Rothman v. United States

• Decision Date: 16 November 1920
• Docket Number: 35.
• Citation: 270 F. 31
• Parties: ROTHMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

270 F. 31

ROTHMAN et al. v. UNITED STATES.

No. 35.

United States Court of Appeals, Second Circuit.

November 16, 1920

Louis Marshall and C. G. F. Wahle, both of New York City, for plaintiffs in error.

Francis G. Caffey, U.S. Atty., of New York City (Peter B. Olney, Jr. Asst. U.S. Atty., of New York City, of counsel), for the United States.

Before WARD, ROGERS, and MANTON, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The defendants have been indicted under what is known as the Harrison Act, being the Act of December 17, 1914, 38 Stat.pt 1, c. 1, p. 785 (Comp. St. Secs. 6287g-6287q). That act was amended as to section 1 by the Act of February 24, 1919, c. 18, Sec. 1006 40 Stat.p. 1130 (Comp. St. Ann. Supp. 1919, Sec. 6287g). The amendatory act, having been passed after the acts complained of were committed is not involved herein.

The original act provides for the registration of all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes. The act makes it an offense punishable by a fine of not more than $2,000 or by imprisonment for not more than five years, or both, to deal in the drugs described therein contrary to the provisions of the act. The indictment also charges the defendants with a conspiracy to violate the said act, contrary to section 37 of the Criminal Code (Comp. St. Sec. 10201). The crime charged is the crime created by section 2 of the act (section 6287h), and so far as it is material to the present inquiry it is found in the margin. ^[1]

The defendant Rothman is a physician. Louis Cohen was the owner of a pharmacy, and his brother William had been in partnership with Louis, but had retired therefrom. The claim was that the Cohens had filled the physician's prescriptions with knowledge of the fact that the physician was writing the prescriptions, not in good faith, and not with the intention of treating those to whom he issued them for the purpose of curing them, but in order that such persons might circumvent the law.

The first objection to be considered is one which goes to the sufficiency of the indictment. It is said that the indictment fails to charge a crime within the terms of the act; that as the crime is a statutory one, and the statute defining the offense contains certain exceptions, the rules of good pleading require that an indictment founded upon the statute should negative the exceptions. The exceptions are in section 2 which have been already set forth herein. In this connection it is necessary to consider section 8 (section 6287n) which appears in the margin. ^[2]

It will be observed that sections 2 and 8 define different offenses, and that the exceptions in section 2 are exceptions to certain prescriptions, while in section 8 they relate to certain classes of persons; and the question arises whether the second proviso in section 8 relates merely to the exceptions in that section or extends as well to the exceptions in section 2. This question came before the Circuit Court of Appeals in the Seventh Circuit in 1917 in Wallace v. United States, 243 F. 300, 304, 156 C.C.A. 80, and it was held that this proviso was intended to apply to all exceptions in the act, and not merely to those found in section 8; the conclusions arrived at being based on the words it shall not be necessary to negative the exemptions 'in any * * * indictment * * * brought under this act,' which the court said indicated that the proviso was intended to apply to the entire act. The same question has been several times since before the Circuit Court of Appeals in the Fifth Circuit and a similar ruling has been made. Fyke v. United States, 254 F. 225, 228, 165 C.C.A. 513; Melanson v. United States, 256 F. 783, 785, 168 C.C.A. 129; Oakshette v. United States, 260 F. 830, 831, 171 C.C.A. 556. We shall follow the decisions referred to and hold that the indictment was not invalidated by the omission complained of.

It appears that the persons to whom, upon this record, the prescriptions were given, were two government agents, and it is said that these men sought to entrap the defendants by means of fraud into the commission of a crime, and that on this account the government is estopped from urging a conviction on such premises. The jury was instructed on this subject as follows:

'Now, I will charge you, gentlemen, that some point has been made that Hanake was an internal revenue agent; that Devine was also an internal revenue agent; that they went to the doctor and to the druggist for the purpose of trapping him. I charge you that, if the officers of the government believe these defendants were violating the law, it is not only legal, but commendable, that they should endeavor to find it out in just the way they did, and if the druggist and the doctor violated the law by selling to these agents of the government, they are just as much guilty, and your verdict will be based on those transactions just the same, as if they had sold to persons having no connection with the government at all.'

The giving of this instruction is the fifty-fourth assignment of error. We do not, however, find that at the time the charge was given any exception was taken to that part of it which relates to the above instruction. After the verdict had been returned, when defendants appeared for sentence two weeks thereafter, their counsel stated that he desired to except to that part of the charge and the court stated that he would allow the exception. This was too late. No exception to a charge after the jury has retired can be considered. Before the charge was given requests to charge were submitted to the court which cover 52 printed pages of the record. We do not feel called upon to examine them, our attention not having been specifically directed to them.

An exception was taken to the refusal to charge the fifty-sixth request, but no other exception was taken to any refusal of the other requests. That exception is properly before us and will be subsequently considered.

There can be no possible excuse for presenting to the trial judge such a volume of requests to charge as we find in this record, and it is difficult for us to see why all these requests should be incorporated into what purports to be a bill of exceptions, but which cannot possibly be so regarded. Under the federal practice this was not only unnecessary, but improper. We ought to add that the counsel for defendants who argued the case in this court did not try it in the court below and is not responsible for the requests to charge or for the bill of exceptions in which those requests appear. We also ought to say that bills of exceptions in the federal courts are not governed by the rules governing appeals in the courts of record of the state within which the federal courts are held. The Act of Conformity of June 1, 1872, c. 255, Sec. 5 (Comp. St. Sec. 1537) has no application to bills of exceptions. In re Chateaugay Ore & Iron Co., 128 U.S. 544, 9 Sup.Ct. 150, 32 L.Ed. 508; Buessel v. United States, 258 F. 811, 819, 170 C.C.A. 105.

But in view of the Act of February 26, 1919, c. 48, Sec. 269, 40 Stat. p. 1181 (Comp. St. Ann. Supp. 1919, Sec. 1246), we will say concerning the instructions objected to in this court that the contention of the defendant's counsel is disposed of by what was laid down in Grimm v. United States, 156 U.S. 604, 15 Sup.Ct. 470, 39 L.Ed. 550. It was there decided that when a government detective, suspecting that a person is engaged in an unlawful business seeks information under an assumed name directly from him, and that person responds thereto, violating a law of the United States, he cannot, when indicted for the offense, set up that he would not have violated the law, if the inquiry had not been made of him by the government official. A number of cases in the federal courts in support of the doctrine are cited in the opinion. See, also, Andrews v. United States, 162 U.S.

420, 16 Sup.Ct. 798, 40 L.Ed. 1023; United States v. Lynch (D.C.) 256 F. 983.

The court was requested (the fifty-sixth request) to charge as follows:

'The defendants are to be judged by the interpretation accepted by the constitutional authorities and given to the Harrison Narcotic Law in the years 1917 and 1918, and if the defendants, in the conduct of their business, complied with the decisions and orders of the Treasury Department through the Bureau of Internal Revenue, as the same were issued in the years 1917 and 1918, under the provisions of the Harrison Narcotic Law, then these defendants must be acquitted. They cannot be judged by an interpretation of the law after the filing of this indictment, which reverses or is contrary to that adopted and duly promulgated during the times mentioned in the indictment.

The material part of Treasury Decision No. 2200, which is the interpretation alluded to in the above request, is found in the margin. ^[3] It was issued on May 11, 1915, and prior to the indictment. Treasury Decision No. 2879 was subsequent to the indictment and before trial, and was promulgated on July 2, 1919. It also may be found in the margin. ^[4] It is said that these Treasury Decisions were issued in accordance with section 1 of the Harrison Act which provides as follows:

That 'the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall make all needful rules and regulations for carrying the provisions of this act into effect.'

And we are told that the defendants relied upon Treasury Decision 2200 in the transaction of their business in giving prescriptions to addicts. Coun...