IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ...

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[g]overnment’s theory of prosecution is premised upon an arbitrary conclusion that an online physician questionnaire does not amount to a legitimate physician/patient relationship.” Id. at 8. In response, the government contends (1) the rule of lenity does not apply and (2) Kanner’s emphasis on the “Internet” aspect of the moving defendants’ activities is misplaced because the case is not about the propriety of issuing prescriptions over the Internet, but instead, involves the question of whether Defendants conspired to distribute controlled substances outside the usual course of medical practice and without a legitimate medical purpose. VI. ANALYSIS A. Overview Of Relevant Portions Of CSA The CSA defines a “controlled substance” as “a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter.” 21 U.S.C. § 802(6). The placement of a controlled substance within one of the abovereferenced schedules depends in part on the substance’s “potential for abuse,” whether it has an “accepted medical use” and whether there is a possibility of physical or psychological dependence on the controlled substance. Id. § 812(b)(1)-(5). Schedule I substances have “a high potential for abuse,” a lack of “currently accepted medical use in treatment in the United States” and “a lack of accepted safety for use of the drug or other substance under medical supervision.” Id. § 812(b)(1). At the other end of the spectrum are Schedule V substances, which have “a low potential for abuse relative to the [. . .] substances in schedule IV,” “a currently accepted medical use in treatment in the United States” and, in the event of abuse, “may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.” Id. § 812(b)(5). The substances at issue in the instant action, Schedule III and Schedule IV substances, fall between these two categories. Schedule III substances have less potential for abuse than Schedule I and II substances, a current accepted medical use in the United 14
States and, in the event of abuse, a “moderate or low physical dependence or high psychological dependence.” Id. § 812(b)(3). Schedule IV substances have a smaller risk for potential abuse than Schedule III substances, an accepted medical use and, if abused, “may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.” Id. § 812(b)(4). Section 841 of the CSA provides: “it shall be unlawful for any person knowingly or intentionally [. . .] to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance[.]” Id. § 841(a)(1). However, a person may lawfully distribute or dispense a controlled substance by issuing a “prescription,” which is “an order for medication which is dispensed to or for an ultimate user[.]” 21 C.F.R. § 1300.01(b)(35). Section 1306.04(a) sets forth the parameters for the lawful issuance of a controlled substance pursuant to a prescription and provides: A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests 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 309 of [the CSA] and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances. 21 C.F.R. § 1306.04(a) (emphases added). The moving defendants contend the CSA as applied to them is unconstitutionally vague because the CSA does not contain the language “legitimate medical purpose” and “usual course of his professional practice” and because these phrases are not defined in the CSA or the applicable regulations. 15
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: 2 charged the original Defendants w
Page 5 and 6: Rule 12. Pleadings and Pretrial Mot
Page 7 and 8: 2. Money laundering conspiracy Betw
Page 9 and 10: distributed at least 180,430 Schedu
Page 11 and 12: C. Jacqueline Devine At all times r
Page 13: Indictment instead relies upon admi
Page 17 and 18: practice. Moore, 423 U.S. at 124 &
Page 19 and 20: with criminal conduct under the CSA
Page 21 and 22: absence of a definition of “legit
Page 23 and 24: Fuchs, 467 F.3d at 905 (affirming c
Page 25 and 26: vague state of the statutes and reg
Page 27: IT IS SO ORDERED. DATED this 22nd d

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN ...

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