DREBEN, J. The defendant, a physician, appeals from his convictions on multiple charges of illegally prescribing controlled substances in violation of G. L. c. 94C, §§ 32A(a) and 32B(a), [Note 1]

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from his convictions of submitting false medical claims in violation of G. L. c. 118E, § 40(2), and from his conviction of larceny of an amount in excess of $250. [Note 2], [Note 3] All except two of the indictments were tried to a jury. Subsequent to the jury trial, the same judge heard the remaining two indictments. These two charged drug offenses and were dependent on the admission of an audio-video recording that the defendant claims was inadmissible. [Note 4] We affirm the convictions.

1. Violation of G. L. c. 94C on indictments tried to a jury. Pointing to the statutory definitions of "dispense" and "ultimate user" in G. L. c. 94C, § 1, the defendant claims that his convictions were not supported by the evidence. He does not seriously dispute that there was evidence that he prescribed the drugs and that the prescriptions were not written in good faith for legitimate medical purposes. [Note 5] Rather, he asserts what he terms an issue of

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law, namely, that he cannot be convicted of illegally dispensing the drugs, under the definitions in § l of c. 94C. Those definitions in relevant part state:

" 'Dispense', [means] to deliver a controlled substance to an ultimate user or research subject . . . by a practitioner or pursuant to the order of a practitioner, including the prescribing and administering of a controlled substance. . ." (emphasis supplied).

" 'Ultimate user', [means] a person who lawfully possesses a controlled substance for his own use or for the use of a member of his household. . . ."

G. L. c. 94C, § 1, as amended through St. 1972, c. 806, § 3; G. L. c. 94C, § 1, inserted by St. 1971, c. 1071, § 1.

The defendant argues that the evidence is insufficient to support the convictions for false prescribing by unlawfully "dispensing" controlled substances because the evidence fails to establish that the "ultimate users" were lawful possessors of such substances. [Note 6] Although the statute presents difficulties when only the definitions of "ultimate user" and "dispense" [Note 7] are examined, the defendant's conclusion is not in accord with the interpretation given to the statute by our cases.

Recognizing that G. L. c. 94C poses certain problems, our cases emphasize that the separate provisions of the statute must be read in context with its other provisions in order to construe

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the statute as a harmonious whole. General Laws c. 94C, § 32A(a), as amended through St. 1982, c. 650, § 7, the statute the defendant principally is charged with violating, provides:

"(a) Any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance in Class B of section thirty-one shall be punished by imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than two and one-half years, or by a fine of not less than one thousand nor more than ten thousand dollars, or both such fine and imprisonment." [Note 8]

As noted in Commonwealth v. Perry, 391 Mass. 808 , 812 n.3 (1984):

"General Laws c. 94C, §§ 32-32G, standing alone, would appear to prohibit the delivery by a physician to a patient of medically necessary prescriptions in all instances. However, those sections must be read in conjunction with G. L. c. 94C, §§ 7, 9, 18, 19, 24, 25, and 26. When read together, the several sections provide that a registered physician is authorized to prescribe medically necessary controlled substances if required procedures are followed, but not otherwise."

See Commonwealth v. Kobrin, 72 Mass. App. Ct. 589 , 595 (2008).

In Commonwealth v. Comins, 371 Mass. 222 , 226 (1976), cert. denied, 430 U.S. 946 (1977), the defendant made an argument similar to the contention of the present defendant. Pointing to the statutory definitions, he argued that a practitioner can be charged with dispensing only when the delivery is a lawful one. Id. at 225. The court, however, noted, "If 'dispensing' only can be a lawful act under G. L. c. 94C, it is difficult to explain why the word appears in § 32 to describe unlawful conduct." Id. at 226. Rejecting the defendant's claim and emphasizing

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that the word "lawful," while originally contained in the statutory definition, was deleted by the Legislature in 1972, the court held that "[a] physician who issues a prescription not intending to treat a patient's condition in the usual course of his practice of medicine does not issue a valid prescription, and he thus violates § 32." Id. at 232. "A physician who unlawfully issues a prescription for a controlled substance may 'dispense' a controlled substance. . . . There is nothing in [the] definition which indicates that the controlled substance or the prescription must be delivered lawfully." Id. at 226. The court then gave an expansive interpretation of "ultimate user," holding that undercover police officers given unlawful prescriptions, i.e., prescriptions not for legitimate medical purposes, were in lawful possession of the drugs. Id. at 230-231.

Subsequently, the court in Commonwealth v. Chatfield-Taylor, 399 Mass. 1 , 4 n.4 (1987), stated, "Both [G. L. c. 94C,] §§ 19 and 32A[,] are involved in the crime of unlawful dispensing of a controlled substance." Section 19(a), as amended through St. 1982, c. 650, § 1, provides:

"A prescription for a controlled substance to be valid shall be issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances shall be upon the prescribing practitioner, but a corresponding responsibility shall rest with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section one and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided by sections thirty-two, thirty-two A, thirty-two B, thirty-two C, thirty-two D, thirty-two E, thirty-two F, thirty-two G, and thirty-two H, as applicable."

Without mention of the term "ultimate user," the court in Chatfield-Taylor explicitly stated that "[t]he essential elements of the crime of unlawful dispensing of a controlled substance are set out in G. L. c. 94C, § 19" (footnote omitted). 399 Mass.

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at 4. Commonwealth v. Pike, 430 Mass. 317 , 318, 321 (1999), is to the same effect.

The Massachusetts Superior Court Criminal Practice Jury Instructions § 2.49.5, Supplemental Instruction (c) (Mass. Continuing Legal Educ. 1999 & Supp. 2003), are in accord, stating:

"The word 'dispense' means the unlawful delivery of a controlled substance to an ultimate user by a practitioner, or pursuant to the order of a practitioner, including the prescribing and administering of a controlled substance."

The jury instructions do not define ultimate user. The comment to the instruction, other than setting forth the full definition of dispense in G. L. c. 94C, § 1, refers only to Commonwealth v. Pike, 430 Mass. at 321-322, and to note 3 of Commonwealth v. Perry, 391 Mass. at 812, set forth above, to the effect that when read together the several sections of the statute provide that a registered physician is authorized to prescribe medically necessary controlled substances if required procedures are followed, but not otherwise. "Dispense" in our cases has thus been construed to encompass the elements in G. L. c. 94C, § 19, without reference to the definition of ultimate user.

This also is the prevailing view under the Federal law. The Federal Controlled Substance Act defines "dispense" [Note 9] in language more problematic than the Massachusetts definition and has a very similar definition for "ultimate user." [Note 10] See 21 U.S.C. § 802 (10), (27) (2006). Both the Massachusetts statute and the Federal statute define "distribute" as to deliver, other than by administering or dispensing, a controlled substance. See G. L. c. 94C, § 1; 21 U.S.C. § 802(11) (2006). [Note 11]

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Without discussing the form of the indictment that charged the defendant with "knowing and unlawful distribution and dispensation" of controlled substances, the United States Supreme Court in United States v. Moore, 423 U.S. 122, 124 (1975), held that the defendant, a registered physician, could be prosecuted under 21 U.S.C. § 841 for dispensing or distributing controlled substances. Prior to that decision, the United State Courts of Appeals for the First and the Ninth Circuits, based on the term "lawful" in the Federal statutory definition of "dispense," see note 9, supra, held that "distribution" is the offense committed by a defendant physician who writes prescriptions not in the course of professional medical practice. See United States v. Badia, 490 F.2d 296, 298 (1st Cir. 1973); United States v. Black, 512 F.2d 864, 866 (9th Cir. 1975). Later cases in both circuits diluted the distinction. See United States v. Limberopoulos, 26 F.3d 245, 247 (1st Cir. 1994) (conspiring to dispense); United States v. Feingold, 454 F.3d 1001, 1003, 1010-1011 (9th Cir.), cert. denied, 549 U.S. 1067 (2006) (convicted of distribution but broad language). The majority of United States Courts of Appeals that have addressed the issue have affirmed convictions in cases charging "distribution" as well as in cases charging "dispensing" or have upheld cases charging "dispensing or distribution." [Note 12]

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The model Federal jury instructions for dispensing, see 3 Sand, Modern Federal Jury Instructions -- Criminal 56-15 (2008) (set forth in the margin [Note 13]), contain the words "dispensed or distributed,"

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but do not mention "ultimate user." The comment to the instruction states: "The better view, and the one adopted here, is that dispensing is the distribution of drugs by a practitioner, and so, that a practitioner can be charged with either dispensing or distributing. Thus, as far as practitioners are concerned, 'the terms dispense and distribute . . . have no functional difference.' " Id. at 56-40, quoting from United States v. Fellman, 549 F.2d 181, 182 (10th Cir. 1977). In Commonwealth v. Comins, 371 Mass. at 227 n.6, after discussing Federal cases that distinguish between distributing and dispensing, the Supreme Judicial Court expressed a similar view, stating: "[T]he choice of words should not be permitted to become crucial, and judicial time can be better spent trying to resolve more important questions."

After considering both the Massachusetts and Federal cases, we conclude that the most rational construction of this problematic statute, [Note 14] and the one which best furthers the intent of the

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Legislature, is to construe G. L. c. 94C, § 19, which deals comprehensively with prescriptions, as an amplification of the words "including the prescribing . . . of a controlled substance," contained in the definition of "dispense." As stated by our cases, § 19 sets forth the elements of the offense of dispensing in the circumstances of physicians writing prescriptions for other than a legitimate medical purpose. [Note 15]

The defendant may not claim prejudice by this construction. The indictments were clear and sufficient. See Commonwealth v. Comins, 371 Mass. at 224-225; G. L. c. 277, § 38. The defendant's actions were unlawful under G. L. c. 94C, § 19. Whatever the label, the defendant knew which of his actions were involved, and the Commonwealth's theory was evident from the start. Cf. Commonwealth v. De La Cruz, 15 Mass. App. Ct. 52 , 57 (1982) (no possible risk of a miscarriage of justice because indictments alleged distribution rather than dispensing). [Note 16]

2. Medicaid violations. As the defendant points out in his brief, the "Medicaid Fraud" indictments depend upon the "False Prescribing" indictments. Accordingly, since we have upheld

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those convictions in part 1 of this opinion, the Medicaid fraud convictions as well as the larceny conviction are affirmed.

3. Motion to suppress audio-video recording. The recording in question was not in evidence at the jury trial, but was only in evidence for the bench trial. The motion judge (who was also the trial judge) found that the recording of the defendant made on July 1, 2005, was obtained as part of an investigation that "was [F]ederally run from start to finish." His subsidiary findings support this ultimate finding and were not clearly erroneous. Accordingly, he was correct in ruling that the admissibility of the tape was governed by Commonwealth v. Gonzalez, 426 Mass. 313 , 314 (1997). [Note 17]

Judgments affirmed.

MILLS, J. (concurring in part and dissenting in part). I agree with the majority that the defendant's convictions for Medicaid fraud and larceny should stand, and that his motion to suppress was properly denied. I must respectfully dissent, however, from the portion of the majority opinion that affirms the defendant's convictions under G. L. c. 94C, §§ 32A(a) and 32B(a). In my view, the express text of G. L. c. 94C, § 1, precludes a ruling that the crimes of dispensing and distributing are interchangeable. [Note Mills-1] Massachusetts cases addressing that point directly are in agreement. Here, whether correctly or otherwise, the illegal prescribing indictments were presented to the jury strictly as dispensing charges. [Note Mills-2] Unambiguous statutory text and pertinent Massachusetts case law are in accord that dispensing, by definition,

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does not occur unless the recipient of the controlled substance belongs to a narrow, statutorily defined, class of people. That requirement may indeed be hypertechnical. It remains, however, an element of the offense presented to the jury. Moreover, as the majority acknowledges, defense counsel assiduously brought this point to the attention of the prosecutor and trial judge.

On appeal, the defendant contends that the evidence at trial was insufficient to prove that those who received the defendant's supposed prescriptions belonged to the class of people to whom controlled substances have the capacity to be dispensed, and that dispensing therefore had not been proved beyond a reasonable doubt. I agree. The Commonwealth presented no evidence directly on the point, and the evidence that it presented on other points, where relevant, tended to show that the recipients of the defendant's false prescriptions were not people to whom the delivery of controlled substances would constitute dispensing as that term is defined by statute. Neither the prosecutor nor the judge acknowledged the statutory definition of dispensing, and despite the defendant's objections the jury were not instructed that the word carried a specialized meaning distinct from that which it has in everyday parlance. For these reasons, I would reverse the illegal prescribing convictions for want of legally sufficient evidence. Even if the evidence were sufficient, I would set aside the verdicts on the illegal prescribing charges and remand for a new trial, as the jury instructions provided in this case omitted an element required to establish the crime of dispensing. See Commonwealth v. Azar, 435 Mass. 675 , 689 (2002). In turn, I shall discuss the statutory definition of dispensing and then explain why, in my view, the construction adopted by the majority is inconsistent not only with the text of the statute itself, but also with applicable Massachusetts law.

1. Definition of dispensing. The defendant was charged with violating G. L. c. 94C, §§ 32A and 32B. These sections criminalize all knowing or intentional manufacture, distribution, or dispensation of certain controlled substances, along with the possession of these substances with an intent to manufacture, distribute, or dispense them. Section 19(a) of G. L. c. 94C, inserted by St. 1971, c. 1071, § 1, exempts from criminal liability all

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dispensing that occurs by means of a prescription, which by the § 19 definition is "issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice." [Note Mills-3]

Manufacturing, distributing, and dispensing each are terms of art defined in G. L. c. 94C, § 1. For our purposes, any delivery that is not a dispensation is a distribution. [Note Mills-4] To dispense is "to deliver a controlled substance to an ultimate user or research subject or to the agent of an ultimate user or research subject by a practitioner or pursuant to the order of a practitioner, including the prescribing and administering of a controlled substance and the packing, labeling, or compounding necessary for such delivery." [Note Mills-5] G. L. c. 94C, § 1, as amended through St. 1972, c. 806, § 3. Dispensing via delivery to a research subject or to an agent of any kind shall not be discussed further, as there is no evidence that any such delivery occurred in this case. Therefore, if the defendant dispensed, he must have done so to an "ultimate user." [Note Mills-6] An ultimate user, as defined by § 1, is "a person who lawfully

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possesses a controlled substance for his own use or the use of [specified others]" (emphasis supplied).

The defendant argues that the Commonwealth's own evidence established that the patients to whom the defendant allegedly dispensed were not lawful possessors, and therefore could not have been ultimate users. The result, then, would be that no dispensing had occurred. The defendant contends that the patients could not have been lawful possessors because G. L. c. 94C, § 33(b), as amended through St. 1974, c. 102, renders it criminal to "knowingly or intentionally acquire or obtain possession of a controlled substance by means of forgery, fraud, deception or subterfuge, including . . . nondisclosure of a material fact in order to obtain a controlled substance from a practitioner." There is evidence suggesting such machinations by some of the patients. But, more to the point, the burden here is on the Commonwealth, which ignored the necessary element and, consequently, offered neither such evidence below nor argument here, so that the record does not permit a finding that any of the patients to whom the defendant allegedly dispensed would have been a lawful recipient (and, hence, an ultimate user) of the controlled substances at issue. Commonwealth v. Latimore, 378 Mass. 671 , 677-678 (1979). As such, the convictions for dispensing are not supported by the evidence and ought to be reversed.

2. Construction of G. L. c. 94C. As an initial matter, I agree with the majority that the various sections of G. L. c. 94C, when read together, make it clear that "a registered physician is authorized to prescribe medically necessary controlled substances if required procedures are followed, but not otherwise." Ante at 80. However, it does not therefore follow that all conceivable transgressions of that rule constitute dispensing, which has an unambiguously particularized meaning. Some transgressions

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may constitute dispensing, but others will constitute distributing. The distinction itself may seem trivial, but the principle that requires it to be observed is fundamental. The courts must ensure that convictions have integrity, and that process entails demanding proof of all elements, trivial or otherwise, beyond a reasonable doubt. The specter of prosecutors being found to have come "close enough" is not an eventuality to be taken lightly.

It is unlikely, therefore, that the court's admonition in Commonwealth v. Comins, 371 Mass. 222 , 227 n.6 (1976), cert. denied, 430 U.S. 946 (1977), that "the choice of words [i.e., dispense or distribute] should not be permitted to become crucial," was intended to mean that courts should overlook the express text of G. L. c. 94C, § 1, and treat the words "dispense" and "distribute" as synonyms. First, the purpose of the court's comment was to encourage amendment of the statute. Second, the principal question presented in Comins was whether any doctor, in any circumstance, could be charged with the offense of dispensing. The comment, it seems, was addressed strictly to that aspect of the controversy. When the time came to evaluate the sufficiency of the evidence as to each element of dispensing, the court treated the "ultimate user" requirement quite seriously. Indeed, part of the court's holding was that undercover police officers, when acting within the scope of their investigatory duties, qualified as ultimate users within the meaning of § 1. Id. at 231.

I acknowledge the majority's citation to Commonwealth v. Chatfield-Taylor, 399 Mass. 1 , 4 (1987), wherein the court stated that "[t]he essential elements of the crime of unlawful dispensing are set out in G. L. c. 94C, § 19, which states that '[a] prescription for a controlled substance [is valid if it is] issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice' " (footnote omitted). The issue in Chatfield-Taylor, however, was whether the evidence at trial sufficed to prove that the defendant was a practitioner. Id. at 5-6. The elements of the offense were, quite simply, not in dispute. Similar is the case of Commonwealth v. Pike, 430 Mass. 317 (1999), relied upon by the majority for the same proposition. The elements of dispensing were not contested in Pike, where the sufficiency of the evidence dispute concerned

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whether the prosecution had carried its burden to show bad faith or lack of medical purpose. Id. at 321.

By contrast, where the court has addressed the issue squarely, it has stated with absolute clarity that lawful possession by the recipient of controlled substances is an element of the crime of dispensing. I have already discussed the Comins case, supra. Even more compelling is Commonwealth v. Perry, 391 Mass. 808 , 812 (1984), wherein the court held that a physician, who prescribed controlled substances to himself without medical justification, could not be convicted of dispensing because he did not possess the controlled substances lawfully and thus did not satisfy the definition of an ultimate user. The court there stated that "a physician 'dispenses,' within the meaning of our controlled substances statute, only if he or she prescribes a controlled substance for someone whose possession will be lawful." Ibid.

Notwithstanding the various interpretations given to the analogous provisions of the Federal Controlled Substances Act in the United States Code, it is my conclusion that the Massachusetts statute, and pertinent decisional law, compel a result other than that reached by the majority. As such, I respectfully dissent.

3. Charges for Medicaid fraud and larceny. In connection with the various prescriptions and office visits found by the jury to have been without an intended medical purpose, the defendant was convicted of Medicaid fraud (G. L. c. 118E, § 40) and larceny over $250 (G. L. c. 266, § 30). These crimes, unlike that of unlawful dispensing, do not have an "ultimate user" element. The Commonwealth presented evidence sufficient to prove each element of these crimes, and therefore I agree with the majority that these convictions must be affirmed.