United States v. Schrenzel

• Decision Date: 28 June 1972
• Docket Number: No. 71-1268.,71-1268.
• Parties: UNITED STATES of America, Appellee, v. Charles SCHRENZEL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

462 F.2d 765 (1972)

UNITED STATES of America, Appellee, v. Charles SCHRENZEL, Appellant.

No. 71-1268.

United States Court of Appeals, Eighth Circuit.

Submitted November 16, 1971.

Decided June 28, 1972.

Rehearing and Rehearing Denied July 28, 1972.

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Irl B. Baris, Leonard J. Frankel, Newmark & Baris, St. Louis, Mo., for appellant.

John A. Newton, Asst. U. S. Atty., Daniel Bartlett, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before GIBSON and HEANEY, Circuit Judges, and VAN PELT, Senior District Judge.^*

Rehearing and Rehearing En Banc Denied July 28, 1972.

VAN PELT, Senior District Judge.

Appellant Charles Schrenzel, a pharmacist, was convicted by a jury on all four counts of an indictment charging him with the illegal sale of stimulant drugs. The four-count indictment charged appellant with violation of 21 U.S.C. § 331(q) (2) in "wilfully, knowingly and unlawfully" selling and delivering in St. Louis County, within the Eastern District of Missouri, a certain number of capsules or tablets of "a stimulant drug within the meaning of Section 321(v) (2), Title 21, United States Code." Each count alleged a different date. Count 1 charged a sale January 26, 1971, of 400 capsules, more or less, of a combination of d- and d1-amphetamine sulphate. Counts 2, 3, and 4 each alleged a sale of methamphetamine hydrochloride on January 18, 16, and 14, 1971 respectively. The January 18th sale was 200 tablets, more or less, while the January 16th and 14th sales were each of 100 tablets, more or less. The defendant was found guilty on each count. Judge Webster sentenced him to a total of ten years.

On this appeal, Schrenzel raises eleven points ranging from a claim that the government failed to make a submissible case to an assertion that the defendant was entitled to a copy of the presentence investigation report. We have examined each contention and find all wanting in merit. We briefly comment on each.

Appellant claims that the government failed to make a submissible case as to the specific allegations of each count of the indictment. Defendant was employed as a pharmacist in the Teich Pharmacy in Bellefontaine Neighbors, Missouri. William Clark, special agent with the Federal Bureau of Narcotics and Dangerous Drugs, testified that he had made each of the four illegal purchases of drugs from the defendant. Clark's testimony established that he had no prescription for the drugs and that the defendant knew the sales were illegal. This testimony was substantiated by Darrell Ruediger, a police officer from the Narcotics Section of the St. Louis, Missouri police department, who testified that he was with Agent Clark on two of the four dates that sales were made by the defendant. The government also called Ferris Van Sickle, a government chemist, who analyzed all the government's drug exhibits.

Count 1 of the indictment, as above explained, charged the defendant with the unlawful sale of 400 capsules, more or less, containing a combination of d- and d1-amphetamine sulphate. Such a drug is a "depressant or stimulant drug" under 21 U.S.C. § 321(v) (2), which was in effect at the time of the alleged sales but has since been repealed. The government chemist testified that the capsules in the government's Exhibit 4, which relates to Count 1, contained d- and d1-amphetamine, commercially known as Biphetamine, which is a mixture of the optical isomers of amphetamine. The chemist's testimony made no mention of sulphate. Count 1, as above noted, included sulphate in its description of the drug charged. The defendant claims that this is a fatal variance and thus the claim that the government has failed to prove its case on Count 1. We believe the variance was harmless error under Rule 52(a) of the Federal Rules of Criminal Procedure.

Certainly a court cannot permit a defendant to be tried on charges which are not made in the indictment against him. Ex parte Bain, 121 U.S. 1, 13, 7 S.Ct. 781, 30 L.Ed. 849 (1887). However, the "true inquiry . . . is not whether there has been a variance in proof, but whether there has been such a variance as to `affect the substantial rights' of the accused." Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935).

The applicable definition of a "depressant or stimulant drug," found in 21 U.S.C. § 321(v) (2), states: "The term `depressant or stimulant drug' means . . . (2) Any drug which contains any quantity of (A) amphetamine or any of its optical isomers; (B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or (C) any substance which the Secretary, after investigation, has found to be, and by regulation designated as, habit forming because of its stimulant effect on the central nervous system . . ." 79 Stat. 227. The drug in Exhibit 4, as described by the government chemist was included in the statutory definition under subsection (A). In addition, the trial court instructed the jury that a "depressant or stimulant drug" included amphetamine or any of its optical isomers, in addition to salts of amphetamine. Because the drug identified by the government chemist at trial was included in the definition of stimulant drugs given in the statute and the trial court's instruction clearly pointed this out to the jury, the failure to include testimony as to whether it was a salt was harmless error.

Appellant makes substantially the same argument with regard to Counts 2, 3, and 4 of the indictment, which charged the unlawful sales of methamphetamine hydrochloride. The government chemist's conclusion was that Exhibits 1, 2, and 3, contained d1-methamphetamine hydrochloride, commercially known as Desoxyn. Appellant contends that the failure to include the "d1-" prefix in the indictment was fatal error.

The regulations promulgated to implement subsection (C) of section 321(v) (2), quoted above, state in part:

"The Director has investigated and designates all drugs, unless exempted by regulations in this part, containing any amount of the following substances as having potential for abuse and habit-forming because of their stimulant effect on the nervous system: d-, d1-, Methamphetamine and their salts." 21 C.F.R. § 320.3(b) (January 1, 1970)

The trial court included the regulation in its instructions to the jury. Thus, the substance described by the government pharmacist as contained in Exhibits 1, 2, and 3 was included under the above regulation as a stimulant drug within the meaning of the statute, and the failure to include the "d1-" prefix was a harmless variance. We point out that even the manufacturer of the drug, Desoxyn, did not include the "d1-" prefix on the label of the drug.

Appellant's reliance on Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), is misplaced. In that case the Supreme Court held there was a fatal variance between the indictment and the proof, where the indictment charged interference with the importation of sand into Pennsylvania while the evidence showed interference with the exportation of steel products from Pennsylvania, in addition to importation of sand into Pennsylvania. The trial judge had instructed the jury that it could base a conviction on interference with either importation or exportation. The Supreme Court held that no interference with interstate steel shipments was charged in the indictment and thus the variation between the pleading and the proof was so substantial as to destroy the defendant's right to be tried only on charges presented in the indictment returned by the grand jury.

In Guilbeau v. United States, 288 F. 731 (5th Cir. 1923), the defendant was charged with the sale of morphine sulphate, but the evidence showed the sale of morphine hydrochloride. The Fifth Circuit, in a 2-1 decision, held that the variance was substantial and the conviction could not be sustained.¹ It could be argued that the Guilbeau decision requires a reversal here. However, we believe that Guilbeau has been overruled in effect by both Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)² and Rule 52(a) of the Federal Rules of Criminal Procedure. Rule 52 (a) provides: "Any . . . variance which does not affect substantial rights shall be disregarded." In Berger, the United States Supreme Court stated:

"The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense." 295 U.S. at 82, 55 S.Ct. at 630 (citations omitted).

Thus the rule is that every variance or error does not require reversal. So long as the variance does not affect the substantial rights of the defendant, the variance is immaterial. Gay v. United States, 408 F.2d 923, 928 (8th Cir. 1969), cert. denied, 396 U.S. 823, 90 S. Ct. 65, 24 L.Ed.2d 74 (1969).³

The essence of the indictment against Schrenzel was that he "wilfully, knowingly and unlawfully" sold stimulant drugs, as defined by 21 U.S.C. § 321(v) (2). All of the drugs described at trial as sold by the defendant, and identified by the chemist, were stimulant drugs under section 321(v) (2). The variance between the proof and the indictment was not sufficient to "affect the substantial rights" of the defendant. The defendant was not misled, and the conviction in this case will be a bar to any other prosecution for selling the same drugs. We hold that the variance in this case was not material.

The indictment charged four separate sales of drugs by the defendant on four separate days. Defendant argues that the purchases were part of a "continuing transaction," and thus there was only one offense instead of four. These were separate transactions, with the purchaser buying a different quantity of...