Needelman v. United States, 17022.
| Decision Date | 05 January 1959 |
| Docket Number | No. 17022.,17022. |
| Citation | 261 F.2d 802 |
| Parties | Harry NEEDELMAN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ernest E. Roberts, Miami, Fla., for appellant.
O. B. Cline, Jr., Asst. U. S. Atty., Miami, Fla., James L. Guilmartin, U. S. Atty., Miami, Fla., for appellee.
Before RIVES, TUTTLE and JONES, Circuit Judges.
The appellant, a physician, and Walter Waxman, a druggist, were first tried on an indictment for conspiracy to violate Title 26 United States Code Section 4705 (a), that is, to sell certain narcotic drugs, to wit, codeine, methadon, and demerol, not in pursuance of the required written orders. The result was a mistrial.
Subsequently, another indictment containing fifteen counts was returned against the appellant alone, charging him with substantive violations of the same Section. The first five counts named Gerald Miller, the next five counts named Fidele Garcia, and the last five counts named Alice Buonaiuto as the persons to whom methadon was sold or caused to be sold. Except for the names of such persons and the dates of sale, all fifteen counts were identical.
Without objection, the two cases were consolidated for trial. At the conclusion of the Government's evidence, the court granted a motion for judgment of acquittal of both defendants on the conspiracy charged, but denied Dr. Needelman's like motion on the substantive counts. The court then sustained Dr. Needelman's motion to strike all of the testimony of conversations had between the narcotic agent and Waxman outside the presence of Dr. Needelman and directed the jury to disregard any such testimony. The Government offered no additional evidence, but Dr. Needelman introduced a number of witnesses and testified in his own behalf.
At the conclusion of all the evidence, Dr. Needelman again moved for judgment of acquittal. The court denied the motion, stating in the jury's absence from the courtroom, "I think this is a very slender case, offhand, but I think there is enough to go to the jury."
The jury returned a verdict of guilty as to each of the fifteen counts. The court thereafter granted a motion for new trial as to the last five counts which named Alice Buonaiuto as the purchaser; and those counts, upon motion of the Government, were dismissed by the court. The court fined the appellant a total of $5,000.00 and placed him on probation for three years.1
After the mistrial on the conspiracy charge, but prior to the time of the consolidated trial, the appellant moved the court:
"* * * for an Order permitting them to inspect the books, papers, documents, memoranda and objects and particularly the contemporaneous notes made by the Government witness, Kenneth Rudd, who has previously testified in said cause and who is a material witness for the Government in said cause, made by the said Kenneth Rudd during his investigation and preparation for trial of said cause, and which said contemporaneous notes have already been referred to by the said Rudd in the previous trial of said cause, and by which testimony it was shown that said contemporaneous notes prepared by the said Rudd were of the events, activities related to his said testimony, and that the inspection and copying of said contemporaneous notes made by the said Rudd are material and necessary for the defendants to prepare their defense."
The motion was denied. Again, after the narcotic agent Rudd had testified on direct examination on the second trial, had been cross-examined by appellant's counsel, and was on redirect examination by the Government, a short recess was had, the jury retired from the courtroom, and, we assume in response to a renewal of the motion, the court ruled:
The questions presented for decision on appeal are whether the court erred in denying the defendant's motion for judgment of acquittal, and whether the court erred in denying the defendant's motion to be allowed to inspect the contemporaneous notes made by narcotic agent Rudd.
The issue of guilt or innocence was primarily that of good faith, that is, whether in good faith the narcotic drugs were dispensed by the defendant as a physician to his patients "in the course of his professional practice only."2 The theory of the Government's case was that the prescriptions to the three persons named in the indictment were not issued for the relief of pain but to keep narcotic addicts comfortable. In its oral charge to the jury, the court defined the issue as follows:
The appellant does not question the settled proposition of law that in order for a physician to come within the exception to the statute, 26 U.S.C.A. § 4705(c), note 2, supra, the narcotic drugs must have been dispensed or distributed to a patient or patients by the physician in good faith in the course of his professional practice only.3
In reviewing the denial of the motion for judgment of acquittal, the evidence must be considered in the light most favorable to the Government.4 So considered, the jury could reasonably find the following facts. Dr. Needelman was to leave for Europe on August 6, 1955, for an extended vacation. He had known a Dr. Szekely, who had practiced medicine in New York for a considerable number of years, had taken the Florida Medical Board examination, and was awaiting his certificate to practice in Florida. Dr. Szekely came to Dr. Needelman's office about a week prior to Dr. Needelman's departure to become acquainted with Dr. Needelman's patients. Dr. Szekely's Florida certificate did not arrive by the time Dr. Needelman was to leave, so Dr. Needelman made arrangements with Dr. Grier, a licensed physician with a Government narcotic license, to take charge of the office until Dr. Szekely received his certificate. On August 20, two weeks after Dr. Needelman's departure, Dr. Szekely's license to practice medicine in Florida was issued. All of the questioned prescriptions were delivered to the patients after Dr. Needelman had left on his vacation, but peculiarly neither Dr. Szekely nor Dr. Grier was called as a witness.
It was stipulated that codeine, demerol, and methadon are narcotic drugs as defined in Title 26 United States Code Section 4731. Miss Sally Rossman testified that she was employed by Dr. Needelman from June 1955 through November 1955 doing laboratory work, assisting the Doctor and covering the front desk when needed. She identified thirty-one prescriptions which Dr. Needelman signed and left with her and Miss Fredericks, the other nurse in the office, with instructions that they were to be kept locked in a drawer of a desk, and when the patients whose names appeared on the prescriptions came in and paid a prescribed fee, varying from five to ten dollars, a prescription was to be delivered to the patient. At the time of delivery, she would fill in on the prescription that date as the date on which it was "to be filled." Those three words were written by her at Dr. Needelman's direction prior to his departure. Among such patients were the three named in the indictment. Miss Rossman was extensively cross-examined in an effort to show that the prescriptions were delivered only at the direction of Dr. Szekely or Dr. Grier, and did waver somewhat in her testimony. The jury, however, could have reasonably believed that payment of the required fee was all that...
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...substantially verbatim reproduction of the witness' oral statement. This may frequently require extrinsic evidence. See Needelman v. United States (5 Cir.) 261 F.2d 802, holding that notes made by a government witness and used by him to refresh his recollection are not producible under the ......
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