United States v. Abdallah

• Decision Date: 02 May 1945
• Docket Number: No. 290.,290.
• Citation: 149 F.2d 219
• Parties: UNITED STATES v. ABDALLAH.
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 219 (1945)

UNITED STATES v. ABDALLAH.

No. 290.

Circuit Court of Appeals, Second Circuit.

May 2, 1945.

COPYRIGHT MATERIAL OMITTED

Charles Wilson, of Brooklyn, N. Y., for defendant-appellant.

Mario Pittoni, Asst. U. S. Atty., of Brooklyn, N. Y. (T. Vincent Quinn, U. S. Atty., and Vine H. Smith, Asst. U. S. Atty., both of Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This is an appeal by a physician, in practice since 1917, from conviction by a jury and concurring sentences of imprisonment on three counts of violating 26 U.S. C.A. Int.Rev.Code, § 2554 (a), by selling morphine without a written order on a form issued for that purpose by the Secretary of the Treasury. The unlawful acts of which he was found guilty consisted of the issuance of prescriptions of the drug to an addict. The government's contention here is the same as that upheld by us in United States v. Lindenfeld, 2 Cir., 142 F. 2d 829, certiorari denied Lindenfeld v. United States, 65 S.Ct. 89, that by such acts defendant removes himself from the protection of 26 U.S.C.A. Int.Rev.Code, § 2554 (c) (1), which excepts from the general mandate of subdivision (a) the distribution of drugs "by a physician * * * in the course of his professional practice only." Defendant urges us to reconsider our holding in the Lindenfeld case that the question as to whether the defendant comes within the exception was one of fact as to his good faith, for the jury to decide, and contends that there must be a consent or conspiracy between the physician and the druggist filling the prescription in order to render the physician's acts unlawful. But our holding was not at all novel, and we find no occasion for reconsidering it. We therefore discuss only the remaining issues urged on this appeal.

The case for the prosecution showed that in March, 1943, Agent Tagley of the United States Narcotic Squad made several trips to the vicinity of defendant's office with a drug addict and government informer, John Port. Tagley searched Port thoroughly, found nothing on him, and then gave him money. Each time Port came out with a prescription or prescriptions for morphine, in combination with ephedrine, which he promptly turned over to Tagley. Tagley then drove him to the vicinity of the Welch Pharmacy in the Bronx, where the prescriptions were filled. The amount of prescriptions varied with the amount of money Tagley gave Port. This happened on six different occasions from March 10 to March 30, 1943, each occasion being the subject of a different count of the indictment. On each of the last three occasions defendant gave Port several postdated prescriptions. The jury found defendant guilty on the three counts covering these last occasions, while it freed him on the counts covering the earlier transactions.

Though the government's case was sharply contested, there was substantial evidence pointing to defendant's guilt. While it does appear that defendant examined Port at least once, and that the latter complained of asthma, it seems that during the course of the examination defendant made Port strip to the waist, that Port had needle marks on his arm, which defendant must have noticed and which ought to have put him on guard as to Port's addiction. Moreover, Port testified that defendant accused him of being an addict, but nevertheless issued the prescriptions; that defendant warned him not to fill the prescriptions with one druggist, not to carry the bottles on his person, and to tear the labels off the bottles; and that defendant urged him to supply a friend in whose name future prescriptions could be made out. There was further evidence to show that Port never had asthma, and that defendant was well aware that morphine is not a specific remedy and should be used only in extreme cases to quiet a person with loss of sleep and then only with great caution. And it was thus undisputed that Port obtained 12 prescriptions for morphine on 6 visits within a period of 20 days.

On Port's last visit, March 30, 1943, he was given marked money, which defendant turned over to the agents upon being arrested. The agents then asked him where he kept his records, as required by 26 U.S. C.A. Int.Rev.Code, § 2554 (c) (1), showing the patients to whom he had prescribed drugs. But defendant claimed he had kept none. True, he introduced his diary at his trial; but this appears to show discrepancies from the prescriptions in evidence. A spot check of drugstores in defendant's vicinity turned up 115 narcotic prescriptions by defendant, most of which were issued after September 1, 1942, and of which 50 were issued to one person, DeRosa.

From this evidence the jury was clearly entitled to infer defendant's bad faith. As a matter of fact, it seems to have exercised discrimination in its verdict, giving defendant the benefit of all possible doubt on the three earlier counts, while finding guilt on only the latter three, where bad faith seems undeniable. Defendant contends, however, that the government failed to prove the filling of the prescriptions, a necessary element of the sale of narcotics as here charged. Strader v. United States, 10 Cir., 72 F.2d 589, 590; United States v. Lindenfeld, supra, 2 Cir., 142 F.2d 829, at page 832, n. 1. The evidence is contradictory as to whether the druggist filled the prescriptions according to directions, including ephedrine sulphate and milk sugar, or whether Port obtained from him pure morphine sulphate instead. But as long as acquisition of the opiate as a result of the prescription is shown, we think it cannot excuse the wrongful act that the druggist does not fulfill the directions precisely or even takes advantage of the opportunity to expand the illegal traffic. For in either event the prescription is the instrument leading to the completion of the crime. Obviously the interest of the druggist is to obtain a seemingly legitimate basis for rapid depletion of his morphine stock; and the doctor has furnished it by his prescription, whether it be followed to the letter or not. With its purpose thus fulfilled, the crime is complete.

Defendant urges, however, that here the crime was completed through the agency of a decoy and detective, whose acts cannot be imputed to defendant so as to render him guilty of the offense charged. In support of his contention, he relies on cases such as People v. Lanzit, 70 Cal.App. 498, 233 P. 816; Dalton v. State, 113 Ga. 1037, 39 S.E. 468; State v. Decker, 321 Mo. 1163, 14 S.W.2d 617; Williams v. Georgia, 55 Ga. 391; and De Mayo v. United States, 8 Cir., 32 F.2d 472. We need not stop to...