United States v. Ramzy, 31136 Summary Calendar.

• Citation: 446 F.2d 1184
• Decision Date: 09 September 1971
• Docket Number: No. 31136 Summary Calendar.,31136 Summary Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl Oslin RAMZY, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

446 F.2d 1184 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Carl Oslin RAMZY, Jr., Defendant-Appellant.

No. 31136 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

July 16, 1971.

Rehearing Denied September 9, 1971.

Charles W. Tessmer, Dallas, Tex., for defendant-appellant.

Eldon B. Mahon, U. S. Atty., Frank McCown, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM, and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Dr. Carl Ramzy, convicted of three separate unlawful sales of depressant and stimulant drugs in violation of 21 U.S. C.A. § 331(q) (2), was sentenced to concurrent fifteen month prison terms. Finding no merit in any of his allegations of error, we affirm.

Appellant first contends that his status as a doctor of medicine required the indictment to expressly negate the statutory provision exempting "practitioners licensed by law to prescribe or administer depressant or stimulant drugs, while acting in the course of their professional practice."¹ However, under the facts of the case it was clearly the defendant's burden to prove as an affirmative defense that his conduct fell within the legislative exception, and there was no necessity for the indictment to allege that it was not. McKelvey v. United States, 1922, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301, 304; Tritt v. United States, 10 Cir., 1970, 421 F.2d 928, 929-930; Hockenberry v. United States, 9 Cir., 1970, 422 F.2d 171, 173.

Appellant next claims that entrapment was proven as a matter of law because there was no evidence of his predisposition to commit the offenses. We find this contention unpersuasive in light of the testimony of two narcotics agents that Dr. Ramzy was ready and willing to sell when an offer was made, that he justified his high price by stating "there is a lot of risk involved and I won't sell it unless I can make money on it," and that he initiated one of the sales himself by inviting the agent to call him. The jury, following clearly correct instructions from the Court, might have not unreasonably concluded from this and other testimony that the defendant was an ensnared criminal rather than an innocent victim, and we cannot view the evidence to be so clearcut as to preclude such a finding.

Nor is there any real substance in the allegation that the Trial Court's instruction to the jury on the entrapment issue was fatally defective because it did not apply the law to the facts and failed to define "inducement" in other than general terms. More accurately, the Judge merely refused to explicitly submit the defensive theory that Dr. Ramzy was coerced into making the sales by the agents' alleged threats of professional ruin and economic loss. The meaning of the term "inducement" is so self-evident that the jury must have interpreted it to include such threats, even without an explicit instruction to that effect, and we cannot conclude that the failure to submit appellant's theory in its entirety was error.

Moreover, appellant merely reorchestrates the same theme by challenging the refusal of a requested instruction on the defense of "economic coercion." Apart from the fact that this is essentially the same attack under a different label, the defense of economic coercion is available only to negative specific intent. When, as here, such intent is...