                      United States Court of Appeals,

                              Eleventh Circuit.

                                    No. 94-3139.

 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

                                           v.

       William O. STEELE, Defendant-Appellant, Cross-Appellee.

                                Feb. 11, 1997.

Appeals from the United States District Court for the Northern
District of Florida. No. 94-03055RV), Roger Vinson, Judge.

Before TJOFLAT        and   BIRCH,    Circuit        Judges,    and    SMITH*,   Senior
Circuit Judge.

       BIRCH, Circuit Judge:

       This appeal presents the issue of whether an indictment

charging a pharmacist with dispensing controlled substances in

violation of 21 U.S.C. § 841(a)(1) must allege conduct outside the

scope of professional practice.              The indictment in this case did

not allege that the pharmacist's conduct was outside the scope of

professional       conduct,   but    the     pharmacist        was    convicted.    We

REVERSE.

                                I. BACKGROUND

       Defendant-appellant,         William     O.    Steele,    was    a   registered

pharmacist at North Hill Pharmacy in Pensacola Florida.                      Allegedly

with       full   knowledge   that     the      prescriptions         for   controlled

substances were forged, Steele filled numerous prescriptions for

Larry and Gloria Ellis over the course of several months.                          The

Ellises, who were convicted for passing forged prescriptions at


       *
      Honorable Edward S. Smith, Senior U.S. Circuit Judge for
the Federal Circuit, sitting by designation.
North Hill Pharmacy, testified against Steele and are serving their

sentences.

      A four-count indictment charged Steele with dispensing the

controlled substances commonly known as Dilaudid, Xanax, Valium,

and Percodan in violation of section 841(a)(1).          Section 841(a)(1)

provides that "[e]xcept as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally—(1) to

manufacture, distribute, or dispense ... a controlled substance."

Each count of the indictment tracks the statutory language and is

identical to the other counts except for the identification of

different controlled substances in each count.               Count One, for

example, provides as follows:

      That from on or about July 1, 1993, and continuously
      thereafter, up to and including on or about November 2, 1993,
      in the Northern District of Florida, the defendant, William O.
      Steele, did knowingly and intentionally dispense hydromorphone
      hydrochloride, a schedule II controlled substance, commonly
      known as Dilaudid, in violation of Title 21, United States
      Code, Section 841(a)(1).

Steele filed a motion for a bill of particulars or, alternatively,

for dismissal of the indictment for lack of specificity.                 The

district court denied the motion.

      The first trial ended in a mistrial when the jury could not

reach a verdict.    At the conclusion of the government's case in the

second trial, Steele filed a motion for a judgment of acquittal and

alleged in part that the indictment failed to charge that Steele

had dispensed the controlled substances contrary to the ordinary

course of his professional practice as a registered pharmacist.

The   court   denied   the   motion,   and   the   defense   rested   without

presenting evidence.     Steele was convicted on all four counts.
     Steele raises three issues on appeal: 1) insufficiency of the

indictment, 2) gender bias in the government's peremptory strikes

during jury selection, and 3) insufficiency of the evidence.     The

government cross-appeals the court's downward departure from the

Sentencing Guidelines.     Because we find that the indictment was

insufficient and reverse the conviction, we do not reach the other

issues raised by Steele or the government's cross-appeal related to

sentencing.

                           II. DISCUSSION

         Whether an indictment sufficiently alleges a crime is a

question of law.   Rodriguez v. Ritchey, 556 F.2d 1185, 1191 n. 22

(5th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54

L.Ed.2d 799 (1978).   We review questions of law de novo.     United

States v. Shenberg, 89 F.3d 1461, 1478 (11th Cir.1996).       Steele

argues that, because he is a registered pharmacist who can lawfully

dispense controlled substances under 21 U.S.C. § 822(b), the

indictment must allege that he dispensed the controlled substances
                                                  1
outside the scope of his professional practice.       The government

contends that the indictment includes each element of the offense

because it tracks the language of section 841(a)(1) and because the

exception for practitioners is an affirmative defense which must be

raised by the defendant.

         Practitioners, such as physicians and pharmacists,2 who

     1
      Although Steele makes several arguments to support his
allegation that the indictment is insufficient, we need address
only whether the indictment fails to allege each element of the
offense.
     2
      Physicians and pharmacists are both defined as
"practitioners" in 21 U.S.C. § 802(20).
legally can dispense controlled substances can be convicted under

section 841(a)(1) when their actions fall outside the scope of

legitimate professional practice.                The Supreme Court affirmed a

conviction of a physician under section 841(a)(1) because he

exceeded the bounds of legitimate medical practice.                United States

v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975).                     We

subsequently have held that pharmacists are similarly subject to

conviction under the statute when their activities fall outside the

usual course of professional practice. United States v. Hayes, 595

F.2d 258 (5th Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62

L.Ed.2d 89 (1979).      The issue here is whether behavior outside the

scope of professional practice must be alleged in the indictment

when a pharmacist is charged under section 841(a)(1) for dispensing

controlled    substances.         It   is   an   established   rule     that   each

essential element of an offense must be alleged in an indictment.

E.g., United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113,

114, 98 L.Ed. 92 (1953).       Thus, an indictment using only statutory

language is sufficient only if the statute itself sets forth all

essential elements of the offense.                United States v. Carll, 105

U.S. 611, 612, 26 L.Ed. 1135 (1881).                "If the statute omits an

essential     element    of   the      offense,    or   includes   it    only    by

implication, then pleading the statutory language will not suffice,

and   the   omitted     element     must    be    alleged   directly    and    with

certainty."    1 Charles A. Wright, Federal Practice and Procedure §

125, at 369-70 (2d ed.1982) (collecting cases). In contrast, an

affirmative defense need not be negated in an indictment,                  United

States v. Sisson,       399 U.S. 267, 288, 90 S.Ct. 2117, 2128, 26
L.Ed.2d 608 (1970). Thus, in this case, the necessity of including

an   allegation    of   behavior   outside    the    scope   of    professional

practice in the indictment turns on whether it is an essential

element of the offense or an affirmative defense that should

properly be proved by Steele.

         In United States v. Outler, 659 F.2d 1306, 1309 (5th Cir.

Unit B 1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1453, 71

L.Ed.2d 665 (1982), we held that behavior outside the scope of

professional practice is an essential element of the offense when

a physician is charged under section 841(a)(1).              We rejected the

government's argument in      Outler that acting within the scope of

legitimate medical practice is an affirmative defense that a

physician must raise because we believed that Congress did not

intend    a   presumption   that   physicians    who    dispense        controlled

substances do so without legitimate reasons. Id. at 1309-1310 & n.

3. We similarly believe that Congress intended no such result for

registered pharmacists who dispense controlled substances and,

thus,    reject   the   argument   that   behavior     within     the    scope   of

professional practice is an affirmative defense for pharmacists

charged under section 841(a)(1).

      The government sought to distinguish Outler from the present

case on the basis of language in the Outler indictment that is

lacking in Steele's indictment.              The government argued that,

because the indictment in Outler included the phrase "by means of

a prescription," the indictment on its face was misleading to the

grand jury without an allegation that the drugs were prescribed

without a legitimate medical purpose.               The government further
argued that use of the word "prescription" in the Outler indictment

implied    a    practitioner      whereas     Steele's   indictment    made    no

reference to his status as a pharmacist and was, consequently,

sufficient on its face.

      We are unpersuaded by the government's argument for several

reasons.       First, the word "dispense," like the word "prescribe,"

implies a practitioner.           Section 802(10) defines "dispense" as

"deliver a controlled substance to an ultimate user ... by, or

pursuant to the lawful order of, a practitioner, including the

prescribing and administering of a controlled substance and the

packaging,      labeling,   or    compounding     necessary   to    prepare    the

substance for delivery."          21 U.S.C. § 802(10) (emphasis added).

Thus, "dispense" by statutory definition is delivery performed by

a practitioner.

      Second, the analysis in Outler did not turn on the use of the

language "by means of a prescription."            In fact, we used the terms

"prescribe" and "dispense" interchangeably in Outler, 659 F.2d at

1308 ("Counts One through Fifteen involved charges of prescribing

or,   in   the     language      of     the   [Controlled   Substances    Act],

"dispensing' controlled drugs.").

      Finally,     we   reject    the    government's    argument    because    an

indictment which on its face does not identify the defendant as a

practitioner does not change the essential elements of the offense

when a practitioner is prosecuted under section 841(a)(1) for

illegally dispensing controlled substances.              In Outler we held that

the element of behavior beyond professional practice must be

alleged in an indictment "whenever a physician is charged with
[dispensing] drugs in violation of 21 U.S.C. § 841(a)."                       Id. at

1310 (emphasis added).           The reasoning in Outler logically extends

to   practitioners       like     pharmacists    who    "dispense"      controlled

substances.

       As in Outler, we have little doubt that an indictment alleging

behavior outside the scope of professional practice would have

allowed a grand jury to find probable cause for the offense in this

case.       The rule that each essential element must be alleged in an

indictment, however, serves to ensure certain basic protections
                                                                                     3
provided by the Fifth and Sixth Amendments of the Constitution.

We cannot speculate as to the grand jury's decision in view of the

government's failure to allege each essential element of the

offense without potentially "depri[ving] the defendant of a basic

protection which the guarantee of the intervention of a grand jury

was designed to secure." Outler, 659 F.2d at 1311 (quoting Russell

v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d

240 (1962)).       Thus, the indictment is insufficient to support the

conviction.

                                  III. CONCLUSION

           In   this   appeal,   Steele     argues    that    the   indictment     was

insufficient to support his conviction under section 841(a)(1).

Each       essential   element    of   an   offense    must    be   alleged   in    an

       3
      The Sixth Amendment provides that the criminal defendant
"be informed of the nature and cause of the accusation." U.S.
Const. amend. VI. The Fifth Amendment guarantees that "[n]o
person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury." U.S. Const. amend. V. Requiring that each essential
element be alleged in the indictment serves to inform the
defendant of the alleged offense and to ensure that the grand
jury properly determines probable cause.
indictment, and behavior outside the scope of professional practice

is an essential element of the offense whenever a practitioner is

charged with dispensing drugs in violation of section 841(a)(1).

Thus, as we have analyzed herein, an indictment failing to allege

this   essential   element   when   a   practitioner    is   charged   with

illegally     dispensing   controlled   substances     cannot   support   a

conviction.    Accordingly, we REVERSE.
