dissenting.
I respectfully dissent.
My position goes to the very heart of the problem. I view the statute which is quoted below in the footnote as setting forth two distinct charges.1 The effort of the majority opinion is to convince us that the offense in Title 21 U.S.C. § 802(10), (11) describes identically the same offense.2 In *1432other words the contention is that the offense of dispensing is essentially the same as the offense of distribution, and the offense of distribution is the same as the offense of dispensing.
To my way of thinking (which may well be faulty) this position does not tolerate analysis and conclusion. This defendant was called up for trial on a charge which alleged that he had dispensed a controlled substance, to-wit, cocaine. The United States Attorney, after having commenced the trial and after having called two witnesses, discovered the inadequacy of the charge because of the fact that the defendant was not a physician or was not related in any professional way with being a physician. At most he was a plain distributor of drugs — controlled substances.
Promptly the defendant (who was represented by able counsel) moved to dismiss the indictment because the defendant could not possibly be shown to have committed the offense of dispensing drugs. The defendant had not reached that stage in the handling of drugs. He was a mere distributor. When this matter was called to the attention of the trial judge by the attorney for the defendant, the judge said:
Based on my recollection, that court at least used the standard test to find that one portion, 841(a)(1), is not a lesser included offense, and the other portion, since they have equal penalties * * *. The judge further said:
[b]ut there was an additional element, that each could be proven without proving the other. But I am persuaded by your point regarding the fundamental fairness in the notice aspect of due process. If the government is going to charge someone with an offense, that’s got to be so that the person knows what he or she is charged with and knows how to prepare the defense for that particular charge.
Here, the charge is dispensing, not distributing. Seems to me, since there is a separate statutory scheme for each of these two offenses, it would be a denial of the fundamental due process in the sense of fair notice to uphold an indictment which intends — if the government had intended to charge distribution in this matter, knowing and understanding fully what they were doing, I can’t imagine that they would have done it this way. I think this is an unfortunate oversight in drafting the pleadings in the matter, and it’s a technicality, but, nevertheless, what some people consider technicalities other people have defined as constitutional rights, and the people that did the defining are the people who wrote the Constitution.
So, since I’m sworn to uphold the Constitution, including the due process provisions, it seems to me unfair to try to stretch or — stretch the statutory language or to interpret it as having a meaning other than its natural direct meaning. There’s no reason in the world why in a distribution case like this one, the government can’t file an indictment that charges distribution in the plain and simple language of the statute rather than charging dispensing, which is a different offense intended to provide a way of prosecuting a particular class of defendants, of whom this is not one, and therefore that motion is denied.
As I view it, the trial judge was correct. The charge which was prepared by the United States Attorney and filed, and on which the defendant was brought to trial was so substantially different from the charge of distribution of drugs that it was apparent from the outset that there never could be a conviction on it. These two offenses are as different as larceny and embezzlement. Thus, the dispensation charge can only be proven by showing that the defendant is a doctor, or something akin to a doctor, and that he has prescribed the drug for medical purposes. It is a different and, indeed, a stealthy crime. It is impossi*1433ble to say that dispensing is the same as distributing or that distributing is the same as dispensing.
My conclusion is that the court in relation to this defendant had no jurisdiction to go further than it went in the case and it was exactly right. It dismissed on the motion of the defendant.
But to say this ends the entire matter does not give recognition to the facts and it ignores the law, also. Accordingly, my conclusion is that this Abney appeal has to be resolved against the defendant-appellant.
The decision of the Supreme Court in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), furnishes support for the position discussed above. There, the jury was impanelled and sworn. The district attorney thereafter realized that the indictment was deficient in that it failed to allege the intent factor and the court concluded that further proceedings under the defective indictment would be useless and granted a mistrial therefor. The defendant objected but the prosecution nevertheless pursued the matter. The court granted the motion.
The grand jury returned a second indictment which alleged the requisite intent. Somerville objected to trial on the second indictment intending that double jeopardy precluded such a trial. The Supreme Court’s ruling was that since the defect in the indictment could not, under Illinois law, be cured by amendment, the defect was necessarily “jurisdictional.” 410 U.S. at 460, 93 S.Ct. at 1068. Thus, the holding of the Court was that the declaration of the mistrial was dictated by “manifest necessity” and was not an abuse of discretion. The declaring of the mistrial, the Court found, aborted a proceeding which would have produced a verdict which could have been upset at will by one of the parties. The Court indicated that Somerville’s desire to proceed to verdict was outweighed by the competing demand for public justice.
In view of the fact that the first trial was a nullity, the Court concluded that the second trial was valid and rejected the double jeopardy claim. In the Somerville case, the lack of a knowledge of specific intent in relationship to the facts of the case rendered the indictment so defective as to be invalid. Similarly in the case at bar this same kind of jurisdictional deficiency is present.
My conclusion is that the cause must be remanded to the district court with instructions to the court to proceed with the trial on the distribution charge. The fact that this was an oversight or omission or a mistake does not contribute to the position of the United States here. No matter how it came about, when the pleadings and the other facts are boiled down, it has to be concluded that there were distinct crimes— crimes which Congress recognized as distinct and crimes which, as a matter of practicality, are distinct.
. § 841 provides in part:
(a) Except as authorized by this subchapter, 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; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
. § 802 provides in part:
(10) The term “dispense means to deliver a controlled substance to an ultimate user or research subject 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 such delivery. The term “dispenser” means a practitioner who so delivers a controlled substance to an ultimate user or research subject.
*1432(11) The term “distribute” means to deliver (other than by administering or dispensing) a controlled substance. The term “distributor” means a person who so delivers a controlled substance.