Nigro v. United States

• Decision Date: 04 February 1941
• Docket Number: No. 11778.,11778.
• Citation: 117 F.2d 624
• Parties: NIGRO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F.2d 624 (1941)

NIGRO v. UNITED STATES.

No. 11778.

Circuit Court of Appeals, Eighth Circuit.

February 4, 1941.

COPYRIGHT MATERIAL OMITTED

William S. Hogsett, of Kansas City, Mo. (George Reinhardt, of Kansas City, Mo., on the brief), for appellant.

Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., and Richard K. Phelps and William Orr Sawyers, Asst. U. S. Attys., all of Kansas City, Mo., on the brief), for appellee.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

The appellant, a physician, was named as a defendant in two indictments. In one of the indictments he with eight others and "divers and numerous" other unknown persons were charged with a conspiracy to violate the Harrison Anti-Narcotic Act, Title 26 U.S.C. § 1044; section 2554, Title 26 U.S.C.A. Int.Rev.Code, 53 Stat. 272. The other indictment, in four counts, charged the appellant and two others with sales of morphine sulphate, a derivative of opium, in violation of the Act. The defendants named in both indictments, with the exception of the appellant, having either pleaded guilty or waived a jury trial, the court on its own motion granted a severance and ordered the two cases consolidated for trial. Verdicts of guilty were returned on the conspiracy charge and upon counts one and two of the indictment charging sales. Upon these verdicts the appellant was sentenced to serve three consecutive terms aggregating four years in a penitentiary and to pay fines totaling $12,000. From the judgments thus entered he appeals.

Some of the errors assigned assail the conviction for conspiracy, some the conviction for sales, and some relate to alleged errors committed on the trial and affecting the verdicts and judgments on both indictments.

We shall first consider the conspiracy case. The substantive crime, which the indictment charges it was the object of the conspiracy to commit, is defined in section 2554, Title 26 U.S.C.A. Int.Rev.Code, formerly section 1044, Title 26 U.S.C., as follows: "It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in Section 2550(a) except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary." The foregoing provision is limited by certain exemptions which provide that nothing contained in this section shall apply to the dispensing or distribution of any of the drugs to a patient by a registered physician in the course of his professional practice only; or to the sale, dispensing or distribution of said drugs by a dealer to a consumer in pursuance of a written prescription issued by a physician registered under the Act.

The conspiracy indictment names as defendants Dominick M. Nigro, M. D. (the appellant), Edward Hipsch, M. D., Philip Saper, M. D., Carroll P. Hungate, M. D., Joseph Getelson, M. D., Erba Frank Conley, Burl Wells, Alvin W. Darling, and Abraham J. Schnaer. It charges that these defendants unlawfully conspired and agreed together in 1938 and thereafter in violation of section 88 of Title 18, United States Code, 18 U.S.C.A. § 88, to commit offenses against the Harrison Anti-Narcotic Act of the United States, particularly section 1044 of Title 26, United States Code, 26 U.S.C. A.Int.Rev.Code, § 2554, "in the issuing and filing of written orders alleged to be narcotic prescriptions and the sale, barter and exchange of narcotic drugs not in pursuance of written orders on forms issued in blank for that purpose by the Commissioner of Internal Revenue."

The indictment then charges that the object of the conspiracy was that the physician members would issue purported prescriptions for narcotic drugs to addicts not in the course of the professional practice of medicine but for the purpose of enabling the addicts to obtain the drugs to satisfy their craving and not for use as medicine, and that the orders purporting to be prescriptions would be filled by the defendant druggist members of the conspiracy knowing that the prescriptions were fictitious; and that the conspirators would thus sell, barter and exchange the narcotic drugs in violation of the Anti-Narcotic Act. It is then alleged that the defendants did the acts charged.

Of the 23 overt acts alleged only one referring to appellant is pertinent. It is that from January 30, 1939, to May 7, 1939, Dr. D. M. Nigro prepared and delivered to Erba Frank Conley 91 orders purporting to be prescriptions for a total of 1,616 half-grain tablets of morphine sulphate, all of which were delivered to and filled by Darling and Schnaer at their pharmacy as narcotic prescriptions.

It is not contended that the indictment does not charge an unlawful conspiracy to violate the Narcotic Act. The primary contention is that the evidence fails to prove the conspiracy charged and that the court erred, therefore, in overruling the appellant's motion for a directed verdict of acquittal under the conspiracy indictment.

The evidence tends to implicate only two men in the alleged conspiracy, the appellant who is a physician registered under the Act, and Erba Frank Conley, an addict. There is no evidence even remotely connecting the defendants, Edward Hipsch, M. D., Philip Saper, M. D., Carroll P. Hungate, M. D., Joseph Getelson, M. D., nor Burl Wells, named in the indictment as co-conspirators, with the alleged conspiracy. The court did not mention the names of these defendants as conspirators in the instructions. The Court instructed the jury that the burden was on the government to prove beyond a reasonable doubt that the appellant "agreed with Erba Frank Conley, Alvin W. Darling and Abraham J. Schnaer or one or more of them that they * * * would bring about a violation of" the Act in a particular way. Darling and Schnaer are pharmacists, and there is no substantial evidence to show that they were parties to any agreement with the appellant to bring about a violation of the Act. Counsel for the government do not claim in their briefs that there is such evidence. Darling was a witness for the government at the trial, and he testified that he did not know Dr. Nigro and had never talked with him. There is no proof that Dr. Nigro knew either Darling or Schnaer or that he had any connection or arrangement with them with respect to sales of drugs upon prescriptions issued by him.

The only evidence tending to connect the appellant with any of the alleged co-conspirators is the conceded fact that within a period of approximately two years ending on May 7, 1939, he issued to the addict, Erba Frank Conley, more than five hundred prescriptions for a total of 10,762 half-grain tablets of morphine sulphate. Conley is an ex-convict and a narcotic addict. During the interval from January 30, 1939, to May 7, 1939, Conley obtained a prescription from the appellant practically as a matter of daily routine, or a total of 91 in all as alleged in the indictment. The prescriptions were in due form, signed by the appellant, and in varying amounts prescribed 14 to 20 half-grains of morphine sulphate for Frank Conley "for pain for incurable disease T. B." Conley paid the appellant sums ranging from one to two dollars for each prescription, the total amount paid according to appellant's records being $303.25. The charge was not based upon the amount of morphine called for in the prescriptions. In January, 1939, and thereafter, Conley presented the prescriptions to Darling or Schnaer at their pharmacy and purchased the prescribed amount of morphine sulphate. In the two-year period he himself used all the morphine obtained by means of the appellant's prescriptions.

At the trial the appellant denied any conspiracy. He introduced evidence to the effect that the prescriptions were issued in good faith "in the course of his professional practice only"; but there is substantial evidence to the contrary which will be referred to hereafter. There is no evidence, however, that the appellant had the slightest interest in the place chosen by Conley for his purchases or that he ever directed Conley to purchase the drugs at any particular drug store. Testifying for the government Conley stated that in the two-year period he had used the appellant's prescriptions to purchase morphine from several drug stores in Kansas City but that in January, 1939, and thereafter, he purchased it from Darling and Schnaer's pharmacy because they were selling it "a little cheaper."

The appellant contends that under the evidence Conley could not be held guilty of a conspiracy to violate the Narcotic Act, and that if that be true appellant likewise cannot be guilty of the offense since he could not conspire with himself and there is no evidence of any conspiracy with any of the other alleged co-conspirators. He also contends that this lack of evidence establishes a fatal variance between the indictment and the proof.

Government counsel appear to concede that the conspiracy, if any, was one solely between the appellant and Conley. They recognize that Conley's acts in using fictitious prescriptions issued by the appellant to purchase drugs for his own comfort as an addict did not make him guilty of the offense defined in section 2554 of the Act as that section does not purport to punish the purchaser who acquires drugs under the circumstances shown here. Counsel contend, however, that though Conley was incapable of committing the substantive crime he may nevertheless become a party to a conspiracy to accomplish it, and thereby be held guilty of a violation of section 88, Title 18 U.S.C., 18 U.S.C.A. § 88, which provides that "If two or more persons conspire * * * to commit any offense against the United States * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined * * * or imprisoned * * * or both." Counsel cite United States...