White v. United States
| Citation | 399 F.2d 813 |
| Decision Date | 09 July 1968 |
| Docket Number | No. 19014.,19014. |
| Parties | Russell W. WHITE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Henry G. Morris, St. Louis, Mo., for appellant.
Joanne S. Sisk, Atty., Dept. of Health, Education & Welfare, Washington, D. C., for appellee; William W. Goodrich, Asst. Gen. Counsel, Dept. of Health, Education & Welfare, Washington, D. C., and Veryl L. Riddle, U. S. Atty., for the Eastern District of Missouri, and Irvin L. Ruzicka, Asst. U. S. Atty., for the Eastern District of Missouri, on the brief.
Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge.
This is an appeal by the defendant, a medical doctor, from a conviction had in the District Court of the United States for the Eastern District of Missouri. The information on which defendant was tried consisted of nine counts. Six counts charged defendant with selling and delivering to a government agent a quantity of amphetamine hydrochloride powder, a "depressant or stimulant drug" within the meaning of 21 U.S.C.A. § 321(v) (2) in violation of 21 U.S.C.A. § 331(q) (2). Count VII alleges the government agent was one other than the one referred to in Count V. In Count III he was charged with selling and delivering to a government agent a number of d-amphetamine sulfate capsules, and in Counts VI and VIII with selling and delivering a number of secobarbital sodium capsules to a government agent in violation of the same statutory provision. The government agent referred to in Count VIII was said to be a government agent other than the one referred to in Count VI. The jury found defendant guilty on all nine counts. He was thereafter sentenced to imprisonment for one year upon each of the nine counts, with the sentences on the last eight counts running concurrently with the sentence on the first count. Consequently, if conviction on any one of the counts can be sustained, then the judgment of the trial court must be affirmed.
This case arises under the Drug Abuse Control Amendments of 1965 of the Federal Food, Drug and Cosmetic Act. 21 U.S.C.A. § 331(q) (2), the section under which the appellant was convicted, provides:
"The following acts and causing thereof are prohibited; * * * the sale, delivery, or other disposition of a drug in violation of section 360a(b) of this title * * *."
Section 360a(b) provides:
"Depressant or stimulant drug" is defined in the Act as:
Section 360a(b) (1), with its reference to "a person described in subsection (a) of this section" is relevant to the present case and will be discussed later in connection with the appellant's contention that because he is a licensed medical practitioner he is exempt from the provisions of the Act, or if not per se exempt, then the conduct which was found to be in violation of § 331(q) (2) is not within the purview of the Act.
The drugs involved in the present action are amphetamine hydrochloride, d-amphetamine sulfate, and secobarbital sodium. The latter, secobarbital sodium, is defined as a derivative of barbituric acid in 21 C.F.R. 165.1, and thus comes under the provisions of section 321(v) (1). These regulations, in accordance with Archambault v. United States, 224 F.2d 925, 928 (10 Cir. 1955), have the "force and effect of law." Thus, all of the drugs here involved are clearly within the definition of "depressant or stimulant drug" as defined in § 321(v).
The events that lead to the eventual conviction of the appellant began on January 20, 1967. On that date, Clifford C. Elliott, an agent for the Bureau of Drug Abuse Control, United States Food and Drug Administration, using the name of "George Harris", accompanied one Bruce Blackburn to the appellant's office. The two men arrived at 8 P.M. and were eventually met there by Doctor White, the appellant. Blackburn introduced "Harris" to Doctor White and told the Doctor that "Harris" wanted a prescription for powder like he, Blackburn, had gotten. Appellant wrote a prescription for two ounces of amphetamine hydrochloride powder. Appellant seems to concede, at page 3 of his brief, that he asked no questions concerning the state of "Harris'" health; however, on page 8 of his brief, the appellant cites his own testimony at the trial in an attempt to establish that a physician-patient relationship had been created. This testimony was denied at the trial by agent Elliott. The verdict indicates the jury believed Elliott and disbelieved appellant.
On January 25, 1967, Elliott and Blackburn returned to the appellant's office where Elliott again requested a prescription for two ounces of amphetamine hydrochloride. The appellant wrote this prescription, and a separate prescription for 10 milligram dexedrine capsules.
On February 7, 1967, Elliott went to the appellant's office alone and received a prescription for three ounces of amphetamine hydrochloride for himself and an identical prescription for Bruce Blackburn. On February 14, 1967, Elliott accompanied by Agent Willard Rutledge, went to Doctor White's office where Rutledge was introduced by Elliott to White as an old friend. Elliott was given a prescription for four ounces of amphetamine hydrochloride. Rutledge was given a similar prescription. There is dispute as to whether the doctor made any inquiry into the state of Rutledge's health.
Elliott then asked Doctor White for some "red birds" and was given a prescription for 36 Seconal one and one-half grain capsules.1 Agent Rutledge then asked the appellant whether the Seconal would help one sleep, to which Doctor White replied in the affirmative. Rutledge then asked for some Seconal for his "girl friend", one Susan Jones, who was, so far as Rutledge knew, non-existent. Doctor White wrote the prescription for "Susan Jones" who was not present in the doctor's office. Thus, it is quite apparent that a physician-patient relationship was never established between Doctor White and the non-existent "Susan Jones". The "Susan Jones" transaction is Count VIII.
One additional visit was made to appellant's office by Elliott. This was on February 16, 1967. Elliott requested and received identical prescriptions for himself and for his "buddy, Bruce, the one armed fellow." Each prescription was for four ounces of amphetamine hydrochloride. Agent Elliott, as on all of the previous transactions, paid money to the appellant at the time he received the prescription.
The claimed errors can be classified as relating
a) to the failure to charge or prove that the drugs had moved or were transported in interstate commerce;
b) error in receipt of exhibits;
c) error in permitting witness Burton to give opinion evidence; and
d) error relating to defendant's rights as a doctor of medicine.
We shall take up first the claim relating to defendant's status. Without dispute, we find as stated on pages 7 and 8 of appellant's brief, the defendant is "68 years of age (colored), a doctor of medicine, residing at 3942 Cote Brilliante and having an office at 1524 North Sarah Street, was also employed on the staff of the Homer Phillips Hospital in St. Louis (Tr. 103)."
It is the claim of appellant that being a doctor of medicine, he was legally authorized to write prescriptions for the drugs referred to in Counts I through IX and that the statute prescribes no formula as to the amount of such drugs he could prescribe. He thus claims that the case should never have been submitted to the jury, who were instructed:
and from 21 U.S.C.A. § 360a(a) (4), describing the persons to whom the Act does not apply, reading:
"(4) Practitioners licensed by law to prescribe or administer depressant or stimulant drugs, while acting in the course of their professional practice."
Based on these sections, appellant contends that he is entitled to dispense these drugs fully and without restriction.
That a doctor acting within the scope of his professional practice was to be unimpeded in his actions by this Act is not doubted. On the...
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