LIVELY, Circuit Judge.
The defendant who is a physician appeals from a jury conviction on six of ten counts for distribution of Seconal, a Schedule III controlled substance, in violation of 21 U.S.C. § 812 and § 841(a)(1). It is claimed that four separate errors occurred at the trial which require reversal of his conviction.
The second contention presented on appeal is that the government was guilty of entrapment and that the defendant was entitled to a directed verdict of acquittal. It is maintained that defendant had no predisposition to violate the law, but that the plan originated with the government agents who induced him to make illegal sales. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). It is also asserted that the agents deceived the defendant and misled him into believing that he was being requested to help persons who had a real need for the drugs which he prescribed. It is undenied that the agents in this case used deception in dealing with defendant, but such activity is not forbidden, United States v. Russell, 411 U.S. 423, 435-36, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and does not, without more, establish entrapment as a matter of law. The District Judge instructed the jury fully on the defense of entrapment. He correctly held that entrapment had not been proven as a matter of law and the issue was properly submitted to the jury. United States v. Head, 353 F.2d 566 (6th Cir. 1965); United States v. Williams, 319 F.2d 479 (6th Cir. 1963).
The third assertion of error deals with the instructions by which the court defined the criminal offense which the defendant was charged with committing. The court originally read portions of 21 U.S.C. § 841(a)(1) to the jury as his charge on the elements of the crime and then gave the statutory definitions of "dispense" and "practitioner." The jury, after deliberating some time, asked for a clarification with respect to § 841(a)(1) in a written communication to the court. The jury was then called into the courtroom and the following proceeding occurred:
Prior to the original charge to the jury and again prior to the supplemental charge, counsel for the defendant requested the court to instruct specifically that as a physician the defendant had the right to prescribe controlled substances including Seconal and that it would be a violation of Section 841(a)(1) for him to prescribe such substances only if it were done outside of the physician-patient relationship. The court declined on both occasions to give such an instruction, relying on the language of the statute alone.
Though the court read to the jury the statutory definition of "practitioner" as a physician or other person licensed to dispense or administer controlled substances, it did not advise them that physicians are exempt from the provisions of the drug abuse statute when they dispense or prescribe controlled substances in good faith to patients in the regular course of professional practice. This is the obvious intent of Congress when the entire subchapter, of which § 841(a)(1) is a part, is considered. Specifically pertinent are the provisions of § 829(b) which relate to physicians and others licensed to dispense controlled substances. United States v. Collier, 478 F.2d 268 (5th Cir. 1973). The instructions as given by the court in this case failed to inform
The fourth allegation of error relates to the punishment imposed by the district court. No justification has been shown for departing from the rule that when a sentence is within the statutory range it is not subject to review. United States v. Gargano, 338 F.2d 893 (6th Cir. 1964), cert. denied, 380 U.S. 962, 85 S.Ct. 1106, 14 L.Ed.2d 153 (1965).
The judgment of the district court is reversed, and the case is remanded for a new trial.
McALLISTER, Senior Circuit Judge (dissenting).
Appellant Carroll, a medical doctor of Sandusky, Ohio, was convicted of dispensing a controlled substance (Seconal) in violation of Title 21, U.S.C.A., Section 841(a)(1). There were ten counts based upon the same alleged violations, the first four counts being founded on dispensing the controlled substance on October 16, 1973, and the last six counts based on dispensing the controlled substance on October 18, 1973. The defenses were entrapment and failure of the trial court to correctly charge the jury, or in such a way that they could not understand the charge.
The defendant, Dr. John L. Carroll, was found not guilty, in spite of the attempts of government agents, who thought they had entrapped him into committing a crime on October 16, 1973, but was convicted of violation of the Act in dispensing the controlled substance on October 18, 1973.
Dr. Carroll's defense to the charge that he violated the Act on October 18, 1973, was not guilty, and that the government agents had tried (if he was not guilty) to entrap him into dispensing the controlled substance on October 18, 1973, after he had been found not guilty of dispensing the controlled substance on October 16, 1973.
It may be observed that this case is concerned with the dispensing of a remedy for insomnia. All the requests by the government undercover men were for remedies for sleeplessness, or loss of sleep, for which Seconal capsules, a sedative, are frequently prescribed as a common remedy. Insomnia is a "subjective" illness. It cannot be detected by medical methods or examination, but no one questions that it causes great distress. Insomnia is medically described as "inability to sleep, abnormal wakefulness." Dorland's Medical Dictionary, 25th Edition. In Cecil-Loeb's Textbooks of Medicine, Beeson McDermott, page 96, it is stated:
Congress was not faced with the matter of "controlled substances" until 1970, probably because so many new drugs had, in recent years, come into existence; and, therefore, had provided no standards or guidance to the prescription or dispensation of controlled substances by medical doctors, who were authorized by the new Act to prescribe for them. This may have been done deliberately because of the difficulty of setting forth standards or guidelines for prescribing and dispensing such new drugs; or Congress felt it was too difficult to take up this subject, which they preferred to confide to experts, in the category of medical doctors, the discretion to prescribe the new controlled drugs. In any event, the subject is new, and the present case arose only two and a half years after the enactment of this complicated legislation.
The only violations of the Act charged in the first four counts were: (1) That Doctor Carroll had, on October 16, 1973, unlawfully dispensed or caused to be distributed the controlled substance to Herbert Fischner, an undercover agent of the Ohio State Medical Board; (2) That he had caused the said substance to be unlawfully dispensed to Robert Cole, an undercover agent of the Department of Justice; (3) That he had caused the said substance to be unlawfully dispensed to Kenneth McNamara, an undercover special agent for the United States Customs, and (4) That he had caused, for the second time, the said substance to be dispensed to the said Kenneth McNamara.
According to the evidence, the foregoing were the only persons to whom Dr. Carroll caused the controlled substance, Seconal, to be dispensed, or distributed, on October 16, 1973. The jury found that Dr. Carroll was not guilty of violating the Act in prescribing the controlled substance for any of these men on the first four counts, although the government agents had admitted they had tried to entrap him and they still insisted he was guilty of violating the Act.
The last six counts of the indictment upon which Dr. Carroll was found guilty charged: (1) Prescribing 200 Seconals for undercover agent McNamara; (2) Prescribing 200 Seconals for Charles Banks; (3) Issuing two prescriptions each for 100 Seconals for Ronald Tomcek, and (4) Issuing two prescriptions each for 100 Seconals for Kenneth Francen, or a total of six prescriptions. These are the only prescriptions for Seconal in this case that Dr. Carroll wrote on October 18, 1973, and, therefore, constitute the last six counts of the indictment on which Dr. Carroll was found guilty. All persons requesting Dr. Carroll to write the various prescriptions for Seconal in this case had been found guilty of entrapping Dr. Carroll in various of the ten counts of the indictment.
We revert then to the essential facts and elements of the case. Dr. John L. Carroll, a physician seventy years of age, has been in the general practice of medicine in Sandusky, Ohio, for forty-three years. He is married, and is the father of six children: Dr. John L. Carroll, Jr., a neuro-surgeon, practicing in Ohio; Thomas, a dentist, practicing in Sandusky; James, an accountant, in Cleveland; Richard, a medical doctor, doing his internship in the General Hospital in Cincinnati; Margaret Ann, a dietician,
In 1972, Dr. Carroll was awarded a plaque for forty-two years of faithful service. Dr. Carroll testified that he did not authorize a prescription for anyone over the telephone who was a stranger to him, except that he would order penicillin for a patient with a certain disorder, or if a baby were sick, he would order something for diarrhea. Aside from calling the drugstore and ordering some penicillin, or medicine for diarrhea, Dr. Carroll, in his forty-three years of practice, never authorized a prescription over the telephone for drugs, narcotics, or sleeping pills.
However, as Dr. Carroll was approaching the end of an honorable professional and personal life, three undercover men employed by the Government in what one of our great judges has termed a similar method to be "a dirty business,
All of the undercover agents were men of importance and standing, and whose manner and address were of the kind likely to impress an intelligent and sophisticated citizen. The first to approach Dr. Carroll was Herbert Fischner, employed by the Ohio State Medical Board; the second was Kenneth McNamara, Special Agent for the United States Customs, the third was Robert Cole, a Special Agent of the United States Department of Justice, Drug Enforcement Division, with headquarters in
The prescriptions began on October 9, 1973, when a man named Fischner, an undercover man for the Government, called upon Dr. Carroll at his office and told him he was having considerable trouble with sleeplessness. He said that he would go to sleep, wake up, and couldn't get his rest at night, and he asked the Doctor if he would prescribe Seconals for him for his sleeplessness. He told the Doctor that his own doctor had come from some little town and left his town, and that he was not able to get any Seconals there, and he thought that while he was in this part of Ohio, if Dr. Carroll could help him out, he would certainly appreciate it. Dr. Carroll asked him where he was from and Fischner replied that he was from Utica, Ohio.
Under the law, at the time the undercover man called on him, Dr. Carroll could have given him a prescription that could have been refilled five times, and could have prescribed any number of pills in each prescription. The usual amount of Seconals prescribed was 60 for a month—2 to be taken each night. Dr. Carroll prescribed 60 Seconals for Fischner. Fischner said the next time he came, he would bring his brother-in-law.
On October 16, 1973, Fischner returned to Dr. Carroll's office accompanied by another man, McNamara, whom Fischner introduced as his brother-in-law, which was a lie. Fischner told Dr. Carroll that his brother-in-law, McNamara, had used, or stolen, his Seconals, and he needed a new prescription. Dr. Carroll then prescribed 100 Seconals for Fischner, and told McNamara he should not use Fischner's Seconals, and that if he needed them, because of his own troubles of sleeplessness, he would prescribe for him.
McNamara gave the Doctor a lot of talk indicating that he was an important man; that he was a partner in a trucking firm, and that he was going to Florida in the next few weeks. McNamara and Fischner then walked around the Doctor's office and talked to him about the pictures of his children on the wall. They told him what a nice family he had. On cross-examination, they testified that they were not interested in the children whatever. Although they were together, Fischner testified that, in his presence, McNamara did not mention any of his own medical symptoms to the Doctor. This was false, as McNamara testified that, at that time, the Doctor asked him if he was having any medical problems, and McNamara said he was and that he was very tense with his job and had slight problems sleeping. Dr. Carroll then prescribed 100 Seconals for McNamara. Although McNamara then asked the Doctor for larger quantities, the Doctor said he would issue only 100
On October 18, McNamara, accompanied by a man named Cole, called at Dr. Carroll's office. At that time, McNamara told the Doctor that he had sold the tablets to drivers in his trucking firm because they used pep pills to keep awake during the day and couldn't sleep at night without sleeping pills. Dr. Carroll declared that McNamara never mentioned that they had sold the Seconals. "He never said anything about it. If he was selling them, he never would have gotten any off of me. McNamara lied if he said he sold the Seconals to other persons." McNamara was so accustomed to lying and unsuccessfully trying to previously entrap Dr. Carroll that it seems impossible to believe he would risk telling him that he had been selling Seconals to his truck drivers. He asked for another prescription for himself to take the place of the prior prescription which Dr. Carroll had issued to him, and gave the names of the truck drivers, above mentioned, as Charles Banks, with a fictitious address in Utica; Ronald Tomcek, with an Utica address, and his age, and Kenneth Francen, with an Utica address and his age. All of these men were known to McNamara. Dr. Carroll, under the eye of McNamara, then wrote out complete patient records, for government information, for the three men before he issued the prescriptions, and then issued one prescription for Banks for 100 Seconals; two prescriptions for Tomcek, and two prescriptions for Francen, the latter two for 100 capsules each, and post-dating them by approximately a week. McNamara then left $50.00 on Dr. Carroll's desk for the prescriptions for the three truck drivers. So the last six counts of the indictment on which Dr. Carroll was convicted were for these six prescriptions—five for the truck drivers and one for McNamara. These were the only prescriptions Dr. Carroll issued on October 18. Dr. Carroll thought all the undercover agents were regular fellows, and he wanted to do something to help them in their misery from insomnia. When asked why he gave these prescriptions to these fellows, Dr. Carroll replied: "I thought their arguments were legitimate and I fell for what they said. They said: `Don't date them all the same day. You will help us a heck of lot doing it that way.' Now, I could have marked on here to fill it four times [under the existing laws] and I wouldn't be in this doggone mess. Q. You had a right to do it? A. I had a right but the law has changed since then. Q. You had a right to give refillable prescriptions? A. That's true. Q. So they would not have to come back? A. That's true."
Cole then told Dr. Carroll that he needed Seconal or Tuinol because of sleeplessness, and that his doctor in Cleveland had prescribed 75 capsules a week for him. The Doctor asked him if he was a "doper" (drug user) and he replied he used them only to sleep. When the Doctor concluded to write a prescription for Cole, he asked him where he lived and Cole replied that he was living over a store in downtown Sandusky, but that he did not remember the street and address, other than the fact that it was running off the boulevard. The Doctor and Cole could not
Dr. Carroll then told Cole that in Sandusky if a stranger got caught with dope, the police would throw away the key, and to be careful about pharmacies as they considered more than two Seconals or Tuinols a day to be excessive. It is probably true that in most towns, if a person is arrested for some cause, and is found to be carrying 60 or 100 capsules of Seconal in his pocket, he is immediately suspected of being a "doper."
About a week later Dr. Carroll was indicted for unlawfully dispensing a controlled substance on October 16, 1973, to Cole. Dr. Carroll's defense was not guilty. The jury found Dr. Carroll not guilty of unlawfully dispensing the controlled substances to anyone on October 16, 1973. In finding Dr. Carroll not guilty, the jury found Cole guilty of entrapment, for Cole admitted he was trying to entrap the Doctor. This case presents numerous difficulties. The information contains ten counts.
The first four counts set forth in the same language:
The remaining six counts set forth, in the same language:
The only difference in the ten counts is that in the first four, the date of the dispensation is October 16, 1973, and, in the next six counts, the date of dispensation is October 18, 1973.
THE EVIDENCE DISCLOSES THAT ON EVERY OCCASION IN THIS CASE WHEN DR. CARROLL WROTE A PRESCRIPTION FOR SLEEPING PILLS HE DID IT ON THE REPRESENTATIONS OF THESE UNDERCOVER MEN, THAT THEY WERE SUFFERING FROM INSOMNIA: AND HIS ONLY OBJECTIVE WAS THAT OF A MEDICAL DOCTOR WHO WAS ACTING FROM HUMANITARIAN MOTIVES IN KEEPING THEM FROM THEIR SUFFERING FROM THIS NERVOUS AND DISABLING MALADY AND DISTRESS, THAT IS SO COMMON IN THE UNITED STATES.
We proceed then to a resume of the prescriptions given to undercover agent, McNamara, on October 18, 1973. On this occasion McNamara was accompanied by undercover agent Cole. Cole, as above stated, was afterwards found guilty of entrapping Dr. Carroll into prescribing Seconal for him on October 16, 1973. The jury found that Dr. Carroll was not guilty of furnishing Seconal to McNamara on October 16, 1973, although McNamara was at that time, according to his own admission, trying to entrap Dr. Carroll into prescribing Seconal to him on that date.
The jury found that Dr. Carroll had not been guilty of violation of the Act in prescribing Seconal for Fischner on October 16, although Fischner had been trying to entrap Dr. Carroll on that date.
The Special Agent of the Department of Justice gave it as his opinion that Dr. Carroll was issuing prescriptions to make money.
Dr. Carroll said that as Cole was a young man and even though he insisted, it was not in his best interest to be given more pills.
For all the calls, the talks, the making out of the patient cards, the explanations and the writing out of the prescriptions, Dr. Carroll received the munificent sum of $50.00. After securing the five prescriptions for the truck drivers, Dr. Carroll asked no regular $10 call fee and McNamara was charged nothing for these prescriptions; but when Dr. Carroll gave McNamara these prescriptions, McNamara threw fifty dollars on Dr. Carroll's desk and said: "This is for helping us out and being such a nice guy; here is $50," "and away they went." Dr. Carroll was then asked if this money thrown on his desk didn't make him wonder about it, and suspect something. Dr. Carroll was asked:
The claim of the undercover agents that they told Dr. Carroll they were getting the pills and reselling them is, from the above colloquy, proved absolutely false for the reason that all of the undercover agents previously testified alike—that they told Dr. Carroll they needed sleeping pills for their own sleeplessness. This is a rare instance when an undercover agent is proved to be a perjurer by his own contradictory subsequent claims and statements before the court in which he was testifying. Dr. Carroll's remark to government counsel, who was implying that he was in the business of writing prescriptions for sleeping pills for the purpose of making money, seems pertinent and devastating. His answer to the question of how much he got for all the prescriptions he wrote in this case was: "A hundred dollars. What the hell is a hundred dollars?" It will be remembered that $50.00 of this hundred dollars was for prescriptions for the truck drivers, for whom Dr. Carroll, admittedly, made no charge; but as McNamara was leaving the office for good, he threw $50.00 on the doctor's desk to attempt to strengthen the government's case, saying: "This is for helping us out and being such a nice guy" and then rushing through the door, never to return.
With regard to making money, Dr. Carroll had answered the government counsel: "No, I'm not worried about money, or I wouldn't do all these things I'm doing, this charity stuff. People come in now, and sometimes they are charged 70, 75, 80, or 85 dollars for a first examination. They do everything. They come to me and I get $10." Obviously, the patients in these times are too poor to pay the Doctor's regular charges. "How am I going to get rich? Ten dollars
When government counsel alluded to the fact that Dr. Carroll had put his six children through college, three through graduate schools, and he was nearing retirement, and that he didn't suppose Dr. Carroll had been able to put very much away, Dr. Carroll replied: "I have a little bit put away if the stock market comes back." He also owned a building.
Dr. Carroll was nearing retirement and the cause was the following: Within a week of the last of these prescriptions written for the undercover agents, Dr. Carroll was suddenly stricken by a very dangerous vascular attack, which consisted of the plugging of the carotid artery which arises from the arch of the aorta and which supplies blood to the brain— producing the effect of a stroke. Immediate surgery was necessary to save Dr. Carroll's life and, as he stated, or as the court stenographer understood it, an "arterectomy" was performed. The proper spelling of the quoted term is "arteriotomy."
In "Extracranial Occlusive Cerebrovascular Disease," by Wylie and Ehrenfeld, W. B. Saunders Company, Philadelphia, 1970, it is stated on page 62:
This is a much stronger case than that of Dr. Patty, in Patty v. Board of Medical Examiners, 9 Cal.3d 356, 107 Cal.Rptr. 473, 508 P.2d 1121, discussed, post, on pages 208-209 on the subject of the state of mind and memory of a doctor who was accused of violating the law in illegally issuing prescriptions for controlled substances, and was found not guilty in spite of attempted entrapment by agents of the law.
The cerebral attack which Dr. Carroll suffered directly indicated, from the above references to medical authorities, that his memory and his ability to handle and interpret professional medical problems had deteriorated (decreased mentation) at least six days before the surgical operation; and miraculously a member of his family could recognize shortly after surgery the improvement in his mental processes and functions, and that these functions were again normal. The reasonable conclusion, considering this dangerous brain affliction producing the effect of a stroke, was that Dr. Carroll was not acting normally when he
Dr. Carroll was an ill man, 70 years old, and over-worked. It was only six days after writing the last six prescriptions that he suffered the dangerous cerebral attack, which required extensive brain surgery. Such illness may be recognized only in retrospect following surgery. (Ante, pages 196 and 197) A hypothetical question would have accomplished the work of proving the foregoing.
It was four months later, in February 1974, that he was able to return to work at his profession. So when, on the trial on April 22, 1974, the government counsel attempted to show that Dr. Carroll was hard up and was approaching retirement and needed money, the fact was that the real reason for his approaching retirement was the dangerous heart attack, surgery and convalescence until February 1974. It was only two months after Dr. Carroll was able to get out of bed following his recovery that, on April 22, 1974, the government attorney was suggesting that Dr. Carroll was prescribing sleeping pills because his business wasn't what it used to be and that he was approaching retirement and wanted to amass any amount of money.
The government undercover agents and government counsel seemed to pretend to be ignorant of the fact that insomnia is a common affliction that causes great subjective distress leading to a large consumption of sedatives in the United States, according to medical authorities, and that the only remedy to alleviate this distressing affliction, known personally by practically everybody, is sedatives, as stated in books written by the medical profession. However, all of the foregoing is unnecessary to prove, because Dr. Carroll was entrapped by the deceit and repeated, persistent and incessant solicitation of the officers that these prescriptions were necessary to prevent the distress of insomnia.
We revert then to the essential facts and the law of the case.
"To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." A more felicitous statement of the problem we envisage could not be expressed better than the above quotation from Chief Justice Warren's opinion in Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848.
In Sorrells v. United States, 287 U.S. 441, 53 S.Ct. 212, Chief Justice Hughes, speaking for the Court, said:
As stated in United States v. Russell, 411 U.S. 429, 93 S.Ct. 1641, the thrust of the entrapment defense in Sorrells v. United States, supra, was held by Chief Justice Hughes, "to focus on the intent or predisposition of the defendant to commit the crime." (Emphasis supplied.)
The problem presented by entrapment has had a wealth of consideration by the courts, first emphasized profoundly and comprehensibly in the classic case of Sorrells v. United States, 287 U.S. 438, 53 S.Ct. 210 (1932), by the views of Mr. Chief Justice Hughes, speaking for the 5 to 4 majority, and by Mr. Justice Roberts, speaking for the minority. Each opinion emphasizes the predominant differing views as to the major element of entrapment. These views can be summarized as follows: The difference in the views of the majority and concurring opinion is that in the former the inquiry focuses on the predisposition of the defendant, whereas in the latter the inquiry focuses on whether a government official instigated the crime. The views of Mr. Chief Justice Hughes have been heretofore set forth at length.
In Mr. Justice Roberts' opinion, he declared:
In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, the latest case on the subject, the same issue of entrapment came before the court, and Sorrells v. United States, supra, was reaffirmed in another 5 to 4 opinion, in which Mr. Justice Rehnquist wrote the judgment of the court, referring to Sorrells v. United States, supra and Sherman v. United States, supra, and declaring:
Where is there any evidence in this case of Dr. Carroll's intent or predisposition to commit the crime charged against him, or any crime? There is no evidence whatever to this effect. Did the criminal design originate with Dr. Carroll? There is no evidence whatever that a criminal design originated with Dr. Carroll. The evidence is undisputed that the criminal design originated with the officials of the Government. Was Dr. Carroll an innocent man at the time the first government officials approached
The use of decoys is not permissible to ensnare an innocent and law-abiding man into the commission of a crime. Webster's New International Dictionary defines "decoy" as follows: "Anything intended to lead into a snare; a lure; a bait; * * * a person employed by officers of justice, * * * to induce a suspected person to commit an offense under circumstances that will lead to his detection." (Emphasis supplied.)
In Newman v. United States, 299 F. 128, 131, (C.C.A. 4) 1924, Judge Woods, speaking for the court, said:
In reversing a conviction for violation of the Federal Narcotics Laws, Judge Duffy, speaking for the court in United States v. Lemons, 200 F.2d 396, 397, said:
In Hughes v. United States, 427 F.2d 66, 69 (C.A. 9), in reversing a conviction in a narcotics case, where the determinative issue was with respect to entrapment, Judge Burke said:
There was none of the necessary and "most searching type of inquiry" as to any evidence of Dr. Carroll's predisposition, state of mind and criminal design which "is of great probative value." Neither the prosecution nor the court ever attempted to subject Dr. Carroll to this searching type of inquiry. Plainly, it would have, from the evidence in this case, completely exonerated Dr. Carroll and caused the jury to "fairly determine whether the government agent or informer has `play[ed] on the weaknesses of an innocent party and beguile[d] him into committing crimes which he otherwise would not have attempted.'" Sherman v. United States, 356 U.S. 369, 376, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958). (Emphasis supplied.)
In 98 C.J.S. Witnesses § 553 p. 494, it is stated:
In Notaro v. United States, 363 F.2d 169, 174 (C.A. 9), Judge Ely, in reversing a conviction for violation of a drug act, said that "it seems quite clear that when it can be said that the issue of entrapment has fairly arisen, whether by testimony given during the presentation of the prosecution's case in chief or by testimony offered in defense, the defendant has met whatever `burden' rests upon him." (Emphasis supplied.)
In Dupuy v. State, Fla.App., 141 So.2d 825, Godoy, a paid investigator for the Board of Dental Examiners, who was making a spot check of the laboratories to determine whether any laws were being violated, came to Dupuy who was in charge of a laboratory, and Godoy asked him to make a partial plate for him, which Dupuy did. Dupuy was a licensed dental technician, practicing his profession in Dade County, Florida. He was not licensed to practice dentistry and was, therefore, violating the law in making the partial plate for the paid investigator. A week or two later, the investigator returned with Mrs. Shadron, another paid investigator, and after some negotiation, defendant relined her dental plate, which he was not authorized to do as he was not licensed to practice dentistry. On the basis of these transactions, an information was filed against Dupuy.
Dupuy contended that the record indicates he should have been found not guilty by reason of entrapment. The court upheld the contention that Dupuy had been entrapped. In its decision, the court said:
Although Dr. Carroll was found not guilty of the first four counts of prescribing Seconal, he was, incongruously, found guilty of the last six counts. The same government agents were the decoys and, by the jury, were found guilty of attempting to entrap Dr. Carroll on the first four counts. The same four government agents were the decoys who were trying to entrap Dr. Carroll on the last six counts.
In United States v. Klosterman, 248 F.2d 191, 195, the court said:
The evidence clearly shows that under the law Dr. Carroll was entitled to a directed verdict of not guilty on all counts.
In Morei v. United States, 127 F.2d 827, 833, 834, 835 (C.A.6), the leading case on entrapment from this court, appellant Morei's conviction for violating the narcotics law was reversed on the ground that he had been the victim of entrapment. An undercover agent was discussing with a doctor in Newark, Ohio, where he could get heroin to administer to race horses. The doctor said he had no heroin, but mentioned the name of Morei in Cleveland as a person who might have some of the drug. The undercover agent learned that Morei "would do anything in the world for Dr. Platt." The informer found that Morei did a little business on a street corner of Cleveland where his business included servicing of gum machines, sale of washing machines, refrigerators, batteries, as well as selling odd lots of remnants and slightly damaged apparel. He had a small room with a desk and telephone nearby. Morei was pointed out to the undercover agent, who told him he had a proposition to make a lot of money betting on horses that had been given heroin to stimulate them. He told Morei that he wanted some heroin to "fix" horses, and that Dr. Platt had told him to give Morei the names of the horses, so that Morei could get a bet on them. The undercover agent told Morei to "bear in mind you are going to make big money if you stand by me." Morei had no heroin, so the agent gave him $110 to make a purchase. In some way Morei found where he could get the heroin for the price, and after receiving it from an unknown man on a dark street, gave it to the agent, whereupon he was arrested for purchasing and selling narcotics. Morei had a good reputation, and had never been engaged in narcotics or any criminal enterprise and there was no reasonable cause to believe he had ever been engaged in the narcotic traffic or any other criminal transaction. The court held that the agent had made such strong inducements to secure the heroin that he was guilty of entrapping him. The conviction of Morei was reversed.
In the course of its opinion, the court said:
The court then stated:
In Morales v. United States, 260 F.2d 939 (C.A. 6), the court held that where there was no proof that defendant had any contact with persons engaged in illicit sales of narcotics nor any evidence whatsoever of circumstances that would justify even a reasonable suspicion that he was engaged in the traffic, and defendant was not an addict, had no criminal record, obtained and transferred marijuana only after being repeatedly requested to do so by an informer ten or fifteen times to get it from a certain person so that he could make money out of it, and finally succumbed to the repeated pressure of the undercover agent, the court held that, under these circumstances, there was "entrapment" and defendant could not be convicted of transferring the marijuana in violation of the law, citing Morei v. United States, 127 F.2d 827 (C.C.A. 6). "While it is true that under normal circumstances entrapment is usually a jury question, where the evidence points to only one conclusion the question may be decided as a matter of law, just as any other factual issue admitting of only one conclusion." United States v. Klosterman, 248 F.2d 191, 195 (C.A.3).
In Wall v. United States, 65 F.2d 993 (C.C.A.5), Isabel Knowles, who was paid for her services by the Government, had some years previously been the mistress of the appellant. Helbrandt, a government narcotic agent, went with Knowles to Tampa, Florida, where appellant was living, and as soon as she arrived there, under the agent's direction, began calling appellant by telephone in various places and, finally succeeding, induced him to call at her room in the hotel the next day, where she introduced Helbrandt to him as her husband. Knowles told appellant she was suffering with cramps and pains in her stomach for want of narcotics, and insisted that he help her get some. Appellant was afraid she would make a scene because of her suffering and being unable to get narcotics. Believing her to be actually suffering and needing relief, he gave her a note to one Zarata, and with this introduction the informer, Knowles, and the narcotic agent obtained three ounces of morphine through Zarata. When appellant gave them the name of Zarata, he thought that the latter "might put her in touch with some Latin doctor in Ybor City" who would supply her morphine for her pain. Knowles was not suffering pain in her stomach because of want of morphine. She and the undercover agent attempted to show that appellant wanted morphine for resale, an unlikely story, as appellant was undisputed in his statement that he had never sold narcotics. The court held that if the government narcotic agent and the woman, Knowles, "took advantage of the sympathy appellant would naturally have for Isabel Knowles because of their former illicit intimate relations and thereby induced appellant to put the agents in touch with Zarata to pander to her craving for morphine, and he was acting solely in the belief that by so doing he
In Patty v. Board of Medical Examiners, 9 Cal.3d 356, 107 Cal.Rptr. 473, 508 P.2d 1121, 1131, defendant doctor, Patty, 59 years of age, was the first black graduate of his medical school. Prior to the acts charged against him, no disciplinary action of any kind for unprofessional conduct had ever been brought against him. His professional activities over this lengthy career had been in all respects exemplary. He was on the staff of the Hollywood Community Hospital, Community Hospital of Los Angeles, and Los Angeles County Hospital. Under these circumstances, undercover Suazo called on Patricia Wolf and her roommates, who were Suazo's parttime undercover agents. He instructed one of the young women that her job "consisted mainly of working doctors, and going to doctors' offices for various reasons, one being to obtain prescriptions for narcotics or dangerous drugs." In late 1967, Dr. Patty became ill but continued to work and see patients. On January 4, 1968, Wolf visited the doctor's office as a patient for medication. When asked what was wrong with her, Wolf replied "nothing" but that she needed a prescription for "Whites" or "doxies." The doctor did not know what she was talking about and was unable to write a prescription until he called the pharmacy, and then issued a prescription for 100 tablets of amphetamine sulfate.
Dr. Patty suffered an acute myocardial infarction three days later but, contrary to his doctor's orders, continued to see patients. Wolf came in again with a second undercover investigator on January 10, 1968, and obtained prescriptions for amphetamine sulfate and empirin. Dr. Patty received $10 for each visit, his standard charge.
On March 29, 1968, two of the undercover agents introduced the principal agent, Suazo, who requested amphetamines and "Perc," a percodan narcotic. Dr. Patty refused to prescribe the narcotic but did write a prescription for amphetamine sulfate and empirin. Dr. Patty thus gave prescriptions to four different persons, each of whom was an undercover agent introduced by the girl, Wolf.
The court found that Dr. Patty did not have a preconceived interest to issue prescriptions for dangerous drugs, but had been lured and induced into that unprofessional conduct "by the persuasive powers of young women who were employed to ensnare him at a time when his judgment was seriously impaired, possibly because he was ill," as above stated.
In passing upon the case, the court said:
Wolf, the first undercover agent lined up by Suazo to induce the doctor to prescribe for her, was "an actress, model and hostess" the type of decoy that every government official would want to have as an undercover agent to lure a doctor into prescribing for her.
"The court found a preconceived plan of entrapment, stating `Petitioner was entrapped by Wolf on January 4, 1968, into the unlawful act * * * and Wolf's conduct in so entrapping Petitioner was the commencement of a preconceived plan in which Krieger, Dalton and Suazo also participated.'" The court added:
The court concluded:
The judgment of not guilty by reason of entrapment was affirmed.
It can here be repeated that on every occasion in this case where Dr. Carroll wrote a prescription for sleeping pills, he did it on the representations of these undercover officers that they were suffering from insomnia; and his only objective was that of a medical doctor who was acting from humanitarian motives in keeping them from suffering from this nervous and disabling malady and distress that is so common in the United States.
The overwhelming weight of the evidence proves that in writing these prescriptions on false representations of insomnia, on the part of the undercover officers, Dr. Carroll was sought to be entrapped into possible violation of the law.
We come then to the contention of appellant that the court erred in charging the jury. Title 21, U.S.C.A., Section 841, insofar as here pertinent, provides as follows:
The terms of imprisonment and fines are then set forth. Section 845 of Title 21 U.S.C.A. has no application to this case, as it pertains to "Distribution to persons under age twenty-one."
In Title 21 U.S.C.A. Sec. 871, it is provided that the Attorney General may delegate any of his functions under this title to any officer or employee of the Department of Justice, and may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this title.
In the Drug Enforcement Administration of the Department of Justice, it is provided, insofar as here applicable, in 21 Code of Federal Regulations, Section 1306.04, as follows:
"§ 1306.04 Purpose of issue of prescription.
Dr. Carroll was a "practitioner" within the meaning of the statute. The contentions of the Government are that any prescription "of controlled substances" issued by him must be issued by an individual practitioner for a legitimate medical purpose acting in the usual course of his professional practice. This is conceded. It is claimed that the prescriptions issued by him in this case violated the law on the alleged ground that they were not issued for a legitimate medical purpose in the usual course of Dr. Carroll's professional practice, and that on four of the ten prescriptions issued by Dr. Carroll, for which he was indicted, the jury found him not guilty by reason of the entrapment of the government agents for whom he prescribed them. On the next six prescriptions he was found guilty of issuing them for an illegitimate purpose and, in doing so, was violating the law in acting outside the usual course of his professional practice. It is also claimed he was guilty of violation of the law because he issued prescriptions for five truck drivers who were not before him and whom he did not examine.
There are no provisions of the law that are, in the least, definite or serve as
Throughout the record are prejudicial questions and suggestions that Dr. Carroll violated the law because he did not submit the undercover agents to a medical examination before prescribing sleeping pills for their insomnia. After undercover agent Cole told him he needed pills for his sleeplessness, the government counsel asked Cole, and he answered as follows:
All of the foregoing was obviously meant to convey to the jury and the court that some kind of a medical examination is necessary before prescribing sleeping pills for insomnia, and that if a doctor does not make such an examination, he is not acting in the course of his professional practice, and is guilty of a crime. What a monstrous claim!
Cole was further asked on cross-examination:
This, from the Special Agent of the United States Department of Justice, Drug Enforcement Administration, who posed as an expert, being knowledgeable about the law as it pertains to narcotics, and who testified that, in his opinion, Dr. Carroll should have followed certain guidelines before he prescribed Seconal!
Cole was asked:
This is the kind of testimony with which Dr. Carroll is confronted — an evasive witness, who is caught in lie after lie, and who, as an expert, thinks he should have been given a medical examination for a subjective malady that no doctor could discover by a medical examination, and in which no medical witness
Dr. Carroll was a kindly man. When Agent Fischner, for whom Dr. Carroll prescribed sleeping pills, introduced Agent McNamara as his brother-in-law and stated that he had used the pills prescribed for him, Dr. Carroll wrote out a prescription to take the place of the one McNamara had appropriated, and told him he should not take Fischner's pills, and that if McNamara was suffering from sleeplessness he would prescribe sleeping pills for him. McNamara then told Dr. Carroll about his sleeping trouble and being tense on his job. Dr. Carroll then wrote out a prescription for McNamara, and McNamara paid $10 each for the calls for three prescriptions — one for the prescription he was alleged to have taken from Agent Fischner, a new one for Fischner, and one for himself. Sometime later McNamara requested another prescription which Dr. Carroll prescribed for him, and for which he was not indicted.
All of the agents complained that they had not been given physical examinations by Dr. Carroll before securing the prescriptions. There is no requirement in law or medicine that a physical examination must precede the issuance of a prescription for sleeping pills. However, for these three prescriptions (and the additional one, on which Dr. Carroll was indicted), the jury found him not guilty and the government agents guilty of entrapment.
Later, McNamara told Dr. Carroll that he needed an additional prescription because he was going to Florida in a couple of weeks and would need them while there. He told Dr. Carroll that because of the need of his truck drivers for sleep, he had sold the prescriptions to them. He asked if he could secure prescriptions for his truck drivers because of their need for sleep. Dr. Carroll agreed and wrote out one prescription for McNamara and five prescriptions for the truck drivers on October 18, 1973. McNamara testified that Dr. Carroll made out a complete patient record for each of the truck drivers and indicated on the official records the amount he had prescribed. This appears a complete contradiction to the claim that Dr. Carroll was engaged in a secret unlawful drug transaction with McNamara. All of these six prescriptions were issued on October 18, 1973, and these were the prescriptions upon which Dr. Carroll was found guilty. As he said afterward, he was foolish to write six prescriptions on McNamara's solicitation on the same day, although five of the prescriptions were for the truck drivers; but he had faith in McNamara, and took him for the fine man he seemed to be, but his trust was sadly misplaced. The folly obviously was that the placing of six prescriptions in the hands of one person at the same time would be suspicious, and the Doctor realized this shortly after accommodating McNamara.
When Dr. Carroll was asked why he had issued the prescriptions with different dates, he testified he did it because the agents asked him to write different dates on the prescriptions, and that "You will help us a heck of a lot doing it that way!" Dr. Carroll further testified that instead of writing the prescriptions with different dates, he could have accomplished the same purpose by marking on the prescriptions that they were to be refilled five different times and that, under the law at that time, he had the right to give such refillable prescriptions, so that the agents would not have had to come back each time for more prescriptions.
However, there are no guidelines that suggest a doctor commits a crime if he prescribes for a person whom he has not seen, especially when that person is vouched for by someone in whom the doctor has confidence. In any event, even in this connection, the government agents were actively persuading and soliciting Dr. Carroll, and trying to entrap him into an offense that they conceived and in which he had never had any previous disposition to accede and, in this, they did actually entrap him.
Dr. Carroll is presumed to be innocent of the crime with which he was charged. There is every indication that the prescriptions he issued were, in his opinion, for a legitimate medical purpose and that, in so prescribing, he was acting in the usual course of his professional practice — and the jury found him not guilty on the first four counts. It is easy to see how they concluded he was guilty when he issued six prescriptions at one time, on October 18, 1973, although they were all to different persons, but they were influenced, obviously, that McNamara, the head man, secured them all — was the inciting cause, and he had been found guilty of entrapment on the count that concerned him.
The chief claim is that Dr. Carroll was prescribing these drugs to make a lot of money. Everything in the case, including the testimony of the undercover agents, proves the contrary and shows that the manner, times and terms on which he prescribed, brought him the smallest amount that any doctor could receive for like legitimate purposes.
Dr. Carroll was found not guilty on the first four counts because of his lack of guilt or because of entrapment. Everything points to his good faith as to the last six counts, and it is obvious that he was the victim of the entrapment of the undercover agents. "When a person has no previous intent or purpose to violate the law, but is persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law, as a matter of policy forbids his conviction in such a case." This is the law, and the trial court charged the jury in the quoted language.
So the question is whether Dr. Carroll had a previous intent or purpose to violate the law before the undercover agents called on him, or whether he was persuaded by the government agents to prescribe as he did. There is absolutely no evidence that he had such a purpose and the evidence of everything in his entire life that appeared in the case, without dispute shows that he was a man of unblemished character, a doctor who had put six children through college and graduate schools, where they are making noble and notable achievements. There is not the slightest strand of suspicion that Dr. Carroll had a previous intent or purpose to break the law. In every instance in which he prescribed, he filled out all the government forms for each person for whom he prescribed, and limited some to a certain number of pills, and others to such number as, in his judgment, was required.
If there is any evidence of previous intent to violate the law, then the defendant is guilty, but there is not a strand of a hair's breadth of evidence that he had a previous intent to violate the law.
On every occasion on which he prescribed, the different undercover agents persuaded him to prescribe for their insomnia
In these latter years thousands of doctors have been indicted for violating the drug laws by alleged illegal prescriptions and have been found not guilty and entrapped by government agents. The last two years of our history should make us sensitively aware of what wiretappers, eavesdroppers, and undercover government officials can do to place a citizen in jeopardy, but their illegal activities have generally been detected by courts, and the accused have been found to have been entrapped, and discharged as not guilty.
In the accompanying opinion it is stated that it is undenied that the agents in this case used deception in dealing with defendant. It is further stated that "deception is not forbidden * * * and does not, without more, establish entrapment as a matter of law." (Emphasis supplied.) With this statement I heartily agree, but there is something "more" in this case than deception by the officers. What that "more" is, is seen in the undisputed evidence.
United States v. Russell, supra, is cited in the accompanying opinion to sustain the claim that deception may be used in dealing with the defendant. But Russell further states: "It is only when the government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play."
It is remarkable that on the subject of entrapment in all the Supreme Court cases from Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) to United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), a period of forty-one years, the Court was divided 5 to 4, the majority holding that the focus must be on the predisposition and propensities of the defendant as an unwary innocent, or as an unwary criminal in the words of Chief Justice Warren heretofore quoted, and the minority holding that the focus must be on the action of the Government in inducing or instigating the crime as described in the applicable language of Mr. Justice Roberts:
From either of the two views in this case, the defendant must be found innocent because of the undisputed facts.
As Judge Cecil said in United States v. Head, 353 F.2d 566, 568 (1965) (C.A.6):
What the undisputed evidence shows is that defendant was an industrious, innocent, law-abiding man with no previous
In view of the undisputed evidence of entrapment, the trial court was bound to hold as a matter of law that defendant was entrapped; and, accordingly, the judgment heretofore entered should be reversed, the sentence set aside, and a judgment should be entered dismissing the case.
"A Prime Minister Remembers," the war memoirs of the Rt. Hon. Earl Attlee, by Francis Williams, Heinemann, London 1961.
See also "Holmes-Pollock Letters," Volume II, page 222, edited by Mark DeWolfe Howe, Harvard University Press, Cambridge, Massachusetts, 1941; "The Mind and Faith of Justice Holmes," by Max Lerner, Little Brown and Company, Boston, 1943.