Coil v. United States

Decision Date05 April 1965
Docket NumberNo. 17769.,17769.
PartiesLowell Michael COIL, also known as L. M. Coil, also known as Mike Coil, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Richard J. Bruckner, of Schrempp, Lathrop & Rosenthal, Omaha, Neb., David S. Lathrop, of Schrempp, Lathrop & Rosenthal, Omaha, Neb., for appellant.

Frederic J. Coufal, Asst. U. S. Atty., Omaha, Neb., Theodore L. Richling, U. S. Atty., Omaha, Neb., for appellee.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

MEHAFFY, Circuit Judge.

Defendant, Lowell Michael Coil, was tried to a jury in the District Court at Omaha, Nebraska, and convicted under Count I of a five count indictment for violation of 18 U.S.C.A. § 1001. The jury found that he had knowingly concealed a material fact by maintaining a false prescription file at his pharmacy. Defendant's file reflected the dispensing of 450 one-half grain morphine sulfate tablets to Dorothy Williams between June 13, 1963 and September 26, 1963, when, in fact, no more than 120 of such tablets had been dispensed to this customer.

The defendant challenges the sufficiency of the evidence to support the verdict making appropriate a fairly extensive narration of the facts in evidence relative to Count I.

On November 1, 1962 the defendant, a pharmacist, purchased a drugstore located in Omaha, Nebraska. The purchase did not include any prescription items, and defendant obtained his first supply of morphine on June 14, 1963. On September 30, 1963, United States Narcotics Agent Cox checked the defendant's narcotic prescription files. Such an inspection necessitates a checking of the purchases of narcotics from the order copies the druggist is required to keep, the inventory of the narcotics on hand and the prescriptions on file indicating the amount dispensed to customers.

The United States official order forms revealed that defendant had purchased 600 one-half grain morphine sulfate tablets. Defendant's inventory of such tablets was 150 on the inspection date and his record prescriptions, eight in number, indicated the dispensing of 450 of the tablets to Mrs. Dorothy Williams. Thus, the records tallied and would have been accurate provided defendant had in fact dispensed the 450 tablets to Mrs. Williams.

Before Agent Cox left the premises, the defendant asked him about the inventory, admitting knowledge of a shortage of morphine. Defendant told Agent Cox that he attributed the shortage to a suspected theft by a customer, one William M. Ruggiere who was a drug addict. Defendant said that he was aware the law required him to report the shortage, but he had not done so. He explained that he had "slipped" a couple of extra prescriptions to the doctor, obtained the doctor's signature, balanced his inventory, and therefore nothing could be proven against him.

Mrs. Williams had been treated for an incurable disease by her family doctor for some two and one-half to three years. At the time we are concerned with, the doctor did not expect her to live more than a month or two. The doctor had been prescribing a milder form of narcotics, but she was in such pain in June of 1963 the doctor started prescribing one-half grain morphine sulfate tablets. He wrote the first prescription on defendant's drugstore. He told defendant that due to Mrs. Williams' condition she could have all the tablets she needed to relieve her pain. He instructed the druggist to type out the prescriptions as Mrs. Williams' need required, and mail them to him for signature and return. The doctor's suspicion was not aroused until he received large orders from the defendant on two typed prescriptions in one mail for 100 tablets and 50 tablets, respectively. The prescriptions called for Mrs. Williams to take one such tablet every four hours as needed for pain. During this time Mrs. Williams was confined to her bed at home and her husband, Robert S. Williams, was procuring her medicine from defendant. When the morphine sulfate tablets were first prescribed, Mr. Williams made his first purchase of twelve tablets on June 14, 1963. He administered the tablets orally to his wife but this method did not provide the needed relief. He discontinued using them for a while until he learned to administer the drug by hypodermic injection into the bloodstream. His next purchase on August 31, 1963 was also for twelve tablets. He continued periodically to make purchases on eight or nine occasions. Each purchase was for twelve tablets except the final purchase October 1, 1963 for thirty-six tablets. On this last occasion, which was after the narcotic agent had checked defendant's inventory on September 30, 1963, Mr. Williams intended to purchase only twelve tablets, but the defendant told him he had thirty-six on hand, to which he was entitled, and suggested that Williams take them all.

Mr. Williams kept records of his medicinal purchases for income tax purposes. The defendant knew this, and some time after October 9, 1963 (the date the narcotic agent picked up Mr. Williams' records) the defendant engaged Mr. Williams in conversation outside of the drugstore. Defendant asked him if he could buy his purchase records as "it might be the only evidence that could cause him (defendant) any trouble." He further stated that he would rather give Mr. Williams the money than give it to an attorney. The defendant also asked Mr. Williams how many tablets Williams had purchased from him. Williams estimated from 100 to 125.

Government witness Ruggiere lived in the neighborhood of defendant's drugstore and became acquainted with him as a customer some time around October, 1962. He visited the drugstore frequently and testified that defendant sold him one-half grain morphine sulfate tablets on a number of occasions without prescriptions for a price of $10.00 per grain. This witness testified that the largest number of one-half grain tablets he purchased from the defendant at any one time was twenty and the smallest, five. On some of these occasions, the defendant delivered him the narcotics at his home in rubber balloons, explaining narcotic users often carried drugs in rubber balloons so that in the event of apprehension the balloon may be swallowed to hide the evidence without a large quantity of narcotics being fatally dissolved in the body.

Maureen Updegraff, who was living with Ruggiere, testified that on some ten occasions she saw the defendant deliver to Ruggiere balloons containing small white pills and that on each occasion she saw Mr. Ruggiere give the defendant in excess of $50.00.

The defense attempted to establish a theft of morphine tablets by Ruggiere, a drug addict, but the proof was apparently rejected as incredible by the jury.

In testing the evidence to determine its sufficiency, we must consider it in a light most favorable to sustaining the verdict of the jury. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); McIntosh v. United States, 341 F.2d 448 (8th Cir. 1965); Valentine v. United States, 293 F.2d 708, 710 (8th Cir. 1961), cert. denied 369 U.S. 830, 82 S.Ct. 848, 7 L.Ed.2d 795 (1962); Blumenfield v. United States, 284 F.2d 46, 52 (8th Cir. 1960), cert. denied 365 U.S. 812, 81 S.Ct. 693, 5 L.Ed.2d 692 (1961); Bell v. United States, 251 F.2d 490, 491 (8th Cir. 1958); McKenna v. United States, 232 F.2d 431, 435-436 (8th Cir. 1956); Batsell v. United States, 217 F.2d 257, 260 (8th Cir. 1954). We are of the opinion that the evidence was amply sufficient to support the jury's verdict of guilty.

The essential ingredients of the offense are all but admitted. It is undisputed that defendant obtained on Government order blanks 600 one-half grain morphine sulfate tablets and upon the date of the inspection defendant's inventory stood at 150 tablets. The prescription file required to be kept by the Government on narcotics falsely indicated that all 450 of the missing tablets had been dispensed to Mrs. Dorothy Williams. The defendant makes the contention that he was only 130 tablets short, but his computation in arriving at such a figure is falsely premised. Defendant, in his brief, assumes that Mr. Williams administered to his wife approximately two and one-half tablets per day over a period of one hundred twenty-four days between the dates of the first prescription on June 14, 1963 and the last prescription on October 19, 1963. Williams testified, and his records indicate, that he obtained morphine tablets from the defendant on eight, nine, or at most ten occasions, and he never bought more than twelve tablets at a time with the sole exception of his final purchase of thirty-six tablets, which took place after the critical inspection date. Williams originally purchased twelve tablets on June 14 and he made no additional purchase until August 31, so a period of seventy-seven days intervened, during which Williams could not have administered more than twelve tablets. The important aspect, however, is not the extent of defendant's shortage in number of tablets, but his keeping of false prescription records indicating that 450 of said tablets had been dispensed to Mrs. Williams when in fact no such amount had been so dispensed.

The defense of a suspected theft by Ruggiere is inconsistent with the prescription file records which indicated that all of the missing tablets had been dispensed to Mrs. Williams.

Additionally, Government witnesses Ruggiere and Updegraff testified to some ten separate purchases of one-half grain morphine sulfate tablets by Ruggiere from the defendant without a prescription during the period involved.

Defendant challenges the validity of this evidence by reason of the jury's acquittal of him on another count of the indictment charging sales to Ruggiere. We, of course, have no way of knowing whether the jury credited any part of these witnesses' testimony. Their testimony was unnecessary to a conviction on Count I. The mere fact that the jury...

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