United States v. Lindenfeld

• Decision Date: 01 June 1944
• Docket Number: No. 414.,414.
• Citation: 142 F.2d 829
• Parties: UNITED STATES v. LINDENFELD.
• Court: U.S. Court of Appeals — Second Circuit

142 F.2d 829 (1944)

UNITED STATES v. LINDENFELD.

No. 414.

Circuit Court of Appeals, Second Circuit.

June 1, 1944.

Peter J. Haberkorn, of New York City, for defendant-appellant.

Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y. (Harold M. Kennedy, U. S. Atty., and James G. Scileppi, 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.

Defendant appeals here from his conviction and sentence to imprisonment, after trial by jury below, on fifteen counts of violating section 2554(a) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 2554(a), which makes it unlawful for any person to sell or give away opium, coca leaves, or any compound, salt, derivative, or preparation thereof, except in pursuance of a written order on a form issued for that purpose by the Secretary of the Treasury. Defendant is a physician who practiced medicine in Germany for many years beginning in 1921, but, losing his license because of the racial restrictions later enforced there, emigrated to this country in May, 1939, and received his license to practice in the State of New York in April, 1941. The unlawful acts of which he was charged and found guilty were the issuance of prescriptions of morphine sulphate, a derivative and preparation of opium, to drug addicts, who applied to him as "patients" for "treatment." It was the government's contention at the trial that by such actions defendant removed himself from the protection of § 2554(c) (1) of the statute, which excepts from the general mandate of § 2554(a) the distribution of drugs "by a physician * * * in the course of his professional practice only."

Attention of the United States Narcotics Squad was first called to defendant sometime in 1942. During the period from August to November of that year agents of the squad made several trips, with drug addicts who had previously acted as informers, to the vicinity of defendant's office in Queens. The agents thoroughly searched the addicts, gave them marked money, and instructed them to go into defendant's office complaining of some illness and ask for drugs. Each time the addicts came out with prescriptions for varying amounts of morphine sulphate and without the marked money. Once an agent himself went in to see defendant, but was unable to dupe him and hence was sent away empty-handed. At the trial it was shown that when an addict came in, defendant would briefly ask what was wrong, make a most cursory and unprofessional examination (such as poking once the abdomen of a patient complaining of stomach ulcers to see if there was any pain), and then prescribe morphine sulphate as a virtual panacea for all ills. Finally, on November 10, 1942, three agents went to defendant's neighborhood with two addict-informers, and followed the usual procedure in sending the latter in to defendant's office. When the addicts emerged without the marked money, but with prescriptions, the agents themselves went to the house, rang the doorbell, and, when defendant answered it, immediately placed him under arrest, although they had no warrant.

After thus taking him into custody, the agents went with defendant across his entrance hall into his office, where, upon request, he produced from his desk drawer the marked bills which he had received from the informers. They 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; and he removed a drawer of cards from a filing cabinet and commenced to look through them. Becoming impatient of the time thus consumed, the agents asked defendant if they could see the cards. As to what transpired thereafter, there was a sharp conflict of testimony at the trial, the three agents testifying that defendant handed the cards over and consented to their inspection, defendant claiming that they were taken over his strenuous objection. But, in any event, the cards were eventually impounded by the agents and never returned to defendant. They revealed that defendant had written over 600 prescriptions for morphine sulphate between June, 1942, and the date of arrest for between 105 and 110 patients; and when agents later tried to check up on the patients listed, they found that the greater number of the names and addresses were false. At the trial, the cards were one of the cornerstones of the government's case; and through the information supplied by them the government was able to secure several additional witnesses, beyond the informers, to testify against defendant. Defendant made the usual motion before trial to suppress the cards as evidence, but it never came up for argument; and when counsel for defendant brought the matter to the court's attention during trial, the latter stated that they had been taken with consent and also as an incident to a lawful arrest.

Defendant argues, first, that his acts were merely those of a physician in the course of professional employment, and hence within the exception of § 2554(c) (1). But that was a question of fact as to defendant's good faith for the jury to decide, and it was properly presented to them in the court's charge. When a licensed physician abuses his professional function by selling or giving away prescriptions for drugs to known addicts, he automatically forfeits the privileges extended to him by § 2554(c) (1) of the statute. United States v. Behrman, 258 U.S. 280, 287, 42 S.Ct. 303, 66 L.Ed. 619; Jin Fuey Moy v. United States, 254 U.S. 189, 192, 41 S.Ct. 98, 65 L.Ed. 214; Webb v. United States, 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497; Nigro v. United States, 8 Cir., 117 F.2d 624, 631, 133 A.L.R. 1128, and cases cited therein; Hawkins v. United States, 5 Cir., 90 F.2d 551, certiorari denied 302 U.S. 733, 58 S.Ct. 118, 82 L.Ed. 566; Manning v. United States, 8 Cir., 31 F.2d 911; Grigg v. Bolton, 9 Cir., 53 F.2d 158, certiorari denied 285 U.S. 538, 52 S.Ct. 311, 86 L.Ed. 931; Bush v. United States, 5 Cir., 16 F.2d 709. Nor was there any entrapment — as defendant next contends — so as to entitle defendant to a verdict of not guilty. Entrapment exists only when the government agents induce and originate the criminal intent of a defendant; there is none where the criminal intent is already present, and the agents merely afford the opportunity for the commission of a crime. Sorrells v. United States, 287 U.S. 435, 441, 442, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249; Grimm v. United States, 156 U.S. 604, 609, 610, 15 S.Ct. 470, 39 L.Ed. 550; Smith v. United States, 8 Cir., 284 F. 673, 679, 680, certiorari denied 261 U.S. 617, 43 S.Ct. 362, 67 L.Ed. 829; United States v. Becker, 2 Cir., 62 F.2d 1007, 1008; United States v. Pappagoda, D.C.Conn., 288 F. 214, 217, and cases cited therein; Lucadamo v. United States, 2 Cir., 280 F. 653; Nutter v. United States, 4 Cir., 289 F. 484; Simmons v. United States, 6 Cir., 300 F. 321; Weiderman v. United States, 8 Cir., 10 F.2d 745; Fiunkin v. United States, 9 Cir., 265 F. 1; United States v. Ginsburg, 7 Cir., 96 F.2d 882, certiorari denied 305 U.S. 620, 59 S.Ct. 81, 83 L.Ed. 396; Ratigan v. United States, 9 Cir., 88 F.2d 919, certiorari denied 301 U.S. 705, 57 S.Ct. 938, 81 L.Ed. 1359, rehearing denied 302 U.S. 774, 58 S.Ct. 52, 82 L.Ed. 600. As the court here charged the jury to this effect, their verdict negatives the existence of the defense.

The essential question that remains before us, then, is whether the cards which constituted such damaging evidence against defendant at the trial were taken from his office as the result of an illegal search and seizure within the prohibition of the Fourth Amendment. If they were, then they should have been excluded as evidence under the mandate of the Fifth Amendment. Agnello v. United States, 269 U.S. 20, 34, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409, and cases cited therein. We have noted that the trial judge proceeded on the alternate grounds that defendant gave his consent not merely to the inspection, but also to the taking, of the cards, and that they were taken as an incident to a lawful arrest; but, as we are of the opinion that the cards were properly received on the latter ground, it is unnecessary to consider the conflicting testimony as to consent.

Initially, there can be no doubt that defendant was lawfully arrested, even though the agents possessed no warrant. The law is clear that any person, law enforcement officer or private citizen, can make an arrest where a felony has in fact been committed, and the person making the arrest has probable cause for so believing. United States v. Gowen, 2 Cir., 40 F.2d 593, reversed on other grounds in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Brady v. United States, 6 Cir., 300 F. 540, certiorari denied 266 U.S. 620, 45 S.Ct. 99, 69 L.Ed. 472; Pritchett v. Sullivan, 8 Cir., 182 F. 480; cf. also 5 U.S.C.A. § 300a, codifying the common law with regard to arrests by agents of the Federal Bureau of Investigation, and A. L. I. Code of Criminal Procedure, 1930, § 21, and commentary, pp. 231-238. And the agents here certainly had more than probable cause for believing that defendant had just committed a felony.¹

Conceding the lawfulness of the arrest, therefore, the crucial issue arises as to whether the agents could legally have sought and seized the cards as an incident thereto. The mass of...