Wesson v. United States

• Decision Date: 04 November 1947
• Docket Number: No. 13476.,13476.
• Citation: 164 F.2d 50
• Parties: WESSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

164 F.2d 50 (1947)

WESSON v. UNITED STATES.

No. 13476.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1947.

Langdon R. Jones, of Kennett, Mo., and L. V. Rhine, of Paragould, Ark., for appellant.

Warren E. Wood, Asst. U. S. Atty., of Little Rock, Ark.(James T. Gooch, U.S. Atty., of Little Rock, Ark., on the brief), for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

A jury convicted appellant of two narcotics-laws violations, under section 2554 (a) and (g) of the Internal Revenue Code, 53 Stat. 272, 273, 26 U.S.C.A. Int.Rev. Code, § 2554(a) and (g). The court imposed a general sentence of 5 years imprisonment and a $1,000 fine.

Appellant was a physician, practicing at Marmaduke, Arkansas, a town of 600 to 800 people, and in the surrounding rural area. He filled his own prescriptions and had duly paid the special tax and made the registration necessary for dispensing or administering narcotics medicinally, under 26 U.S.C.A.Int.Rev.Code, §§ 3220(d), 3221 (a).

The indictment was in four counts. The jury found appellant guilty on Counts II and III and not guilty on Counts I and IV. Count I charged that appellant had kept a false and fraudulent record of the morphine sulphate and tincture of opium dispensed by him, not to persons upon whom he was personally attending, during a specified period, in violation of 18 U.S. C.A. § 80. Count IV charged that on a certain date he had illegally sold some morphine sulphate tablets to one Joseph M. Buchanan, in violation of 26 U.S.C.A.Int. Rev.Code, § 2554.

Count II charged that, between June 21, 1943, and May 10, 1945, appellant sold, bartered, exchanged or gave away, to persons and in quantities unknown, a specified gross amount of morphine sulphate cubes, of morphine sulphate tablets and of tincture of opium, not in good faith and not in the course of his professional practice and not in pursuance of written orders of such unknown persons on a form issued by the Secretary of the Treasury for that purpose, all in violation of 26 U.S.C.A.Int.Rev.Code, § 2554.¹

Count III charged that, between June 21, 1943, and May 10, 1945, appellant obtained, by means of forms issued by the Secretary of the Treasury for that purpose, drugs mentioned in 26 U.S.C.A.Int.Rev. Code, § 2550(a) "opium, * * * any compound, salt, derivative, or preparation thereof", for purposes other than the use, sale or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession, in violation of 26 U.S.C.A.Int.Rev. Code, § 2554(g).²

The first question for determination is whether any of the illegal sales charged in Count II and any of the illegal uses of order forms charged in Count III were barred by the statute of limitations. The indictment was returned on September 9, 1946. It charged offenses in both of the convicted counts extending from June 21, 1943, to May 10, 1945, and the instructions permitted the jury to convict on Count II for any illegal sale or sales, and on Count III for any illegal use or uses of order forms, which under the evidence might be found to have occurred at any time during that period. We think the court erred in allowing the jury to consider and return a verdict on the basis of any illegal sales or any illegal uses of order forms which had occurred prior to September 10, 1943.

In 26 U.S.C.A.Int.Rev. Code, § 3748, the following limitations are provided: "No person shall be prosecuted, tried, or punished, for any of the various offenses arising under the internal revenue laws of the United States unless the indictment is found or the information instituted within three years next after the commission of the offense, except that the period of limitation shall be six years — (1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, (2) for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof, and (3) for the offense of willfully aiding or assisting in, or procuring, counselling, or advising, the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document * * *. For offenses arising under, section 37 of the Criminal Code, March 4, 1909, 35 Stat. 1096 (U.S.C., Title 18, § 88), where the object of the conspiracy is to attempt in any manner to evade or defeat any tax or the payment thereof, the period of limitation shall also be six years. * * *"

Illegal sales of narcotics or uses of order forms to obtain narcotics for unlawful purposes, as prohibited by 26 U.S.C.A. Int.Rev.Code, § 2554, are not within any of the exceptions for which a six-year limitation is provided in 26 U.S.C.A.Int. Rev.Code, § 3748, and are therefore subject to the general three-year limitation of the section. And each separate sale of narcotics or each separate use of an order form to obtain narcotics, unlawfully made, is a distinct offense under the statute. Cf. Blockburger v. United States, 284 U.S. 299, 301, 302, 52 S.Ct. 180, 76 L.Ed. 306. Such sales or uses of order forms, though multiplied, do not constitute a continuous offense (except as the Government might be at liberty to so deal with them in relation to the crime of a conspiracy), for "The Narcotic Act does not create the offense of engaging in the business of selling the forbidden drugs or the business of improperly using order forms to obtain them, but penalizes any sale made in the absence of * * * the qualifying requirements set forth in the statute, and any use of an order form to obtain them for improper purposes." Id., 284 U.S. at page 302, 52 S.Ct. at page 181, (Matter in brackets added.)

Evidence of the amount of purchases and of dispositions made during a reasonable period prior to the offense charged might be material and helpful in some situations to assist in establishing the amount of narcotics which the accused had on hand at the time of the offense or the amount which he had been using generally in relation to his practice, as factors of probability in connection with the other evidence in the case on whether his charged subsequent uses of order forms were made to obtain narcotics for purposes "other than the use, sale, or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession," and whether there had been dispositions as charged that were not legitimate and duly recorded prescriptions and had not been "dispensed or distributed to a patient upon whom such physician * * * shall personally attend." But that was neither the basis of admitting the evidence here nor the limitation of its use.

The error in having included the period from June 21, 1943, to September 9, 1943, in the two counts involved as a basis for conviction would not, however, entitle appellant to a dismissal of the indictment or to a judgment of acquittal notwithstanding the verdict, as he contends. He was only entitled to have had the court remove the period against which the statute of limitations had run from the consideration of the jury as a basis for conviction.

It is contended that, because the jury acquitted appellant on the charge in Count I of having kept a false and fraudulent record of his dispensings, there was no basis on which it could consistently convict him on Counts II and III. The argument is that, if the jury, as appellant says it must have done, accepted his version and interpretation of his records and believed his testimony that all his prescriptions were legitimate medical dispensings and the amount of narcotics unaccounted for on his records had been used by him only in good faith personal administerings to patients whom he personally attended, then his uses of the order forms and his dispositions of the narcotics could not have been illegal.

It is sufficient here to say in answer merely that the charges of keeping false and fraudulent records, of using order forms to obtain narcotics for unlawful purposes, and of making illegal sales, were separate and distinct offenses under the statute; that they would have been entitled to have been charged...