United States v. Tommasello
| Decision Date | 05 February 1946 |
| Docket Number | Cr. No. 40865. |
| Parties | UNITED STATES v. TOMMASELLO. |
| Court | U.S. District Court — Eastern District of New York |
T. Vincent Quinn, U. S. Atty., of Brooklyn, N. Y. (Matthew F. Fagan, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for plaintiff.
Benjamin R. Leinhardt, of Brooklyn, N. Y., for defendant.
The defendant demurs to an indictment in four counts which are uniform except as to dates, charging a violation of Title 18 U.S.C. § 72, 18 U.S.C.A. § 72.
The presently material allegations are:
That "the defendant * * * did make and cause to be made a false prescription for narcotics for the purpose of defrauding the United States, knowing same to be false and falsely made, which said prescription was as follows: * * * with intent thereby to defraud the United States of America by procuring narcotic drugs for the personal use of the said defendant, Stanley Tommasello, and not for Concetta Foti, of 311-6th Avenue, New York, as set forth in said prescription, the said defendant then and there well knowing the same to be false in that the narcotics referred to in the aforesaid prescription were for his own personal use and not for the use of the said Concetta Foti; * * *."
So much of the statute as applies reads thus: "Whoever shall falsely make, alter, forge, or counterfeit, * * * any bond, * * * or other writing for the purpose of defrauding the United States; or shall utter or publish as true * * * any such false, forged * * * other writing, for the purpose of defrauding the United States, knowing the same to be false, forged, * * *, shall be fined * * * or imprisoned * * *, or both."
A prescription for narcotics which has been forged is an example of "other writing" within this statute. Johnson v. Warden, 9 Cir., 134 F.2d 166.
The defendant's argument is that, since the prescription was signed by him and contained the name of an existing person, the indictment does not portray a forgery, although it is acknowledged for present purposes that "the recitals in each of the prescriptions of the patient's name was in fact false (i.e. that such person was a patient for whom the prescription was issued) and that the purpose of each such false statement was to procure narcotic drugs for the use of the defendant".
The contention is that there was no false making of a prescription, but the making of a false prescription.
If this is more than a quibble, it must be confessed that I am unable to grasp it; if a prescription is false, the defect inheres in the process of making, i.e. writing it, and it matters not in any perceptible sense whether the infirmity is described in the adverb "falsely" modifying the participle "making", or the adjective "false" which describes the prescription. The latter did not write itself; it is the work of the human agent who is charged with defrauding the United States by so doing; to reason otherwise would deny to the statute the force and effect which it plainly imports, and to sanction an evasion of the law through the practice of sheer effrontery, for which there is no justification to be accomplished by mere verbal manipulation.
The defendant relies upon United States v. Smith, D.C., 262 F. 191, in which the Court sustained a demurrer to an indictment under this statute, where an affidavit, which was signed and sworn to but which contained a false statement, was held not to be within the purview of the Act. If it is necessary to distinguish that case, the basis for so doing is obvious: There the Court was passing upon an affidavit, and perhaps to that extent it was to be deemed to be a legal document, but here there never was a prescription; the paper which the defendant signed was a nullity at its inception and never overcame its congenital vacuity; it was falsely made, in that it was not what it purported to be, to the exclusive knowledge of its fabricator.
There is authority for the proposition that this statute is addressed to forgery...
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Gilbert v. United States, 478
...to a different conclusion. 12 Ex parte Hibbs, D.C., 26 F. 421; Yeager v. United States, 59 App.D.C 11, 32 F.2d 402; United States v. Tommasello, D.C., 64 F.Supp. 467; Quick Service Box Co. v. St. Paul Mercury Indemnity Co., 7 Cir., 95 F.2d 15. 13 The fact that the original 1823 statute had ......
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Fooshee v. United States, 12440.
...of the phrase "other writings" as used in the above cited Code section. United States v. Tommasello, 9 Cir., 160 F.2d 348, affirming D.C., 64 F.Supp. 467. Cf. Hart v. Squier, 9 Cir., 159 F.2d 639; Johnson v. Warden, 9 Cir., 134 F.2d 166, certiorari denied 319 U.S. 763, 63 S.Ct. 1320, 87 L.E......