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United States v. Reiff

November 5, 1970

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JAMES S. REIFF, DEFENDANT-APPELLANT



Hastings, Senior Circuit Judge, and Fairchild and Cummings, Circuit Judges.

Author: Hastings

HASTINGS, Senior Circuit Judge.

Defendant was charged in an information with a violation of Title 21, U.S.C.A. § 331(q) (4) for failure to keep a complete and accurate record of and with respect to certain depressant and stimulant drugs.*fn1 He was represented at all times by competent privately employed counsel. He properly waived his right to trial by jury.

Prior to trial, pursuant to Rule 12(b) (1), Federal Rules of Criminal Procedure, Title 18 U.S.C.A., defendant moved to dismiss the action upon the general ground that his prosecution under section 331(q) (4) was a denial of his Fifth Amendment privilege against self-incrimination.*fn2

After a full hearing in open court, defendant's motion to dismiss was denied. A trial to the court, without the intervention of a jury, immediately followed. Defendant was found guilty and thereafter was sentenced to a term of one year, six months to be served and the remaining six months on probation. Defendant appealed. We affirm.

On appeal, defendant raises two issues, the denial of his invocation of the privilege against self-incrimination as a defense to the charge and his contention that the evidence submitted was insufficient to sustain his conviction.

On our examination of the entire record, we conclude the trial court would have been justified in finding that defendant was an Indiana licensed osteopathic physician and as such was entitled to have and to dispense the drugs involved. Between the years 1966 and May, 1968, defendant purchased and received some 98,100 dosage units of controlled drugs from certain recognized distributors of the same. On June 13, 1968, an inventory of drugs on hand was made by Agent Jackson of the Federal Bureau of Narcotics and Dangerous Drugs. This inventory disclosed there were approximately 3,780 dosage units of controlled drugs in defendant's possession. After May, 1968, defendant made one additional purchase of controlled drugs in an amount unspecified. Agent Kline examined defendant's premises on December 3, 1968 and found no beginning inventory of drugs as required by law, nor did he find any records relating to the disposition of the controlled drugs which came into defendant's possession. Agent Strieff identified from the records in evidence the character of the drugs so received by defendant and that they were controlled drugs within the purview of the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301, et seq.

At the conclusion of the government's case in chief, defendant rested his case without testifying or offering any evidence in his own defense.

Section 331 of Title 21 lists prohibited acts under the Federal Food, Drug and Cosmetic Act and in relevant part provides:

"§ 331. Prohibited acts

The following acts and the causing thereof are prohibited:

(q) * * * (4) the failure to prepare or obtain, or the failure to keep, a complete and accurate record with respect to any drug as required by section 360a(d) of this title; * * *."

Section 360a is concerned generally with depressant and stimulant drugs and subsection (d) relates to records; inspection; rights of agents to enter, notice, scope, inventory, receipt for samples taken; and exemption of practitioners. The drugs identified in evidence in this case come within the reach of section 360a(d) as set out in section 331(q) (4), supra. Further, defendant as a licensed practitioner regularly engaged in dispensing such drugs to his patients for charge, is of the class not exempted from the record keeping requirements of the Act.

Simply stated, defendant is charged with failing to keep required records with respect to depressant and stimulant drugs received and dispensed by him in the regular course of his medical practice. He is not charged with the illegal sale of ...


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