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United States v. Brandenburg.

decided.: April 12, 1946.

UNITED STATES
v.
BRANDENBURG.



Author: O'connell

Before BIGGS, GOODRICH, and O'CONNELL, Circuit Judges.

O'CONNELL, Circuit Judge.

This is an appeal from the judgment of the District Court of New Jersey following a conviction on eleven counts of an indictment charging Leopold William Brandenburg with violation of Section 2 of the Harrison Narcotics Law.*fn1

Dr. Brandenburg practiced medicine in Union City, Hudson County, New Jersey. He was duly registered as required by the statute. For several months in 1944, Dr. Brandenburg prescribed morphine sulphate in varying quantities to James B. Humphries and Ralph V. Van Pelt. Humphries was a drug addict in the employ of the Narcotics Bureau. Van Pelt was a government agent working on narcotics cases. In September, 1944, Dr. Brandenburg was arrested on charges of violating the Harrison Narcotics Act. An indictment was handed down containing eleven counts. The first six charged sales of certain auantities of the drug by Dr. Brandenburg to Humphries. The last five charged similar sales to Van Pelt.

Appellant here challenges the sufficiency of the indictment; the evidence relied on for a conviction; rulings of the trial judge on instructions to the jury; and finally, refusal to set aside the verdict because of the presence in the jury room of certain exhibits.

Under Section 2 of the statute, it is unlawful for any person to sell, barter or exchange or give away certain drugs (including morphine sulphate) except in pursuance of a written order of the transferee on a form issued for that purpose by the Secretary of the Treasury. An exception is made, however, to "the dispensing or distribution of any of the drugs * * * to a patient by a physician * * * registered under Section 3221 in the course of his professional practice only."*fn2

It has long been held that the mere issuance of a prescription which is subsequently filled by a druggist constitutes a "sale" under the statute: Jin Fuey Moy v. United States, 1920, 254 U.S. 189, 41 S. Ct. 98, 65 L. Ed. 214.*fn3 By judicial interpretation, the excepting language has been restricted to bona fide treatment of a patient's disease by a physician. Thus, under the guise of "treating" a patient a physician may not be issuing prescriptions make it possible for drugs to be peddled or for known addicts merely to satisfy their craving: United States v. Behrman, 1922, 258 U.S. 280, 42 S. Ct. 303, 66 L. Ed. 619. However, a prescription of a moderate amount of drugs issued even to a known addict is not criminal if the physician in good faith is attempting to "treat" the disease or consequences of the addiction: Linder v. United States, 1952, 268 U.S. 5, 45 S. Ct. 446, 69 L. Ed. 819, 39 A.L.R. 229; United States v. Boyd, 1926, 271 U.S. 104. To be sure, prescribing grossly inordinate quantities would negative the notion that the physician was in fact administering treatment rather than merely catering to the satisfaction of the drug craving: United States v. Behrman, supra; Mitchell v. United States, 10 Cir., 1943, 143 F.2d 953; cf. Direct Sales Co. v. United States, 1943; 319 U.S. 703, 63 S. Ct. 758, 87 L. Ed. 1125; United States v. Abdallah, 2 Cir., 1945, 149 F.2d 219.

With these principles in mind, we shall consider the assignments of error challenging the sufficiency of the indictment and the government's proof.

I. The Indictment.

Except for differences in dates and quantities and that six refer to Humphries and five to Van Pelt, all eleven counts of the indictment are alike. Count 1 of the indictment may thus be referred to as illustrative of all the counts. If it charges and indictable offense, so do the others. Stripping aside the cloak of scrivener's English, we find that the first count avers the following facts: (1) The defendant sold to Humphries 100 tablets, 1/4 grain each, of morphine sulphate (a derivative of opium); (2) such sale was made not in pursuance of the requisits written order of Humphries; (3) the sale was not made by the defendant in good faith and in the course of his professional practice only; (4) the sale was effected through a prescription signed by the defendant and calling for the delivery to Humphries of 25 grains of morphine sulphate; (5) the defendant intended that Humphries should obtain the drugs from a druggist by means of the prescription; (6) Humphries did, in fact, thereby obtain the drugs prescribed; (7) Humphries did not require the administration of morphine sulphate by means of any disease; (8) the defendant did not sell the drugs for the purpose of treating any disease; (9) the drugs were sold in the form in which such drugs are usually consumed by addicts to satisfy their cravings; and (10) the drugs were sold by the defendant with the intent that they should be used by addicts to satisfy their cravings.

It will be seen, therefore, that the rather elaborately drawn count does not charge a sale of drugs to a known addict. In essence, the charge is that the drugs were sold to a purchaser for the purpose of satisfying the cravings of unspecified addicts. Under the principles already enunciated there can be no doubt that an indictable offense is thus charged.Obviously, a physician who prescribes drugs in bad faith, not in the course of his professional practice only and for the purpose of satisfying the cravings of drug addicts is guilty of an indictable offense under the statute and the decisions cited above, interpreting it.

We conclude, therefore, that the indictment is sufficient.

II. The Government's Proof.

We test the sufficiency of the government's proof by the familiar rule that conviction signifies belief in what was testified to by the government witnesses: See United States v. Simon, 3 Cir., 1941, 119 F.2d 679, 682. The only question is thus whether it was sufficient proof to go to a jury: Burton v. United States, 1906, 202 U.S. 344, 26 S. Ct. ...


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