Roth v. United States

Decision Date08 October 1959
Docket NumberNo. 16159.,16159.
Citation270 F.2d 655
PartiesMarvin ROTH, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Bernard J. Mellman, St. Louis, Mo. (Morris A. Shenker, St. Louis, Mo., was with him on the brief), for appellant.

John A. Newton, Asst. U. S. Atty., St. Louis, Mo. (Harry Richards, U. S. Atty., St. Louis, Mo., was with him on the brief), for appellee.

Before GARDNER and VOGEL, Circuit Judges, and MICKELSON, District Judge.

GARDNER, Circuit Judge.

This case was commenced by the filing of an Information charging appellant Marvin Roth, a registered pharmacist, with the unlawful sale of drugs. The Information contained eight counts. Counts One and Two of the Information charged illegal sales of tincture opium camphorated, or paregoric, in violation of Section 4705(a), Title 26 U. S.C., while Counts Three to Eight, inclusive, of the Information charged illegal sales of dextro amphetamine sulphate tablets, in violation of Section 331 (k), Title 21 U.S.C.A. In the course of this opinion we shall refer to appellant as defendant. Defendant relied solely upon the defense of entrapment.

Counts One and Two charged the unlawful sale of paregoric, which contains a narcotic and hence such a sale constitutes a felony in violation of Section 4705(a), Title 26 U.S.C. The sales charged in Counts Three to Eight, inclusive, constituted misdemeanors violative of Section 331(k), Title 21 U.S.C.A. Defendant duly waived the right of jury trial and, with the consent of the United States Attorney and the court, the cause was tried to the court without a jury. The court was therefore performing the function of court and jury.

It is conceded by the defendant that he committed the offenses as charged in the Information, but contends that he was entrapped into so doing by agents of the Government, and that the evidence was of such a character that the Court should have sustained his motion for judgment of acquittal interposed at the close of all the testimony, on the ground that the evidence proved entrapment as a matter of law. The court denied defendant's motion for judgment of acquittal and found him guilty on all counts. As the Government was the prevailing party, we must view the evidence in a light most favorable to the Government. We must assume that all conflicts in the evidence were resolved in favor of the prevailing party and it is entitled to the benefit of all such favorable inferences as may reasonably be drawn from the facts proven, and if, when so viewed, the evidence is such that different conclusions might reasonably be drawn therefrom, a question of fact, and not a question of law, was presented. We turn to an examination of the evidence, viewing it in a light most favorable to the Government.

As the transactions described in Counts Three to Seven, inclusive, occurred before those described in Counts One and Two, we shall consider them first.

The evidence produced at the trial by the Government was substantially as follows. In support of the charge contained in Count Three of the Information the evidence shows that on September 29, 1956, Mr. William Boyle, an inspector with the Food and Drug Administration, drove into a filling station operated by one Charles Gibson, in a truck tractor which had been rented for the purpose. He was dressed in work clothes and had the appearance of a truck driver. His purpose was to conduct an investigation as to whether drugs were being illegally sold at this location. If they were, he was to endeavor to obtain evidence for a conviction of the guilty parties. Mr. Boyle spoke to Mr. Gibson, saying that he wanted some aspirin to keep him awake. Mr. Gibson then called the defendant, Marvin Roth, at his home in University City. He used the number defendant had previously given where defendant said he could be reached if he ever had any call for "bennies." Gibson testified that he told defendant that a trucker was on the lot who wanted some "bennies". This term was subsequently explained as one which truck drivers and others use when referring to dextro amphetamine tablets. Defendant asked Gibson how many the trucker wanted, as it must be worth his while to come over. Gibson mentioned five hundred or a thousand tablets. Defendant said that he would come over, but that it would take a little while as he had some distance to travel.

Boyle waited on the filling station lot and defendant arrived in thirty to forty-five minutes. Defendant was then introduced to Boyle and he asked Boyle for some identification to show that he was a truck driver. Boyle refused to identify himself, but defendant observed that Boyle's left arm was sunburned, and said that Boyle must be a truck driver. Defendant held two bottles in his hands while this conversation was in progress. He then gave them to Boyle in exchange for fifty dollars. Boyle testified that each bottle contained a thousand dextro amphetamine tablets. Boyle testified that this was the substance of his entire conversation with defendant prior to the sale.

On Count Four the evidence shows that on October 10, 1956, Inspector Joseph Gebhart of the Food and Drug Administration obtained a prescription for fifty dextro amphetamine tablets from Dr. Bernard Flotte, a physician, in the name of Dick McCoy. McCoy was a fictitious name, which fact was known to the doctor issuing the prescription. Gebhart took the prescription to the Joseph Drug Store in St. Louis on the same date and had it filled. The charge was $2.50. The prescription called for the consumption of two pills per day by the patient and it was not to be refilled.

On December 29, 1956, Inspector Leo Cramer of the Food and Drug Administration went to the Joseph Drug Store and gave a piece of paper with the prescription number on it which had previously been given by Gebhart to the clerk and defendant refilled the prescription. He did not obtain permission from the doctor to do so. On cross-examination defendant admitted this and also that he had no conversation with Cramer prior to the refill.

After receiving the tablets, Inspector Cramer asked defendant if he could sell him some metadaren tablets. Defendant said that he "should not" do so as it was a prescription item. Cramer did not press him further, merely saying that he would try to get a prescription.

In support of Counts Five and Six, the Government's evidence was to the effect that on January 8, 1957, Inspector Cramer again went to the drug store and asked to have the McCoy prescription filled. Defendant did so, again without attempting to contact the doctor who issued it. Defendant admitted this. After obtaining the tablets, Cramer asked defendant if they would be cheaper if purchased in amounts of one hundred. Defendant said that they would not be much cheaper. Cramer then said that his son-in-law, McCoy, traveled down through Rolla on a truck route and could get rid of a lot of them. Defendant said he should buy them in larger quantities. Cramer asked where they could be purchased, and defendant said that he could provide them. When Cramer asked how long it would take to get them, defendant said he had them outside in his car. Defendant then took Cramer to his car and sold him a bottle with a thousand dextro amphetamine tablets, for $30.00.

As to Count Seven, the Government proved that on the evening of January 10, 1957, Cramer called defendant on the telephone at the Joseph Drug Store. In this conversation Cramer arranged to buy a thousand dextro amphetamine tablets and a hundred metadaren tablets. They arranged to meet but did not do so until a later time.

On January 15, 1957, Cramer called defendant a second time at Joseph Drug. This time he asked if defendant knew about dextro amphetamine tablets that were slow in disintegrating in the system after being taken. Defendant said that Cramer meant spantules and that he had them in his car. He said that if Cramer would come right over to the store he could get them. Cramer ordered a hundred spantules and arranged to pick them up the next day.

During this telephone conversation, Inspector Cramer said that McCoy had asked about obtaining some "PG". This term was subsequently explained as meaning paregoric or tincture opium camphorated, a drug containing narcotics. Cramer continued the conversation by saying that he did not want to have anything to do with paregoric. That he did not want to take a chance. Defendant said, "I know what you mean." "You can get two to three" years for selling it. Cramer then said that he "was afraid of it; it was not worth the risk." Cramer said...

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