United States v. Carlisle

• Decision Date: 30 June 1956
• Docket Number: No. 15898.,15898.
• Citation: 234 F.2d 196
• Parties: UNITED STATES of America, Appellant, v. Rutherford T. CARLISLE, an individual trading as Carlisle Drugs, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

234 F.2d 196 (1956)

UNITED STATES of America, Appellant, v. Rutherford T. CARLISLE, an individual trading as Carlisle Drugs, Appellee.

No. 15898.

United States Court of Appeals Fifth Circuit.

May 31, 1956.

Rehearing Denied June 30, 1956.

E. Coleman Madsen, Asst. U. S. Atty., Jacksonville, Fla., Warren Olney, III, Asst. Atty. Gen., James L. Guilmartin, U. S. Atty., Miami, Fla., John T. Grigsby, Atty., Dept. of Justice, Alvin L. Gottlieb, Atty., Dept. of Health, Education, and Welfare, Washington, D. C., of counsel, for appellant.

George A. Pierce, Jacksonville, Fla., for appellee.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

The appeal is taken pursuant to 18 U.S. C. § 3731, from a final order dismissing Counts IV,¹ V and VI of a six count criminal information instituted under the provisions of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 301 et seq.

Each of the three counts involved charges a separate violation of 21 U.S. C.A. § 331(k). Each count charges that on different occasions the defendant caused an act to be done with respect to a drug while it was being held for sale after shipment in interstate commerce, in effect refilling a prescription without the authorization of its prescriber, as required by 21 U.S.C.A. § 353(b) (1), which resulted in the drugs being misbranded.

In Count IV there is involved the drug secobarbital sodium or seconal, and in Counts V and VI the drug sodium pento-barbital. The information alleges both of these drugs to be within the class of drugs described in 21 U.S.C.A. § 353 (b) (1) (A), i. e., a habit forming drug to which 21 U.S.C.A. § 352(d) applies.

The defendant moved to dismiss the information citing thirteen grounds therefor, including alleged defects in both the information and the statute.

On August 4, 1955, the district court, denying defendant's motion as to Counts I, II, and III, granted it as to, and ordered dismissal of, Counts IV, V, and VI.

Appealing from the order of dismissal, the United States is here insisting that each of the dismissed counts states facts sufficiently charging an offense in that each count specifically and clearly charges that the act of dispensing as alleged was prohibited by 21 U.S.C.A. § 353(b) (1),² and in violation of 21 U.S.C. A. § 331(k),³ for which Sec. 333,⁴ 21 U.S. C.A. prescribes the penalty.

In support of this position, it points out that the last sentence of 21 U.S.C.A. § 353(b) (1), recited in each of the dismissed counts, provides that the act of dispensing a drug contrary to the provisions of this paragraph "shall be deemed to be an act which results in the drug being misbranded while held for sale", (emphasis supplied), an act prohibited by Sec. 331(k) which prohibits "the alteration, mutilation * * * or the doing of any other act with respect to, a food, drug * * * while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded." (emphasis supplied.)

Appellee agrees that Counts IV, V, and VI charge the appellee with refilling a written prescription without obtaining the authorization of the prescriber, that each count charges that the barbiturate in question is a drug within the meaning of 21 U.S.C.A. § 353(b) (1) and that each count then goes on to allege that the act of dispensing the drug was an act done by the appellee contrary to the provisions of 21 U.S.C.A. § 353(b) (1), "which resulted in said drug in said box being misbranded while held for sale in violation of 21 U.S.C. 331(k)".

He argues that each of the counts are duplicitous in that they charge two offenses, (1) dispensing drugs without a prescription and (2) that the drug was misbranded in violation of another section.

In addition, without clearly pointing out why that would make them so, appellee insists that Sections 353(b) (1) and 331(k) are unconstitutional in that they purport to affix a meaning and give a content to the word, "misbranded" quite the contrary to the meaning given it in Webster's Dictionary and the federal cases, to-wit: "to brand falsely; specifically, to brand as containers of drugs or food stuffs in contravention of statutory requirements". So insisting and citing in support United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200, and Connally v. General Construction, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, appellee urges upon us that the sales of the barbiturates did not and could not amount to "alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling", as defined in Sec. 331(k); that the appellant must, therefore, contend that the offense is charged in that part of the section which provides, "or the doing of any other act with respect to, food, drugs, * * * and results in such article being adulterated or misbranded", and that this produces a contradiction and vagueness which deprives the defendant of due process in failing to give him notice of the offense with which he is charged.

We do not regard these positions as well taken. Giving the fullest effect possible to appellee's objections, they come at last to no more than this, that it is an unduly awkward way to go about charging an offense to have to rely upon three separated sections to make it out. While at first blush this seems to be so, upon analysis and understanding it clearly enough appears: that, as to drugs of the habit forming group, congress has prohibited the refilling of a prescription therefor without authorization of the issuing physician; and that, instead of fixing the penalty for this act by directly setting it out in the section carrying the prohibition, it has declared the act of so refilling to be the same as misbranding and subject to the same penalty.

It did this by setting out in 353(b) (1) the only way in which drugs of the kind dealt with can be dispensed, and then in the same section going on to say that the act of dispensing such a drug, contrary to the provisions of the paragraph, shall be deemed to be an act which results in the drug being misbranded. This established, by law in this section, there is required only resort to 21 U.S.C.A. § 331 (k), which denounces the offense of misbranding and to Sec. 333, which fixes the penalty for that offense. When this resort is had, the conclusion is inescapable, we think, that the sections taken together have provided as clearly as though it had all been written out in the same section, that one dispensing drugs of the kind dealt with here, contrary to the provisions of Sec. 353(b) (1) shall be guilty of, and subject to the punishment provided by law for, an act of misbranding.⁵ This necessarily results from the use in Sec. 353(b) (1) of the language, "the act * * * shall be deemed to be an act which results in the drug being misbranded while held for sale".

In Bowers v. United States, 5 Cir., 226 F.2d 424, this court dealt with a statute using substantially the same language. We there pointed out, one judge dissenting, that a statute using the words "deemed to have been marketed in excess of the * * * quota" 7 U.S.C.A. § 1359, was intended to operate not as a presumption of fact but as a statement of a substantive rule of law, the...