Supplemental Memorandum for Respondent — Young v. United States

Ee No. 86°

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3th Supreme dour of the Wane Bute

-OcToBER TERM, 1941

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Peter “ouna, Autias. YounG Lup, PETITIONER

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-. Ustrep StaTes or AMERICA

¢°* WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE NINTH CIRCUIT .

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a SUPPLEMENTAL MEMORANDUM FOR THE UNITED —

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Si Supreme Gout of hee sine

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No. 86,’

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Peter: YounG,. ALias Youna Lup, PETIvIONER |

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UNITED STATES OF AMERICA

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ON WRIT OF CERTIORARI . TO THE UNITED ‘STATES CIRCUIT

‘COURT OF APPEALS FOR THE. NINTH GIRCUIT

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SUPPLEMENTAL MEMORANDUM ‘FOR THE UNITED

STATES ©.

In the memorandum previously filed = belfalf

of the United States the Governinent-took the posi-

tion that Section 6 of the Hatrison Anti-Nareoti¢

Act was not so unambiguous as to preclude reso

f administrative interpretation in determining ifs

meaning. , The administrative | construction was |

reviewed at pages 6-7 of our "memorandum and _

- tended to. support the view that the second proviso

. of Section 6, dealing with the’ keeping of records

of dispensations. of. limited content narcotic prep-

arations, constitutes a condition precedent to. the

exemption created by that section, rather than an

independent requirement for violation of which the

- defendant _might be convicted. .The Department

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of J ustice has since been advised by the Treasury

Department that information previously furnished:

regarding the practice of the Bureau of Narcotics

was not entirely accurate, and the Treasury De-

partnient requested a reconsideration of the prob-

Jem. Sueh” imreconsideration has been given, ‘and

upon the basis thereof the Government desires to

withdraw so much of it previous memorandum ‘as.

indicates that it would be unwilling to support ‘thé.

cone Jusion reached by ‘the Cireuit Court of Appeals

. as to the independent and affirmative character of

the proviso of Section 6.

- Reconsideration . of this case, however, has

“strengthened our belief (Memorandum for the

_ United States, p. 8) that the second proviso | aoe }

tion 6, even though it be regarded assaf independ st

‘ent requirement, has no application to a physi¢ian

/ who administers exempt narcotics solely to patients cae

_ upon whom he personally attends. The language

_of the proviso ‘imposes the record keeping require-

“ment upon “‘any manufacturer, producer, com-

pounder, or vendor (including dispensing physi- -

- cians).’’ The words “dispensing physicians’’. in

- this connection may .be reasonably ‘interpreted. as

| applying only to physicians dispensing. to persons

_ other than patients upon whom they—personaily »,

‘ attend, e. g country doctors wh6 may act as drug- -

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gists, physicians who engage in the manufacture ©

‘and general distribution of patent medicines. An

interpretation of the proviso which limits it to this

. type of situation makes it harmonize with Section —

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2:

the

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2 (a) where, in dealing with true narcotics, Con- |

_ gress unequivocally stated its intention to exempt

physicians from record keeping when in personal

attendance upon patients. That the Treasury De-

partment entertains the same view as to the con-

struction of the proviso’is apparent from the at- .

tached letter from the Acting General Counsel.

The evidence in this case was ‘undisputed . that

the aceused gave the preparations in questién to

patients upon whom he was in. personal attendance

(R. 269, 270, 271, 272, 274, 275), and omitted to

keep records because of his understanding that

physicians were not required to do so under thesé

_ cireumstances (R. 249-250,°277, 286-288). Peti-.

tioner’s requested Instruction 15, , embodying. this

yiew, was refused (R. 47-48). |

Accordingly, the Government adheres to the con-

clusion of its prior memorandum, but does so solely

for the reasons in this memorandum set forth and

not on the ground that the second proviso to See-

tion 6 is not an independent: and affirmative re-

quirement ‘for the keeping of records.

_ Respectfully submitted.

: CHARLES Fany,

© _ Solicitor General.

WENDELL BERGE,

sg Assistant Attorney General.

Oscar A. Provost, :

Louis B. ScHwarrz,

| 3 W. Magvin SMITH,

canine : Attorneys.

DECEMBER 1941. 3 |

APPENDIX

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GeNERAL CouNseEL, TREASURY DEPARTMENT,

“a Washington, November 29, 1941.

My Dear Mr. Souicrrok GENERAL: This will con-

firm my advice by telephone today to Mr. Louis B.

Se hwartz, Department of Justice, that it is the

tagser vile Department of the Treasury that,

as a matter of law, the phrase -‘*including ‘dis-

pensing physicians”’ within the parentheses in the

second proviso to section 2551 (a) of the Internal.

Revenue Code does not include physicians dis-

__ ss pensing exempt preparations in circumstances.

which, under section 2554 -(¢) () of the Internal

Revenue Code, would except physicians dispensing ,

‘ordimary narcotics from the record keeping require-

* ments therein.

Very .truly yours,”

a) HUNTINGTON CAIRNS,

Acting General Counsel.

The Senestiikc The SOLICITOR GENERAL OF THE

; UNITRD STATES.

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* US GOVETNOTET PRINTING OFFice tear -

9

SUPREME COURT OF THE UNITED SqATES.

No. 86: —Ocronrr Ter, 1941.

Petitioner, ‘ the United States Cirenit

: vs. ey Court of Appeals for the

- The United States *ofAmerica. ‘Ninth Circuit.

' _ [February 2, 1942.]

' Mr. Justice Murrny delivered the opinion “of the ‘Court.

Petitioner, a practicing physician, | was convicted on eight counts —

- of an indictment: charging violation Section 6 of the Harrison

_Anti-Narcotiec Act ds amended:' That section, so fer as here

* material, provides:

| ‘“‘That the provisions of this Act shall not be salsa to apply

te the manufacture, sale, distribution, giving away, dispensing, or

‘possession of preparations and remedies which do not contain more

than two grains of-opium . . . in one fluid ounce

Provided, That such-remedies and preparations are eiiiiiachenih.

sold, distributed, given away, dispensed, or possessed as medicines

and ‘not for the purpose of evading the intention and provisions of--—- ~

this Act: Provided further: that any manufacturer, producer, com-

_ pounder, or vendor (ineluding dispensing physicians) of the prep-

> arations and remedies mentioned in this section lawfully éntithed

to manufacture, ‘produce, compound and vend such preparations

and remedies, shall keep a record of all sales, exchanges, or gifts of ©

_ such preparations and remedies .

The evidence is undisputed that petitioner gave the preparations

a" the quantities charged in the indictme:t to patients whom he

_pergonally attended, He kept no records. His defense, that the sec-

ond proviso of Section 6 is_not an independent and affirmative re- -

- quirement but merely a condition precedent to the exemption created

_-by that section, was rejected by the court below which took the posi-.

: _-tion that the second proviso is an uncoWditional requirement that all

» vendors of exempt preparations keep records.?

140 Stat. 1132, 26 U. 8. C. Supp. Vv, see. 2551(a) and (b).

| «- 2119 F. 24 399. ,

eter Young, alias Young Lup, )On Writ of Certiorari, to ©

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—~ eds Young vs. United States.

The Government confessed error and we brought the case here.

“314:U. 8. —.

The publie trust reposed in the law enforcement officers of the’

Government requires that they be ‘quick toggnfess error when, in

their opinion, a mistarriage tf justice may result from their re

maining silent. But such a confession does not relieve this Court of

the performance of the jflicial function. The considered judgment

of the law enforcement officers that reyérsible error has been “com

mitted is entitled to great weight, but our judicial obligations com

pel us to examine independently the errors confessed. See Parlion

v. United States, 75 F. 2d 772. The public interest that a result be

reached which ih Ble a well-ordered spciety is foremost in every

criminal proceeding. That interest is entrusted to our consideration

and protection as well as that of the enforeing officers. Further-

more, our judgments are precedents, ard the proper administration

of the ‘criminal law cannot be left merely, to the stipulation of ang

ties: Cf. Rer v. Wilkes, 4 Burr, 2527, 2551, 98 Eng. ‘Rep. 327;

State ¥. Green, 167 Wash. 266, 9 P. 2d 62. .

‘The Gevernment’s confession of error was originally two-fold:

first, that while the second proviso of Section 6 Was subject to two

possible constructions, the administrative construction had been that

it was not an independent penal prov ision, and therefore the am-

biguity shonld be resotved in favor of petitioner; and, secondly,

RE STEAT the secon second proviso, even if it be- regarded as an independen te

penal ‘provision, does not apply to a physician who administers

exempt preparations solely fo patients whom he personally attends

Upon réconsideration. the Government has withdrawn its first-

grourid of confession of error. We put to one side that qnestion

since we are of oyinion that there must be a reversal on tle secoud

ground.

Assuming, without deciding, that the seeond proviso of Section 6,

is an independent penal ‘prov ision, it requires that. records be kept

only by ‘any manufacturer, producer, compounder, or vendor in-

eJuding dispensing physicians)’. We think that Congress, by the -

use.of the words “‘dispensing physicians’’, meant. to exclude physi-

" cians administering-to patients whom, they. rsonally attend.

That not all physicians are required to keep records is manifest

from the use pf thé qualifying’ adjective ‘‘dispensing’’: «And, the

physician must- be one who manufactures, produces, ethno OF «-

vends, or possibly only one who vends if the parenthetical phrase.

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* Young vs. United nited States. ‘a 3

applies only to ‘‘yendor’’, the drugs. , These are nagappropriate

words to deseribe the function of a \physician who administers

_exempt preparations to patients whom he personally attends.

. This construetion is borne out by a consideration of ‘the Act as a

whole. The word ‘‘administer’’ appropriately describes the

activities ofa doctor in personal @tendance than does the word

‘“dispense’’, Admittedly the words *‘dispense’’ and ‘‘ dispensing,’

are used in several senses in the Act, but Congress evidently was

aware of the differentiation between ‘‘administer’’ and ‘* dispense’’,

for, when it wished to’ inelide «ll possible functions of physicians -

“| with respect to drug distribution, it used both terms in eon junction.

Section ] of the Aet in defining those required to pay a special tax

speaks of * ‘physicians . . . lawfully entitled to distribute, dis-

pense, give away, or administer,’’ and makes it unlawful for any

person ‘‘té pureliase, sell, dispense or distribute’’ any drugs other-

"wie than in and from the original stamped package, excepting the

‘dispensing, or administration, or givingyaway of any of the afore-

said drugs to a patient’’ by a practitioner where ‘ ' dispensed ‘or

administered to the patient for legitimate medical purposes. ’

‘Section 4-exempts from the prohibition of interstate shipments |

aind,deliveries of drugs by persons who have not registered and paid |

a-special tax deliveries by ‘‘any person who shall deliver any such

drag whieh has been preseribed oy dinperisest by a physician<.° The. .

”*

omission: of the word ‘‘administer”’ indicates that Congress reetg-

nized that shipments amd deliveries would ordinarily ‘not be in-

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volved where the physician’ was edministoring’ White in persemeat ———§-

attendance.

In Section .2/a), dealing with true narcotica, ——— unequiv 0-

ce: cally. Aempted physicians from record keeping where in personal

attendance upon patients. It is diffieult to perceive why a diffrent

requirement should obtain when a physician, under similar ¢ireum-

stances, administers 4 preparations containing only a limited amount

of narcoties, such as the paregorie,-cough syrup, ete.. involved in

this case. The word ‘‘dispense’’ is evidently used in Section 2(a) in |

a sense broad enough to inelude personal administration of drugs

by.an atfending doctor, but the express exception of the persona]

attendance cases removes any ambiguity Wr Trthe seope of * ‘diss

pense’’ in this context. ”

The construction of the parenthetiea) | phrase ** ( inelnding dispens—

ing. physicions) as encofupassipg only doctors who’ would be

ree

4 : Young vs. United States.

‘ eovered by the word ‘‘vendor’’ does not imply that Congress was

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tantologie, but rather that it acted cautiously to preelude any con-

tention that physicians selling drugs were not “vendors” becattse

of their professional status.

The legislative history of the segand- p» »viso of Section 6 sup-

ports the view, that The words ‘ ‘dispensing physicians’’ were in-

tended to apply only to physivians acting as dealers in the sale of

drugs. The) phrase ‘‘vendor (ineluding dispensing physicians) *’

was acted. for ‘‘the ‘dealer who knowingly sells’? exempt

properat i0

“Upon the lev idenee in this case petitioner was not a ** dispensing

physician”’ within the meaning of the second proviso of Section 6.

The judgm¢nt: is. reversed and the cause remanded to the United

States Dist net Court for the Territory of Hawaii fer such further

proceedings’ ax niay be required in the light of this opinion.

’ It-is so ordered.

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Mr. Justice Ronerts and Mr. Justice Jackson took no part in the

eonsideration or decision of this case.

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A trie copy.

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; ve Clerk, Supreme Court, UL 8

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3 See 57 Cong. Ree, 771 and H. Rept. No. 1037, 65th Cong., 3d Seas. PP.

' 37, 87-88.

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In offering the committee amendment whieh embodied the record: keeping

requirement Senator McCumber said:

‘Before the committee there was a proposition made comp lling “druggists

who®compounded any of these habit-forming drugs ‘also to keep. a list of the

persons to whom they’ furnished them; a list of the goods, and so forth.’’

57 —? Ree. 771,