Rush v. United States, 18285

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: MATTHES and LAY, Circuit , and HARPER
• Citation: 370 F.2d 520
• Parties: James J. RUSH, Appellant, v. UNITED STATES of America, Appellee. Alfred J. DENNIS, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 18285,18286.,18285
• Decision Date: 07 February 1967

370 F.2d 520 (1967)

James J. RUSH, Appellant,
v.
UNITED STATES of America, Appellee.
Alfred J. DENNIS, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 18285, 18286.

United States Court of Appeals Eighth Circuit.

January 13, 1967.

Rehearing Denied February 7, 1967.

370 F.2d 521

Clayton H. Shrout, of Shrout, Hanley, Nestle & Caporale, Omaha, Neb., for appellants.

Theodore L. Richling, U. S. Atty., Omaha, Neb., for appellee. Thomas F. Dowd, Asst. U. S. Atty., Omaha, Neb., was with him on the brief.

Before MATTHES and LAY, Circuit Judges, and HARPER, District Judge.

HARPER, District Judge.

The appellants (defendants below and hereinafter referred to as defendants), James J. Rush and Alfred J. Dennis, appeal from a judgment of guilty to five counts of violating the Federal Food, Drug, and Cosmetic Act (21 U.S.C.A. § 301 et seq.).

Defendant Rush was found guilty on Counts I through V and defendant Dennis was found guilty on Counts I and IV. The case was tried before the court without a jury and we must affirm. The sole question raised by the appellants on this appeal is whether the trial judge (Van Pelt, J.) should have ruled, as a matter of law, that the defendants were entitled to an acquittal based upon unlawful entrapment.

On April 24, 1961, the United States Attorney filed an information in five counts against the defendants, James J. Rush, an individual doing business as Ralston Pharmacy, and Alfred Dennis, an individual. Defendant Dennis was only charged in Counts I and IV.

The defendants pleaded not guilty to all of the counts, and the case went to trial before a jury (Robinson, J.). The jury returned a verdict of guilty against both of the defendants on all five counts. The defendants subsequently filed a motion for Judgment of Acquittal or in the Alternative, Motion for New Trial. Judge Robinson granted a new trial and transferred the case to Judge Van Pelt, where the defendants waived a jury trial.

At the second trial, the one from which this appeal is taken, it was stipulated that all exhibits and the transcript of testimony from the first trial (with certain deletions and corrections) would be admitted in evidence, and some additional testimony of the defendants was heard.

Judge Van Pelt entered a Memorandum and Order in which he found the defendants guilty, summarizing the evidence as to each count as follows:

"Count I. This count charges that on April 22, 1960, the defendant Rush, as proprietor, and the defendant Dennis, as an employee, dispensed to Clifford T. Bryant, an inspector for the United States Food and Drug Administration, dexedrine sulfate tablets as an unauthorized refill of a prescription. The evidence sustains a finding in conformity with this charge. On April 19, 1960, inspector Bryant presented a prescription for dexedrine sulfate tablets to the defendant Dennis, which was accordingly filled without incident. Thereafter, on April 22, Bryant returned and presented the vial to Dennis for refilling which was also accomplished at that time. Dennis testified that Bryant told him that his physician had asked that the prescription be refilled and that he, Dennis, relied upon this statement. The tablets issued on the 19th, if taken according to directions, would have lasted 24 days.

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