The opinion of the court was delivered by: CLARY
Defendants, Eric R. Clarke, M.D., and Horace R. Johnson, M.D., were indicted as of the above captioned number in a true bill returned on February 6, 1963. The indictment was laid in six Counts, charging both defendants, in Count 1, with conspiracy to violate the Narcotic Laws of the United States, Title 18 U.S.C. § 371.
Defendant, Clarke, was charged in Counts 2, 4, 5 and 6 with various unlawful sales of cocaine and dolophine tablets on March 15, 22, April 4 and 11, 1962.
Defendant, Johnson, was charged in Count 3 with the sale of cocaine on March 15, and in Counts 4 and 6 with sales of dolophine pills and cocaine on March 22 and April 11, 1962, which sales were not pursuant to a written order of the Secretary of the Treasury, and not in the course of professional practice of said defendants, and not for legitimate medical needs, all in violation of Title 26 U.S.C. § 4705(a). Both defendants were arraigned and pleaded not guilty.
History of the Litigation
The first trial of this case before the Honorable C. William Kraft, Jr. and a jury started on April 22, 1963, continued through the 23rd, 24th, 25th and 26th, and the jury returned its verdict against both defendants of guilty as charged in the indictment, on April 29, 1963. After consideration of motions for judgment of acquittal and for a new trial, Judge Kraft, in an Opinion filed August 2, 1963, denied the motion for judgment of acquittal but granted a new trial as to both defendants, United States v. Clarke and Johnson, D.C.E.D.Pa., 220 F.Supp. 905. The fundamental reason for granting a new trial assigned by Judge Kraft in his Opinion, was that in fairness to the defendants, the 'informer' or 'special employee' of the Treasury Department should have been produced, particularly in view of their defense of entrapment. The case was set for trial in September of 1963 and was tried to a jury on September 10, 11 and 12, on which date, because of testimony by one of the Treasury Agents that the defendants had been under surveillance for approximately a year, Judge Kraft, on motion of defendants' counsel, withdrew a juror.
Trial No. 3 started on November 22, 1963, the date of the assassination of President John F. Kennedy. Only a relatively few pages of testimony had been taken when the Court recessed for lunch. When word was received of the President's assassination, the Court adjourned the afternoon session, and because of President Johnson's Proclamation of a National Day of Mourning on November 25, 1963, the trial did not resume until Tuesday, November 26, 1963. The trial continued through Wednesday, November 27, when the testimony was concluded and the Court recessed for Thanksgiving Day. The speeches and Charge of the Court were given on Friday, November 29, 1963 when the jury again returned a verdict finding Doctor Clarke guilty on Counts 1, 2, 4, 5 and 6, as charged in the indictment, and Doctor Johnson guilty on Counts 1, 3, 4 and 6, as charged in the indictment.
Both defendants filed identical motions for new trials and for judgments of acquittal. The reasons assigned in each are as follows:
'1. The verdict is contrary to the evidence.
'2. The verdict is against the weight of the evidence.
'3. The verdict is contrary to law.
'4. The trial court erred in refusing to withdraw a juror after a Government witness testified to prior misconduct on the part of the defendant Clarke which testimony was stricken by the Court at the time.
'5. The trial court erred in refusing to withdraw a juror notwithstanding the disruption of the continuity of the trial by the Assassination of the President of the United States and its attending circumstances.
'6. The trial court erred in its instructions to the jury on the definition of the term 'sale'.'
The first three need little discussion at this point in the Opinion. They will be covered in detail in discussion of the motions for judgments of acquittal. They are utterly without merit as will be later demonstrated.
The fourth reason that the trial Court erred in refusing to withdraw a juror after a Government witness testified to possible prior misconduct on the part of the defendant Clarke which testimony was stricken by the Court at the time, does merit some discussion. This was the third trial of a serious case. The Court was extremely sensitive to the implications which might arise from any improper or volunteered information in the light of occurrences at the previous trial, which had resulted in a mistrial. The occurrence complained of is stated at page 82 of the Notes of Testimony as follows:
'Q. In driving Dr. Clarke was there any conversation during that drive home?
'A. I am not sure whether the conversation was in the car or back at the office, but there was other conversation where Dr. Clarke told me that he furnished a considerable amount of cocaine to a fellow in New York City.
'Mr. Reiter: I withdraw that question.
'Mr. Carroll: I move for the withdrawal of a juror.
'Mr. Nix: I join in that on behalf of Dr. Johnson.
'Q. Was there any conversation concerning a future meeting?
'A. Yes. Dr. Clarke told me to get in touch with him the following week and that he would have an ounce of cocaine and 2,000 Dolophine tablets.'
The jury had earlier been instructed with respect to certain conversations that they could only accept evidence of the conversations against the individuals involved. On the happening of the foregoing situation, the Court, promptly and in no uncertain tone, instructed the jury to disregard the objectionable evidence. Bearing in mind that the defendants' interests must at all times be protected, the Court, at the time of the instruction to the jury to disregard the testimony, looked directly at the jury to determine the effect of the prompt and direct instruction. It was heartening to the Court to see all of the jurors, including the alternates in the box, nod unanimous assent to the instruction of the Court.
At this juncture of the case, it is only the trial Judge who can determine the effect on the jury of prompt and direct instruction. It was the considered judgment of the Court that the jury had understood the instruction, had accepted it, and that they thereafter did not consider the stricken testimony in further deliberation of the case. As was stated in Delli Paoli v. United States, 352 U.S. 232, 242, 77 S. Ct. 294, 1 L. Ed. 2d 278:
'It is a basic premise of our jury system that the court states the law to the jury and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court's instructions, our system of jury ...