United States v. Clinical Leasing Service, Inc.
Opinion of the Court
ON SUGGESTIONS FOR REHEARING EN BANC
Clinical Leasing Service, Inc., and three affiliated doctors, Kiat Varnishung, Roy Claude Wood, Jr., and Richardson B. Glid-den, appeal the district court’s imposition of civil penalties for the dispensation of controlled substances without proper registration. On March 1,1991, this Court ruled that the judgment of the district court was based upon findings of fact which were not clearly erroneous and, therefore, affirmed under Local Rule 47.6 the district court’s decision. United States v. Clinical Leasing Service, Inc., 925 F.2d 120 (5th Cir. 1991). The defendants have subsequently filed petitions for rehearing en banc. While we are persuaded that the defendants’ petition does not change the original disposition of their appeal, we find it necessary to clarify our original opinion.
(a) A separate registration is required for each principal place of business or professional practice at one general physical location where controlled substances are manufactured, distributed, or dispensed by a person.
(b) The following locations shall be deemed not to be places where controlled substances are manufactured, distributed, or dispensed:
(3) An office used by a practitioner (who is registered at another location) where controlled substances are prescribed but neither administered nor otherwise dispensed as a regular part of the professional practice of the practitioner at such office, and where no supplies of controlled substances are maintained.
Id. (emphasis added). This Court in its original opinion concluded that these federal registration provisions are not unconstitutionally vague. Clinical Leasing Service, Inc., 925 F.2d at 123.
In their petitions for rehearing, the defendants argue that this Court did not properly analyze the federal registration provisions. Isolating a particular paragraph in the original opinion, the defendants emphasize this Court’s conclusion that the federal registration provisions apply to “each important or consequential place of business where the physician distributes controlled substances.” Id. (citing Webster’s New Collegiate Dictionary 908 (1979)) (emphasis in original). The defendants contend that, even under the Court’s interpretation, the federal registration provisions are unconstitutionally vague because they do not provide standards that determine whether a place of business is “important” or “consequential.”
The defendants’ argument lacks merit. Every statute, whether civil or criminal, raises questions of interpretation. The fact that a statute fails to define its precise boundaries in every conceivable situation does not invalidate the statute. This Court will sustain a vagueness challenge only if the federal registration provisions are im-permissibly vague in all of their applications. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). As we noted in our original opinion, the registration provisions require that a physician register separately “at each physical location in which he administers controlled substances as a regular part of his professional practice.” Clinical Leasing Service, Inc., 925 F.2d at 122. If a physician intends to dispense controlled substances from a particular location several times a week or month, he must first file a separate registration for the location. This aspect of the registration provisions is beyond cavil. Since the registration provi
Perhaps in some cases it may be unclear whether a physician is subject to the registration provisions.
Treating the suggestions for rehearing en banc as petitions for panel rehearing, it is ordered that the petition for panel rehearing is DENIED. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestions for Rehearing En Banc are DENIED.
. Dr. Varnishung contends that 21 U.S.C. § 842(a)(2), the penalty provision under which he was punished, does not apply to his conduct. He maintains that this section "speaks only to registrants, who, by virtue of their registration, are already authorized to distribute or dispense drugs" and does not prohibit the distribution of controlled substances by an unregistered physician. We agree. Section 842(a)(1), and not section 842(a)(2), is the appropriate penalty provision for the unlicensed dispensation or distribution of controlled substances. United States v. Moore, 423 U.S. 122, 134 n. 11, 96 S.Ct. 335, 341 n. 11, 46 L.Ed.2d 333 (1975); United States v. Fooladi, 746 F.2d 1027, 1032 (5th Cir. 1984). Nonetheless, we do not find that this error requires reversal. Dr. Varnishung presented this issue for the first time in his reply brief. “In the absence of manifest injustice, this court will not consider arguments belatedly raised after appellees have filed their brief.” Najarro v. First Federal Savings and Loan, 918 F.2d 513, 516 (5th Cir. 1990). Dr. Varnishung's conduct, although it did not support punishment under section 842(a)(2), supports punishment under section 842(a)(1). The punishment of illegal conduct under the wrong statutory penalty provision is not manifest injustice.
. Admittedly, in many cases, the facts will not clearly demonstrate whether a physician performed proscribed actions as a "regular part of his professional practice." 21 C.F.R. § 1301.23. This, however, is a classic question of fact for a factfinder and does not alter the vagueness analysis. The term "regular part of his professional practice" is sufficiently definite that an ordinary physician would understand what conduct was covered. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).
Reference
- Full Case Name
- United States v. CLINICAL LEASING SERVICE, INC. d/b/a Delta Women's Clinic, Inc. and Delta Women's Clinic, Delta Women's Clinic, Inc., Kiat Varnishung, M.D., Roy Claude Wood, Jr., M.D., Richardson B. Glidden, M.D.
- Cited By
- 1 case
- Status
- Published