Drown v. United States

• Decision Date: 10 September 1952
• Docket Number: No. 13241.,13241.
• Citation: 198 F.2d 999
• Parties: DROWN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

198 F.2d 999 (1952)

DROWN et al. v. UNITED STATES.

No. 13241.

United States Court of Appeals Ninth Circuit.

September 10, 1952.

COPYRIGHT MATERIAL OMITTED

Homer C. Compton, Los Angeles, Cal., for appellant.

Walter S. Binns, U. S. Atty., Ray Kinnison, Asst. U. S. Atty., Tobias G. Klinger, Asst. U. S. Atty., Los Angeles, Cal. (Arthur A. Dickerman, Atty. U. S. Food & Drug Adm., Fed. Security Agency, Los Angeles, Cal., of counsel), for appellee.

Before STEPHENS, BONE and ORR, Circuit Judges.

ORR, Circuit Judge.

The appellant, Dr. Drown, is a chiropractor who does business in Hollywood, California under the name of Drown Laboratories. Appellant manufactures certain photographic, therapeutic and diagnostic instruments of her own design which she uses in her practice. She sold one of these instruments to a Mr. Rice, resident of Blue Island, Illinois, for which she was charged with selling a device that was misbranded, in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq., by reason of claims in its labeling which were allegedly false and misleading both with respect to the particular instrument sold to Rice and with respect to another instrument also designed by the appellant.¹

Fantastic therapeutic and diagnostic qualities are claimed by appellant for her instruments in their labeling. The Drown Radio Therapeutic Instrument, the device whose sale resulted in her arrest, is represented as capable of eliminating a lump in the breast and preventing cancer therefrom; as efficacious in treating kidney and bladder complications, tipped uterus, extra kidney, painful urination, streptococcus in the urethra and the pyloric end of the stomach and bladder, cirrhosis and carcinoma of the right kidney, low function of the left suprarenal gland, pancreas, fibrous adhesions in the brain and meningeal tissue, brain sinus, cystic fluid in the brain and medulla, heart trouble, head pains and noises, explosions in right ear while falling asleep, constipation, pains in the lower back, abcesses, loss of speech and memory, worry, fear and nervousness, conditions of the colon and liver. The device is further represented as effective in the treatment of many other ailments; and it is asserted that the contraption "far surpasses any other known method of * * * therapy."² Another larger instrument advertised for sale by appellant is represented as having not only the therapeutic qualities attributed to the smaller instrument but also extraordinary diagnostic properties.³

Appellant's instruments employ no commercial electricity; they are represented as employing the patient's own body energy in diagnosis, remedy selection and treatment.⁴ The instruments are based upon appellant's theory of vibration: "* * * under the laws of vibration, each individual has a rate of vibration peculiar to himself. In addition, each organ, gland, etc., in the body has its own rate of vibration. Likewise various diseases all vibrate to specific rates (slower or coarser than the normal body rates and more akin to earth vibrations)."⁵ Appellant asserts that this body energy may be directed through her instrument back to the diseased part of the body at the same vibration rate previously found in diagnosis to be appropriate for the treatment of that particular area. "This steps up the vibrations in that particular area * * * and the diseased cells will automatically fall away, since disease cannot live in the higher rate of vibration."⁶ Both diagnosis and treatment, the appellant claims, can be accomplished either directly or with the patient absent entirely from the physical proximity of the instrument. When the patient is present, two pieces of metal attached by wires to the instrument are placed upon the body, a drop of the patient's blood is placed in the device, and unopened ampuls of chemicals are sometimes placed on the face of the instrument. When the patient is not present, diagnosis and treatment may still take place, a piece of blotting paper with a second drop of the patient's blood being clamped between the two pieces of metal.

Two of the Government's witnesses, one a physicist and the other a radio engineer, testified that they had taken the instruments apart and found that the devices consist of a wire with two dissimilar metals as electrodes on either end; that in effect they operate in a manner similar to a chemical battery; that when the circuit is completed by placing the electrodes in contact with the human body or any other conductor of electricity a minute flow of current is generated and may be measured by the micro-ammeter in the device; that the devices are incapable of measuring, detecting, or transmitting electro-magnetic energy of any kind.

Six eminent medical witnesses testified for the Government. Each is an authority in a specialized area of medicine. These expert witnesses expressed the unanimous belief that appellant's instruments are useless for diagnosis or treatment of any human ailment. Dr. Carpender testified concerning actual tests conducted by the appellant at the University of Chicago, which tended to support the conclusions of the Government's medical witnesses.⁷

I. The Interstate Transaction.

Rice, concerned about a lump in his wife's breast, had been advised by a business friend, while temporarily in Los Angeles, to contact appellant. On phoning appellant's place of business in Hollywood, Rice was informed that she was then in Chicago. When Rice returned to his home in a suburb of Chicago he made an appointment with appellant for an examination of his wife. Mrs. Rice and been previously examined by her family doctor who had suspected a possible cancer and suggested an immediate biopsy. Appellant concluded from her examination of Mrs. Rice on April 23, 1948 by means of one of her instruments that the lump was not a cancer but was caused by a fungus that had spread through her digestive system into the liver.⁸ Appellant at that time gave Mr. and Mrs. Rice a copy of a pamphlet describing the alleged qualities of her devices⁹ and recommended treatments with the Drown Radio Therapeutic Instrument by a Dr. John, who practiced in Chicago. Mrs. Rice commenced taking the treatments and appellant advised their continuation upon re-examination of Mrs. Rice in September, 1948. The treatments continued until, on October 28, 1948, Rice went to the Drown Laboratories in Hollywood and personally purchased the device in question. Rice returned to Blue Island, Illinois, and his wife used the instrument to treat the lump in her breast.

Appellant first contends that the purchase of the Drown Radio Therapeutic Instrument by Rice at the Drown Laboratories in Hollywood was a wholly intrastate transaction and, therefore, not within the scope of the Federal Food, Drug, and Cosmetic Act. It is alleged that transportation in interstate commerce or an obligation to so transport on the part of the appellant is an essential element of the offense; that since any transportation in interstate commerce was brought about by the purchaser, the seller, Dr. Drown, was not criminally responsible.

Appellant relies upon a number of cases dealing with the power of a state to tax goods moving in interstate commerce.¹⁰ They are not in point since the question in such cases does not concern the power of Congress to regulate, but whether a particular exercise of state power in view of its nature and operation must be deemed in conflict with the federal power. The power of a state to tax is not necessarily inconsistent with the power of Congress to regulate under the Commerce Clause.¹¹ Minnesota v. Blasius, 1933, 290 U.S. 1, 54 S.Ct. 34, 78 L.Ed. 131; Stafford v. Wallace, 1922, 258 U.S. 495, 42 S.Ct. 397, 66 L.Ed. 735; Bacon v. Illinois, 1913, 227 U.S. 504, 33 S.Ct. 299, 57 L.Ed. 615; Swift & Co. v. United States, 1905, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518.

Appellant argues that federal power over interstate commerce is limited to transportation. We do not agree. The power of Congress to regulate interstate commerce may be exercised to the utmost extent, and acknowledges no limitations other than those that are prescribed by the Constitution. Gibbons v. Ogden, 1824, 9 Wheat. 1, 6 L.Ed. 23. Where goods are purchased in one state for transportation to another, the commerce includes the purchase quite as much as it does the transportation. Currin v. Wallace, 1939, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Lemke v. Farmers' Grain Co., 1922, 258 U.S. 50, 42 S.Ct. 244, 66 L.Ed. 458; Dahnke-Walker Milling Co. v. Bondurant, 1921, 257 U.S. 282, 42 S.Ct. 106, 66 L.Ed. 239. The place where title technically passes is not significant. Santa Cruz Fruit Packing Co. v. N. L. R. B., 1938, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; N. L. R. B. v. Levaur, 1 Cir., 1940, 115 F.2d 105, certiorari denied 312 U.S. 682, 61 S.Ct. 550, 85 L.Ed. 1120. Even if the sale to Rice with knowledge that he intended to take the device to Illinois be not considered part of the stream or flow of commerce, a "flow of commerce" is not essential to the federal power to regulate. The instances in which the metaphor "stream of commerce" has been used are but particular, and not exclusive, illustrations of the protective power which Congress may exercise. Santa Cruz Fruit Packing Co. v. N. L. R. B., supra; N. L. R. B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893. The power to regulate wholly intrastate activities because of their relation to or effect upon interstate commerce is now established. Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 1948, 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328; Wickard v. Filburn, 1942, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122; United States v. Wrightwood Dairy Co., 1942, 315 U.S. 110, 62 S.Ct. 523, 86 L.Ed. 726; United States v. Darby, 1941, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609; N. L. R. B. v. Jones & Laughlin Steel Corp., supra; Stafford v. Wallace, supra. The power of Congress...