author: PER CURIAM.

text:
    Sofia ALVARADO, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education, and Welfare, Defendant-Appellee.
    No. 74-1196.
    United States Court of Appeals, First Circuit.
    Submitted Jan. 9, 1975.
    Decided Jan. 31, 1975.

      Horacio R. Subirá Hijo, San Juan, P. R., on brief for appellant.
    Carla A. Hills, Asst. Atty. Gen., New York City, Julio Morales Sanchez, U. S. Atty., San Juan, P. R., and Robert E. Kopp, Atty., Dept, of Justice, Washington, D. C., Appellate Section, Civil Div., on brief for appellee.
    Before COFFIN, Chief Judge, MeENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

This is an action brought under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (1970), to review a determination by the Secretary of Health, Education, and Welfare closing plaintiff’s period of disability as of January 1971. Plaintiff had been awarded benefits as of October 1, 1968, because of a mental condition. The sole issue on appeal is whether the Secretary’s decision as affirmed by the district court was supported by substantial evidence.

Before the administrative law judge plaintiff testified that her head felt numb, that she woke up screaming and walked back and forth, and that she got a frightened feeling in her heart and had crying spells. The administrative law judge also had before him, in addition to Dr. Fuentes’ earlier report and certain additional medical records, the medical report of Dr. Infanzón Ochoteco, who diagnosed plaintiff’s condition as a chronic depressive neurosis in almost total remission of symptoms. He reported no disorganization of her personality, no need for supervision and no limitations on her ability to relate to or socialize with others or work around the house, nor was there any deterioration in her personal habits. He indicated that her ability to comprehend and follow directions, perform work requiring frequent contact with others, and perform simple, repetitive or varied tasks was good. He recommended that she undergo intensive psychotherapy and believed that she “could be rehabilitated to perform manual work.” On the basis of this report and personal observation of Mrs. Alvarado at the hearing, a vocational expert testified that she was capable of returning to her work as a kitchen helper or assuming other specified jobs available in the area. In light of this evidence the administrative law judge concluded that plaintiff was not unable to engage in any substantial gainful activity and thus found her no longer disabled under § 223(d) of the Act, 42 U.S.C. § 423(d) (1970).

Plaintiff first maintains that Dr. Infanzón was not qualified to examine her because he was not board certified in psychiatry and because his specialty was child rather than general psychiatry. But under general principles of evidence law Dr. Infanzón would be qualified to give his opinion even were he not a psychiatrist at all. See McCormick, Evidence § 13 & n. 70 (E. Cleary ed. 1972). Certainly board certification has never been held a prerequisite to qualification as an expert medical witness. The medical opinion of specialists may be entitled to greater weight than that of general practitioners, Bailey v. Gardner, 269 F.Supp. 100, 107-08 (S.D. W.Va.1967). But even if Dr. Fuentes were considered more qualified than Dr. Infanzón there would be no necessary inconsistency in their opinions in light of the two years separating them. Although plaintiff did not follow Dr. Fuentes’ prescribed regimen of psychiatric care during this period, her ailment could have improved spontaneously. At any rate, it is for the Secretary to resolve conflicts in the medical evidence. Diaz v. Secretary, 372 F.Supp. 463, 465 (D.P.R.1973).

Plaintiff next argues that Dr. Infanzon’s report does not support the vocational expert’s opinion or the examiner’s finding that she could be gainfully employed because the physician concluded only that she “could be rehabilitated to manual work.” We do not think this necessarily equivalent to an assertion that she is not presently capable of employment, and even if it were it would have little evidentiary value as such, Laboy v. Richardson, 355 F.Supp. 602, 604 (D.P.R.1972), since a physician has no special expertise for such a judgment. Considered as a whole, Dr. Infanzon’s generally sanguine findings afford ample support for the Secretary’s conclusion that plaintiff Vas capable of gainful employment. The mere existence of a psychoneurosis or an anxiety reaction does not constitute a disability, Gum v. Secretary, 341 F.Supp. 611 (D.Md.1972); Darter v. Cohen, 299 F.Supp. 473, 476 (W.D. Va.1969). And neither the state of the economy nor employers’ reluctance to hire the handicapped is a relevant consideration. Caraballo v. Secretary, 346 F.Supp. 93, 95 (D.P.R.1972).

Plaintiff had the burden of proving that she was still disabled. Marker v. Finch, 322 F.Supp. 905, 909-10 (D.Del.1971). Although her subjective testimony was certainly probative, Stark v. Weinberger, 497 F.2d 1092, 1096—97 (7th Cir. 1974), subjective symptoms must be evaluated with due consideration for credibility, motivation and medical evidence of impairment. Dvorak v. Celebrezze, 345 F.2d 894, 917 (10th Cir. 1965). We cannot say on this record that the Secretary was under any obligation to find that she met that burden. See Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

Affirmed.

      . This award was presumably based on the report of Dr. Claude E. Fuentes, a specialist in psychiatry and neurology. Dr. Fuentes noted claimant’s complaints of numbness in her head, insomnia, inability to work in the home, and lack of appetite. He cited claimant’s assertions that she had been hearing voices and that she had the impulse to scream. Dr. Fuentes’ examination revealed that claimant was well developed and nourished, tearful, clean and neat. However, she had difficulty expressing herself, was unspontaneous and somewhat retarded. She was depressed and moody, and her orientation and memory were poor, her judgment and insight impaired. Dr. Fuentes’ diagnosis was “Involutional psychotic depressive reaction.” His recommendation was a continuation of treatment at the Ponce Psychiatric Hospital.

      . These records furnished by the Bayamon Mental Health Clinic show that plaintiff received medical attention in the outpatient clinic from January 1971 to July 1972 and indicate many somatic complaints and complaints of nervousness, fear and depression. Plaintiff was treated with medication on each visit.


source: Caselaw Access Project

author: FEINBERG, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Dennis DRUMMOND, Appellant.
    No. 525, Docket 74-2264.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 7, 1975.
    Decided Feb. 11, 1975.

      Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, on the brief), for appellant.
    Paul F. Corcoran, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., Paul B. Bergman, Asst. U. S. Atty., on the brief), for appellee.
    Before KAUFMAN, Chief Judge, and FEINBERG and MANSFIELD, Circuit Judges.
   FEINBERG, Circuit Judge:

Dennis Drummond appeals from a judgment of the United States District Court for the Eastern District of New York, Thomas C. Platt, J., convicting appellant of conspiracy to distribute heroin. 21 U.S.C. §§ 841(a), 846. Judge Platt sentenced appellant, under 18 U.S.C. § 4208(a)(2), to five years in prison followed by a special parole term of five years. This was the same sentence appellant had received from another judge after an earlier trial for the same offense. That conviction was reversed by us in United States v. Drummond, 481 F.2d 62 (2d Cir. 1973). On his second appeal to this court, appellant again does not challenge the sufficiency of the evidence against him. Rather, he argues that the delay in his retrial violated the Eastern District’s speedy trial rules and the United States Constitution. Appellant also complains of an evidentiary ruling. We affirm the judgment of conviction.

I

Our prior opinion ordering a new trial was handed down on July 5, 1973. For some reason not disclosed in the record, the mandate of this court did not issue until September 14, 1973, and was not received in the Eastern District until September 19. In accordance with procedures then in effect a different judge — Judge Travia — was that day randomly selected for the retrial. On October 1, Judge Travia began intensive proceedings in a criminal trial that eventually lasted nine months, until July 5, 1974. No further steps were taken in appellant’s case until April 12, 1974, when it was called before Judge Travia and adjourned for three weeks. A few days later, appellant moved to dismiss the indictment for failure to commence the retrial within the time period required by the Eastern District’s speedy trial rules. Early in May, Judge Travia denied the motion and, still engaged in the long criminal trial, reassigned the case to Judge Platt, who was soon to be sworn in as a district judge. A mandamus petition in this court seeking to prevent the trial was denied, without prejudice to consideration of the issue on appeal, on May 21, 1974. Appellant renewed the motion to dismiss before Judge Platt and for the first time also raised his constitutional right to a speedy trial. Judge Platt denied this motion, and trial commenced on July 11, 1974.

II

Appellant’s principal claim is based upon Rule 6 of the Eastern District’s Plan for Achieving Prompt Disposition of Criminal Cases (the Plan). That Rule reads, in pertinent part:

Retrials.
Where a new trial has been ordered by an appellate court, it shall commence at the earliest practicable time, but in any event not later than 90 days after the finality of such order unless extended for good cause.

Appellant’s argument is simple. The retrial here did not begin within 90 days “after the finality of” our order requiring a new trial and there was no “good cause” for the delay. Therefore, the indictment should have been dismissed. The Government responds that a rigid reading of Rule 6 as inflexibly directing dismissal if a retrial is not actually held within 90 days is impractical and unnecessary. The Government argues that the Rule is part of an integrated speedy trial plan, which has as its goal the elimination of prosecutorial delay. Since the United States Attorney was at all times ready to try this ease, Judge Platt correctly refused to dismiss the indictment.

The difficulty with the Government’s position is that the language of Rule 6 is squarely against it. Rule 6 does not say, as do other Rules in the Plan, that the Government must be ready for trial within 90 days; it says that the new trial “shall commence” by the specified time limit. Furthermore, Rule 5 of the Plan, dealing with excluded periods of delay, provides:

In computing the time within which the government should be ready for trial under Rules 3 and 4, the following periods should be excluded . . [Emphasis added.]

No mention is made of Rule 6. It is true, as the Government points out, that its construction of Rule 6 was embodied in the Rule’s predecessor, which was part of the Second Circuit Rules Regarding the Prompt Disposition of Criminal Cases, adopted January 5, 1971 (Second Circuit Rules). The provision governing retrials in the Second Circuit Rules merely defined the starting date of the six-month period during which “the time [for retrial] shall run” and did not deviate from the general scheme of requiring only that the Government be ready for trial within defined time periods. After promulgation of the Second Circuit Rules, however, the Federal Rules of Criminal Procedure were amended to require the federal district courts to adopt plans for the prompt disposition of criminal cases, subject to approval by the judicial council of the circuit. Fed.R. Crim.P. 50(b). See Hilbert v. Dooling, 476 F.2d 355, 356 n.2 (2d Cir.) (en banc), cert. denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973). Rule 6 of the Eastern District Plan tracks the language of

the retrial provision in the model plan circulated by the Administrative Office of the United States Courts in response to amended Fed.R.Crim.P. 50(b) and is identical to the analogous rules adopted in the five other district courts in the circuit.

As compared to the earlier Second Circuit Rule, Rule 6 of the Eastern District Plan reduced the period allowed for retrial from six months to 90 days and substituted a command that the retrial commence by the specified date for the requirement merely that the Government be ready. It may be that those who accepted the Administrative Office recommendation, including the Judicial Council, focused primarily on the former change rather than on the latter. Be that as it may, we do not see how the plain language of Rule 6 can be ignored. Moreover, there is much to commend the change in emphasis embodied in Rule 6. The Government will be ready without delay to retry most defendants who obtain reversals on appeal. By hypothesis, the Government usually has recently concluded trials of these cases. Thus, to emphasize the Government’s need to be ready would generally be an empty formality. Moreover, cases ordered for retrial are probably, though not necessarily, of older vintage than those scheduled for initial trial. Accordingly, it would be in the public interest to try them promptly to avoid the risk that evidence might disappear or witnesses’ recollections be dimmed. In short, both the plain language of Rule 6 and the policy behind it require us to reject the Government’s construction of the Rule.

This, however, does not end the matter. Rule 6 provides that the period for retrial may be “extended for good cause.” In view of the rigidity of the command of Rule 6, we believe that in this case the escape hatch of “good cause” must be construed with an awareness of the practicalities. When the case was assigned to Judge Travia on September 19, 1973, he was about to start proceedings in an unusually complex criminal trial, which lasted nine months. See note 2 supra. Once the schedule of a long, multi-defendant trial is fixed, a district judge cannot easily reschedule it to accommodate even another short trial. Appellant answers that Judge Travia might have transferred the Drummond case to a different judge sooner, or tried to squeeze it in between sessions of the Bernstein trial. The first response is a strong one. We agree with the admonition of the First Circuit, quoting then Circuit Judge Blackmun that:

Where a multiple-judge court uses the individual calendar system, all judges must share responsibility for the prompt disposition of criminal cases, must employ a team approach to those cases, and, when necessary, must reassign them in order that they may be tried according to the commands of the Sixth Amendment and Criminal Rules 48(b) and 50. If a judge is otherwise long committed in another case or is delayed in getting to the criminal cases on his calendar by reason of illness, personal misfortune or press of other business, this obviously does not serve to toll the enforcement of the right of a defendant awaiting trial on that judge’s criminal calendar.

See United States v. Fay, 505 F.2d 1037, 1040-41 (1st Cir. 1974), citing Hodges v. United States, 408 F.2d 543, 551-52 (8th Cir. 1969). See also United States v. Rucker, 150 U.S.App.D.C. 314, 464 F.2d 823, 827 (1972) (McGowan, J.); United States v. DeLeo, 422 F.2d 487, 495-96 (1st Cir. 1970). Cf. United States v. Fernandez, supra, 480 F.2d at 729.

On the other hand, the prosecution was ready to try Drummond again without undue delay and obviously misapprehended the change brought about by the Eastern District Plan adopted a few months before. The new Rule was a departure from the former requirement of prosecutorial readiness only, which still permeated the rest of the Plan. Rule 6 does not mention any sanction for failure to comply with it and was adopted without any published focus on the change for retrials. Also, while we would not ordinarily regard a defendant’s inaction as significant in enforcing the speedy trial rules, in the context of this case and on these facts, we point out that Drummond was free on bail throughout the relevant period and made no request that the judge reassign the retrial. Finally, a significant portion of the delay here was not due to any failure in the district court but to unexplainable delay by this court in issuing the mandate. Under all the circumstances, we regard the relevant time period as extended “for good cause” until Judge Travia reassigned the case to Judge Platt and it was called by Judge Platt shortly thereafter. Cf. United States v. Bowman, 493 F.2d 594, 597-98 (2d Cir. 1974). Since Judge Platt was ready to try the case almost immediately, the command of Rule 6 was not violated. We stress, however, that we will not tolerate a delay of this sort occurring in the future. See United States v. Bowman, supra, 493 F.2d at 598. Both the United States Attorney and the judge to whom a retrial is assigned should closely monitor its progress. Otherwise, under the Speedy Trial Act of 1974, which establishes new outside limits for the commencement of retrials, see note 8 supra, the Government may face dismissals of indictments involving serious charges.

Ill

We turn now to the remaining issues in the appeal, which require less discussion. Citing Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), appellant argues that his constitutional right to a speedy and fair trial, as well as his rights under the Plan, were violated. However, the one-year delay was not excessive. United States v. Infanti, 474 F.2d 522, 527-28 (2d Cir. 1973). Nor is there any indication that the delay was caused by deliberate prosecutorial effort to postpone the trial. See Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182; United States v. Infanti, supra. Moreover, appellant never moved for a speedy trial, although he was represented by counsel at all times and was not incarcerated. See Barker v. Wingo, supra, 407 U.S. at 528-529, 92 S.Ct. 2182.

Appellant does claim the delay prejudiced him because three defense witnesses could not be located. It is said that their testimony would support appellant’s claims that he had won at an all night dice game the marked money found in his possession at his arrest and that although he was at a co-conspirator’s house on the day all were arrested, he had nothing to do with any drug transaction. However, appellant was not in jail; the witnesses with whom he allegedly lost contact were his own acquaintances. In addition, two of the three witnesses added little to appellant’s case, merely corroborating facts which were not materially in issue. The third, one James Clark, did corroborate appellant’s story regarding his big gambling win. But according to appellant, that game had 15 to 20 players, many of whom he knew by sight. Yet appellant apparently made no effort to produce any of them except Clark. And as to him, there is nothing in the record to show that he would have been available had the retrial occurred sooner. Finally, appellant was permitted to read into evidence at the retrial the testimony taken at the earlier trial of these defense witnesses. Considering all the circumstances and applying the “ ‘flexible’ standards based upon practical considerations” prescribed by Barker v. Wingo, see Strunk v. United States, supra, 412 U.S. at 438, 93 S.Ct. 2260, we find no denial of the constitutional right to a speedy trial.

Appellant’s final argument is that the trial judge erred in admitting evidence of a prior narcotics transaction. Appellant was charged with conspiring on February 10, 1972, with co-defendant Donald Days to distribute heroin. On that date, undercover agent Bernhardt was admitted to 210 Cornelia Street, Brooklyn, New York, where Days told him “the man” was waiting and that he wanted to make certain Bernhardt was going to show up “before he went to get the heroin.” There was evidence that appellant was six or seven feet away during this conversation and had arrived earlier in a brown Oldsmobile Toronado. After Bernhardt flashed a roll of money to show he could buy the heroin, Days took some of his own money from a grey metal box, gave it to appellant, and told him “it was all right to go get the stuff.” Appellant then left with the cash. The evidence in dispute concerns a similar transaction one week earlier, when agent Bernhardt came to the same house with money to buy heroin. Days first counted these bills, which had prerecorded serial numbers, and then took currency from the same grey box, explaining that he used his own cash to purchase narcotics. He went upstairs but soon returned, telling Bernhardt that they would have to wait for delivery of the heroin. Some time later, the doorbell rang, Days again went upstairs and returned with heroin. Bernhardt paid him and left. Shortly after that, the same Oldsmobile Toronado already referred to was seen to depart.

Appellant claims that since there was nothing to connect him with the February 3 transaction, admitting evidence of it was prejudicial error. We do not agree. The methods of operation on February 3 and 10 were the same. The same automobile that appellant admits driving on February 10 was seen at 210 Cornelia Street on February 3. Some of the pre-recorded money from the February 3 transaction was found on appellant when he was arrested. This was enough to allow the jury to find that appellant also was involved with Days on February 3 in a plan to distribute heroin. The judge charged that only if the jury so found, could it consider the evidence as relevant to the February 10 conspiracy and even then only on the issue of appellant’s knowledge and intent with regard to the February 10 conspiracy. This was not error. United States v. Miller, 478 F.2d 1315, 1318 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973); United States v. Deaton, 381 F.2d 114, 117-18 (2d Cir. 1967). United States v. Falley, 489 F.2d 33, 37-38 (2d Cir. 1973), relied on by appellant, is not at all the same, since the evidence objected to there concerned a narcotics transaction with which the defendants concededly had no connection. Moreover, the trial judge could properly find here that the probative value of the evidence of the February 3 transaction sufficiently outweighed its prejudicial effect to justify its admission.

Judgment affirmed.

      . A still earlier trial had resulted in a hung jury.

      . United States v. Bernstein, et al., 72 Cr. 587, appeal filed, 74-2328.

      . Drummond v. Travia, (2d Cir. 1974) 495 F.2d 1367.

      . Appellant argues that the 90 days began to run on July 5, 1973, the date of this court’s prior opinion. We do not agree. See United States v. Fernandez, 480 F.2d 726, 729 (2d Cir. 1973), 456 F.2d 638 (2d Cir. 1972). As will be seen below, it is not necessary to decide whether the 90-day period commenced on July 26, 1973 (when the mandate should have issued in the absence of a petition for a stay) or on September 14, 1973 (when the mandate did tardily issue).

      . E. g., Rule 4 provides, in part:
      In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. [Emphasis added.]

      . Rule 3 requires release of defendants in jail awaiting trial if the government is not ready for trial within 90 days from the date detention began. Rule 4, quoted in note 5 supra, imposes a six-month readiness limit, with dismissal as the sanction for Government noncompliance.

      . Paragraph 6 of the Second Circuit Rules provided:
      If the defendant is to be retried following an appeal . . ., the time shall run from the date when the order occasioning the retrial becomes final.
      Paragraph 4 required the Government to be “ready for trial” within six months from specified times, upon pain of dismissal.

      . It is worth noting that the new Speedy Trial Act of 1974, Pub.L. No. 93-619, 93d Cong., 2d Sess. (Jan. 3, 1975), 88 Stat. 2076, contains a retrial provision, which states:
      If the defendant is to be tried again following an appeal . . . the trial shall commence within sixty days from the date the action occasioning the retrial becomes final, except that the court retrying the case may extend the period for retrial not to exceed one hundred and eighty days from the date the action occasioning the retrial becomes final if unavailability of witnesses or other factors resulting from passage of time shall make trial within sixty days impractical.
      18 U.S.C. § 3161(e).

      . Moreover, Rule 9(a) of the Plan states:

        The court has sole responsibility for setting and calling cases for trial. Neither a conflict in schedules of Assistant United States Attorneys nor a conflict in schedules of defense counsel will be ground for a continuance or delayed setting except under unusual circumstances approved by the court and called to the court’s attention at the earliest practicable time. Each judge will schedule criminal trials at such times as may be necessary to assure prompt disposition of criminal cases. The United States Attorney will familiarize himself with scheduling procedures of each judge and will assign or reassign cases in such manner that the government will be able to announce ready for trial. [Emphasis added.]

      . Rule 7 of the Plan provides:

        Demand and Waiver Provisions.

      A demand by a defendant is not necessary for the purpose of invoking the rights conferred by these rules. However, failure of a defendant to move for discharge prior to plea of guilty or trial shall constitute waiv-. er of such rights.

      . Drummond is still out on bail.

      . The reassignment was made on May 3. Judge Platt was not actually sworn in until May 17. He called the case on May 31. We regard the brief period from May 3 to May 31 as involving sufficiently unique circumstances (the seating of a new judge) to serve to extend the period of Rule 6 “for good cause.”

      . The judge so informed defense counsel on May 31, 1974, when the judge called the case. Counsel replied that defendant was moving for dismissal, not for an immediate trial. Accordingly, argument on the motion to dismiss was set for June 14, but was apparently adjourned to June 21. On that date, Judge Platt orally denied the motion and set July 12 for the start of the trial. It actually began a day early.

      . On this disposition, we need not deal with the Government’s claims, pressed at greater length in another appeal now pending in this court (United States v. Furey, 74-2266, argued Nov. 22, 1974), that the Eastern District Plan is unconstitutional and unauthorized by Fed.R.Crim.P. 50(b), which is also claimed to be invalid, and that, in any event, the Plan has been superseded by the Speedy Trial Act of 1974, see note 8 supra, which, according to the Government, rejects a rigid requirement of dismissal.

      . Indeed, appellant testified that he had not seen Clark since “a couple of months after” his first conviction, well before the subsequent reversal and new trial.


text:
    Enrique RUIZ-OLAN, Plaintiff-Appellee, v. SECRETARY, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Defendant-Appellant.
    No. 74-1209.
    United States Court of Appeals, First Circuit.
    Submitted Feb. 5, 1975.
    Decided March 12, 1975.

      Carla A. Hills, Asst. Atty. Gen., New York City, Julio Morales Sanchez, U. S. Atty., Leonard Schaitman and Judith H. Norris, Attys., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., on brief for defendant-appellant.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Claimant’s February 1968 application for disability benefits was denied initially and also upon reconsideration. In histories taken by physicians and at the ensuing hearing, claimant asserted that he suffered from daily bronchial asthma attacks, and the vocational expert agreed that attacks of such frequency would be disabling under the Act. However, another medical history reported claimant’s statement that he had not suffered an attack in twelve days, and in response to a question about the frequency of the attacks a friend appearing on claimant’s behalf testified that claimant suffered the “strongest” attacks once a month. The administrative law judge concluded that the attacks occurred “only monthly or even less often, because there is only medical observation of one such attack in the medical record.” The vocational expert testified that attacks of this frequency would not be disabling. Claimant also introduced evidence as to his allergies, nervous anxieties, and blood pressure, but the judge nevertheless determined that claimant was not disabled before March 31, 1969, the last date he satisfied the earnings requirements. Claimant took no further action with respect to this decision.

In February 1971 claimant reapplied for benefits. This application was also denied initially and upon reconsideration. Claimant’s request for a hearing was denied on grounds of res judicata. 20 C.F.R. § 404.937(a) (1974). The administrative law judge then pro-' ceeded to treat the application as a petition to reopen the Secretary’s prior decision. Lopez v. Secretary, 342 F.Supp. 778 (D.P.R.1972); Nicholson v. Finch, 311 F.Supp. 614, 615 (D.Mont.1970). 20 C.F.R. § 404.957 provides that a decision “may be reopened . . . (b) . . . upon a finding of good cause. . . . ” 20 C.F.R. § 404.958(a) defines good cause as the furnishing of “new and material evidence.” The administrative law judge found that no good cause had been shown. “Evidence submitted in connection with the second application, while new, does not have a material relevance with respect to the claimant’s disability status from a time on or before March 31, 1969, when he last met the special earnings requirement for disability purposes.” Therefore the judge declined to reopen the prior decision. The district court reversed this decision and proceeded to grant disability benefits to the claimant. This appeal followed.

We think the application was properly dismissed on res judicata grounds, since evidence on all of the claimed impairments had been before the administrative law judge on the previous

application which was rejected after claimant’s period of eligibility for disability benefits had expired. See, e. g., Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973) (en banc). As to the refusal to reopen, we agree that this administrative action is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 (1970), notwithstanding §§ 405(g) and (h) of the Social Security Act. See Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972); Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972); Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966). But see Stuckey v. Weinberger, supra. But review is restricted to ascertaining whether the administrative action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, 5 U.S.C. § 706(2)(A). The court below erred in holding that the Secretary’s refusal to reopen his pri- or decision was such. Most of the new evidence presented by claimant was cumulative or not directly relevant to his condition during his period of eligibility. Dr. Baez’ medical report does to some extent corroborate claimant’s assertion as to the frequency of his attacks. But while Dr. Baez was a treating and not merely an examining physician, his references to daily attacks are seemingly reports of claimant’s complaints rather than clinical observations, so that this evidence too was essentially cumulative. We are not prepared to hold that the administrative law judge abused his discretion in concluding that claimant’s new evidence was immaterial and not good cause for reopening under the Secretary’s regulations.

Reversed.

      . We understand material evidence to be evidence which would likely have affected the original decision had it been in the record at that time. Cf. Leviner v. Richardson, 443 F.2d 1338, 1343 (4th Cir. 1971). We do not approve of the district court’s practice of ordering a decision reopened when the new evidence indicates a mere “possibility” of disability. See Carrero v. Secretary, 372 F.Supp. 474 (D.P.R.1973).

      . Claimant admitted he did not suffer from angina pectoris until 1970 when his eligibility for benefits had expired.

      . In addition to the other arguments favoring review we note that a refusal to reopen is not a finding of fact or decision of which review is foreclosed under 42 U.S.C. § 405(h).

      . The report provided in relevant part:
      “1. HISTORY (Give complaints past and present, clinical course, including therapy and response.) On his first visit he related a history of asthma for many years. Previous to 1st visit he had been asymptomatic for 12 yrs, but on 2/9/68 he had had an attack for IV2 months and a diagnosis of acute bronchial asthma was done. He was started on routine treatment and seen one month later with no improvement. Since then and in spite of all medications of all kinds his daily attacks persisted until next seen on 3/1/68. [illegible] therapy to no avail. On 2/8/69 he was still having daily attacks. . . . ”


text:
    Myrene M. SHREWSBURY and Alvin H. Shrewsbury, Plaintiffs-Appellants, v. Dr. Dewayne SMITH et al., Defendants-Appellees.
    No. 74-2009.
    United States Court of Appeals, Sixth Circuit.
    March 11, 1975.
    Walter J. Wolske, Jr., Wolske & Blue, Columbus, Ohio, John C. Wasserman, Toledo, Ohio, for plaintiffs-appellants.

      Benjamin B. Durfee, Spengler, Nathanson, Heyman, McCarthy & Durfee, James R. Jeffery, Toledo, Ohio, for defendant-appellee.
    Before WEICK, McCREE and MILLER, Circuit Judges.
   PER CURIAM.

This appeal is from an order dismissing the complaint on the ground that the cause of action for malpractice was barred by Ohio’s one-year statute of limitations. Ohio Rev.Code § 2305.11. We are of the opinion that the appeal was timely filed, and the motion to dismiss is therefore overruled.

Defendants contend that the statute of limitations commenced to run at the latest when the physician-patient relationship ended and the action admittedly was not brought within that time. Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971).

The Supreme Court of Ohio adopted an exception to this rule in Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 290 N.E.2d 916 (1972), where a foreign object was left inside the patient during the course of the operation.

In Melnyk the Court held in Syl. 1: Where a metallic forceps and a nonabsorbent sponge are negligently left inside a patient’s body during surgery, the running of the statute of limitation governing a claim therefor is tolled until the patient discovers; or by the exercise of reasonable diligence should have discovered, the negligent act. (Wyler v. Tripi, 25 Ohio St.2d 164, 54 O.O.2d 283, 267 N.E.2d 419 distinguished).

The Court, however, did not disturb the holding in Wyler which declined to adopt the so-called discovery rule in ordinary malpractice cases; nor did the Court adopt a fraudulent concealment exception.

Our case involved a complete hysterectomy operation performed on the plaintiff, Myrene M. Shrewsbury, by the defendants, Doctors Smith and Dierksheide, during which surgery plaintiff’s bladder was cut. When the bleeding developed she was referred by the defendants to a urologist who performed surgery to correct a vesicle vaginal fistula.

Antedating both Wyler and Melnyk, the Court of Appeals of Cuyahoga County considered a case directly in point. In re Estate of Natherson, 102 Ohio App. 475, 481, 134 N.E.2d 852, 856 (8th Dist., 1956), wherein the Court said:

One further question' remains to be considered. That is the claim of the petitioners that the fraudulent concealment by decedent of his alleged negligence affords a remedy which the petitioners may employ on the ground that the statute of limitations is not tolled until the fraud or concealment is discovered. The obvious answer to this claim is, we think, that the action does not have its inception in fraud but rather is founded upon negligence or malpractice. The statute of limitations, providing for an action based upon fraud, is not here applicable for the reason that it is the rule of law that the provisions of Section 2305.09, Revised Code (former Section 11224, General Code), that an action shall not accrue until the fraud is discovered, by its terms apply only where fraud is the ground or gist of the action. This has been the holding of the courts of Ohio since the early case of Fee’s Admr. v. Fee (1841), 10 Ohio 469, 36 Am.Dec. 103, the syllabus of which states:
“A fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations.”
To the same effect see also: Howk v. Minnick (1869), 19 Ohio St. 462, 2 Am.Rep. 413; Minster Loan & Savings Co. v. Laufersweiler, 67 Ohio App. 375, 36 N.E.2d 895; Squire, Supt. v. Guardian Trust Co., 79 Ohio App. 371, 72 N.E.2d 137.
We are well aware that this view of the law is such that in the instant case the petitioners are precluded from a right of action for negligence or malpractice, but this is in accord with the established law of Ohio on the subject and we are not privileged by judicial decree to enlarge upon the plain provisions of legislative enactment.

We are of the opinion that more than one year elapsed from the termination of the physician-patient relationship between the plaintiff, Mrs. Shrewsbury, and the defendant physicians before she filed suit. Under Ohio law, as we interpret it, her claim is barred by the statute of limitations.

The judgment of the District Court is therefore affirmed.


text:
    Thomas R. KNOTT, Jr., Petitioner-Appellant, v. Francis G. HOWARD, Warden, Respondent-Appellee.
    No. 74-1303.
    United States Court of Appeals, First Circuit.
    Submitted Dec. 4, 1974.
    Decided March 4, 1975.
    Thomas R. Knott, Jr., on brief pro se.
    Richard J. Israel, Atty. Gen., and Donald P. Ryan, Asst. Atty. Gen., Providence, R. I., on brief for respondent-appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Appellant, convicted of murder in the Rhode Island Superior Court, see State v. Knott, 111 R.I. 241, 302 A.2d 64 (1973), appeals from the denial of his petition for habeas corpus. His primary claim is that the two confessions at issue here should have been excluded from evidence because he received no warnings about his rights prior to making the inculpatory statements. Acceptance of this argument would amount to applying Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to his retrial. But Miranda does not apply to a retrial where the original trial commenced prior to the date Miranda was decided. Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969). Thus Miranda is inapplicable here, and the correct test of the admissibility of Knott’s confessions is the pre-Miranda “totality of the circumstances” voluntariness test, see Jenkins v. Delaware, supra; Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Johnson v. New Jersey, 384 U.S. 719, 730, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), with one factor in that test being the lack of warnings. Davis v. North Carolina, 384 U.S. 737, 740-41, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). This was the test the district court applied in its thorough and well-reasoned opinion. Knott v. Howard, 378 F.Supp. 1325 (D. R.I. 1974). Appellant’s reliance on Miranda and Miranda cases, e. g., Fisher v. Scafati, 439 F.2d 307 (1st Cir.), order modified and cert. denied, 403 U.S. 939, 91 S.Ct. 2256, 29 L.Ed.2d 719 (1971); State v. La Fernier, 37 Wis.2d 365, 155 N.W.2d 93 (1967), is thus misplaced.

The next argument is that the Hilton confession should have been held inadmissible because it followed two confessions which have been ruled inadmissible. See State v. Knott, 105 R.I. 71, 249 A.2d 421 (1969). There is, of course, no general rule that if an inadmissible confession is received, no subsequent confession can be admissible. See United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). The appropriate inquiry then becomes whether the conditions that rendered the earlier confessions inadmissible carried over to invalidate the subsequent one. E. g., Darwin v. Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968); Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967). Here the district court correctly held that there was no taint connected with the Hilton confession, because it was removed in time and place from the prior inadmissible confessions, because it was voluntary and not the product of interrogation, and mostly because the prior confessions were inadmissible solely because Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), had been interpreted by the Rhode Island Supreme Court as a broad prophylactic rule, see State v. Dufour, 99 R.I. 120, 206 A.2d 82 (1965), and not because the prior confessions were coerced or involuntary. The district court carefully considered appellant’s argument that the Hilton confession was attributable to his belief that his position had been rendered hopeless by the two earlier (and inadmissible) confessions. The court determined that this was not the case, appellant having decided of his own volition to tell the complete story of the murder. This acceptance of the state court’s conclusion was proper, since the record amply supports a finding of voluntariness.

Appellant’s last argument is that he was mentally incompetent to make a voluntary confession. We have reviewed in detail the lengthy transcript in this case, particularly the transcript of the hearing on the motion to suppress the two confessions, and we cannot say that the state trial judge lacked substantial evidence for his finding that appellant had sufficient mental capacity to proffer a voluntary confession. See Leavitt v. Howard, 462 F.2d 992 (1st Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 175, 34 L.Ed.2d 140 (1972).

Judgment affirmed.

      Line 21 in the left-hand column of page 1339, which was incorrectly left blank, should read “Similarly, it is my considered judg-”.


author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clifford T. GREEN et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. PAY MING LEU, Defendant-Appellant.
    Nos. 74-1428, 74-1433, 74-1435, 74-1420 and 74-1468.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 6, 1975.
    Decided Feb. 27, 1975.
    Rehearing Denied March 18, 1975.

      Gerald M. Werksman, R. Eugene Pine-ham, Sidney S. Altman, George Kita, Bernard B. Brody, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Gordon B. Nash, Jr., Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before FAIRCHILD, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

These consolidated appeals raise the same principal issue: whether indictments against physicians and a pharmacist (registrants under the Controlled Substances Act, 21 U.S.C. § 801 et seq.) for the dispensing or distributing of controlled substances pursuant to prescriptions allegedly issued without a legitimate medical purpose or outside the usual course of professional practice, properly charge crimes under 21 U.S.C. § 841(a) and 21 C.F.R. § 306.04(a).

I

In 74-1428, et al., the defendants below were: Valeriano Suarez, a physician who practiced at the Central West Medical Center located on the eighth floor of a building at 2400 West Madison, Chicago, Illinois; James McClure, a physician who assisted Dr. Suarez on a part-time basis at the medical center; Clifford T. Green, a pharmacist and part-owner of the Afro-American Pharmacy located across the hall from the medical center and Henry G. Fort, part-owner of the pharmacy and owner of the building.

In June 1973, a grand jury returned a 33 count indictment against the defendants. Count I charged that a conspiracy existed between the defendants to dispense controlled substances pursuant to prescriptions which would be issued without a legitimate medical purpose and to distribute controlled substances pursuant to prescriptions which they knew to be issued neither in the usual course of professional treatment nor for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and 21 C.F.R. § 306.04(a).

In addition to the conspiracy count, 27 of the remaining 32 counts are on appeal. Seventeen substantive counts charged Dr. Suarez for knowingly and intentionally dispensing on or about specified dates Schedule II and III controlled substances without a legitimate medical purpose, and ten substantive counts charged Green for knowingly and intentionally distributing on or about specified dates Schedule II controlled substances pursuant to prescriptions which he knew were issued neither in the usual course of professional treatment nor for a legitimate medical purpose. The controlled substances which constitute the basis for the bulk of the charges are: Ritalin, Desbutal, Doriden, and Tuinal. After a jury finding of guilty, Suarez was sentenced to five years, Green to three years and Fort to one year imprisonment. In addition, all were given special parole terms of two years.

Numerous individuals, some of whom were government agents, testified that they would come to the medical clinic, receive minimal, if any, professional medical treatment and would be given upon request one or more prescriptions, either in their own or a fictitious name, for substances described in the indictment. They would then proceed across the hall and have their prescriptions filled without questioning by defendant Green. Some witnesses testified to coming in once a week under different names and receiving prescriptions on each occasion. This was supported by medical files which contained more than one name on them. There was also evidence that there were names of famous individuals appearing on prescriptions for controlled substances written by Dr. Suarez and filled at the Afro-American Pharmacy. These individuals neither received the controlled substances prescribed nor were medical files containing their names found at the medical center.

Other corroborating evidence of wrongdoing by the defendants included the existence of the no refill for fifteen days rule established by Dr. Suarez. Most patients, who paid $10 per visit, were given prescriptions that would last them fifteen days. Jackie Hunter, receptionist and office manager of the clinic, testified that there were certain preferred patients who did not have to abide by the “fifteen day rule” and who could usually purchase multiple prescriptions. Ms. Hunter also testified that she overheard a conversation where Green was cautioning Dr. Suarez about prescribing too much medication for a particular individual. There was also evidence that a direct telephone line was set up from Dr. Suarez’ office to the pharmacy owned by Green and Fort. Ms. Hunter testified that Green and Fort complained that Suarez was not using the telephone often enough to call prescriptions directly in, and that because of this sales were being lost to other pharmacies. Finally, Fort and Hunter had a guard placed near the pharmacy with directions to prevent individuals from entering the pharmacy unless they had a prescription and with directions to prevent the selling of medication in the lobby.

Defendants Suarez and Green challenge their convictions on the grounds that as individuals subject to registration under the Controlled Substances Act, they are not subject to conviction under 21 U.S.C. § 841(a) which was the basis for the indictment. United States v. Moore, 505 F.2d 426 (D.C.Cir. 1974), cert. granted, 43 U.S.L.W. 3445 (U.S. Feb. 18, 1975). Furthermore, all the defendants argue that the indictment in the present case is dependent on a regulation that was promulgated without authority and that impermissibly expands the range of proscribed activities beyond what the statute itself makes criminal. Finally, defendant Fort raises a sufficiency of the evidence claim.

II

In 74-1468 the defendant is Pay Ming Leu, a physician who practiced medicine on Chicago’s west side. Dr. Leu was charged in an indictment returned in April 1974. Counts 1-11 charged that he knowingly and intentionally dispensed Schedule II and III controlled substances pursuant to prescriptions not written in the course of professional practice in violation of 21 U.S.C. § 841(a)(1), and Counts 12-30 charged that he knowingly and intentionally attempted to dispense Schedule II and III controlled substances pursuant to prescriptions not written in the course of professional practice in violation of 21 U.S.C. §§ 841(a)(1), 846. Dr. Leu was found not guilty of Counts 1-11 (dispensing) and guilty of Counts 12-30 (attempting to dispense). He was sentenced to five consecutive one year prison terms which are the subject of this appeal.

The primary evidence against Dr. Leu was the testimony of three agents of the Drug Enforcement Administration and one agent from the Illinois Legislative Investigating Commission. These agents each described circumstances in which Dr. Leu sold them prescriptions for controlled substances. Agent Ward testified that he went to Dr. Leu for the first time on April 19, 1973 and asked to buy $100 worth of Ritalin. Dr. Leu said he could only give him a prescription for 90 pills. Five days later Ward asked for, but was refused another prescription for Ritalin because he was “too early,” but after asking then instead for Seconal, he was given a prescription for a similar drug called Tuinal. Agent Ward returned thereafter and picked up other prescriptions. At no time was any physical examination given or a medical history taken.

Agent Adams testified that he told Dr. Leu that he was not kicking any habit, but just wanted to buy some Ritalin to get high. Dr. Leu then gave him a prescription for 90 pills in exchange for $20. On his next visit Adams received prescriptions for Ritalin and Seconal.

Agent Doyle went to Dr. Leu in September 1973, and explained that since July, when he had last seen Dr. Leu, he had been in Canada selling Methylphenidate (active ingredient in Ritalin). Dr. Leu wrote a prescription for Desoxyn in the name of Eddie DeGrazia (Doyle’s undercover name) and although he would not write one for Ritalin to the same person, he did write one in another name, known by Dr. Leu not to be Doyle’s real name. Agent Doyle told Dr. Leu that he never used Ritalin, but he just sold it to which the doctor replied: “Everybody has to make a living.” Shortly thereafter Doyle asked for and received two 90 pill Ritalin prescriptions made out in the names of Ronald Henry and Thomas Sexton. A few days later Doyle purchased two more prescriptions under new names. He was at no time examined by Dr. Leu.

Agent Brown first visited Dr. Leu’s office on April 19, 1973 and asked for and received a prescription in the name of Arnie Wilson for Ritalin and Seconal because he was having a party. Two weeks later he bought prescriptions in the name of Eddie Brown. Agent Brown subsequently returned and got prescriptions in the name of Bonnie Hill, Billy Brown, Lenora Brown, Lenora Wilson and Glenn Gray. Brown had told Dr. Leu that he was selling the pills.

Dr. Leu challenges his conviction on the same grounds as the defendant-doctor in 74-1428. In addition, Dr. Leu argues that his conviction should be reversed on the grounds that certain instructions to the jury were erroneous; that the evidence was insufficient to make out an attempt case where the prescriptions were never filled; that certain expert opinion evidence invaded the province of the jury;' and that there was excessive pretrial publicity and that the evidence was insufficient to sustain the conviction.

Ill

The principal issue raised by the defendant-physicians in both cases is that they are not subject to conviction under 21 U.S.C. § 841(a)(1) because of their status as registrants. The thrust of defendants’ argument is premised on Chief Judge Bazelon’s decision for a divided court in United States v. Moore, 505 F.2d 426 (D.C.Cir. 1974), cert. granted, 420.U.S. 923, 95 S.Ct. 1116, 43 L.Ed.2d 392 (1975). The court opined that Congress in enacting the Controlled Substances Act was distinguishing between the registrant and non-registrant in determining whether the penalty provisions of 21 U.S.C. §§ 842, 843 were to apply or the more severe sanctions of 21 U.S.C. § 841 were applicable. As the court said:

In contrast to §§ 842 and 843, § 841 does not mention “registrants” as the focus of any of its provisions. It provides for sentences of up to 15 years and fines of up to $25,000. This broad outline strongly suggests that Congress intended to deal with registrants primarily through a system of administrative controls, relying on modest penalty provisions to enforce those controls, and reserving the severe penalties provided for in § 841 for those seeking to avoid regulation entirely by not registering.

Moore, supra at 430.

Prior to Moore it was unanimously held that physicians who were registrants could be liable under 21 U.S.C. § 841 if they prescribed controlled substances outside the course of professional practice. United States v. Larson, 507 F.2d 385 (9th Cir. 1974); United States v. Badia, 490 F.2d 296 (1st Cir. 1973); United States v. Jobe, 487 F.2d 268 (10th Cir. 1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974); United States v. Leigh, 487 F.2d 206 (5th Cir. 1973); United States v. Bartee, 479 F.2d 484 (10th Cir. 1973); United States v. Collier, 478 F.2d 268 (5th Cir. 1973). For the following reasons we respectfully decline to follow the majority holding in Moore and we find ourselves instead persuaded by Judge MacKinnon’s dissent and the earlier precedents.

We agree with the Moore majority that Congress in some respects intended to treat physician-registrants differently from non-registrants. We do not agree, however, that registrants were to be totally immune from the sanctions imposed by section 841. Insofar as registrants are guilty of technical violations (e. g., use of oral' prescription when written one is required; dispensation of controlled substances for which he is not authorized to another registrant; distribution of controlled substances without the proper label; failure to keep proper records; distribution pursuant to an improper order form; use of improper registration number) in their day-to-day dealings with controlled substances in accordance with their professional responsibilities, they are liable only for the lesser penalties of sections 842 and 843. When, however, a physician acts without any legitimate medical purpose and beyond the course of professional practice by selling prescriptions that allow the bearer to obtain controlled substances, his conduct should be treated like that of any street-corner pill-pusher.

Section 841 makes it “unlawful for any person ... to distribute or dispense controlled substances ..” That prohibition is absolute unless otherwise “authorized by [the] subehapter.” We deem it to be significant that the exception refers only to a distributing or dispensing that is authorized by the subchapter rather than a broader exception which would totally exempt all registrants. Furthermore, the definition of the term dispense requires that a practitioner be involved either in delivering, ordering or prescribing a controlled substance. 21 U.S.C. § 802(10). A practitioner is one registered or one otherwise permitted by the United States or a state to dispense or administer a controlled substance. 21 U.S.C. § 802(20). Thus, it is clear that when 21 U.S.C. § 841(a) refers to “dispense,” it can only mean that physicians as well as other practitioners are subject to the sanctions of that section if their actions are not authorized by the subchapter.

There is another example of internal inconsistency that follows from a holding that section 841(a) does not apply to registered physicians. If a registrant distributed a controlled substance' without using the proper order form or in any manner that violated 21 U.S.C. § 843 (technical violations including use of fictitious registration number; acquisition of controlled substances through misrepresentation; furnishing false information on documents required to be kept or filed and making of equipment designed to reproduce drug trade names fraudulently) he could receive up to four years imprisonment for an initial violation. A violation of the type charged in these cases, selling of prescriptions without a legitimate medical purpose, would, according to the Moore theory, be cognizable only under 21 U.S.C. § 842 (since section 841 would be unavailable and the charge is not covered by section 843). A violation of section 842 carries only a one year imprisonment term for initial violations. This would mean that a physician who knowingly wrote prescriptions to anyone on demand would receive at most a one year sentence, while his colleague who failed to use a proper order form could receive up to four years imprisonment. We do not believe that Congress intended such a result.

Furthermore, our judgment is supported by looking closely at section 842(a)(1), the section Moore would rely on for this action in lieu of section 841. Section 842(a)(1) makes it unlawful for a registrant to dispense a controlled substance in violation of 21 U.S.C. § 829. Section 829 refers to the situations when a physician is required to use either a written or oral prescription, and directs the form that the prescription is to take. It does not specifically deal with the problem of the issuance of prescriptions without any medical justification. The fact that section 842(a)(1) may have been violated by the defendant-physicians does not preclude the possibility that they are liable under another section carrying more severe sanctions.

Finally, the legislative history of the Controlled Substances Act substantiates our position. The present Act replaced the Harrison Narcotics Act of 1914, 38 Stat. 785 (1914), the prohibitions of which (against dispensing narcotics) were applied to registered physicians who acted beyond the course of their professional practice. United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922); Jin Fuey Moy v. United States, 254 U.S. 189, 41 S.Ct. 98, 65 L.Ed. 214 (1920); United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493 (1919).

We have neither been directed to nor have we discovered a substantial basis in the legislative history that convinces us that physicians were not to be liable under section 841 as they were under the Harrison Act for dispensing controlled substances outside the course of their professional practice. While it is true to some degree that the Harrison Act was thought inadequate with regard to defining precisely the liability of physicians, this goal was accomplished in the Controlled Substances Act through the gradations of sanctions provided by sections 841-843 and by empowering the Attorney General to promulgate regulations to define more precisely what constitutes authorized dispensing. 21 U.S.C. §§ 821, 871(b). It was not accomplished, as the Moore court holds, by exempting physicians from the sanctions of section 841.

The language in the legislative history relied on by the Moore court to conclude that physicians were not to be included within the coverage of section 841 is in our view too general to justify that conclusion. The congressional purpose behind section 841 was to get the drug dealer no matter who he might be, and to prevent diversion of legitimately produced controlled substances into illicit channels. One of the major sources of this illicit diversion is from registrants who have relatively easy access to controlled substances. Certainly Congress did not intend to immunize such individuals from prosecution under section 841. We hold that section 841 does not exclude physicians from its coverage.

IV

It is next necessary to consider precisely what type of dispensing or distributing is authorized by the exception clause of section 841. All the defendants in both consolidated appeals argue that charges against them are based on an invalidly promulgated regulation that expands too broadly the conduct considered impermissible under section 841. The challenged regulation is 21 C.F.R. § 306.04(a) which provides that a prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice. The phrase “legitimate medical purpose” is not used in section 841(a) but is used in the indictments, and that discrepancy is the basis of the defendants’ challenge.

In our view, the challenged regulation has been validly enacted and does not expand the criminal statute. Section 841(a)(1) makes it unlawful to dispense or distribute controlled substances “except as authorized by this subchapter.” 21 U.S.C. § 822(b) provides that registrants are allowed to dispense controlled substances “to the extent authorized by their registration and in conformity with the other provisions of this subchapter.” Two of the provisions of the subchapter are 21 U.S.C. § 821 and § 871(b). Section 821 provides that “[t]he Attorney General is authorized to promulgate rules and regulations . . . relating to the . . . control of the distribution, and dispensing of controlled substances.” Similarly, section 871(b) provides that “[t]he Attorney General may promulgate . . . regulations for the efficient execution of his functions under this subchapter.” It is pursuant to that authority that 21 C.F.R. § 306.04(a) was promulgated. Thus, it is clear that the prescriptions involved in the present cases were not effective because they were not issued for a legitimate medical purpose. The exemption from section 841(a) is applicable only if the action of the practitioners is authorized. Since there was no lawful prescription ever written, it follows that section 829 has not been complied with and the dispensing of the controlled substances in these cases has not been authorized. This interpretation does not expand the meaning of section 841(a), but rather seeks to define the exemption clause of that section.

Although it is probably true that more precise regulations are desirable as to what physicians may or may not do with respect to the exception clause of section 841(a), the present cases are not of the border line variety which had in part motivated Congress to abandon the Harrison Act and enact the Controlled Substances Act. In the present cases there were wholesale sales of prescriptions without even the pretense of" a legitimate medical purpose or standard medical procedures. Under these circumstances we find no merit in the defendant’s claims that the regulation expanded what was criminal beyond the congressional statute.

V

The defendant Fort in 74-1435, owner of the building that housed the medical center and the Afro-American Pharmacy, challenges his conviction on sufficiency of the evidence grounds. We have reviewed the evidence and find that in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62. S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Esquer, 459 F.2d 431, 433 (7th Cir. 1972), cert. denied, 414 U.S. 1006, 94 S.Ct. 366, 38 L.Ed.2d 243 (1973), that a sufficient basis exists in the record upon which the jury could reasonably conclude that the defendant Fort had participated in a conspiracy with Dr. Suarez and Green to violate section 841(a).

While the evidence against Fort is not overwhelming, there was sufficient testimony tying him to the prescription sales operation. He was fully aware of the 15 day rule and its operation. He knew that there were exceptions to the rule and that one of these exceptions was Lorenzo Bliss, whom Fort knew personally. Furthermore, Fort not only knew of the direct telephone link-up between the medical clinic and pharmacy, but he expressed disappointment that Dr. Suarez was not making greater use of the line in order that clinic patients would be forced to come to Fort’s pharmacy. In addition, Helen Basie testified that to her comment that there were too many people in the clinic and that it could not be possible for that many people to be coming to see this doctor with the same illness and getting the same medication, Fort replied, “Yes, he’s getting out of hand.”

Other evidence pointing to Fort’s involvement in the conspiracy included the fact that Fort had hired security guards for the first and eighth floors. The guards were instructed to make sure that patients did not sell medication in the building. In addition, it was shown that the pharmacy had bought over 1,000,000 Ritalin tablets in an eleven month period, and that on occasion Fort ordered and picked up these supplies. From all this evidence the jury could reasonably conclude that Fort was not a passive part-owner of a pharmacy involved in illegal distribution of controlled substances, but that he knew of and was involved in a concerted effort to violate section 841(a).

VI

The defendant Dr. Leu in addition to the challenges already considered and rejected raises a number of other claims.

A

The defendant contends that the jury instruction on what constituted a defense by a physician to an action under section 841(a) should have been broader than “if the substance is prescribed by him in good faith in medically treating a patient,” Initially, the defendant asked for an instruction that would have established a defense on the mere showing that a controlled substance was prescribed by a physician for his patient’s own use.

As the district judge correctly observed, the defendant’s proffered instruction was too broad and would have taken the heart out of the government’s case. The defendant’s instruction would have had the effect of applying the Moore rationale. We have decided that a prescription issued by a physician that is so far removed from a physician’s professional responsibilities (i. e. more than mere technical violations of his authorization) violates section 841(a). The “good faith medical treatment” instruction seems to be an accurate reflection of this holding and in no way was prejudicial to the defendant’s case.

B

Defendant Leu was found not guilty of eleven substantive counts, but found guilty of the remaining counts all charging him with attempt to dispense. It is uncontroverted that the prescriptions written by the defendant that form the basis for Counts 12-30 were neyer filled. Even assuming that a prescription must be filled to complete the crime of dispensing a controlled substance as defined by section 841(a), it seems to us clear that a prescription need .not be filled to make out a case of attempting to dispense against a physician.

We have previously determined that a physician’s authorization which gives rise to an exemption from section 841(a) liability, does not cover the writing of prescriptions outside the course of one’s professional practice. In the present case the proof shows that the defendant wrote and sold prescriptions to individuals outside the scope of his professional duties. When this occurred the defendant-physician had completed all the elements of the offense that he would ever commit and that were within his control. As far as Dr. Leu was concerned, the crime had been completed. If for some reason it was not in actuality completed, it was because of “factual” and not “legal” impossibility, and therefore not a sufficient defense to an attempt charge. United States v. Heng Awkak Roman, 356 F.Supp. 434 (S.D.N. Y.), aff’d, 484 F.2d 1271 (2d Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1565, 39 L.Ed.2d 874 (1974). This is not a case of “mere preparation” but rather one of attempt to commit the crime of dispensing. Here we have “the commission of an overt act, the ‘doing something directly moving toward, and bringing him nearer, the crime he intends to commit.’ ” United States v. Noreikis,, 481 F.2d 1177, 1181 (7th Cir. 1973). As the court said in United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974):

First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting.
Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.

Id. at 376.

The foregoing test was clearly met in this case.

C

The defendant complains that the expert testimony of Dr. Howard D. Kurland as to customary procedures followed by licensed medical physicians in treating a new patient prior to prescribing a controlled substance as medication invaded the province of the jury.

While it may be true that an expert should not be allowed to express a conclusion upon the ultimate issue of fact to be decided by the jury, United States v. Spaulding, 293 U.S. 498, 55 S.Ct. 273, 79 L.Ed. 617 (1935), the testimony of Dr. Kurland in the present case was entirely proper. Here Dr. Kurland merely testified as to what customary medical procedure was generally followed before the prescribing of drugs. He did not comment on whether the procedures followed by the defendant were appropriate, given the individual nature of his patients’ conditions. That question was properly left for the jury’s determination. Testimony as to the traditional procedures and techniques to be followed by a physician in a given set of circumstances is entirely permissible by a witness who is qualified as an expert in the medical field. United States v. Bar-tee, 479 F.2d 484, 488 (10th Cir. 1973); Heller v. United States, 104 F.2d 446, 449 (4th Cir. 1939).

In addition, the trial judge gave La-Buy instruction 6.16-1 which advised the jury that an expert’s opinion need not be accepted by them. We conclude, therefore, that the defendant has shown no prejudice caused by the admission of Dr. Kurland’s testimony.

D

Dr. Leu further contends that he was denied a fair trial because of adverse pre-trial publicity. The defendant claims that news stories reporting his indictment and the trial of Dr. Suarez served to prejudice him. We note that most of the stories complained of were published or broadcast five months before defendant’s trial, and accounts of Dr. Suarez’ trial were published approximately six weeks before the start of Dr. Leu’s trial. At the voir dire it was established that the jurors had never heard of Dr. Leu or anything about this case. In addition, at the close of the evidence the jury was instructed to consider only the evidence presented in the courtroom and to disregard any press, television or radio reports they might have seen or heard. Considering the specific facts of this case, the intensity of the exposure and the nature of the publicity, we conclude that the publicity attendant with this trial was minimal and clearly does not warrant either a reversal or remand. United States v. Barrett, 505 F.2d 1091, 1100 (7th Cir. 1974), petition for cert. filed, 43 U.S.L.W. 3438 (U.S. Feb. 11, 1975).

E

Finally, we have examined defendant Leu’s sufficiency of the evidence argument and we find it without merit. As the facts summarized in part II, supra, indicate, there was clearly a sufficient basis to support the jury’s verdict.

We have examined all of the defendant’s other contentions of error and find them unpersuasive.

For the foregoing reasons the judgments of the district court in both eases are affirmed.

      . 21 U.S.C. § 841 provides:
      (a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.

      . 21 C.F.R. § 306.04 provides:
      (a) 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 Act (21 U.S.C. 829) 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.

      . Dr. McClure was found not guilty by the jury and accordingly is not presently before this court.

      . Originally there had been a 30 count indictment against the four defendants. This was dismissed on the government’s own motion and superseded by the present indictment.

      . Count 2 indicted Green for knowingly and intentionally furnishing a material false statement to the Registration Branch of the Bureau of Narcotics and Dangerous Drugs. This count was severed and eventually dismissed by the government after Green’s conviction. Count 9 charged Dr. Suarez with dispensing a Schedule III controlled substance without a legitimate medical purpose. He was found not guilty of this count.
      Counts 31-33 indicted Dr. McClure for illegally dispensing Schedule III controlled substances without a legitimate medical purpose. These counts are not before us.

      . Counts 3-8, 10-13, 18, 20, 21, 24-27. All but Counts 5 and 7 alleged dispensing of Schedule II controlled substances.

      . Counts 14-17, 19, 22, 23, 28-30.

      . The government offered the following description for these substances:
      RITALIN — a trade name for a tablet containing methylphenidate, a Schedule II controlled substance.
      DESBUTAL — a trade name for a capsule containing methamphetamine, also a Schedule II controlled substance.
      DORIDEN — a trade name for capsules or tablets containing glutethimide, a Schedule III controlled substance.
      TUINAL — a trade name for tablets or capsules containing sodium amobarbital and sodium secobarbital, also a Schedule III controlled substance.

      . Such names as Lana Turner, Mark Twain, Spencer Tracy, Loretta Young, Joan Crawford, Ralph Nader, Karl Malden, Peter Fonda, Peter Lorre, Lena Horne, Carl Stokes, Celeste Holm, Lawrence Welk, Aretha Franklin, Rosa-line Russell, and Pablo Casales.

      . No. 74-1420 was an appeal from the district judge’s denial of bond pending appeal. An emergency motion by the defendant requesting injunctive relief was denied by this court on May 29, 1974.

      . The sentence was subsequently modified because conviction under 21 U.S.C. §§ 841, 846 requires the imposition of a special parole term. This was set at three years.

      . It is not entirely clear from the record whether Green (pharmacist) is a registrant under the act. It would seem that 21 U.S.C. § 822 would require him to register in order to be able to lawfully distribute controlled substances. In any case because of our disposition of the Moore case issue, whether Green was registered or not becomes irrelevant.

      . The theories for finding physicians liable under 21 U.S.C. § 841 were varied. Thus, in United States v. Leigh, 487 F.2d 206 (5th Cir. 1973), the court held that an indictment charging “distributing” by a physician instead of “dispensing” was invalid, while in United States v. Badia, 490 F.2d 296 (1st Cir. 1973), the court held that a physician was guilty of “distributing” rather than “dispensing” because as a registrant he could only be “dispensing” if he was in fact acting within the course of professional practice.

      . The question of what types of distributions and dispensations are authorized is discussed infra.

      . See Moore, supra, 505 F.2d at 452 n.10 (MacKinnon, J., dissenting).

      . As quoted from the Prettyman Commission of 1963 in the House Report accompanying the Controlled Substances Act:
      Since the passage of the Harrison Act of 1914, the Federal narcotics laws have expressly permitted a physician to prescribe narcotic drugs for a patient in the course of “professional practice only” and for “legitimate medical uses” and “legitimate medical purposes.” Under this statutory language there is no doubt that a physician may prescribe narcotic drugs for a patient suffering acute pain or from a painful and incurable disease. But a controversy has existed for 50 years over the extent to which narcotic drugs may be administered to an addict solely because he is an addict.
      During the first 10 years following enactment of the Harrison Act, the Supreme Court affirmed several convictions under the act involving the indiscriminate prescribing of narcotic drugs for addicts. In 1925, however, in Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, the Court indicated that the dispensing of narcotic drugs by a physician for the purpose of relieving conditions incident to addiction was not in every instance a violation of the act.
      The regulations of the Bureau of Narcotics, however, do not seem to be in accord with [Linder].
      The practicing physician has thus been confused as to when he may prescribe narcotic drugs for an addict. Out of a fear of prosecution many physicians refuse to use narcotics in the treatment of addicts except occasionally in a withdrawal regimen lasting no longer than a few weeks. In most instances they shun addicts as patients.
      H.R.Rep.No.91-1444, 91st Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4580 (1970).

      . As stated by the House Report accompanying the Act:
      Although the committee is concerned about the appropriateness of having Federal officials determine the appropriate method of the practice of medicine, it is necessary to recognize that for the last 50 years this is precisely what has happened, through criminal prosecution of physicians whose methods of prescribing narcotic drugs have not conformed to the opinions of Federal prosecutors of what constitutes appropriate methods of professional practice. In view of this situation, this section will provide guidelines, determined by the principal health agency of the Federal Government, after consultation with appropriate national professional organizations. Those physicians who comply with the recommendations made by the Secretary will no longer jeopardize their professional careers by accepting narcotic addicts as patients.
      H.R.Rep.No.91-1444, 91st Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4581 (1970).

      . The House Report accompanying the Act stated:
      With regard to the stimulant and depressant drugs, now regulated under the Federal Food, Drug, and Cosmetic Act as amended by the Drug Abuse Control Amendments of 1965 and in 1968, it should be noted that as estimated in a report by this committee in March of 1965 on the Drug Abuse Control Amendments of 1965, almost 50 percent of the 9 billion amphetamines and barbiturates produced legitimately in this country were diverted into illicit channels. As of late 1969, when that diversion figure was rechecked, it was still accurate.
      H.R.Rep.No.91-1444, 91st Cong., 2d Sess., U.S.Code Cong. & Admin.News, pp. 4566, 4572 (1970).

      . It is true that section 842 provides penalties for registrants who fail to comply with section 829. This, however, refers to specific technical violations of section 829 and of 21 U.S.C. § 353(b) which is incorporated by reference in section 829. We believe that where a prescription is void, as 21 C.F.R. § 306.04(a) provides, that the appropriate section to be applied is 841.

      . Even without reference to the regulation the government has sustained its burden in these cases. Section 841(a) makes it illegal to dispense controlled substances except as authorized. The term dispense is defined so as to include the prescribing of a controlled substance by a practitioner which is defined to include a registrant (physician or pharmacist) who acts within the course of professional practice. 21 U.S.C. § 802(10), (20). Since the wholesale selling of prescriptions for controlled substances is beyond the scope of professional practice, a physician (or pharmacist who participates in such a scheme) is not acting as a practitioner. Thus, if such an individual’s actions are not that of a practitioner they are not authorized under the sub-chapter and the exception clause of section 841 does not apply.

      . See note 17, supra.

      . The instruction given read:
      Federal law authorizes a licensed physician to prescribe controlled substances of the kinds charged in the indictment, if the drug is prescribed in the course of the physician’s professional practice.
      The defendant Pay Ming Leu is a licensed physician. It is therefore a defense to the charges in this indictment that the controlled substances were prescribed by him in the course of his professional practice.
      A controlled substance is prescribed by a physician in the course of his professional practice, and therefore lawfully, if the substance is prescribed by him in good faith in medically treating a patient.
      In order to determine whether or not a prescription or prescriptions were issued in the course of a defendant physician’s professional practice, you may consider all of the evidence of circumstances surrounding the prescribing of the substance in question, the statements of the parties to the prescription transaction, any expert testimony as to what is the usual course of medical practice, and any other competent evidence bearing on the purpose for which the substances in question were prescribed.
      Unless you find beyond a reasonable doubt that an act of prescribing charged in the indictment against a physician defendant was not done by the defendant physician in the course of his professional practice, then you should find him not guilty.

      . The defendant also objects to an instruction given by the district judge that defined not only Schedule II and III controlled substances (the basis of the indictment) but also Schedule I substances (not involved in the indictment). The purpose of giving the definition of a Schedule I substance (high potential for abuse and no currently accepted medical use) was because the definition of Schedule I is referred to in the definition of Schedule III. It is clear that the defendant was not prejudiced by this instruction. The instruction as given was an accurate statement of the law as set out in 21 U.S.C. § 812 and the judge not only informed the jury why he was reading them the definition of Schedule I substances, but also advised them that this case involved no such substances.

      . As an offshoot to this argument the defendant argues that since the jury found him not guilty of Counts 1-11, and that at least some of the elements involved in these acquittals were involved in the remaining attempt counts, that the verdicts are inconsistent. Merely because inconsistent verdicts are rendered does not necessarily require a reversal. United States v. Greene, 497 F.2d 1068 (7th Cir. 1974). In this case, however, the verdicts are not inconsistent. The attempt counts charge the defendant Leu with selling of prescriptions on entirely different occasions than do the first eleven substantive counts. Furthermore, as compared to the first eleven counts the proof on the attempt counts showed more dramatically that no legitimate medical purpose was involved (i. e. more frequent intervals and wholesale use of fictitious names).

      . The fact that Dr. Suarez was sentenced during the trial of Dr. Leu does not establish substantial prejudice. Indeed, except for the bald assertion that the Suarez sentencing coincided with the Leu trial, the court’s attention is not directed to any specific articles or broadcasts that contain anything more than a bare reporting of the facts.