Rush v. United States

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

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.

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. Under both versions the evidence establishes a violation of the applicable statutes.

"Count II. By this count it is alleged that on or about April 23, 1960, the defendant Rush dispensed to Thomas M. Rice, another Food and Drug Administration inspector, an unauthorized refill of a chloral hydrate prescription. The evidence would indicate, and the court so finds, that agent Rice took a prescription for chloral hydrate to the Ralston Pharmacy on March 21, 1960, where it was promptly filled by Mr. Rush. On April 23 Rice returned and asked for a double refill which was furnished, according to Rice, without further comment by either party. Rush testified, in substance, that Rice asserted that the prescribing physician was desirous that the refill be made as ordered. It is clear, however, that the double refill was dispensed without a physician\'s authorization being obtained.

"Count III. The allegations contained in this count are directed against Mr. Rush and assert that on April 23, 1960, he sold dexedrine sulfate without a prescription to agent Rice. Rice\'s version of the sale was simply that he asked for two dozen dexedrine tablets for his wife and that Rush furnished the same without further comment. Rush testified that agent Rice represented that his wife had a prescription at their home which was ten miles away and that they were leaving town and `just wanted a few to hold him until he got back to town.\' Again, however, it is altogether clear that the defendant Rush dispensed this drug without a physician\'s prescription.

"Count IV. In Count IV it is alleged that on or about May 2, 1960, the defendant Dennis as employee and the defendant Rush as proprietor sold to agent Bryant a refill prescription for dexedrine sulfate without authorization. The only difference in testimony regarding this count is what was said by Bryant. Bryant himself claims to have merely asked for a double refill so he would not have to come back so often, whereas Dennis testified that Bryant represented that the prescribing physician wanted

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