Brown v. United States

• Decision Date: 08 February 1958
• Docket Number: No. 16536.,16536.
• Parties: Thomas Guy BROWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

250 F.2d 745 (1958)

Thomas Guy BROWN, Appellant, v. UNITED STATES of America, Appellee.

No. 16536.

United States Court of Appeals Fifth Circuit.

January 3, 1958.

Rehearing Denied February 8, 1958.

Ben Monning, Jr., Monning & Monning, Amarillo, Tex., for appellant.

Heard L. Floore, U. S. Atty., Fort Worth, Tex., William J. Risteau, Atty., Dept. of Health, Education, and Welfare, Washington, D. C., of counsel, for appellee.

Before TUTTLE, JONES and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from the conviction of a physician for the violation of provisions of the Food, Drug and Cosmetic Act that prohibits the dispensing of certain potentially harmful drugs, transported in interstate commerce, without a prescription.

The evidence fully warranted the jury's finding that the appellant, a practicing physician in Dumas. Texas, sold to two Federal agents, whom he supposed to be truck drivers, three separate lots of dextro-amphetamine hydrochloride tablets¹ that had been shipped in interstate commerce; that prior to dispensing them Dr. Brown had not prepared or given them any prescription and had not physically examined either of them and had not questioned them or "prescribed" a dosage or otherwise attempted to acquaint himself with either the physical condition or needs of either man.

The statute under which the three-count indictment was brought makes illegal and punishable as for a misdemeanor, under circumstances here present, a violation of the following provisions of 21 U.S.C.A. § 353(b) (1):

"A drug intended for use by man which * * *.

"(B) Because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not safe for use except under the supervision of a practitioner licensed by law to administer such a drug;

* * * shall be dispensed only (i) upon a written prescription of a practitioner licensed by law to administer such drug, or (ii) upon an oral prescription of such practitioner which is reduced promptly to writing and filed by the pharmacist, or (iii) by refilling any such written or oral prescription if such refilling is authorized by the prescriber either in the original prescription or by oral order which is reduced promptly to writing and filed by the pharmacist. The act of dispensing a drug contrary to the provisions of this paragraph shall be deemed to be an act which results in the drug being misbranded while held for sale." 21 U.S.C.A. § 353(b) (2).

Although the appellant denies the sales, implying that the transactions with the two agents were of quite a different nature, he makes no contention that there was not sufficient evidence to sustain the conviction if the terms of this statute reach a regularly licensed physician who sells these covered drugs under the circumstances outlined. The burden of his defense is that the provisions of the Act do not apply to the act of dispensing drugs by a licensed physician.

No decided case in which an appellate court has precisely held this law applicable to the conduct of a regularly licensed physician has been called to our attention. The Court of Appeals for the Tenth Circuit affirmed a conviction of one who held himself out to be a doctor, but who had not obtained a medical license in Archambaut v. United States, 10 Cir., 224 F.2d 925. The District Court for the Western District of Missouri construed the law as here contended for by the United States where it entered a judgment of conviction on a plea of nolo contendere against a doctor who dispensed pills of the proscribed type without an examination or prescription. In sentencing the prisoner, the district judge, now Supreme Court Justice Whittaker, said:

"Your error lies in the fact that, having a license to practice medicine, you have assumed that it was a license to peddle pills, and that is not the law. People came to you, Doctor, and without an examination or any prescription, just ordered pills and you would ask them, `Do you want the red or the yellow?\' — and you just handed out the pills, these barbiturates and sex hormones, without any examination or prescription. You did that to those Government agents who came in there, not once but half a dozen times.

"Now, there seems to be some concept among the members of the medical profession that to have a license to deal in medicine carries a license to deal in barbiturates. That is not the law. The medical profession might just as well understand it. If I come to you for treatment and you, in your medical capacity examine me, and after examination determine that certain barbiturates would be beneficial to me, then you have a right to write a prescription to me, and then I have a right to get them and use them, but not otherwise." United States v. Amin Boutros, (D.C.W.D. Mo.) No. 19,304-Cr. Decided Dec. 23, 1955.

The language of the statute, considered alone, is certainly broad enough to make criminal what was done here. It says expressly that these pills "shall...