5th Cir. Pattern Jury Instr. (Criminal) 2.95C

PHYSICIAN [OTHER MEDICAL PRACTITIONER]

21 U.S.C. §§ 841(a)(1), 841(b); 21 C.F.R. § 1306.04(a)

Title 21, United States Code, Section 841(a)(1), makes it a crime for any person, except as

authorized, to knowingly and intentionally distribute or dispense a controlled substance. Title 21,

Code of Federal Regulation, Section 1306.04(a), authorizes registered phys icians [nurse

practitioners] licensed by the state to dispense controlled substances via a prescription, but only if

the prescription is issued for a legitimate medical purpose by a physician [nurse practitioner] acting

in the usual course of his [her] professional practice.

____________ (name controlled substance) is a controlled substance within the meaning

of this law.

For you to find the defendant guilty of this crime, you must be convinced that the

government has proved each of the following beyond a reasonable doubt:

First: That the defendant distributed or dispensed a controlled substance;

Second: That the defendant did so knowingly or intentionally;

Third: That the defendant was unauthorized to dispense a controlled substance via a

prescription, in that he [she] did so other than for a legitimate medical purpose or outside the usual

course of professional practice; and

Fourth: That the defendant knew he [she] was acting in an unauthorized manner, or

intended to act in an unauthorized manner.

A controlled substance is “distributed” if it is delivered or transferred.

“Dispensing” a controlled substance includes writing a prescription.

A prescription is “authorized” if it is issued for a legitimate medical purpose by an

individual practitioner acting in the usual course of professional practice.

A controlled substance is prescribed by a physician [practitioner] for a legitimate medical

purpose in the usual course of his [her] professional practice if the physician acts in accordance

with the standards of medical practice generally recognized or accepted in the United States, or

has a reasonable basis for deviating from this standard of care.

A physician [practitioner] “knows” he [she] is acting other than for a legitimate medical

purpose or outside the usual course of professional practice when he [she] acts voluntarily and

intentionally, not because of mistake or accident. In considering whet her a physician [nurse

467

practitioner] prescribed a controlled substance knowing that it was not for a legitimate medical

purpose or in the usual course of professional practice, you should consider all of the physician’ s

[nurse practitioner’s] actions and the circumstances surrounding them.