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United States v. Lauer

February 8, 1961

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ARNOLD GEORGE LAUER, DEFENDANT-APPELLANT



Author: Castle

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

Arnold George Lauer, defendant-appellant was indicted in a two count indictment charging unlawful sale of narcotics in violation of 26 U.S.C.A. § 4705(a). A special answer and plea filed by defendant asserting the unconstitutionality of 26 U.S.C.A. §§ 4705(a) and 4731 was denied by the District Court and the cause proceeded to trial before a jury. Defendant was found guilty by the jury on both counts and was sentenced for a period of 7 1/2 years on Count I, together with a fine of $3,000.00, and for a concurrent 7 1/2 year period on Count II.

The contested issues sought to be raised by the defendant's appeal are:

1. Whether 26 U.S.C.A. § 4705(a) is so vague and indefinite and 26 U.S.C.A. § 4731 such an improper delegation of power that the District Court erred in denying the special answer and plea of defendant.

2. Did the proof as to Count I establish that defendant came within the exemption set forth in 26 U.S.C.A. § 4702?

3. Did the District Court commit prejudicial error by announcing denial of defendant's motions for acquittal within the presence and hearing of the jury?

4. Was the government required, in order to establish illegality of the sales of narcotics, to prove existence of order forms prepared and issued by the Secretary of the Treasury or his delegate?

5. Did the District Court err in admitting government exhibits in evidence?

6. Was the defense of entrapment established by the record?

26 U.S.C.A. § 4705(a) makes it unlawful for any person:

"to sell, barter, exchange, or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary or his delegate."

26 U.S.C.A. § 4731 defined*fn1 "narcotic drugs" as including (1) certain designated named items, (2) any compound, manufacture, salt, derivative, or preparation thereof, and (3) any substance chemically identical therewith. It also included within the definition:

"* * * any drug * * * found by the Secretary or his delegate, after due notice and opportunity for public hearing, to have an addiction-forming or addiction-sustaining liability similar to morphine or cocaine, and proclaimed by the President to have been so found by the Secretary or his delegate. The Secretary or his delegate is authorized to issue necessary rules and regulations for carrying out the provisions of this subsection, and to confer or impose upon any officer or ...


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