De Freese v. United States

• Citation: 270 F.2d 730
• Decision Date: 04 November 1959
• Docket Number: No. 17361.,17361.
• Parties: Dr. Samuel J. DE FREESE and Marsha Jean Simmons DeFreese, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

270 F.2d 730 (1959)

Dr. Samuel J. DE FREESE and Marsha Jean Simmons DeFreese, Appellants, v. UNITED STATES of America, Appellee.

No. 17361.

United States Court of Appeals Fifth Circuit.

September 30, 1959.

Rehearing Denied November 4, 1959.

Arthur D. Herrick, New York City, for appellants.

J. Robert Sparks, Asst. U. S. Atty., James W. Dorsey, U. S. Atty., Atlanta, Ga., Charles D. Read, Jr., Acting U. S. Atty., Atlanta, Ga., for appellee.

Before JONES, BROWN, and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This appeal raises a serious question as to whether the Federal Food, Drug, and Cosmetic Act,¹ prohibiting dispensing of certain potentially dangerous drugs without a prescription, applies only to sales at the retail or pharmacist's level. We hold that it applies to bulk sales for resale by a physician, in the circumstances of this case. The appellants raise other points, all of which we consider without merit. We affirm, therefore, the judgment of the district court.

I.

The appellants are husband and wife, not long married. Samuel J. DeFreese practiced medicine for twelve years in Monroe, Georgia. Marsha Jean DeFreese owned and operated a restaurant, Jean's Fine Foods, near Duluth, Georgia, on U.S. Route 23, a route well traversed by long-distance truck drivers.

About eight in the evening of July 26, 1957, Wilbur R. Sumrall, a food and drug inspector posing as a former truck driver, visited Jean's Fine Foods. He asked for Dr. DeFreese. Mrs. DeFreese said that her husband was not in the restaurant. She joined Sumrall at a table and started a conversation. He identified himself as "Bud", a truck driver. During their conversation Mrs. DeFreese spilled some coffee and blamed it on having taken three "bennies"² that afternoon to stay awake. Sumrall told her that a friend in Tallahassee, Florida, had sent him to her because he was in the market for several thousand benzedrine tablets. He asked if she had them and what the price would be. After she quoted the price, Sumrall said he would buy 5,000. Mrs. DeFreese went upstairs. After a few minutes she came back to the table and told Sumrall that she had placed the tablets on the third step at the other end of the dining room. Sumrall paid her $75. She told him that she knew of some people in south Georgia who would take some of the tablets off his hands. Sumrall told Mrs. DeFreese he would return when he had disposed of the tablets. She wrote down her name and telephone number on a slip of paper and told him to call her before coming again and not to bring anyone with him.

Sumrall picked up the package and left. He drove down the highway a short distance where he met two other Food and Drug Inspectors. The package was marked and turned over to them. The package contained approximately 5,000 benzedrine tablets.

Sumrall did not give a prescription to Mrs. DeFreese for the 5,000 tablets. No one made a physical examination of him or asked him any questions about his medical history. Dr. DeFreese was not present at any time during the first meeting between Sumrall and Mrs. DeFreese. Only Mrs. DeFreese was convicted on the count of the information that set forth this transaction.

Both appellants were convicted on the second count for a transaction that took place on July 31, 1957. That afternoon Sumrall telephoned Mrs. DeFreese from Phenix City, Alabama, identifying himself as "Bud" Sumrall from Tallahassee. He said he was doing a little "selling", and he wanted to come up that night and buy 10,000 benzedrine tablets. They arranged to meet at the restaurant. When Sumrall arrived at the restaurant only Dr. Freese was there. Sumrall asked if "Jean" (Mrs. DeFreese) were there. Dr. DeFreese told him that the girls had gone to town. Dr. DeFreese said that Mrs. DeFreese had mentioned that someone was coming up that night and asked Sumrall if he were the one. They introduced themselves. Sumrall told Dr. Freese that he would like to buy "the stuff" and get on the road.

Dr. DeFreese went upstairs for the 10,000 tablets that Sumrall requested. He returned without them because the room where they were kept was locked. Mrs. DeFreese had the key. She returned around one in the morning. Dr. DeFreese told her that Sumrall was in a hurry and that he had not given him the tablets because the room was locked. Sumrall told her he wanted 10,000. She left the room and when she returned he paid her $150 in the presence of Dr. DeFreese. Sumrall walked through the dining room and picked up a package, again on the steps. He drove to his residence with the package where he met another Food and Drug Inspector. The package was marked. It contained approximately 10,000 benzedrine tablets.

The criminal information upon which both appellants were convicted charged that on July 26, 1957, Mrs. Marsha Jean DeFreese, and on August 1, 1957, both Mrs. DeFreese and Dr. Samuel J. DeFreese dispensed a number of dl-amphetamine sulphate (benzedrine) tablets to Wilbur R. Sumrall, Jr. without a prescription, in violation of 21 U.S.C.A. § 353(b) (1) and 21 U.S.C.A. § 331(k).³

Dr. DeFreese denied any sale of the drug to Sumrall. Mrs. DeFreese admitted the first sale but denied the second.

Appellants were tried together on this information before a jury. They were found guilty and sentenced to one year on each count, the sentences for Mrs. DeFreese to run concurrently.

II.

Appellants argue that Section 353(b) (1), for the violation of which they were convicted, is concerned solely with sales of drugs at the retail or pharmacist's level.⁴ The statute reads, in part, that certain categories of drugs

"* * * shall be dispensed only (i) upon the 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 original prescription or by oral order which is reduced promptly to writing and filed by the pharmacist." (Italics supplied.)

It is contended therefore that the violation arises out of the dispensing of such drugs without a prescription. Thus, the same subsection of the statute goes on to say:

"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 by sale." (Italics supplied.)

Appellants argue then that the reference to "prescription" indicates that the statute refers only to pharmacists' sales at the retail level to consumers.⁵ Otherwise manufacturers or jobbers would be guilty of violating the law if they placed the drugs in the ordinary channels of trade by selling to a drugstore without a prescription.

Appellants cite a number of decisions.⁶ None draw a line between retail and wholesale sales. The best appellants can say for these decisions is that in each case a relatively small number of tablets were sold and ostensibly the drugs were for personal use. There is no language in any of the cases indicating that the court regarded the provisions of the Act as applicable only to retail sales.

In one of the cases relied on by appellants, United States v. Carlisle, 5 Cir., 1956, 234 F.2d 196, 199, the language of the court indicates that any dispensing of a drug contrary to the provisions of the act is prohibited:

"It Congress did this by setting out in 353(b) (1) the only way in which drugs of the kind dealt with can be dispensed, and then in the same section going on to say that the act of dispensing such a drug, contrary to the provisions of the paragraph, shall be deemed to be an act which results in the drug being misbranded. This established, by law in this section, there is required only resort to 21 U.S.C.A. § 331(k), which denounces the offense of misbranding and to Sec. 333, which fixes the penalty for that offense. When this resort is had, the conclusion is inescapable, we think, that the sections taken together have provided as clearly as though it had all been written out in the same section, that one dispensing drugs of the kind dealt with here, contrary to the provisions of Sec. 353(b) (1) shall be guilty of, and subject to the punishment provided by law for, an act of misbranding. This necessarily results from the use in Sec. 353(b) (1) of the language, `the act * * * shall be deemed to be an act which results in the drug being misbranded while held for sale\'."

Brown v. United States, 5 Cir., 1958, 250 F.2d 745, certiorari denied 356 U.S. 938, 78 S.Ct. 779, 2 L.Ed.2d 812, rehearing denied 357 U.S. 933, 78 S.Ct. 1368, 2 L.Ed.2d 1376, controls the disposition of the present case. In the Brown case this Court held that the Act applies to a licensed physician selling amphetamine tablets without a prescription, and not just to pharmacists. Able counsel for appellants attempt to distinguish the Brown case on the ground that Dr. Brown sold in the capacity of a pharmacist,⁷ and that no question was raised as to the limitation of the Act to retail sales. In the Brown case there were three separate sales, each of 1,000 tablets, on March 10, 22, and 23. It is obvious that one person would not consume 3,000 tablets over such a short period of time; that the purchaser was not being treated as a patient or as a consumer making a retail purchase. We rested our decision on broad interpretation of the Act in the light of its objectives.

The Federal Food, Drug, and Cosmetic Act was adopted in 1938.⁸ Section 353(b) (1), in its present form, is the result of a 1951 amendment to the Act.⁹ The purpose of the amendment was to accomplish two broad objectives: (1) To protect the public from abuses in the sale of potent prescription drugs; (2) to relieve retail pharmacists and the public from burdensome and unnecessary restrictions on the dispensing of drugs that are sold for use without the supervision of a physician. House Report No. 700, ...