DUGAN DRUG STORES, INC., Appellant, v. UNITED STATES of America, Appellee

United States Court of Appeals for the Fifth Circuit1964-01-21No. No. 20493

326 F.2d 835

Summary · law.co

Holding. The conviction is reversed and the case is remanded for a new trial because prosecutorial misconduct—including witness intimidation, prejudicial statements, and improper closing argument—was aggravating and persistent with probable cumulative prejudicial effect on the jury.

Dugan Drug Stores, Inc. and several individuals were prosecuted under the Food, Drug and Cosmetic Act for refilling prescriptions without authorization from the prescribing physician. A jury acquitted the company president and most employees, though one employee pleaded guilty, while the jury convicted the company on all counts. The defendant challenged the conviction on multiple grounds, including claims that the prescriptions used in the investigation were invalid and that verdict inconsistency showed defective proof.

The appellate court rejected the defendant's substantive arguments. The court found the information adequate and evidence sufficient because the core violation involved unauthorized refills of facially valid prescriptions, not the authenticity of the physician-patient relationship. The court noted that permitting such undercover investigations does not require law enforcement to use agents with actual medical needs. However, the court identified serious prosecutorial misconduct throughout the trial, including improper witness conduct, threats, prejudicial statements, and an improper closing argument that ventured beyond the record.

The court emphasized that while a prosecutor must conduct cases zealously, this obligation does not override the duty to proceed fairly and respect defendants' rights. The court rejected the government's argument that defense counsel's tactics justified the prosecutor's conduct, stating that prosecutors must be resistant to improper defense strategies and seek remedies through the trial court rather than adopting unfair procedures themselves. The court determined the misconduct was sufficiently aggravating and persistent to have a probable cumulative prejudicial effect on the jury that could not be overlooked, regardless of the strength of the underlying evidence.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Validity of prescriptions obtained through undercover investigation for Food, Drug and Cosmetic Act enforcement
Whether unauthorized refill liability requires genuine physician-patient relationship
Prosecutorial misconduct and its prejudicial effect despite overwhelming evidence of guilt
Consistency of jury verdicts acquitting individuals while convicting the corporation

Procedural posture

Appeal from a jury conviction of a corporation on ten counts of Food, Drug and Cosmetic Act violations, with acquittals of the president and most employees and a guilty plea from one employee.

Authorities cited

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Opinion · public domain

majority opinion

BREITENSTEIN, Circuit Judge.

Appellant Dugan Drug Stores, Inc., along with its president and four employees, was charged in a 10-count information with violations of the Food, Drug and Cosmetic Act by refilling prescriptions for a potentially harmful drug without authorization by the prescribing physician. A jury trial resulted in the acquittal of the president and all employees except one who plead guilty, and the conviction of the company on all counts.

The first claim is that the information is defective and the proof insufficient because the prescriptions were not bona fide prescriptions issued by a doctor in the course of treatment of a patient but instead were obtained by federal agents for the purpose of investigating the defendants. The record shows no physician-patient relationship in the issuance of the prescriptions.

The validity of the original prescriptions is not material. The charge is that the prescriptions required authorization for a refill and were refilled without such authorization. The government has proceeded against the dispensers rather than the prescribers. The prescriptions were valid on their faces. Authorization for a refill would have been a complete defense. Cases relating to the liability of doctors are not in point. The effect of the appellant’s argument is that the government would be precluded from investigations such as were made unless it had some unhealthy agents in need of the prescribed drugs. The record shows that the agents did no more than present an opportunity for the violation of the Act by the sale of a prescribed drug without the necessary refill authorization. The issue relates to the unauthorized refill — not to the existence of any physician-patient relationship. The information is sufficient and the evidence is ample to sustain the conviction.

Inconsistency in the verdicts is claimed because the jury acquitted the individuals and convicted the company. This has no bearing on the counts to which one of the individuals plead guilty. In any event the rule is that consistency in verdicts is not necessary.

Appellant urges that the trial court erred in overruling various objections and in not granting various motions for mistrial based on the improper conduct of the prosecuting attorney. Without detailing the charges of misconduct, it is enough to say that they relate to the accosting of witnesses, implied threats to witnesses, remarks in the presence of the jury relating to matters which oceurred out of the presence of the jury, prejudicial statements in colloquies between counsel and between court and counsel, and improper closing argument which went outside the record and made groundless charges and unreasonable inferences. The justification of the conduct is that it was instigated by defense tactics and that it was not prejudicial because the evidence of guilt is overwhelming.

It should be unnecessary to say again that in a criminal prosecution a United States attorney has a double burden — the obligation to conduct the government’s case zealously and the obligation to try that case fairly and with due regard to the rights of the accused. In the case at bar zeal overcame fairness.

We are not impressed with the argument that the conduct of the prosecutor was caused by the conduct of defense counsel. A prosecutor should be immune to improper tactics. If he feels that his opponent has overstepped, the remedy is an appeal to the trial court — not in the adoption of unfair procedures. The sufficiency of the evidence to establish guilt does not cure the misconduct. It was aggravated and persistent with such a probable cumulative effect on the jury that it may not be disregarded as unpre judicial.

This disposition of the case makes it unnecessary to consider the other assigned errors.

Reversed and remanded for a new trial.

. 21 U.S.C. §§ 301-392.

. 21 U.S.C. § 353(b) (1) (B). Such acts are a misbranding within the meaning of 21 U.S.C. § 331 (k).

. E. g., Webb v. United States, 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497; De Freese v. United States, 5 Cir., 270 F.2d 730, certiorari denied 362 U.S. 944, 80 S.Ct. 810, 4 L.Ed.2d 772; Brown v. United States, 5 Cir., 250 F.2d 745, certiorari denied 356 U.S. 938, 78 S.Ct. 779, 2 L.Ed.2d 812; Nigro v. United States, 8 Cir., 117 F.2d 624.

. Dunn v. United States, 284 U.S. 390, 393-394, 52 S.Ct. 189. 76 L.Ed. 356: see also United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48.

. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314; Dunn v. United States, 5 Cir., 307 F.2d 883, 885-886; Handford v. United States, 5 Cir., 249 F.2d 295, 296.

. See Berger v. United States, supra, 295 U.S. p. 89, 55 S.Ct. p. 633, 79 L.Ed. 1314.