White v. United States, No. 19014.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT, , BLACKMUN, Circuit , and VAN PELT
Citation399 F.2d 813
PartiesRussell W. WHITE, Appellant, v. UNITED STATES of America, Appellee.
Decision Date09 July 1968
Docket NumberNo. 19014.

399 F.2d 813 (1968)

Russell W. WHITE, Appellant,
v.
UNITED STATES of America, Appellee.

No. 19014.

United States Court of Appeals Eighth Circuit.

July 9, 1968.


399 F.2d 814

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.

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

399 F.2d 815
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:

"No person, other than —
(1) a person described in subsection (a) of this section, while such person is acting in the ordinary and authorized course of his business, profession, occupation, or employment, * * * shall sell, deliver, or otherwise dispose of any depressant or stimulant drug to any other person."

"Depressant or stimulant drug" is defined in the Act as:

"* * * (1) any drug which contains any quantity of (A) barbituric acid or any salts of barbituric acid; or (B) any derivative of barbituric acid which has been designated by the Secretary under section 352(d) of this title as habit forming.
(2) any drug which contains any quantity of (A) amphetamine or any of its optical insomers; (B) any salt of amphetamine or any salt of an optical insomer of amphetamine * * *." 21 U.S.C.A. § 321(v).

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

399 F.2d 816
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:

"* * * that the defendant, a doctor of medicine, is exempt from the provisions of the Pure Food and Drug Act, if you find that he wrote prescriptions for the persons referred to in the evidence in the course of his professional practice; that the law permits the defendant, being a doctor of medicine, to write prescriptions for the drugs referred to in the evidence, and unless you find and believe that he did not prescribe the drugs in the course of
399 F.2d 817
his professional practice, then you must acquit him.
"You are further instructed that under the statute, a physician is exempted from the prohibition against the sale and delivery, or the causing of the sale or delivery of depressant or stimulant drugs only when he acts in the ordinary and authorized course of his practice."

The language used by the court in the charge is taken nearly verbatim from 21 U.S.C.A. § 360a(b), which provides in part

"(b) No person, other than —
(1) a person described in subsection (a) of this section, while such person is acting in the ordinary and authorized course of his business, profession, occupation, or employment, * * * shall sell, deliver, or otherwise dispose of any depressant or stimulant drug to any other person."

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...

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60 practice notes
  • United States v. Synnes, No. 20438.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 1, 1971
    ...reasonable and appropriate. See, Heart of Atlanta Motel, Inc. v. United States, supra at 258-259, 85 S.Ct. 348; White v. United States, 399 F.2d 813, 823 (8th Cir. The Second Circuit in United States v. Bass, supra, found the statute so lacking in specific legislative history and findings a......
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...used in a statute."). While this court has not addressed the meaning of "prescription" under § 353(b) directly, in White v. United States, 399 F.2d 813, 817-18 (8th Cir.1968), we impliedly approved the Fifth Circuit's conclusion that an invalid prescription is not a prescription within the ......
  • United States v. Collier, No. 72-3242.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 1, 1973
    ...practitioner. It is apparent that a licensed practitioner is not immune from the act solely due to his status, White v. United States, 399 F.2d 813 (8 Cir. 1968), but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional 478 F.2d 272 practice of......
  • Admiral Theatre Corp. v. Douglas Theatre Co., Civ. No. 74-0-82.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • August 24, 1977
    ...Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976); White v. United States, 399 F.2d 813 (8th Cir. 1968). Here there was doubt as to whether the threshold requirement had been met. See Sablosky v. Paramount Film Distributing Cor......
  • Request a trial to view additional results
60 cases
  • United States v. Synnes, No. 20438.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 1, 1971
    ...reasonable and appropriate. See, Heart of Atlanta Motel, Inc. v. United States, supra at 258-259, 85 S.Ct. 348; White v. United States, 399 F.2d 813, 823 (8th Cir. The Second Circuit in United States v. Bass, supra, found the statute so lacking in specific legislative history and findings a......
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...used in a statute."). While this court has not addressed the meaning of "prescription" under § 353(b) directly, in White v. United States, 399 F.2d 813, 817-18 (8th Cir.1968), we impliedly approved the Fifth Circuit's conclusion that an invalid prescription is not a prescription within the ......
  • United States v. Collier, No. 72-3242.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 1, 1973
    ...practitioner. It is apparent that a licensed practitioner is not immune from the act solely due to his status, White v. United States, 399 F.2d 813 (8 Cir. 1968), but rather, because he is expected to prescribe or dispense drugs within the bounds of his professional 478 F.2d 272 practice of......
  • Admiral Theatre Corp. v. Douglas Theatre Co., Civ. No. 74-0-82.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • August 24, 1977
    ...Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976); White v. United States, 399 F.2d 813 (8th Cir. 1968). Here there was doubt as to whether the threshold requirement had been met. See Sablosky v. Paramount Film Distributing Cor......
  • Request a trial to view additional results

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