PEOPLE v. ALFORD

WILLIAMS, J.

We are presented with three issues. First is whether there is a delivery under the Michigan Controlled Substances Act (1971 PA 196, MCL 335.341; MSA 18.1070[41] when a physician gives a prescription or dispenses a box of pills. Second is whether a licensed physician can be prosecuted under MCL 335.341(1)(b); MSA 18.1070(41)(1)(b), for unlawful delivery of a controlled substance. The third is whether as a matter of law the defense of entrapment was established.

The appellant, Dr. Alford, was charged with two counts of unlawful delivery of a controlled substance. The first count was for giving prescriptions for 120 capsules containing amphetamines to an undercover police officer in the names of persons never examined by the doctor. The second count was for actually giving 103 capsules containing barbiturates to the same undercover police officer.

The trial court granted a pretrial motion to quash the information finding (1) physicians dispensing and/or prescribing controlled substances are not subject to prosecution under MCL 335.341(1)(b); MSA 18.1070(41)(1)(b) and (2) the appellant was entrapped as a matter of law. The Court of Appeals reversed on both grounds, People v Alford, 73 Mich. App. 604; 251 N.W.2d 314 (1977).

In People v Kerwin, 56 Mich. App. 483; 224 N.W.2d 113 (1974), a panel of the Court of Appeals held physicians were not subject to prosecution under MCL 335.341(1)(b); MSA 18.1070(41)(1)(b). The opposite conclusion was reached by the Court in Alford.

We granted leave to appeal August 31, 1977, 401 Mich. 804 (1977), to resolve a conflict in the Court of Appeals.

We agree with the holding of the Court of Appeals in Alford. Physicians not acting in good faith "in the course of professional practice or research" are prosecutable under MCL 335.341(1); MSA 18.1070(41)(1). We also agree with their determination that the defense of entrapment was not established as a matter of law.

We affirm the Court of Appeals in Alford.

I. FACTS

On March 12, 1973, Justin Kukalis, an officer of the Department of State Police, Intelligence Division, Diversion Investigation Unit, visited Dr. Alford at his office. Kukalis posed as a patient and gave the name James Kase. He complained of being overweight. The doctor weighed him and took his blood pressure by placing the blood pressure cuff over his jacket on his arm. The doctor gave him medication (92 small white and 30 small flat pink double-scored tablets) and a prescription for 30 amphetamine capsules. He did not tell him what the medication was, but gave him directions on dosage, one tablet a day. The doctor told him to return in two weeks. Officer Kukalis paid for the visit.

When the doctor gave Officer Kukalis medication he usually poured the pills into his own hand and then into a small packet or box. He did not count the pills. The number of pills supplied was taken from the testimony of Officer Kukalis.

Officer Kukalis paid for all subsequent visits to Dr. Alford.

As noted by the trial court:

"Kukalis returned on approximately eight or nine occasions thereafter, and on these occasions he was not given a further medical examination, although on some of the return visits he was weighed and on others he was asked about his weight.

"On these occasions when Kukalis returned to Dr. Alford's office, Dr. Alford usually handed Kukalis drugs containing amphetamines. On some occasions he handed Kukalis drugs containing barbiturates, and on some of these occasions he wrote prescriptions for Kukalis for amphetamine drugs."

On June 1, 1973, Kukalis went to the doctor's office. The doctor informed Kukalis he had no amphetamines available and that he did not like writing prescriptions so often. The doctor then wrote a prescription for Kukalis for 30 amphetamine capsules. The doctor asked who else needed a prescription. Kukalis supplied the names and addresses of fictitious people, Neil Harris and Karen Kase. The doctor wrote prescriptions for them. Kukalis then supplied the name Donald Hollis and the doctor supplied an address as he wrote the prescription. Kukalis also requested and received a small white box of red capsules, 59, and some blue and clear capsules, 43.

The four prescriptions received by Kukalis from Dr. Alford on June 1, 1973 were filled by a drug inspector in the Department of Licensing and Regulation assigned to the Diversion Investigation Unit. The drug inspector was a pharmacist. The contents of each prescription were analyzed by the Michigan State Police Scientific Laboratory. Each prescription was for amphetamine sulphate, 30 capsules, a schedule 2 controlled substance.

The medication directly received by Kukalis on June 1, 1973 was also analyzed by the Michigan State Police Scientific Laboratory. The 59 orange capsules contained secobarbital, a schedule 3 controlled substance. The 44 blue and clear capsules contained amobarbital, also a schedule 3 controlled substance.

Based on the drugs received on June 1, 1973, a two-count information was filed against Dr. Alford charging that he (1) "did unlawfully deliver a controlled substance, to-wit: 120 capsules containing amphetamine, contrary to the provisions of MCL 335.341(1)(b);" and (2) "did unlawfully deliver a controlled substance, to-wit: 103 capsules containing barbituates [sic], contrary to the provisions of MCL 335.341(1)(b)".

After the preliminary examination the defendant was bound over for trial on both counts. The defendant filed a motion to quash the information which was granted by the trial court. The judge held that writing prescriptions was not a delivery or constructive delivery within the meaning of MCL 335.341(1)(b); MSA 18.1070(41)(1)(b). The judge also held:

"that this statute either frees licensed physicians, without qualification, to hand out barbiturate drugs, or it permits them to hand out such drugs to people who come to their offices for professional consultation regardless of whether the physicians' conduct falls short of the standards of skill, care and ethics customarily employed by their co-professionals."

In conclusion the judge found:

"as a matter of law, that the defendant was entrapped."

The Court of Appeals reversed the decision of the trial court holding

"that a practitioner is not exempt from prosecution under MCL 335.341(1); MSA 18.1070(41)(1), merely because of his registered status. The practitioner's activities are only protected to the extent they are performed within the course of professional practice." 73 Mich. App. 604, 614.

The Court also found that

"[t]he facts in the case at bar do not indicate the government conduct was of such a nature as to give rise to a finding of entrapment." 73 Mich. App. 604, 615.

II. APPLICABLE PORTIONS OF THE CONTROLLED SUBSTANCES ACT OF 1971

MCL 335.341; MSA 18.1070(41) establishes the basic penalties for violation of the Controlled Substances Act of 1971 and provides in pertinent part:

"(1) Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:

* * *

"(b) Any other controlled substance classified in schedules 1, 2 or 3, except marihuana, is guilty of a felony and upon conviction may be imprisoned for not more than 7 years or fined not more than $5,000.00, or both."

The Commissioners' Note to the Uniform Controlled Substances Act, § 401, the counterpart to our MCL 335.341; MSA 18.1070(41) states:
"The term `delivery' as used in this Section is intended to include both dispensing and distribution as they are defined in Section 101." 9 ULA, Matrimonial, Family and Health Laws, Master Edition, p 267.
Our definition of dispense, MCL 335.304(2); MSA 18.1070(4)(2) parallels the Uniform Controlled Substances Act, § 101(g).

Specific definitions are provided for the terms used in this section:

"`Person' means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity." MCL 335.307(1); MSA 18.1070(7)(1).

"`Deliver' or `delivery' means the actual, constructive or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship." MCL 335.304(1); MSA 18.1070(4)(1).

These provisions must be considered in light of other sections relating to physicians:

"`Practitioner' means:

"(a) A physician, dentist, veterinarian or pharmacist as defined in subdivisions (o), (p), (q) and (w) of section 1 of Act No. 151 of the Public Acts of 1962, as amended, being section 338.1101 of the Compiled Laws of 1948, scientific investigator as defined by rule of the administrator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state." (Emphasis added.) MCL 335.307(3); MSA 18.1070(7)(3).

"`Dispense' means to deliver or issue a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering or compounding necessary to prepare the substance for that delivery or issuance." MCL 335.304(2); MSA 18.1070(4)(2).

"(1) Every person who manufactures, distributes, prescribes or dispenses any controlled substance within this state or who proposes to engage in the manufacture, distribution, prescribing or dispensing of any controlled substance within this state, shall obtain annually a registration issued by the administrator in accordance with its rules.

"(2) Persons registered by the administrator under this act to manufacture, distribute, prescribe, dispense or conduct research with controlled substances may possess, manufacture, distribute, prescribe, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this chapter." MCL 335.332; MSA 18.1070(32).

These sections provide the focal point of our analysis.

III. "DELIVERY" UNDER THE ACT

Counts 1 and 2 charged defendant "did unlawfully deliver a controlled substance". For Count 1, the proofs were that defendant wrote prescriptions for Officer Kukalis and for three fictitious people, with the defendant supplying a fictitious address for the last one. For Count 2, the proofs were that defendant handed or dispensed to Officer Kukalis a box of pills.

Therefore two questions relating to delivery exist: A. Is prescribing delivery? B. Is handing/dispensing delivery?

A. Prescribing

MCL 335.304(1); MSA 18.1070(4)(1), as noted above, reads in part: "`Deliver' * * * means the actual, constructive or attempted transfer * * * of a controlled substance". MCL 335.304(2); MSA 18.1070(4)(2), as noted above, reads in part: "`Dispense' means to deliver * * * by or pursuant to the lawful order of a practitioner, including the prescribing * * *". As a consequence, prescribing is included in the definition of deliver.

B. Handing/Dispensing

The two statutory definitions examined in A. Prescribing also demonstrate that handing or dispensing pills is included within the definition of "deliver".

IV. APPLICATION TO PHYSICIANS

The statute prohibits "any person" from delivering a controlled substance. This blanket prohibition by itself would prevent physicians from dispensing any medication.

The statutory restriction on the delivery of controlled substances is clear. The term "person" as defined by the statute does not exclude physicians or any other group. We find this categorical approach consistent with the legislative desire to establish the most comprehensive system of controls to regulate the use and abuse of controlled substances.

MCL 335.307(1); MSA 18.1070(7)(1).

Physicians, however, do possess a limited exemption from prosecution in MCL 335.332(2); MSA 18.1070(32)(2) which states:

"Persons registered by the administrator under this act to manufacture, distribute, prescribe, dispense or conduct research with controlled substances may possess, manufacture, distribute, prescribe, dispense or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this chapter."

To maintain their exemption they must be in compliance with their registration under the act and conform to the other provisions of the act.

But MCL 335.307(3)(a); MSA 18.1070(7)(3)(a) provides a limitation on their license to dispense controlled substances. This section defines a "practitioner" to include:

"A physician, * * * or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance in the course of professional practice or research in this state." (Emphasis added.)

Therefore physicians must act "in the course of professional practice or research" to retain their limited exemption.

We find support for our interpretation of the Controlled Substances Act of 1971 in United States v Moore, 423 U.S. 122; 96 S Ct 335; 46 L Ed 2d 333 (1975). In Moore a licensed physician registered under the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq., was convicted of a violation of 21 U.S.C. § 841(a)(1) which made it:

"unlawful for any person knowingly or intentionally — * * * to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;".

Compare this language with MCL 335.341; MSA 18.1070(41):
"[I]t is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance."
21 U.S.C. § 841 includes the word "dispense" and the Michigan section does not. But Michigan follows the Uniform Controlled Substances Act which considers dispensing a part of delivery. See footnote 3.

Our act substantially parallels the Federal Controlled Substances Act, 21 U.S.C. § 801 et seq.

The Federal act was the first major overhaul of drug laws to occur in 20 years. It provided the impetus for the adoption of the Uniform Controlled Substances Act in some form by 45 jurisdictions including Michigan. The Commissioners' Prefatory Note to the Uniform Controlled Substances Act states:
"This Uniform Act was drafted to achieve uniformity between the laws of the several States and those of the Federal government. It has been designed to complement the new Federal narcotic and dangerous drug legislation and provide an interlocking trellis of Federal and State law to enable government at all levels to control more effectively the drug abuse problem." 9 ULA, p 146.

The United States Supreme Court extensively analyzed the Federal Controlled Substances Act and its legislative history and held:

"that registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice." 423 U.S. 122, 124.

An interesting question raised by defendant is whether he can be prosecuted under MCL 335.341; MSA 18.1070(41) in light of MCL 335.342; MSA 18.1070(42) which provides:

"(1) It is unlawful for any person:

"(a) Who is subject to chapter 3, to distribute, prescribe or dispense a controlled substance in violation of section 38.

"(b) Who is a registrant, to manufacture a controlled substance not authorized by his registration, or to distribute, prescribe or dispense a controlled substance not authorized by his registration to another registrant or other authorized person, except as authorized by rules promulgated by the administrator.

* * *

"(2) Any person who violates this section may be punished by a civil fine of not more than $25,000.00 in a proceeding in the circuit court. However, if the violation is prosecuted by a criminal indictment which alleges that the violation was committed knowingly or intentionally, and the trier of the fact specifically finds that the violation was committed knowingly or intentionally, such person is guilty of a misdemeanor and upon conviction may be imprisoned for not more than 2 years or fined not more than $25,000.00, or both."

Defendant contends that MCL 335.342; MSA 18.1070(42) establishes a separate and distinct penal system for persons registered under the act.

This very point was considered in Moore because 21 U.S.C. § 842 is comparable to MCL 335.342; MSA 18.1070(42). Moore was decided adversely to defendant.

"Respondent nonetheless contends that §§ 841 and 822(b) must be interpreted in light of a congressional intent to set up two separate and distinct penalty systems: Persons not registered under the Act are to be punished under § 841, while those who are registered are to be subject only to the sanctions of §§ 842 and 843. The latter two sections, the argument goes, establish modest penalties which are the sole sanctions in a system of strict administrative regulation of registrants.

"The operative language of those sections provides no real support for the proposition that Congress intended to establish two mutually exclusive systems. It is true that the term `registrants' is used in §§ 842 and 843, and not in § 841. But this is of limited significance. All three sections provide that `[i]t shall be unlawful for any person * * * [to commit the proscribed acts].' Two of the eight subsections of § 842(a), one of the five subsections of § 843(a) and § 842(b) further qualify `any person' with `who is a registrant.' The other subsections of §§ 842 and 843 are not so limited. In context, `registrant' is merely a limiting term, indicating that the only `persons' who are subject to these subsections are `registrants.' There is no indication that `persons' means `nonregistrants' when introducing the other subsections." 423 U.S. 122, 133-134.

The United States Supreme Court decision in Moore has been used by two jurisdictions to support a finding that physicians are subject to prosecution for violations similar to those in the instant case.

In State v Vaccaro, 142 N.J. Super. 167, 173; 361 A.2d 47 (1976), the Court stated:

"A physician who is honest and ethical, and dispenses the prohibited drugs in a good faith effort to treat and cure patients, has no fear of the criminal sanctions of the statute. However, his mere status as a licensed physician who has been properly registered as a dispenser of the prohibited drugs does not give him the blanket right to abuse his authority and profession by dispensing drugs without relation to his sworn professional obligations."

In State v Fearing, 30 Md. App. 134; 351 A.2d 896 (1976), the Court reached the same conclusion.

We hold that physicians can dispense controlled substances only

"to the extent authorized by their registration and in conformity with the other provisions of this chapter." MCL 335.332(2); MSA 18.1070(32)(2).

A physician dispensing controlled substances not in the course of professional practice or research can be prosecuted for unlawful delivery of a controlled substance. Whether a physician or any other person listed in MCL 335.307(3)(a); MSA 18.1070(7)(3)(a) is acting in good faith in the course of professional practice or research is a question of fact.

In Moore the United States Supreme Court noted that:
"The jury was instructed that Dr. Moore could not be convicted if he merely made `an honest effort' to prescribe for detoxification in compliance with an accepted standard of medical practice. App. 124." 423 U.S. 122, 142, fn 20 (emphasis added).
An "honest effort" or good faith compliance is the standard required in determining whether the physician's actions were in the course of professional practice or research.

V. ENTRAPMENT

This Court in People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973), adopted the objective test for entrapment articulated by Justice Stewart's dissenting opinion in United States v Russell, 411 U.S. 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). This test focuses on

"whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand." 390 Mich. 7, 22.

The adoption of the objective standard does not automatically preclude the use of undercover agents, but only conduct so reprehensible that it cannot be condoned by the judicial system. After discussing the objective standard of entrapment, Justice Stewart noted in his dissent in Russell:

"This does not mean, of course, that the Government's use of undercover activity, strategy, or deception is necessarily unlawful. Lewis v United States, 385 U.S. 206, 208-209 [ 87 S Ct 424; 17 L Ed 2d 312] (1966). Indeed, many crimes, especially so-called victimless crimes, could not otherwise be detected. Thus, government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so. Osborn v United States, 385 U.S. 323, 331-332 [ 87 S Ct 429; 17 L Ed 2d 394] (1966). See also Sherman v United States [ 356 U.S. 369, 383-384; 78 S Ct 819; 2 L Ed 2d 848 (1958)]. (Frankfurter, J., concurring)." 411 U.S. 423, 445.

In People v D'Angelo, 401 Mich. 167; 257 N.W.2d 655 (1977), we made it clear that

"[t]he policy considerations which moved us to adopt the objective test of entrapment compel with equal force the conclusion that the judge and not the jury must determine its existence. The thesis is that law enforcement conduct which essentially manufactures crime is a corruptive use of governmental authority which, when used to obtain a conviction, taints the judiciary which tolerates its use. It is a practice which relies for its success upon judicial indifference, if not approval, and it must be deterred. Its deterrence is a duty which transcends the determination of guilt or innocence in a given case and stands ultimately as the responsibility of an incorruptible judiciary." 401 Mich. 167, 173-174.

In D'Angelo we also defined the burden of proof required and the standard to be used on review:

"We hold therefore that the defendant shall have the burden of proving the claim of entrapment by a preponderance of the evidence.

* * *

"The trial court's finding will be subject to appellate review under the clearly erroneous standard." 401 Mich. 167, 183.

Defendant in this case failed to make a case of entrapment. Officer Kukalis did not attempt to create any special friendship with the doctor to facilitate a delivery of drugs. He did not cajole or induce the doctor to give him drugs. Officer Kukalis merely presented himself at the doctor's office and asked for drugs, which he received. The conduct of the police in this case certainly did not approach the extreme situation we viewed in Turner. The undercover police officer in Turner worked for three years to establish a friendship with the defendant and then manufactured sad stories to obtain his sympathy.

The factual situation presented in the instant case does not reveal actions of the police so reprehensible that they should be excluded from the judicial administration of criminal justice.

We find as a matter of law that defendant was not entrapped.

V. CONCLUSION

We hold physicians are subject to prosecution under MCL 335.341; MSA 18.1070(41) for unlawful delivery of a controlled substance when they are not within the authorization granted by their registration or in conformity with the other provisions of the act. A physician not acting in good faith in the course of professional practice or research is not in conformity with the other provisions of the act.

We find the defense of entrapment was not established.

The decision of the Court of Appeals is affirmed.

COLEMAN, C.J., and FITZGERALD and RYAN, JJ., concurred with WILLIAMS, J.

LEVIN, J. (to reverse Court of Appeals and affirm circuit judge).

Elvis S. Alford, a physician, was charged with violating § 41 of the Controlled Substances Act of 1971.^fn1 The circuit judge quashed the information on alternative grounds. The Court of Appeals reversed. We would reverse the Court of Appeals and affirm the quashing of the information.

A physician, or other registrant under the act, is not immune from prosecution under § 41 simply because he is a registrant. When a physician delivers drugs, not as a physician, but as a pusher, he is subject to prosecution.

This proper standard for determining responsibility under § 41 is the subjective standard of whether the physician has in good faith dispensed or prescribed for a medical purpose. The prosecution must show that the physician did not dispense or prescribe in good faith for what he perceived to be a medical purpose. Evidence of a non-medical purpose must be adduced.

We would affirm the quashing of the information on the ground that the judge did not clearly err in finding entrapment.^fn2

I

Registration under the act does not confer immunity from prosecution under § 41.

Persons who deal with controlled substances in certain capacities must register and may then lawfully possess, manufacture and deliver drugs in their authorized capacities. A physician registers as a physician and is implicitly authorized to dispense or prescribe drugs in the exercise of his profession for medical purposes. A physician's registration does not, however, authorize distribution of controlled substances for no medical purpose whatever.

It does not follow that because a physician may not traffic in drugs he can be prosecuted for simple departures from generally accepted standards of professional practice and ethics. Doctors not infrequently prescribe for patients who are not in their office, whom they have not examined, and over the telephone. Carelessness, bad judgment or malpractice is one thing; intent to traffic in drugs and distributing in bad faith for a non-medical purpose is quite another.

In People v Downes, 394 Mich. 17, 33; 228 N.W.2d 212 (1975), a case decided under the prior controlled substances act, this Court declared that "[t]he instructional focus under such law must always be upon defendant's state of mind". A physician may prescribe drugs carelessly, hastily or over-zealously, but he does so as a physician, albeit a poor one, as long as he acts in a good-faith belief that he is doing so for a medical or professionally recognized purpose. It is only when this subjective good-faith intent is lacking that he exceeds the privilege of his registration, acts outside the scope of his profession, and criminal intent may be found.

II

The Court has adopted an objective test of entrapment, focusing on the propriety of the police conduct rather than the defendant's predisposition to engage in the proscribed activity. People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973).^fn3

Whether a defendant was entrapped is a question for the judge:

"In deciding the entrapment question the trial court should make specific findings of fact. Should the trial court find the claim of entrapment to be proved, the related charge will be dismissed. If the court finds the claimed entrapment not proved, the prosecution will proceed.

"The trial court's finding will be subject to appellate review under the clearly erroneous standard." People v D'Angelo, 401 Mich. 167, 183; 257 N.W.2d 655 (1977).

The circuit judge applied the Turner test and made specific findings as required by D'Angelo. ^fn4

We have, in accordance with D'Angelo, reviewed those findings by the clearly erroneous standard, and cannot say that we are "left with the definite and firm conviction that a mistake has been committed". Tuttle v Dep't of State Highways, 397 Mich. 44, 46; 243 N.W.2d 244 (1976).

As the circuit judge found, the officer did make eight or nine visits to Alford before the alleged unlawful delivery. Alford did ask if he was selling the drugs; the officer denied that he was. The officer did tell Alford that his wife was overweight and therefore needed similar prescriptions.

The officer made eight or nine visits to Alford for the sole purpose of encouraging him to commit a crime. The circuit judge, thus, did not err in finding that "[t]he officer persisted in a repeated course of conduct after the first visit which was calculated to induce and instigate the commission of an offense which would not have occurred but for the officer's persistent, clever, persuasive, and deceptive efforts".

We would reverse the Court of Appeals and affirm the circuit judge's quashing of the information.

KAVANAGH, J., concurred with LEVIN, J.