U.S. v. Carroll, 74-1938

• Decision Date: 12 June 1975
• Docket Number: No. 74-1938,74-1938
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. CARROLL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 187

518 F.2d 187

UNITED STATES of America, Plaintiff-Appellee, v. John L. CARROLL, Defendant-Appellant.

No. 74-1938.

United States Court of Appeals, Sixth Circuit.

June 12, 1975.

George C. Steinemann, Steinemann, Zeiher, Beamer & Schell, Sandusky, Ohio, for defendant-appellant.

Frederick M. Coleman, U. S. Atty., Frank A. Justen, Asst. U. S. Atty., Toledo, Ohio, for plaintiff-appellee.

Before MILLER and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.

LIVELY, Circuit Judge.

The defendant who is a physician appeals from a jury conviction on six of ten counts for distribution of Seconal, a Schedule III controlled substance, in violation of 21 U.S.C. § 812 and § 841(a)(1). It is claimed that four separate errors occurred at the trial which require reversal of his conviction.

The first claim of error is that the prosecution failed to prove that Seconal (sodium secobarbital) is a controlled substance, the distribution of which is prohibited by 21 U.S.C. § 841(a)(1). It is provided in Section 812(c), Schedule III, Part (b)(1), that "(a)ny substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid" is a controlled substance. There was expert testimony that Seconal is a barbituric acid which is controlled under Schedule III. This evidence was sufficient to establish that the substance which defendant distributed was among those covered by the statute.

The second contention presented on appeal is that the government was guilty of entrapment and that the defendant was entitled to a directed verdict of acquittal. It is maintained that defendant had no predisposition to violate the law, but that the plan originated with the government agents who induced him to make illegal sales. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). It is also asserted that the agents deceived the defendant and misled him into believing that he was being requested to help persons who had a real need for the drugs which he prescribed. It is undenied that the agents in this case used deception in dealing with defendant, but such activity is not forbidden, United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and does not, without more, establish entrapment as a matter of law. The District Judge instructed the jury fully on the defense of entrapment. He correctly held that entrapment had not been proven as a matter of law and the issue was properly submitted to the jury. United States v. Head, 353 F.2d 566 (6th Cir. 1965); United States v. Williams, 319 F.2d 479 (6th Cir. 1963).

The third assertion of error deals with the instructions by which the court defined the criminal offense which the defendant was charged with committing. The court originally read portions of 21 U.S.C. § 841(a)(1) to the jury as his charge on the elements of the crime and then gave the statutory definitions of "dispense" and "practitioner." The jury, after deliberating some time, asked for a clarification with respect to § 841(a)(1) in a written communication to the court. The jury was then called into the courtroom and the following proceeding occurred:

THE COURT: Ladies and gentlemen, the Bailiff handed me a question and I want to read it to you to be sure I have it right. It says:

"WHAT DOES TITLE 21, U. S. CODE SECTION 841(a)(1) STATE.

"WE CANNOT REMEMBER YOUR SYNOPSIS OF THIS PARTICULAR ITEM."

That is your question, is it?

JURORS: Yes. Yes. Yes.

THE COURT: Ladies and Gentlemen, the prosecution in this case is based upon the statute in Title 21, United States Code Section 841(a)(1), which reads, in pertinent part, as follows:

"Except as authorized by this subchapter, it shall be unlawful for any person knowingly and intentionally to distribute or dispense a controlled substance."

"The term 'dispense' means to deliver a controlled substance to an ultimate user by, or pursuant to the lawful order of, a practitioner.

"The term 'practitioner' means a physician or other person licensed, registered, or otherwise permitted by the United States or the jurisdiction in which he practices, to distribute, dispense, or administer a controlled substance in the course of professional practice.

"The term 'distribute' means to deliver . . . a controlled substance to the possession of another person, which in turn means the actual, constructive, or attempted transfer of a controlled substance "You instructed as a matter of law that seconal is a controlled substance." (sic)

Does that answer your question, Ladies and Gentlemen?

JURORS: Yes. Yes. Yes.

THE COURT: Very well.

FOREMAN: Are there any exceptions or generalities that should be mentioned? (emphasis added).

THE COURT: I can perhaps add a couple of definitions from the statute. I can't go beyond the language of the statute.

"The term 'administer' refers to the direct application of a controlled substance to the body of a patient by a practitioner or in his presence by his authorized agent."

"The term 'deliver' or 'delivery' means the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship."

I have defined the term 'dispense' and the term 'distribute.' There are a couple more definitions. I have defined the term 'practitioner' to you.

"The term 'ultimate user' means a person who has lawfully obtained, or who possesses, a controlled substance for his own use or for the use of a member of his household . . . or for a member of his household . . . ."

FOREMAN: If you would, please, just reread the first part of what you read to us a second ago, the first thing you read, and I think that will clear up all the questions of the Code.

THE COURT: That is the Code Section. Title 21, United States Code Section 841(a)(1), which reads, in pertinent part, as follows:

"Except as authorized by this subchapter, it shall be unlawful for any person knowingly and intentionally to distribute or dispense a controlled substance."

FOREMAN: A little bit more. Continue.

THE COURT: "The term 'dispense' means to deliver a controlled substance to an ultimate user by, or pursuant to the lawful order of, a practitioner.

"The term 'practitioner' means a physician or other person licensed, registered, or otherwise permitted by the United States or the jurisdiction in which he practices, to distribute, dispense, or administer a controlled substance in the course of professional practice."

Does that cover it?

JURORS: Yes. Yes. Yes.

THE COURT: Very well, ladies and Gentlemen. I will excuse you to resume your deliberations.

Prior to the original charge to the jury and again prior to the supplemental charge, counsel for the defendant requested the court to instruct specifically that as a physician the defendant had the right to prescribe controlled substances including Seconal and that it would be a violation of Section 841(a) (1) for him to prescribe such substances only if it were done outside of the physician-patient relationship. The court declined on both occasions to give such an instruction, relying on the language of the statute alone.

Though the court read to the jury the statutory definition of "practitioner" as a physician or other person licensed to dispense or administer controlled substances, it did not advise them that physicians are exempt from the provisions of the drug abuse statute when they dispense or prescribe controlled substances in good faith to patients in the regular course of professional practice. This is the obvious intent of Congress when the entire subchapter, of which § 841(a)(1) is a part, is considered. Specifically pertinent are the provisions of § 829(b) which relate to physicians and others licensed to dispense controlled substances. United States v. Collier, 478 F.2d 268 (5th Cir. 1973). The instructions as given by the court in this case failed to inform the jury of this fact, even though the jury specifically asked about "exceptions." Though it arose under a somewhat different statute then in effect, the instruction approved by the court of appeals in White v. United States, 399 F.2d 813, 816-17 (8th Cir. 1968), correctly states the rights of a physician under the present Act. Failure to give such an instruction was prejudicial error.

The fourth allegation of error relates to the punishment imposed by the district court. No justification has been shown for departing from the rule that when a sentence is within the statutory range it is not subject to review. United States v. Gargano, 338 F.2d 893 (6th Cir. 1964), cert. denied, 380 U.S. 962, 85 S.Ct. 1106, 14 L.Ed.2d 153 (1965).

The judgment of the district court is reversed, and the case is remanded for a new trial.

McALLISTER, Senior Circuit Judge (dissenting).

Appellant Carroll, a medical doctor of Sandusky, Ohio, was convicted of dispensing a controlled substance (Seconal) in violation of Title 21, U.S.C.A., Section 841(a)(1). There were ten counts based upon the same alleged violations, the first four counts being founded on dispensing the controlled substance on October 16, 1973, and the last six counts based on dispensing the controlled substance on October 18, 1973. The defenses were entrapment and failure of the trial court to correctly charge the jury, or in such a way that they could not understand the charge.

The defendant, Dr. John L. Carroll, was found not guilty, in spite of the attempts of government agents, who thought they had entrapped him into committing a crime on October 16, 1973, but was convicted of violation of the Act in dispensing the controlled substance on October 18, 1973.

Dr. Carroll's defense to the charge that he violated the Act on October 18, 1973, was not guilty, and that the government agents had tried (if he was not guilty) to entrap him into dispensing the controlled substance on October 18, 1973, after he had been found not guilty of dispensing the controlled substance on October 16, 1973.

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