*2 JONES, RIVES, Before TUTTLE and Judges, Circuit RIVES, Judge, Circuit appellant, physician, The and Walter Waxman, druggist, tried were first conspiracy an indictment violate for Title 26 United States Code Section (a), is, to sell certain methadon, wit, codeine, demerol, required pursuance not in of the mis orders. The result was trial.
Subsequently, another indictment con- taining fifteen was returned counts against charging appellant alone, him the same substantive violations Section. The first five named counts Miller, Cerald named the next five counts Garcia, Fidele counts and the last five persons to Alice Buonaiuto as whom methadon was sold or caused Except per- sold. of such for the names sale, and the fifteen sons dates all identical. counts were objection, the two Without cases ’ , ,, , .. . conclusion consolidated for trial. At the evidence, s the court Government Judgment of aC' gra“te;d /or the con of both defendants on charged spiracy Dr Needel denied motion on the substantive ma\s ^ The then counts. court sustained motion all Needelman’s to strike testimony of had between conversations the narcotic and Waxman outside presence of Dr. Needelman di disregard reeled testimony. no offered Government evidence, additional introduced number of witnesses behalf, testified in his own evidence, theAt conclusion of all the again judg- moved acquittal. ment of motion, The court denied the stating jury’s absence courtroom, “I think this ais very case, offhand, slender I think Roberts, Miami, Fla., go enough jury.” E. Ernest appellant. guilty returned verdict Jr., Cline, Atty., Asst. U. S. B. each of O. as to the fifteen counts. The Fla., Guilmartin, granted Miami, James L. U. S. thereafter court a motion for Fla., Miami, appellee. Atty., new trial the last five counts purchaser; contemporaneous said
named Alice
notes made
Buonaiuto as
counts, upon
those
Rudd
material and nec
said
Government,
essary
pre
were dismissed
defendants
pare
their
court.
fined the
defense.”
*3
pro
$5,000.00
placed
of
on
total
and
him
Again,
The
motion was denied.
years.1
bation for three
agent
2the
on
narcotic
Rudd
testified
had
trial,
direct
on
examination
the second
conspiracy
After
the mistrial on the
by appellant’s
bad been cross-examined
charge,
prior
con-
to
time
the
the
of
counsel, and
examination
was on redirect
trial,
the
solidated
the
moved
by
Government,
the
a
recess was
short
court:
courtroom,
bad,
the
from
retired
the
"*
* *
permit
for an Order
response
we assume
to a
in
renewal
and’
ting
books, pa
inspect
them to
the
the
of
ruled:
Wl11
the court
motion’
pers, documents,
and
memoranda
deny
re(!uest
the
for the
because
notes>
objects
particularly
and
the contem
thmgs’
they
many
You
invoIve
poraneous
by
Gov
notes
the
made
may see
case reP°rt-
Rudd,
witness,
ernment
Kenneth
questions presented
The
for decision
previously
said
who has
testified in
appeal
erred in
are whether
the court
and
is a material witness
cause
who
denying
judg
the defendant’s motion for
cause,
said
for the Government
in
acquittal,
ment of
and
whether
the
by
Rudd
Kenneth
the said
denying
erred in
the
defendant’s
investigation
prepa
during
and
his
inspect
contempora
to be allowed to
the
cause, and
for trial of said
ration
by
neous notes made
narcotic
contemporaneous
*4
so
Needelman
carry
pro-
on his
honest endeavor
arrangements
Grier,
made
with Dr.
Now, he made mistake
fession.
if
physician
licensed
with a Government
inept
or was foolish or
or some-
license,
to take
the
thing
that,
wouldn’t be a
like
that
Szekely
office until Dr.
received his cer-
good faith;
if
he sold
breach of
August 20,
tificate. On
two
weeks
drugs
man,
addict,
known
an
departure,
Szekely’s
Dr. Needelman’s
Dr.
having good
man
reason to know a
practice
license to
medicine in Florida
addict,
or woman
and sold
to be an
questioned pre-
was issued. All of the
only
purpose
principal
for the
scriptions
patients
were delivered
the
supplying
with these
the addict
after Dr. Needelman had left on his
drugs
craved,
that he
that would
vacation,
peculiarly
neither Dr.
good
not,
course,
in
faith.
Szekely nor Dr. Grier was called as a
“So,
attorneys
have told
both
witness.
good
you, the issue in this case is
stipulated
codeine,
It was
that
faith.
good
Dr.
act in
dem-
Did
erol,
drugs
issuing
and
prescrip-
methadon are narcotic
faith in
these
defined in Title 26 United
tions?”
States Code
Sally
Section 4731. Miss
Bossman tes-
question
does
ghe wag
j
tified ^
d
Dr>
b
proposition
the settled
that
of law
m
No_
through
Needelman from June 1955
order for a
to come within
dQ.
as_
laboratory
vember 1955
physician
work>
sisting
covering
the Doctor and
the front
the statute 26 U.S.C.A.
expection
4705(c)
2, supra,
note
§
the narcotic
desk when needed. She
thirtv-
identified
drugs
dispensed
must
been
have
dis
prescriptiong
one
wMch Dr. Needelman
patient
patients by
tributed to a
Migg Fred_
gigned and lrft with her and
good
pnysician m
m
faith
the course of
nurge
erickg>
other
in
^
the offi with
professional practice only.3
kept
instructions that
were to be
reviewing
In
desk,
denial of
locked
a drawer
aof
and when
acquittal,
motion for
patients
appeared
whose names
light
evidence must
prescriptions
be considered
paid
came
most
prescribed
favorable to the
fee, varying
Government.4 So
from five to ten
considered,
reasonably
dollars,
prescription
was to be deliver-
following
find the
facts. Dr. Needelman
patient.
ed to the
At the time of de-
August
Europe
6,
was to leave for
livery,
prescrip-
she would fill in on the
1955, for an extended vacation. He had tion that date as the date on which it
Szekely,
practiced
known a Dr.
had
who
was “to be filled.”
three
Those
words
States,
Cir.,
3. See
States,
McBride v. United
5
1944,
4. Mortensen
322
249, 253, construing
369, 374,
225 F.2d
Sec
U.S.
64 S.Ct.
88 L.Ed.
1331;
2554 of the 1939 Internal
States,
Revenue
Glasser v. United
Code,
26
U.S.C.A.
which is sub
86 L.Ed.
stantially
680; Lloyd
the same as Section
States,
Cir.,
4705 of
the 1954
13;
Internal Revenue Code.
226 F.2d
Vick v. United
also
Linder v. United
5,
Cir., 1954,
were Among admissions, departure. testified prior direction to his such tending to show patients and introduced were the three evidence suffering patients pain and ex- were was the tensively Rossman indictment. Miss signed prescriptions in an effort cross-examined profes deliver- left him the course of that the show practice Szekely only. addi only sional was There at the direction Dr. ed Grier, tional evidence on either side did waver somewhat Dr. recited, however, Enough how testimony. jury, could issue. has been her ever, that, reasonably payment to demonstrate considered believed have light nec- the ment, Govern required all was most favorable to the fee of essary prescrip- relevant evi patient sufficient receive a signed by drugs could reason dence which the tion for narcotic ably beyond reasonable have believed Needelman. doubt that Dr. Needelman did good Fredericks, other Lillian Miss dispense faith or distribute Needel- in Dr. had worked nurse who in the course twenty-nine office, man’s identified some only. professional practice *5 his narcotic for additional judgment acquittal was of for signed by Dr. Needelman denied, properly therefore handwriting bore her which they filled. were to be dates on which use not Narcotic Rudd did general, to similar In her memoranda notes refresh or Rossman. that of Miss testifying, admit recollection while at addition, had left In recollection ted that refreshed his Pharmacy, which the Medical Arts testifying. from before Such them proprietor, some Waxman was Walter seventy-five contempora or notes made memoranda neously signed prescriptions nar- by purpose witness for to Abe delivered be cotie some refreshing his own recollection wife, Lottie and some Bruches strictly within the rule Jencks prescription was de- As each Bruches. States, 1957, 353 77 U.S. s.ct. and re- Iivered, collected be would $2.50 or Needelman, purportedly, tained however, Dr. decision, passed 18 statute to meet that by owed apply old on an bill Code relate United States rather Needelman to Dr. the Bruches reports to formal written statements or prescriptions themselves. than for the by signed the witness and or other adopted by agents approved him. Un tes- wise Rudd and Waters Narcotic examining prescrip- reports, like the mere such statements or tified to Pharmacy directly memoranda Arts or notes not be file at the Medical tion impeachment 22, 1955, just purposes, after Dr. introduced for September Europe, and to used a basis cross- from return Needelman’s interviewing examining the Each tes- witness. The Needelman. case Dr. States, 1942, being that, and in- Goldman v. United warned tified holding rights give L.Ed. in- 86 not to as to his formed himself, against discretionary criminating it is with the trial evidence require freely, require or not to and stated a wit talked Needelman question produce memoranda or *6 UNITED of America STATES
v.
Joseph BUX, Appellant, N.
No. 12654.
United States Court of Anneals
Third Circuit Nov.
Submitted 1958.
DecidedDec. 1958. granted 234; December States, S.Ct. Palermo v. 1. Certiorari following: States, granted Lev v. United S.Ct. 236. Certiorari Decem- States, Pittsburgh 231; Wool v. United ber Plate S.Ct. Glass States, States, 231; Rubin v. United 79 S. Co. S.Ct. 79 S. Rosenberg 231; Ct. Ct. Ingram 233; notes which said Rudd. by already to the been referred have guilt previous of trial issue of innocence or said Rudd is, primarily good faith, by cause, that of that and said drugs good contempora the it whether faith narcotic was shown that said dispensed by by prepared were as said defendant neous notes events, physician “in course activities to his Rudd only.” practice testimony, professional his and said to related his copying theory inspection case was that of the Government’s and that “(c) Other Judge exceptions. Nothing sentencing, con- time At — section, in this or tained section stated: may may apply— shall section 4774 Association or “The Medical pise hope deprive drugs professional him of his license. I “(1) hope they they should think he don’t. I practice. dispensing or dis- —To deprived because un- of his license patient not be drugs tribution narcotic to doubtedly don’t Doctor. I he a skilful veterinary dentist, physician, sur going go back on the am to I know. geon, practitioner registered or other un personally verdict, jury’s I feel der course section of his any event, exceedingly Provided, careless practice he was professional only: possible that felt and it is physician, dentist, veterinary such That guilty way for that rea- found him and surgeon, practitioner keep or other shall They have shouldn’t I don’t know. son. dispensed drugs of all such or record beings being basis, but human on that showing distributed, amount dis- have done so.” pensed distributed, date, or patient 4705(c). applicable and address of the to whom name 2. 26 U.S.C.A. drugs dispensed distributed, such or read: subsections may except dispensed General requirement. as be “(a) such or dis- shall —It patient upon person sell, barter, tributed whom such unlawful veterinary physician, dentist, give away surgeon, exchange, or practitioner pursuance personally except or other shall at- of a order kept tend; person such record shall be to whom such article is years period exchanged, given, bartered, sold, of two date of dispensing distributing pur- in blank be issued form to subject inspection, provided Secretary delegate. pose in see- ***** tion 4773.” persons three to the medicine in York for New a considerable years, not issued number the indictment had taken the Florida keep pain examination, Medical for the relief of Board awaiting In its oral practice addicts comfortable. certificate jury, Szekely the issue defined Florida. Dr. the court came Dr. Need- prior elman’s office follows: about a week departure Dr- Needelman’s to become your faith matter “Good is a acquainted pa- with Dr. Needelman’s determination, not he did whether or Szekely’s tients. Dr. Florida certificate good good faith; faith act did not arrive the time Dr. Needel- got in an to act has means leave, naan was to
Notes
ness notes he knew which he had refreshed his recollec $175.- addicts by taking stand, drug Bruches tion before store 00 left at supra.5 Jencks, prescriptions left Dr. overruled our there In was for opinion, was no abuse discretion the rate of $2.50. at opinion pages 668, 674, 680, at of Lambert v. our recent 5. See pages 1013, 1016, States, Cir., F.2d at 1019. also, Jencks denying Rudd’s permission examine ap- notes, permitting memoranda pellant’s report, the case see counsel to Finding in the rec- no reversible error ord, Affirmed Rehearing. Petition for On PER U C R IAM. having grant recently been Certiorari cases,1 ed in decision of one several may disposi more of which affect case, may, parties if this fit, why see show should cause Court not await more of the decision of one or Supreme said cases Court before rehearing. ruling petition