Tritt v. United States, 295-69.
| Citation | 421 F.2d 928 |
| Decision Date | 20 February 1970 |
| Docket Number | No. 295-69.,295-69. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Parties | Arnold Gerald TRITT, Appellant, v. UNITED STATES of America, Appellee. |
Sumner J. Hatch, Salt Lake City, Utah (McRae & Richardson, Salt Lake City, Utah, on the brief), for appellant.
H. Ralph Klemm, Asst. U. S. Atty., Salt Lake City, Utah (C. Nelson Day, U. S. Atty., on the brief), for appellee.
Before LEWIS and HILL, Circuit Judges, and LANGLEY, District Judge.
The appellant in this case, Arnold Gerald Tritt, a doctor of osteopathy, was convicted by a jury on 21 counts of a 22 count indictment charging him with violating the provisions of 21 U.S.C. § 331 (q) (2) by causing sales and deliveries of depressant and stimulant drugs as defined in 21 U.S.C. §§ 321(v) (1) (B), 321(v) (2) (B), and 321(v) (2) (C). On appeal, as in the trial court, he challenges the sufficiency of the indictment to state an offense. He also contends that within the meaning of the statute "causing sales" refers to illegal sales only, or sales to addicts or habitual users of the drugs, and not to sales made otherwise.
All counts of the indictment read the same except as to the date of the alleged offense, the person to whom the sale and delivery was caused to be made, the name of the drug, and the citation of the statute classifying the drug as a depressant or stimulant. The sufficiency of the indictment can be determined by considering Count I, therefore, as typical. It reads as follows:
"That on or about November 12, 1968, ARNOLD GERALD TRITT, D. O., an individual, did at Salt Lake City, within the Central Division, District of Utah, unlawfully cause to be sold and delivered to L. Bruce Lockwood, a government agent, a quantity of Biphetamine capsules, a "depressant or stimulant drug" within the meaning of 21 U.S.C. 321(v) (2) (B), in violation of 21 U.S.C. 331(q) (2)."
It is the appellant's position that this is not sufficiently explicit to apprise him of the offense charged, to enable him to prepare his defense, or to protect him against double jeopardy, and that the indictment is therefore fatally defective and not curable by a bill of particulars.
The portions of the sections of Title 21, U.S.C., which create the offenses with which we are concerned here read as follows:
These sections make it a criminal act for any person whatsoever to cause the sale or delivery of such drugs unless he is a member of a class of persons excepted under the provisions of Section 360a(a). That section excludes from the prohibition classes of persons whose usual and customary activities may require selling, delivering, or otherwise disposing of the drugs: manufacturers, wholesale druggists, pharmacies, hospitals, common carriers, and "practitioners licensed by law to prescribe or administer depressant or stimulant drugs, while acting in the course of their professional practice". 360a(a) (4). The appellant argues that the allegations in the indictment "give no hint or guidance to which portion or category of Title 21, 360a(a) the defendant is accused of violating". We think it is not necessary.
In Walker v. United States, 176 F.2d 796 (9 Cir.), the court said, "That a statute contains exceptions or exemptions does not mean that they must be negated in the indictment; nor need it negate other possible defenses". And in Nicoli v. Briggs, 83 F.2d 375 (10 Cir.), this court said ...
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