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|The Traffic in Narcotics by Harry Anslinger|
H. J. ANSLINGER
United States Commissioner of Narcotics
WILLIAM F. TOMPKINS
United States Attorney for the District of New Jersey Former Chairman, Legislative Commission to Study Narcotics, General Assembly of New Jersey
THE BUREAU OF NARCOTICS, ESTABLISHED IN THE UNITED STATES Treasury Department in 1930, is the Federal agency charged with the duty of regulating, supervising, and controlling the trade in narcotic drugs and marihuana, under the several applicable Federal laws. It serves as the special administration which the United States was obligated to create for this purpose under Article 15 of the Narcotics Limitation Convention of 1931.
Narcotic drugs include opium and the various derivatives thereof, such as morphine, heroin and codeine; coca leaves, and their derivatives, such as cocaine; isonipecaine (Demerol); and any other drug found by the Secretary of the Treasury to have addiction qualities similar to those of morphine or cocaine and so proclaimed by the President.
The term marihuana means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
It will be noted that the barbiturates (principal component of the well-known sleeping pills), or other drugs of somnifacient nature such as chloral and paraldehyde, are not included. While
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it is recognized that the barbiturates are subject to much abusive use, there are different aspects to the problem of control which should be met by legislation of a nature and scope different from and independent of the legislation controlling narcotic drugs and marihuana. It must be borne in mind that narcotic drugs and marihuana are subject not only to national control measures but also to an interrelative system of international control under the various conventions and protocols.
The three principal Federal statutes controlling the substances under discussion are the Harrison Narcotic Law, as amended, now incorporated in the Internal Revenue Code, the Marihuana Tax Act, as amended, also incorporated in the Internal Revenue Code, and the Act of May 26th 1922, as amended, known as the Narcotic Drugs Import and Export Act.
HARRISON NARCOTIC ACT
This Act as re-enacted in the Internal Revenue Code requires registration with the Director of Internal Revenue and the payment of a graduated occupational tax by all persons who import, manufacture, produce, compound, sell, deal in, dispense, or give away, narcotic drugs. The special tax for importers, manufacturers, producers or compounders is $24 per annum; for wholesale dealers $12 per annum; for retail dealers $3 per annum; and physicians, dentists, veterinary surgeons and other practitioners, as well as persons engaged in research, instruction or analysis are required to pay $1 per annum.
A commodity tax at the rate of 10 per ounce or fraction thereof is imposed upon narcotic drugs produced in or imported into the United States and sold, or removed for consumption or sale. This tax, it might be added, is in addition to any import duty imposed on the drugs. Exempted from certain restrictions of this Act is the manufacture, sale, distribution, giving away, dispensing or possession of preparations and remedies not containing more than 2 grains of opium, more than 1/4 of a grain of morphine, or more than 1/8 of a grain of heroin, or more than 1 grain of codeine or any salt or derivative of any of them in 1 fluid ounce or, if a solid or semi-solid preparation, in 1 avoirdupois ounce, or to
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liniments, ointments or other preparations which are prepared for external use only, provided however that there is no intent to use these remedies for the purposes of evading the Act and provided further that a record of their use is kept for two years and is readily accessible to inspection by an officer, agent or an employee of the Treasury Department.
Sales or transfers of narcotic drugs are limited generally to those made pursuant to official order forms obtainable, in blank, by registrants, from the Director of Internal Revenue. Exception from the order form requirement is made in favor of dispensing to a patient by a qualified practitioner in the course of his professional practice only, provided however, that such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed. The record must include the amount dispensed, the date, the name and address of the patient to whom the drugs are dispensed except in cases where the drugs are dispensed by the physician in the course of personal attendance. Another important exception from the requirement of the Act is found in the case of a sale by a druggist to or for a patient, pursuant to a lawful written prescription issued by a qualified physician, dentist, or veterinary surgeon. Penalties are provided for violation of the Act and the Secretary of the Treasury is given the power to make, prescribe, and publish all the needed rules and regulations for carrying the provisions of this Act into effect. This Act is designed to direct the manufacture and distribution of narcotic drugs through medical channels to consumption use for medical or scientific purposes only.
MARIHUANA TAX ACT
In enacting this Act Congress bad definite goals in mind; first of all, to make it extremely difficult for marihuana to be acquired by persons who might desire to use it illicitly, and secondly, to develop an adequate means of publicizing dealings in marihuana in order to tax and control the traffic effectively. In accordance with these avowed purposes the Act requires registration with the Director of Internal Revenue in the district wherein the business is situated and the payment of a graduated occupational
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tax up to $24 upon all persons who import, manufacture, produce, compound, sell, deal in, dispense, prescribe, administer or give away marihuana. No commodity tax is imposed on this drug. A tax is imposed, however, upon all transfers of this drug at the rate of $1 per ounce or fraction thereof, if the transfer is made to a tax-payer who has previously paid the special tax and is registered under the Act, or, at the rate of $100 per ounce if the transfer is made to a person who has not paid the special tax and registered under the Act. Transfers also are limited generally to those made pursuant to official order forms obtainable from the Director of Internal Revenue. Furthermore, if a transfer is made without an official order form and without payment of the tax by the transferee, the transferor is liable for such tax as may be due. Exception from the order form and transfer tax requirement is made in favor of dispensing to a patient by a qualified practitioner in the course of his professional practice only, and in favor of a sale by a druggist to or for a patient, pursuant to a lawful written prescription issued by a qualified practitioner. In view of the fact that marihuana has been deleted from most pharmacopoeias the last exception is today academic.
In upholding the constitutionality of the Act the United States Supreme Court, in the case of U.S. v. Sanchez [340 U.S. 42] pointed out that its regulatory effect and its close resemblance to a penalty were not sufficient to invalidate the Act; that a tax is not invalid because it regulates, discourages, or even definitely deters the activities taxed, even though the revenue obtained is obviously negligible, or the revenue purpose of the tax is secondary, since an Act purporting to be an exercise of tax power is not any the less so because it tends to restrict or suppress the thing taxed. Additionally, said the court, it is not invalid because it touches on activities on which Congress might not otherwise legislate.
NARCOTIC DRUGS IMPORT AND EXPORT ACT
This Act authorizes the importation only of such quantities of opium and coca leaves as the Commissioner of Narcotics shall find to be necessary to provide for medical and scientific needs
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under such regulations as the Commissioner shall prescribe. importation of any form of narcotic drugs except such limited quantities of crude opium and coca leaves for medical and scientific uses is prohibited. The importation of smoking opium or of opium prepared for smoking is specifically prohibited, and possession of such opium is made prima facie evidence of an offense. The aim of this latter section is to stamp out the use of narcotics in this country except for legitimate medical purposes. While numerous attacks have been made on the validity of this section, the courts have held that under the power accorded it by the Constitution Congress had the power to regulate foreign commerce to create the presumption contained therein. The act also permits exportation of manufactured drugs and preparations under a rigid system of control, designed to assure their use for medical needs only in the country of destination.
The three principal Federal statutes controlling these dangerous substances have been supplemented by other legislative measures designed to control further possible sources of supply and to facilitate the task of enforcement.
By an Act of Congress approved January 17, 1914, a tax of $300.00 per pound was levied upon all opium manufactured in the United States for smoking purposes, and certain stringent conditions were imposed with respect to such manufacture. The purpose, of course, was to make such manufacture prohibitive, and the Act was held constitutional though the tax was so high as to be prohibitive of the traffic. Since, as previously indicated, no opium can lawfully be imported for the purpose of manufacturing smoking opium, and the product can not be lawfully sold, it is legally impracticable for one to seek to operate as a manufacturer under this Act, even if undeterred by the prohibitive conditions explained. The Act affords an additional prosecutive basis, however, where clandestine manufacture of smoking opium can be established by evidence.
Under an Act of Congress approved August 9, 1939, as amended August 9, 1950, it was made unlawful to transport,
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carry, or convey any contraband narcotic drug in, upon or by means of any vessel, vehicle or aircraft; to conceal or possess any such drug in or upon such vessel, vehicle or aircraft or upon the person of any one in or upon such vessel, vehicle or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange or giving away of any contraband narcotic drug. The definition of the term contraband article as it relates to narcotic drugs (including for the purposes of this Act marihuana) is extensively stated in the statutes, but it may be briefly, if necessarily not wholly accurately, summarized as any narcotic drug which has been or is possessed with intent to sell in violation of law or which has been acquired or is possessed, sold,* transferred or transported in violation of law. Any vessel, vehicle or aircraft so unlawfully used may be seized and forfeited. An appreciable number of vehicles are seized under the Act by the Bureau of Narcotics, and forfeited to the United States. After forfeiture some of these vehicles, as authorized by law, are used in enforcement work in the investigation, detection and arrest of other violators. Thus an important facility for illicit narcotic peddling is taken from the violator and becomes a facility on the side of law enforcement for detecting and eliminating other violators.
By a special Statute approved July 3, 1930, the Commissioner of Narcotics is authorized and empowered to pay to any person from funds appropriated for the enforcement of the Federal narcotic laws of the United States, for information concerning a violation of any narcotic law resulting in a seizure of contraband narcotics, such sum as he may deem appropriate.
The Act of Congress approved January 19, 1929, provided for the establishment of two Public Health Service hospitals, later erected at Lexington, Kentucky, and Fort Worth, Texas, respectively. These hospitals, under the administration of the U. S. Public Health Service, were dedicated to the treatment and cure of narcotic drug addicts convicted of offenses against the United States, and narcotic drug addicts who voluntarily submit themselves
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for treatment. The original Act provided, and a superseding Statute still provides, that the Surgeon General (of the Public Health Service) shall cooperate with the States for the purpose of aiding them to solve their narcotic drug problems and shall give authorized representatives of the States the benefit of his experience in the care, treatment and rehabilitation of narcotic addicts to the end that each State may be encouraged to provide adequate facilities and methods for the care and treatment of its narcotic addicts. It is important to note that any of those men or women who have become addicted to narcotic drugs as defined by Federal law are eligible for admission. According to the Federal statute an addict is a person who uses narcotic habit-forming drugs to the point that he has become dependent upon them. This dependence may jeopardize his general health and welfare, and the individual has lost his self control as far as the drug is concerned. The habit-forming narcotic drugs are opium and its derivatives; isonipecaine and its derivatives, compounds, and preparations; the opiates; cocaine; and marihuana. It is important to note that persons addicted to the barbiturates or alcohol are not eligible for treatment at the hospital unless they are also habitual users of one of the drugs cited above.
REGISTRATION OF PHYSICIANS AND DRUGGISTS
A physician who intends to practice medicine and to administer or dispense narcotic drugs in the course of such practice must apply for registration under the Harrison Law with the Director of Internal Revenue of the district in which he proposes to practice, and must pay the appropriate occupational tax for the fiscal year applicable. Before being entitled to such registration, however, he must be lawfully entitled under the laws of the State or Territory or district wherein he intends to practice, to distribute, dispense, give away, or administer narcotic drugs to patients upon whom he, in the course of his professional practice is in attendance [26 U.S.C. 3220]. In the case of a medical practitioner, this requirement usually means that the applicant is a physician who holds an unrevoked and unrestricted license to practice medicine in the particular State, Territory, or district.
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To be entitled to registration, however, in the case of any type of practitioner of the healing art, it must appear that he is entitled under the State laws to distribute, administer, or dispense narcotic drugs to patients whom he is professionally attending.
The right to register and pay tax under the Federal statute depends on the right to dispense under the State laws.*
The provisions of the law are substantially the same for a druggist. A druggist who intends to sell and deal in narcotic drugs must apply for registration under the Harrison Act with the Director of Internal Revenue of the district wherein his business is located, and must pay the required occupational tax. Furthermore, be must be licensed under the State laws in order to register and pay tax under the Federal statute.
Every person making application for registry or re-registry as a physician or druggist shall, as of December 31 preceding the date of his application, or any date between December 31 and the date of applying for such registry or re-registry, prepare in duplicate an inventory of all narcotic drugs and preparations on hand at the time of making such inventory. The inventory shall be prepared on the reverse side of Form 678, copies of which may be obtained from Directors of Internal Revenue upon request. The original inventory shall be forwarded to the Director with the application for registration, and the duplicate shall be kept on file by the maker for a period of two years.
Upon approval of the application for registration the Director of Internal Revenue will assign a registry number to the applicant and will issue him a special tax stamp in Class IV as a practitioner, or in Class III as a druggist. This special tax stamp must be kept posted conspicuously on the premises covered by the registration, i.e. the physician's office or the drug store.
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CHANGE OF ADDRESS
A physician registrant who changes the location of his office shall, within 30 days, execute a new return on Form 678, marking it "Revised Registry." The return shall set forth the date of change and the new address. The return shall be forwarded with the special tax stamp to the Director who issued the stamp for recording the change. If the removal is to another State, Territory or district, the physician must, of course, be qualified in the new location to administer, dispense or distribute narcotic drugs to patients, which usually means that be must also be licensed to practice medicine in the new location.
ORDER FORMS AND INSPECTION
A physician may obtain narcotic drugs for direct dispensing or administration to patients only on official order forms. He may not obtain narcotic drugs on a prescription for general office use. Official order forms in triplicate are obtainable from the Director of Internal Revenue in a book of ten for ten cents. The form is to be prepared in triplicate and signed by the physician, the original and triplicate copy being forwarded to a qualified manufacturer or wholesaler, and the duplicate retained by the physician for a period of two years subject to inspection by a duly authorized Federal or State narcotic officer. The order form may be prepared in typewriting, ink or indelible pencil, but not by the use of an ordinary lead pencil.
A prescription for narcotic drugs may be issued only by a duly registered physician for a bona-fide patient for medical purposes only, which prescription may be filled by a qualified druggist.
A prescription, in order to be effective in legalizing the possession of unstamped narcotic drugs and eliminating the necessity for use of order forms, must be issued for legitimate medical purposes. The responsibility for the proper prescribing and dispensing
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of narcotic drugs is upon the practitioner, but a corresponding liability rests with the druggist who fills the prescription. An order purporting to be a prescription issued to an addict or habitual user of narcotics, not in the course of professional treatment but for the purpose of providing the user with narcotics sufficient to keep him comfortable by maintaining his customary use, is not a prescription within the meaning and intent of the act; and the person filling such an order, as well as the person issuing it, may be, charged with violation of the law.
A prescription for narcotic drugs shall be dated as of and signed on the date when issued and shall bear the full name and address of the patient and the name, address and registry number of the practitioner. A physician may sign a prescription in the same manner as be would sign a check or legal document, as, for instance, John H. Smith, J. H. Smith, or John Henry Smith. Prescriptions should be written with ink or indelible pencil or typewriter; if typewritten, they shall be signed by the practitioner. The refilling of a prescription for taxable narcotic drugs is prohibited. The practitioner is responsible in case the prescription does not conform in all essential respects to the law, and regulations. However, a corresponding liability rests upon the druggist who fills a prescription not prepared in the form required by law.
When the names of fictitious patients are discovered on narcotic drug prescriptions filed with a druggist it is usually a clear indication of wilful catering to drug addiction, whether or not the so-called prescriptions are also discovered to be forged. Sometimes the physician will insert a fictitious patient's name, however, because be wishes to conceal from the druggist the fact that the real patient is consuming drugs, notwithstanding that the real patient is claimed to have a bona fide medical need therefor. The law does not permit the use of a fictitious name upon a prescription.
The furnishing of narcotic drugs pursuant to telephone advice of practitioners is prohibited, whether prescriptions covering such orders are subsequently received or not, except that in an
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emergency a druggist may deliver narcotic drugs through his employee or responsible agent pursuant to a telephone order, provided the employee or agent is supplied with a properly prepared prescription before delivery is made, which prescription shall be turned over to the druggist and filed by him as required by law.
A physician's prescription blanks should be most carefully safeguarded and never left where persons who may be drug addicts will have opportunity to take them, and to prepare and have filled forged narcotic prescriptions. A physician's official order forms should be likewise safeguarded, and great care should be exercised by the physician in keeping his stock of narcotic drugs secure from robbery or pilfering. The medicine case containing narcotic drugs should never be left in an unattended automobile.
The Uniform State Narcotic Law differs from the Federal Law in some respects-for instance, it requires manufacturers of and wholesale dealers in narcotic drugs to obtain a license from the appropriate State agencies and prescribes certain qualifications for these licensees and it directly and specifically penalizes the forgery or alteration of a narcotic prescription. In so far as the professional use of narcotic drugs is concerned, however, the statutory standard is practically the same as that provided by the Federal Narcotic Law. Whereas Section 2554 of the Internal Revenue Code requires no record to be kept where the doctor is in personal attendance, Section 9 of the Uniform Narcotic Drug Act requires no record where the narcotic drugs are administered, dispensed or professionally used in the treatment of any one patient when the amount administered does not exceed 1/2 of a grain in forty-eight consecutive hours 4 grains of opium or 1/2 of morphine, or any of its salts, or 2 grains of codeine, or any of its salts, or a quantity of any other narcotic drug, or any combination of narcotic drugs that does not exceed in pharmacologic potency any one of the drugs named in the quantity stated.
It is important to note, however, that some States, such as New Jersey, North Carolina, Iowa, and the District of Columbia, and others require a record to be kept of all drugs administered and
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dispensed, regardless of amount. Thus under the Uniform Act a physician in good faith and in the course of his professional practice only is permitted to prescribe and administer narcotic drugs, or may cause the same to be administered by a nurse or interne under his direction and supervision. Under the same Act a druggist in good faith may sell and dispense narcotic drugs to any person upon a written prescription of a physician.
It is also important to note that under the Harrison Act preparations containing not more than 2 grains of opium, or more than 9 of a grain of morphine, or more than 1/8 of a grain of heroin, or more than 1 grain of codeine, or any salt or derivative of any of them in 1 fluid ounce, or if a solid or semi-solid preparation in 1 avoirdupois ounce, are exempt preparations. The original Uniform Narcotic Drug Act made these same preparations exempt, but the States of Colorado, Vermont, Wisconsin, Kentucky, Louisiana, New Jersey, North Dakota, Oregon, Montana, Iowa, South Dakota, Minnesota, and the Territory of Alaska have changed these exemptions to apply only to preparations that contain in 1 fluid ounce, or if a solid or semi-solid preparation in 1 avoirdupois ounce, not more than 1 grain of codeine or any of its salts. The main effect of this change in the law was to put paregoric under prescription.
There is no limitation on the quantity of narcotics externally used preparations may contain, provided such preparations contain other ingredients rendering them unfit for internal use. Preparations containing cocaine or pantopon in any quantity, whether for internal or external administration, are never exempt, nor are preparations containing any of the synthetic narcotic drugs.
A recent State civil suit in Massachusetts* against a physician for malpractice arising out of the improper prescribing of narcotic drugs disclosed that the plaintiff was suffering from nausea, but without pain, and that the defendant doctor without any physical examination or without any complaint of pain by her or questions as to her medical history, gave her increasing hypodermic injections of morphine. These injections continued with
* King v. Solomon 81 N.E. 2d 838.
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increasing frequency until ultimately she was receiving them three or more times a day. The doctor was discharged from the case and the plaintiff experienced a complete black-out and was admitted to the hospital suffering from morphine addiction "one-quarter of the way along to confirmed addiction." Subsequently plaintiff was found to be suffering from gall bladder trouble and had her gall bladder removed and after the operation the nausea ceased. Medical testimony at the trial disclosed that the nausea was caused by the gall bladder trouble; that it was possible to have gall bladder trouble with nausea and without pain; that gall stones do not arrive suddenly; that it was improper medical practice to administer morphine to a patient who complained of nausea but not of pain, or over a period of time where there was no pain involved; and that it was not proper to continue giving morphine in the absence of a diagnosis of a condition that could not be cured. The jury found in favor of the plaintiff. One of the defenses by the defendant physician was the section of the Massachusetts law which says
A physician may personally administer any narcotic drug at such time and under such circumstances as be, in good faith and in the legitimate practice of medicine, believes to be necessary for the alleviation of pain and suffering and for the treatment and relief of pain.
The Court, however, held that this section was intended, when complied with by the physician, to exempt him from the penal provisions pertaining to the sale and distribution of narcotic drugs and that it was not intended to relieve him from civil liabilities applicable generally to physicians. Said the Court,
The decision rests upon evidence of improper and non-professional conduct on the parts of the defendant leading to addiction in the plaintiff, Eva King. Nothing contained herein need cause anxiety to an honest physician who administers narcotics to a patient in accordance with the prevailing standards of practice.
It is important to note in the facts that the defendant physician prescribed narcotics without any physical examination or questions as to medical history. Recent investigations have disclosed that many physicians have prescribed narcotics to patients with
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out any physical examination and mainly on the representations of the patient. It would thus unquestionably follow that the lack of a physical examination would have a strong bearing on the question of the good faith of the physician.
There has not been too extensive litigation on this question of a physician's civil liability with regard to the administration of narcotic drugs. However, one thing does seem clear and that is that a physician who prescribes narcotics solely on a representation of a patient and without any attempt to secure the facts of the past history or examine the patient is certainly exposing himself within the scope of the aforementioned decision, depending, of course, on the facts of the case. From an evidential angle, unless a serious illness requiring narcotic drugs could be proven, prescriptions issued with increasing frequency by a doctor might certainly tend to inculpate the doctor in a violation of the penal provisions of the law or a possible civil liability, based on malpractice, or both. At any rate, it would certainly be wise for all physicians to treat this subject of administering or prescribing narcotic drugs with unusual care. As an example of the types of violations which have been found and which are fairly common are the following:
1. Prescribing without seeing the patient.
2. Administering to a known addict.
3. Administering and prescribing to a known addict and giving prescriptions in advance.
4. Prescribing solely on the unsubstantiated history of an illness given by the patient.
5. Prescribing without a physical examination.
INDISPENSABLE USE-CHECK POINTS
In the instruction* to a series of articles printed in The Journal of the American Medical Association in 1931 on the Indispensable Use of Narcotic Drugs, Dr. Morris Fishbein has presented to the medical profession some excellent suggestions dealing with the general professional use of narcotic drugs. If all physicians would accept and conscientiously follow these suggestions,
*Various authors; "The Indispensable Use of Narcotic Drugs," 96:856, 1931.
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which are quoted below, irregularities in prescribing and dispensing of narcotic drugs by physicians would be reduced to a minimum.
The problem of narcotic addiction merits the attention of physicians for many reasons. . . . the medical profession must do everything possible to minimize the prescribing of narcotics in order to make unnecessary further restrictive measures. Physicians should give more serious consideration to the materia medica, pharmacology, and therapeutics of narcotics.
Physicians may, by the exercise of more thought in practicing, do much to avoid censure in relation to narcotic addiction. They may substitute, whenever possible, non-habit-forming drugs in the place of morphine or other opium alkaloids. When narcotics are indispensable, however, as shown in this series of articles, no more should be administered than is necessary to achieve the desired end. Patients requiring daily administration should be seen often by the doctor and the amount of drugs ordered or supplied should not exceed that required by the patient until seen again. Independence of administration on the part of nurses should be strictly limited to prescription and any change in treatment should be in writing.
In conclusion, a physician could avoid the pitfalls attendant to criminal and civil liability if the following fundamental rules were observed:
1. Secure a complete history of the ailment.
2. Make a complete and thorough physical examination in every case.
3. Ascertain whether the illness requires narcotics and good medical practice demands their prescription.
4. Use non-habit-forming drugs instead of opiates wherever possible.
5. Beware of strangers and itinerant patients who suggest, their need for drugs.
6. Remember always that improper and prolonged dosages can cause an individual to become an addict.
7. Don't write a prescription for office use. That supply should be secured on a drug order form.
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RESPONSIBILITY OF THE DRUGGIST
As has been said many times, narcotics can be either a blessing or a Curse. In order to prevent indiscriminate trafficking and other abuses, the prescribing, selling, and dispensing of these drugs to the consumer have been vested, by law, in doctors and druggists. They, therefore, have the obligation to discharge this public trust in a manner which is above reproach and the only way that can be done is by observing a high moral standard and by obeying the letter of the law to its fullest extent.
Druggists should consider the following suggestions:
1. Refuse to compound an improperly prepared prescription.
2. Make no delivery of a telephone prescription without receiving a properly prepared prescription before delivery of the narcotic is made.
3. Never sell a narcotic drug except upon prescription.
4. Remember that narcotic prescriptions may not be refilled.
5. Be familiar with the quantities a customer is using; exorbitant quantities over a long period should warrant close scrutiny.
A druggist cannot lawfully fill a prescription for narcotics if he knows or has reason to know that it was not issued in good faith. However, a druggist is under no affirmative duty to inquire into the lawfulness of a prescription for a narcotic drug before filling it if he has no knowledge of its illegality.* Without knowledge there can be no guilt and knowledge consists of either direct proof or what may be inferred from the circumstances. It should be noted, however, that a negligent failure to inquire is no substitute for knowledge.
As in the case of doctors, quantities of narcotics sold also bear on the good faith of the pharmacist. Evidence that a store dispensed six hundred times as much morphine annually as an average store, much of it to addicts, has been held sufficient to be a jury question on the issue of making sales on prescriptions which the druggist should have known were not issued in good faith. **
* Doremus v. U.S. 262 Fed. 849.
** Montgomery v. U.S. 290 Fed. 961.
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CONSTITUTIONALITY OF THE HARRISON NARCOTIC ACT
The constitutional validity of the Harrison Narcotic Act was challenged in the courts not long after its enactment. A physician in Texas had been indicted for violating the law in that he made sales of 500 one-sixth grain tablets of heroin to a person described as a drug addict, not in the course of professional practice. The claim was made that the statute was unconstitutional because it was not actually a revenue measure and was an invasion of the police power reserved to the states. The United States Supreme Court, in 1919, rejected this claim and held that the statute was constitutional as a revenue measure, and that it could not be declared unconstitutional because its effect might be to accomplish another purpose as well as the raising of revenue. In the same year, the Supreme Court held in another case that an order for morphine issued by a physician to an habitual user merely to keep him comfortable by maintaining his customary use was not a physician's "prescription" as that term was used in the Harrison Act. In a third case, decided in 1920, the Supreme Court very clearly stated the nature of the responsibility of the physician and the druggist under the applicable section of this law, as follows:
Manifestly the phrases "to a patient" and "in the course of his professional practice only" are intended to confine the immunity of a registered physician, in dispensing the narcotic drugs mentioned in the Act, strictly within the appropriate bounds of a physician's professional practice, and not to extend it to include a sale to a dealer or a distribution intended to cater to the appetite or satisfy the craving of one addicted to the use of the drug. A "prescription" issued for either of the latter purposes protects neither the physician who issues it nor the dealer who knowingly accepts and fills it.
In the meantime, non-registered drug peddlers whose principal source of supply was smuggled and therefore contraband narcotics, were being prosecuted and convicted principally under two sections of the law which prohibited respectively the purchase or sale of narcotics except in or from the original tax
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stamped package and the sale of narcotics except pursuant to an official order form. In 1927 a convicted unregistered purchaser of narcotics challenged the constitutionality of the tax-stamped package provision and in 1928 a convicted peddler challenged the constitutionality of the official order form provision of the Act. The Supreme Court upheld the constitutional validity of both sections and affirmed the judgments of conviction.
By 1928, therefore, it was authoritatively settled that under the Harrison Act, narcotics could not be sold or transferred for the purpose of gratification and spread of drug addiction, whether the sale or transfer was made by a drug peddler, or by a physician or druggist under color of professional practice. In 1943, however, the Supreme Court had occasion to pass upon the question of the responsibility of a manufacturer and wholesale dealer who sold narcotics to a registered physician on official order forms, but with knowledge that the physician was distributing narcotics illegally. A drug manufacturer in Buffalo, New York, had been convicted of conspiracy with a South Carolina physician and three other persons, to violate the Harrison Act, in that the manufacturer sold quantities of narcotics to the physician on the latter's official order forms knowing of illegal narcotic sales by the physician. The manufacturer's argument to secure reversal of the judgment of conviction was, in substance, that the sales made by him were legal because made pursuant only to official order forms, even though accompanied by knowledge that the physician was distributing narcotics illegally. The Supreme Court rejected this contention and sustained the judgment of conviction, pointing out that there was a significant difference between sales of articles of free commerce and articles necessarily restricted, like narcotics, because of inherent susceptibility to harmful and illegal use.
CONTROL AT SOURCE OF SUPPLY
It is important to note that the Federal Bureau of Narcotics has no authority to revoke a physician's license since that power is solely vested in the Licensing Boards of the various States and as long as the physician is licensed he may continue to purchase narcotics. However, the Bureau is not completely powerless to
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prevent a physician who is misusing narcotic drugs from obtaining them even though they may not revoke his license. The case of Ratigan vs. Commissioner of Narcotics is authority for the proposition that the Bureau of Narcotics may properly request registered drug manufacturers and dealers to refrain from filling narcotic orders for a particular physician.
In January, 1932, Dr. Thomas P. Ratigan, Jr., of Seattle, Washington, was reported by agents of the Bureau of Narcotics for serious violations of the Federal narcotic law. The report was based on sales of morphine by means of hypodermic injection to numbers of drug addicts merely to gratify the habit. He was indicted for these offenses on May 4, 1934, but after a trial before a jury, was found not guilty on October 13, 1934.
After his acquittal, Dr. Ratigan not only continued but increased his sales of morphine by hypodermic injection to drug addicts. Investigating officers observed, on one day, that some seventy-five drug addicts visited Dr. Ratigan's office to purchase injections of morphine. For the period of time from January 1, 1932 to September 19, 1936, Dr. Ratigan purchased from drug firms the enormous total of 445,980 one-half grain morphine tablets to supply his illicit trade. By actual computation, Dr. Ratigan purchased and sold, during a period of one and one-half years, about four and one-half times the total amount of morphine purchased by all the other 172 physicians and the 23 hospitals in Seattle.
A continued careful investigation by narcotic officers resulted in the collection of evidence upon which he was again indicted on November 15, 1935, and after a lengthy trial before a jury he was found guilty on August 19, 1936, and on August 28, 1936, he was sentenced to serve a term of imprisonment of seven years and to pay a fine of $10,000. He appealed to the U.S. Circuit Court of Appeals which affirmed the judgment of conviction, and then petitioned the United States Supreme Court for writ of certiorari, which was denied. He was committed to the United States penitentiary at McNeil Island, Washington, on June 17, 1937 to serve his term of imprisonment. His State medical license was revoked on May 16, 1938, by the Department of Licenses of the State of Washington for unprofessional conduct.
Even after his conviction, Dr. Ratigan was unregenerate and indicated his intention to continue supplying addicts with morphine. Registered drug manufacturers and dealers were requested by the
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Bureau of Narcotics to refrain from filling any orders for narcotics submitted by Dr. Ratigan without first notifying the Bureau. While released on bond pending the result of his appeal, Dr. Ratigan made every effort to continue his illicit narcotic traffic but experienced difficulty in purchasing supplies of morphine from registered dealers. In December, 1936, he filed a bill of complaint in the District Court of the United States for the District of Columbia, praying for a temporary and permanent restraining order against the Commissioner of Narcotics, alleging that the Commissioner was preventing him from obtaining narcotics for use in the course of his practice as a physician. The court issued a rule to show cause upon the Commissioner, and a return to the rule was filed setting forth the justification for the Commissioner's action. Upon a hearing on December 23, 1936, the court ordered that the rule to show cause be discharged and that Dr. Ratigan's application for a temporary injunction be denied. Dr. Ratigan did not proceed further with this litigation, and the decision became final.
Emphasis thus far has been placed on the criminal side of the problem, but the question of civil liability can neither be underestimated nor forgotten. Without doubt, one malpractice suit involving misuse of narcotics could destroy an unblemished professional career, and it is imperative for a doctor and druggist to be familiar with this phase of the law.
The litigated civil actions to date have been predicated on loss of consortium, society, companionship, or services, and in cases where death has resulted, have been coupled with an action for wrongful death.* The underlying factor for suits of this type was first established when the existence of substances-which, through constant use, would effectively destroy the power of the consumer to cease the use thereof and also would injure or destroy normal physical and mental health-was first recognized. In this case it was held that an unknowing husband, whose wife had become addicted, bad had a legally protected marital right invaded by reason of such addiction.** This theory has so evolved that today the rule is that an action will lie by either spouse
* Moberg v. Scott 161 N.W. 998.
** Houd v. Peck, 56 N.Y. 202.
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against one knowingly selling a habit-forming drug to the other spouse, except for a lawful medical purpose, if the sale causes or aggravates the habitual use of narcotics. Since there is a loss of volition to act, the defense of contributory negligence is not available to the seller.
Briefly, therefore, where a husband or wife is concerned, it is an established rule of law today that improper sales of habit-forming drugs can cause harm to legally protected marital interests and liability will attach to the vendor unless the other spouse consents or a physician prescribes the narcotics.* Furthermore, in some cases liability has been found even though no law was violated, and in extreme cases, both compensatory and punitive damages have been awarded. It is noteworthy that while the violation of a statute is negligence per se, no recovery can be secured unless the wrongful act is shown to be the proximate cause.** It should be noted that this same doctrine has been applied in a suit by a parent against a pharmacist for repeated and wilful sale of a narcotic to a minor.***
OPIUM POPPY CONTROL ACT OF 1942
Due to the shortage of supplies of imported poppy seed after the beginning of World War 11, certain persons in the United States commenced to grow the opium poppy, ostensibly for seed yield, ignoring friendly warnings communicated by the Commissioner of Narcotics that the seed pods contained morphine which could and would be readily extracted, even in impure form, by peddlers with the inevitable result of spreading drug addiction. The Commissioner sought and obtained the enactment of special legislation-the Opium Poppy Control Act of 1942--which prohibited the growth of the opium poppy in the United States except under a special license issuable only upon a demonstrated need for domestic production of the opium poppy to supply opium derivatives for medical and scientific uses. No such need has arisen nor is it likely under modem developments that such
* Restatement of Torts, Volume 3, p. 497.
**Scott v. Greenville Pharmacy, Inc., 45 S.E. 2d, 324.
*** Tidd v. Skinner, 225 N.Y. 422.
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need will ever arise, and no licenses have been issued. The few crops of opium poppies that were growing were seized, and those, who bad planted them in defiance of the statute, sought an injunction against the seizure on the ground that the statute was unconstitutional. After a thorough hearing, a three-judge Federal Court in California held the statute constitutionally valid as the execution of an international obligation under the 1912 Convention, and the crops were destroyed.
FEDERAL LEGISLATION IMPLEMENTING THE CONVENTIONS
At the time the 1912 Convention was signed, the first narcotic regulatory statute of the United States, the Act approved February 9, 1909, had been in effect for over three years. This statute prohibited importation of opium and its preparations and derivatives except for medicinal purposes and absolutely prohibited the importation of smoking opium or of opium prepared for smoking. After the Convention was signed but before it was ratified, an Act approved January 17, 1914, added to the 1909 statute a prohibition against the exportation of any opium or cocaine or of any salt, derivative or preparation thereof except to a country which regulated the entry of such drugs, and in accordance with such regulations. The exportation of smoking opium or of opium prepared for smoking was absolutely prohibited. Another statute, approved on the same date, January 17, 1914, placed a prohibitive tax upon opium manufactured in the United States for smoking purposes and placed certain other conditions upon such manufacture. These statutes implemented some of the obligations assumed by the United States under the 1912 Convention, particularly with reference to control of imports and exports.
A further important step was taken towards implementation of the obligations assumed under the 1912 Convention by the enactment of the Act of December 17, 1914, popularly known as the Harrison Narcotic Law. This statute was enacted in the form of a revenue measure and required registration and the payment of an occupational tax by all persons who produced, imported, manufactured, dispensed or otherwise dealt in opium
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or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof. All sales or transfers of these drugs were required to be made on official order forms, but an exception from the order form requirement was made in favor of a registered practitioner dispensing to or prescribing for a patient in the course of professional practice only, and in favor of the registered druggist who filled the narcotic prescription. About four years later, the Act was amended by adding a commodity tax stamp provision (10 per ounce or fraction thereof), by imposing graduated rates of occupational tax, and by certain other provisions designed to prevent evasion of these taxes. The duty of enforcing the statute was assumed by the Bureau of Internal Revenue through its field officers engaged in enforcement of all internal revenue laws. Originally, there was no separate specialized group of officers assigned exclusively to the duty of enforcing this statute.
Although enacted as an internal revenue measure, the Harrison Narcotic Law, as amended, has the effect of limiting the availability of narcotic drugs to medical and scientific uses only. It regulates production and manufacture, and distribution through channels of medical supply to the dispensing registrants, the qualified practitioner and druggist. Except for scientific use, the purpose of the law is to restrict ultimate consumption of these drugs to patients who have a bona fide medical need therefor, the drugs being prescribed or dispensed by a qualified practitioner in the course of his professional practice only.
Early in the history of enforcement of the Harrison Narcotic Law as a measure controlling the domestic narcotic traffic, it became evident that there was need for a more comprehensive measure of control over imports and exports of these potentially dangerous drugs than was provided by the Act of February 9, 1909, as amended January 17, 1914. This older statute was extensively revised and in the revised form was reenacted by Congress, becoming the Narcotic Drugs Import and Export Act, approved May 26, 1922. By this statute there was instituted, so far as the United States was concerned, a strict system of import and export control which antedated by six years the obligation of the parties under the 1925 Convention to establish definite
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controls over imports and exports. The statute authorized the importation of such quantities only of opium and coca leaves as the then Federal Narcotics Control Board (now, the Commissioner of Narcotics) found to be necessary to provide for medical and legitimate needs. Importation of any form of narcotic drug, except such limited quantities of crude opium and coca leaves, was prohibited. Thus, all derivatives of these crude drugs, such as morphine, heroin, codeine, cocaine, etc., were excluded from lawful importation, and the importation and exportation of smoking opium continued to be prohibited. Exportation of manufactured narcotic drugs and preparations was permitted under a system of control designed to assure their use for medical needs only in the country of destination. A special amendment to this statute, approved June 7, 1924, prohibited the importation of opium for the purpose of manufacturing heroin, and the legal manufacture of heroin in the United States promptly ceased.
The 1931 Convention required the parties to establish (unless it was already established) a special administration for applying the provisions of the Convention; for regulating, supervising and controlling the trade in the drugs; and for organizing the campaign against drug addiction, by taking all useful steps to prevent its development and to suppress the illicit traffic. In the United States this special administration, the Bureau of Narcotics, bad already been established in 1930.
In the United States, the limitation of manufacture of opium and coca leaf derivatives required by the 1931 Convention had already been applied for nine years, or since the effective date of the Act of May 26, 1922, because the restriction on imports of crude opium and coca leaves-the only source of supply of our manufacture-automatically limited the total quantity of derivative drugs, producible from such crude material, to medical and scientific needs.
In the United States, national legislation controlling synthetic drugs preceded by two years similar international control under the Protocol of 1948.
Thus it will be seen that the application in the United States of national control over dangerous drugs has generally preceded
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the application of measures of international control over the same drugs.
NARCOTICS IN RELATION TO SHIPPING
The principal supply of narcotics for the illicit market in this country is represented by the quantities smuggled are unlawfully introduced into the United States from abroad and for this reason the problem is very closely allied with shipping.
In certain foreign countries where preventive organizations are not adequate to combat the illicit narcotic traffic within their territories, and in others which do not live up to their international obligations to confine the use of and trade in drugs to medical and scientific purposes only, narcotics are readily procurable for smug ling. As the dragnet tightens around them, the drug traffickers move from one country to another where control is still weak or non-existent, and contrive more and more clever ways of getting their poisons to their customers.
Drug trafficking is a very ingenious and resourceful business, All the tricks and ruses of the professional magician, all the devices and inventions of Houdini himself seem tame and unimaginative beside the innumerable dodges and disguises thought up by the tribe of international drug traffickers. The big smuggler spares no expense to get his contraband to his eager customer.
In one case a smuggler even built a sea-going yacht at tremendous expense just to carry his wares. In 1931 the auxiliary schooner Marabella, flying the flag of Panama, left Hong Kong clandestinely and without official clearance for Kwang-chow-wan enroute to the United States. Built in a small shipyard at Hong Kong, she had been especially designed to carry Chinese emigrants and opium to be smuggled into the United States.
At some point on the Coast of China, the Marabella embarked some 123 Chinese emigrants and a cargo of from one to four tons of opium, after which she set sail for the Pacific Coast of North America. Careful watch was kept for the ship on the Pacific
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Coast of the United States and of Canada, but fog and weather conditions prevented its seizure. On one occasion, when hardpressed by American Coast Guard vessels, it was said that some fifteen Chinese were thrown overboard from the Marabella with weights attached to their feet. Eventually she reached port in Mexico and when boarded and searched by Mexican authorities, neither aliens nor contraband could be found. The ship was later confiscated by the Chinese maritime customs and put in pursuit service where her business was to chase smugglers rather than to conceal them--- a true case of poetic justice! Her master was banished from Hong Kong.
While this enterprise constituted one of the largest smuggling operations ever attempted on the shores of the United States, nevertheless "cargo" smuggling was the custom around 1930, and seizures were aggregating as much as 3-1/2 tons (mostly morphine) in a single year.
Prior to 1936, when its anti-smuggling vessels were eliminated, the United States Coast Guard performed an important part in the prevention of smuggling of narcotics into the United States. Maintaining a patrol of United States coastal waters, Coast Guard vessels often went well out to sea to meet and keep under observation vessels which were suspected of having aboard narcotic drugs intended for unlawful traffic. In those days it was a general practice of smugglers to drop overboard before docking sausage-shaped packages of narcotics to be picked up by accomplices in small speed boats. Certain vessels were for this reason escorted into and out of port under observation, and every vessel that had touched a port where narcotics were obtainable was regarded as a potential smuggler. While the Coast Guard seldom participated in large seizures of narcotics, its activity was such that much smuggling was prevented, and many seizures were made ashore as a result of the cumulative effect of its valuable cooperation.
in some cases, the narcotic drugs were lowered into the water from ships, heavy tackles being used to assist in sinking the contraband. In a case involving the arrest of a smuggling organization in Seattle, Washington, in 1934, a search of the residence disclosed a complete light-weight diving suit, together with
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oxygen bottles and other paraphernalia. The diving outfit was used by a Chinese in recovering from the harbor narcotic drugs which had been thrown overboard from vessels arriving at Seattle from the Far East. In another instance at Seattle, when the anchor of a vessel was lifted, it came up with a large package of opium.
In other cases, narcotics were first placed in cellophane wrappers and then placed in rubber, waterproof bags, the bags then being partially inflated (to keep them afloat) and thrown into the water from Japanese vessels to be picked up by fishing boats.
In the case of one Chinese who smuggled drugs into Honolulu in quantities of from 100 to 600 tins of smoking opium, as well as large quantities of morphine, a code system was used between the smugglers and operators of the kind of small boats known as sampans, whereby the smugglers would throw the drugs over board to be picked up by the sampans and taken ashore.
It was also the common custom in those days to ship large quantities of narcotics falsely manifested as legitimate merchandise, such as lighting apparatus, furs, corn on the cob, spaghetti, coffee, rags, cottons, olive oil, toys, brushes, bowling pins and balls, ladies slippers, black olives, antique furniture, Turkish wool, spare machine parts, and also in oil drums. Even coffins have been used to conceal smuggled drugs! Seizures involving
2,000 pounds of opium, and 6,000 ounces of heroin were not uncommon. The steamship Alesia in 1930 arrived at a pier at Brooklyn, New York, with a shipment from Istanbul, consisting of 25 cases, listed as furs. When examined, the cases were found to contain a total of 17,500 cans, each containing one ounce of morphine, there being no furs whatever in the shipment. During the same year the S.S. Innoko arrived at Hoboken, New Jersey,
containing a shipment billed at lighting apparatus which upon examination was found to be 214 pounds of morphine.
As a result of the 1925 and 1931 international conventions, the amount of morphine produced in licensed factories abroad was cut in half between 1929 and 1932, and the manufacture of heroin was curtailed even more.
The policy of the Bureau of Narcotics was directed primarily
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to eliminate smuggling and large-scale trafficking, and to secure more effective international agreements and cooperation.
During the first year of the operation of this policy, seizures increased eight-fold. The amount of morphine alone seized in the illicit traffic mounted from 3,400 ounces in 1929 to 26,500 ounces in 1930.
Through these combined efforts, the smuggling picture was soon changed. Cargo lots and large lots concealed in merchandise dwindled to lots of the suitcase variety, and later to cases involving a few ounces at a time smuggled on the persons of seamen.
Under statutes placing a liability upon the master or owner of a vessel in the amount of $25 per ounce for each ounce of smoking opium discovered on board the vessel, and a penalty of $50 for each ounce of heroin, morphine, or cocaine, and $10 for each ounce of crude opium, fines totaling thousands of dollars were assessed, particularly against Japanese vessels then engaged in the Far Eastern trade. In 1931, for instance, total fines assessed under these statutes amounted to almost $400,000.00 These fines which are very high constitute the only measure which has effectively brought home to the steamship companies the necessity of maintaining measures to prevent narcotic drugs from being placed on board ships enroute to the United States.
The Canadian Pacific Steamship Company maintained the best system of preventive measures known. The Bureau of Narcotics has repeatedly urged that all companies take similar steps. The company spent a great deal of money yearly to prevent smuggling of narcotics by its ships. All of its vessels were free from contact by unauthorized craft in the Far East, and the company employed on each ship three trained masters at arms to prevent narcotic drugs from entering or leaving vessels. They were supplied with and made a careful study of all seizure reports showing places in which narcotic drugs had been found on board vessels. The Canadian company found this to be of great advantage, and it minimized the risk of the Canadian Pacific Railroad (its owners) having to pay heavy fines for carrying contraband. No seizure of importance was made on the C.P.R. vessels after the adoption of these measures.
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When smuggling was rampant on Japanese vessels, the N.Y.K. (Japanese) Steamship Company adopted measures which included daily and general inspections on board vessels during the voyage. The Japanese officials claimed this expense was justfied because they no longer bad to pay heavy fines.
Notwithstanding the degree of control achieved during the past two decades over the international narcotic drug traffic, smuggling continues to present a serious problem.
The fact that more effective national control makes very difficult the diversion of supplies from the regular medical channels
causes a sharp rise in prices in the domestic illicit market, and the consequent large profits form a constant temptation and incentive to the smugglers who are still able to obtain the drug abroad at comparatively modest prices.
Facts and figures presented to the Seventh Session of the United Nations Commission on Narcotic Drugs by the United States Representative, indicated that the postwar international illicit traffic in narcotic drugs has increased dangerously, and it was recognized that strong efforts will have to be made immediately to cope with the problem.
The illicit traffic in the United States is now supplied chiefly by seamen acting on their own account, but sometimes there is a tie-up with waterfront racketeers in these smuggling ventures. Members of the crews of merchant vessels are tempted by the
opportunity to obtain abroad a supply of heroin, for instance, for a small sum because they know that a few ounces, representing a sale value in the United States of hundreds of dollars, may
be concealed on the person and the smuggler may thus elude detection at the port of entry and reap the large profits incident to the illicit sale in the United States.
Particularly in the Orient, traffickers in narcotics approach crew members in an endeavor to have them act as carriers when returning to the United States. This opportunity, and the temptation of large profits to the seaman as long as be can escape Customs detection, continues by reason of the nature of his employment. While a number of such cases are detected, it is
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evident that many such efforts are successful in introducing quantities of contraband narcotics into the illicit traffic of the United States and other victim countries.
Increased surveillance of ships in foreign ports, as well as daily inspections on board vessels during the voyage, deserve careful attention by all Governments and by all ship operators. The policing of vessels while in port should be under the direct charge of a port captain or of the office of the resident agent of the steamship company, and they should be held responsible for the proper policing of the vessel. The master and officers and owners must exercise the highest degree of care and diligence in order that narcotic drugs are not on board.
In 1945, a bill in which much interest was expressed and one which would go far to prevent the smuggling of opium and other narcotic drugs into the United States was introduced by the late Congressman Wilbur D. Mills, in the United States House of Representatives.
The bill provided that all shipments to the United States from any country where opium or other narcotic drugs are permitted to be sold to consumers for nonmedical purposes shall be marked with large, conspicuous letters with the name of such country; that on arrival at any United States port of entry all shipments from such countries shall be set aside for special inspection and examination, consisting of opening each and every package to ascertain if the shipment contains opium or other narcotic drugs; that the American consular officer stationed in a country which permits sale of opium for smoking or eating shall certify that said country permits such sale of opium to the public on each consular invoice and on each bill of health issued to any vessel clearing from such country for any port in the United States; and that, on arrival in any American port of any such vessel, clearance shall not be given until a complete inspection is made of said vessel, its hold, cabins, crew quarters, and of each and every person, whether passenger or crew, on said vessel to determine if any opium or other narcotic drug is being unlawfully imported into the United States.
This bill died with the adjournment of Congress. Mr. Mills introduced a similar bill in the House of Representatives in 1951.
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On February 11, 1952, a bill was introduced by the late Congressman Sabath in the United States House of Representatives, which proposed a radically different approach in placing the responsibility for illicit importation of narcotics. This bill would require banks, ship owners and operators, air transport owners and operators, and insurance companies insuring cargoes coming to United States shores, to take effective steps to cut off at its source the supply of narcotic drugs which feeds the drug traffic in the United States and its possessions. It also provides for full cooperation by those countries producing and manufacturing narcotics. Mr. Sabath stressed that "direct, forceful and stringent legislation is absolutely necessary to eliminate, as fully as possible, the importation of illicit drugs."
At the 1952 meeting of the Commission on Narcotic Drugs, emphasis was placed on the fact that various governments should take strong measures to put an end to the smuggling of narcotics by seamen, and the following resolution relating to the illicit trafficking in narcotics by the crews of merchant ships and civil aircraft, was adopted:
THE ECONOMIC AND SOCIAL COUNCIL,
Having been informed by the Commission on Narcotic Drugs that there has been an increase in the illicit traffic in narcotics on merchant ships and civil aircraft during the past five years and that this increase is principally owing to smuggling by merchant seafarers and crews of civil aircraft,
Desiring to take all measures possible to combat this illicit traffic,
1. Requests the Secretary-General to compile as soon as may be convenient and thereafter to bring up to date at convenient regular intervals a list of merchant seafarers and members of civil air crews who have been convicted of offences against narcotic laws on or after 1 January 1953 setting out so far as possible the following information:
a. Name (including aliases where appropriate);
c. Date of birth;
d. Nature of offence and disposition of the case.
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2. Instructs the Secretary-General to send the list to the governments of all States with the recommendation of the Council;
a. That they take appropriate measures
i. to revoke certificates and licenses currently held by merchant seafarers or members of civil air crews so convicted and
ii. to withhold the issue to such persons of such licenses and certificates, such revocation or withholding of such licenses or certificates to be either temporary or permanent as may be appropriate in the circumstances of any particular case, provided that if either course does not accord with national law or usage the government concerned shall send a copy of the list to the competent authorities for such action as the latter may decide to take under their own domestic laws, or shall have recourse to such other legal measures as may be open to this government to prevent merchant seafarers or members of civil air crews from carrying out their profession;
b. That they send a copy of the list to the maritime and aeronautical unions and companies in their territories for their consideration in connexion with the exercise of their disciplinary functions and any functions which they may exercise in connexion with the engagement of crews.
At the 1950 session of the Commission, the United States representative had introduced a resolution concerning illicit trafficking by the crews of merchant ships containing these and other provisions.
Thus in both the United Nations action and in the repeated demands of the United States Congress, there is an urgent and insistent pressure for greater cooperation of enforcement officers in overseas smuggling ports, and particularly for greater vigilance
on the part of steamship companies and officers, to 'prevent the introduction of narcotics into vessels bound directly or indirectly to the United States.
BUREAU OF NARCOTICS
The Commissioner of Narcotics, under the direction and supervision of the Secretary of the Treasury, has general supervision
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of the enforcement of the narcotic and marihuana tax provisions of the Internal Revenue Code, the Opium Poppy Control Act of 1942, and related statutes, including the administration of the permissive features of the Narcotic Drugs Import and Export Act. It cooperates with the Customs Bureau in the enforcement of the prohibitive features of the latter act. The Commissioner also cooperates (1) with the State Department in the discharge of the international obligations of the United States concerning the traffic in narcotic drugs and (2) with the several States in the suppression of the abuse of narcotic drugs in their respective jurisdictions. The Commissioner represents the United States on the United Nations Commission on Narcotic Drugs.
The duties of the Bureau include the investigation, detection, and prevention of violations of the Federal narcotic laws (including the Federal marihuana law and the Opium Poppy Control Act of 1942), the determination of quantities of crude opium and coca leaves to be imported into the United States for medical and legitimate uses, and the issuance of permits to import the crude narcotic drugs and to export drugs and preparations manufactured therefrom under the law and regulations. An annual report is made to Congress which also serves the purpose of the report on behalf of the Government for transmittal through the State Department to the nations signatory to the International Drug Conventions of 1912 and 1931.
An example follows of the Bureau's thorough investigational methods as set forth in its Annual Report.
TRAFFIC IN OPIUM AND OTHER DANGEROUS DRUGS
Cross-country drug distributors and members of inter-
Members of notorious gangster 107th Street Mob of New
A most important case illustrating the cunning which must be met in matching wits against the complicated operations of drug distributors, was climaxed in California, when Salvatore (Sam) Maugeri, (Italian-born) drug dealer and smuggler, was sentenced to twenty
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years' imprisonment and fined $10,000 for selling 630 ounces of prepared opium and 8 ounces of morphine, for the sum of $22,000 in cash. (These quantities would sell for more than five times this amount in the illicit market by the time they reached the consumer.) Joseph Tocco (The Eye), representative of the group of persons operating in New York City and California, known to the underworld as the "107th Street Mob," who was transporting these drugs across country, was apprehended by narcotic agents as he was changing trains in Chicago. He was later sentenced to ten years I imprisonment and fined $5,000.
Previously, one of the California members of the gang apparently bad been "taken for a ride" under bizarre circumstances. The West coast "boss" of the Mob known as Big Nosed Charlie LaGaipa, bad been under day and night surveillance by narcotic and customs officers. However, during an interval of a few hours when this surveillance was incomplete due to the manpower shortage handicapping the agencies, LaGaipa disappeared. He was known in the underworld as a double-crosser. A customs agent subsequently discovered his automobile in Oakland, California, and on its instrument panel traces of human brain tissue were found. No further trace of him has been reported. LaGaipa, a well-known New York racketeer, had removed from there to California, from which place be engaged in the smuggling and distribution of drugs on a large scale. After LaGaipa's disappearance, his principal lieutenant; Salvatore (Sam) Maugeri, took over his drug business.
During this investigation another major violator was murdered by rival gangsters, one disappeared, and two fled to Mexico.
LaGaipa, Maugeri and Tocco were members of an international organization engaged in smuggling large quantities of morphine and opium from Mexico for distribution in various sections of the United States, particularly in the vicinities of Los Angeles, San Francisco, Boston, and New York City. Maugeri intimated he would consider no transactions involving less than $10,000 to be paid in advance.
The case bad its origin in New York when narcotic agents started looking into the activities of the so-called 107th Street Mob, composed of Charles (Bullets) Albero and some of the most notorious gangsters in New York. They bad been sending their trusted men to California, where they would obtain Mexican opium from the Charles LaGaipa organization. This would then be transported to New York, where it would be converted into heroin for distribution in New York and other large cities throughout the United States. As a result of this phase of
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the investigation, thirty-one persons were indicted, but the narcotic violations were continued by the mob.
The trail led to Boston, where several distributors of narcotics in New England were arrested.
Purchases bad been made from some of the principals of the 107th Street Mob, and seventeen members were indicted, including Charles Albero, alias Charlie Bullets, Eugene Tramaglino, Steve Armone, and Joseph Tocco, of New York; Ralph C. Carbone, of Newark, N. J.; and Basil Herbert McKinney, Huckart W. Bethel, and Barton F. Rowe, of Nassau, Bahamas.
A collateral development in the case was an attempt by two of these men to influence a Government witness by offering a bribe. This resulted in the re-arrest of Tramaglino and Carbone shortly after their indictment.
The mob had attempted to exploit a source of supply in the Bahamas. It had raised funds for the purchase of small boats, and obtained small consignments of drugs from Nassau, and was endeavoring to establish a steady source of supply from the Bahamas and from Haiti via the Bahamas to Florida and New York City. In these negotiations the mob had used some of the same personnel who had stolen a quantity of drugs from a drug manufacturer in Brooklyn, N. Y.
Since it appeared that the major source of supply was Mexican opium and the New Yorkers were dealing with members of the old Black Tony Parmagini * gang in California, the emphasis was shifted to the West Coast, where narcotic and customs agents conducted a joint investigation. At great personal danger because of the gang's connection with a number of murders, a narcotic agent who spoke Italian infiltrated himself into a remnant of the Parmagini gang, gained the confidence of the leader Maugeri sufficiently that he, the agent, was actually chosen by the gangster-who feared a double-cross from fellow conspirators on the distribution end-as over-night custodian of a fortune in drugs. Unable to act lest he expose the Government's hand and enable the mob leaders to escape, the officer ruefully saw the drugs turned over to the buyers the next morning. The agents followed through, however, and arrested the runner, Joe Tocco (The Eye), in Chicago, in possession of the drugs. Joseph Dentico, alias Bari, member of the 107th Street Mob, went to California to deliver
* Antone Parmagini, alias Black Tony, who bad been "king" of the racketeers on the Pacific coast, was convicted of narcotic law violations and Sentenced to serve seventeen years in the penitentiary and fined $17,000.
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the $22,000 in cash for the drugs. He was indicted, disappeared, and later apprehended.
The New Yorkers were also dealing with one William Levin, former partner of Parmagini, and just released from a seventeen-yearprison sentence on drug charges. Levin, along with his wife, Elizabeth Levin was arrested, following the seizure of 10 pounds, I ounce, 219 grains of prepared opium, and subsequently was sentenced to serve ten years' imprisonment and fined $2,500. Elizabeth Levin was sentenced to one year's imprisonment.
It was discovered that Levin was dealing with Jack Sieman in Vancouver, Canada, also of the old Parmagini gang. Sieman sent a confederate, Morris Irwin, a Canadian customs inspector, from Vancouver to Los Angeles, California, with approximately $8,000, which was delivered to William Levin for 140 ounces of prepared opium. Irwin was arrested as he was about to board a train for Canada, and was later sentenced to twelve years' imprisonment (five years to be served and seven suspended on condition that be leave the United States). Sieman was convicted and sentenced in Canadian courts to seven years' imprisonment and fined $1,000.
The investigation of Levin indicated that he was securing drugs from one Jack W. Morse and his wife, Sally Elsie Morse, of Santa Monica, Calif., and in April and again in July Morse was arrested in possession of opium. The Morses had both been arrested in Norfolk, Va., many times. They went to California in 1942 when Morse was given a conditional release from a Federal institution on a ten-years' sentence for a narcotic law violation. It was reported that during his incarceration Mrs. Morse bad, through antisocial activities in Norfolk, accumulated approximately $40,000 which served as capital for them in California to purchase large quantities of opium from Mexico for sale. Lenneth F. Williams was used by the Morses to deliver drugs. After extensive investigation these three persons were arrested in an automobile on the highway en route from Santa Monica to San Francisco in possession of approximately 70 ounces of opium, which they bad obtained from a well-known Mexican smuggler, Enrique Diarte. Diarte was also the source of supply in Tiajuana, Mexico, from whom William Levin obtained his opium. Morse was sentenced in California to serve five years' imprisonment; Mrs. Morse to serve three years' imprisonment, but she was released on an appeal bond of $7,500; and Lenneth F. Williams to five years' imprisonment and fined $1,000.
It was ascertained that Enrique Diarte, one of the most flagrant
FEDERAL JURISDICTION Page 153
smugglers of narcotic drugs operating out of Mexicali and Tiajuana, Mexico, was expecting to deliver a large quantity of opium to Morse at San Diego, California. His confederates, Jesus Velasquez and Consuelo Landeros de Vasquez, his wife, were arrested by customs and narcotic officers in San Diego, in possession of 175 ounces of prepared opium, and 20 ounces of pure heroin. Diarte avoided arrest by escaping to Mexico, and his confederates captured at the time of the seizure, subsequently forfeited $5,000 and $500 cash bonds, and returned to Mexico.
Diarte's body was found on a Mexican roadside. He had been murdered, having been shot through the heart, his throat cut, and his skull crushed with a heavy instrument. Frank Orbe, onetime drugsmuggling associate of Diarte and later a competitor, was arrested in connection with the slaying. Max Webber, known as Step and a Half, of San Diego, California, was subsequently arrested in Mexico and was also charged with the murder of Diarte. The latter was allegedly killed at a Tiajuana hide-out when he argued with Webber over the price of opium. Webber was asserted to be the brains of the Diarte ring. In connection with this case, 106 persons were arrested in Mexico in what was described by Mexico's Inspector General of Police as "one of the biggest arrests made in the history of Mexico." The traffic was largely in opium grown in Sonora, Mexico.
Previous Criminal Records of Violators in Foregoing Case
Albero had a long criminal record including convictions for possession of concealed weapons, robbery, burglary, and violations of the narcotic laws. Tramaglino bad previous convictions for grand larceny and for counterfeiting. Steve Armone had previous convictions for violations of the narcotic laws and a conviction for assault with intent to kill. Carbone had previous convictions on charges of highway robbery, attempted extortion and counterfeiting. In addition to narcotic law violations, Morse bad a long record including convictions for attempted robbery, carrying concealed weapons, and assault. When Morse and Mrs. Morse were sentenced previously on narcotic charges newspapers published the fact that Morse bad been arrested 43 times in thirteen years, fined 23 times, and ordered to be imprisoned 12 times. Lenneth F. Williams had previous convictions for housebreaking, grand larceny and robbery. Dentico had a previous conviction for robbery, and Maugeri for counterfeiting and violation of the narcotic laws.
THE TRAFFIC IN NARCOTICS Page 154
The criminal records cited are forceful illustrations of the fact that most narcotic law violators are dangerous criminals and travel in a vicious circle from violation to violation.
In sentencing Salvator Maugeri and Joseph Tocco, Louis E. Goodman, judge of the United States District Court for the Northern Division of California, made the following comments:
"This nation has agreed with other nations to combat to the utmost the narcotics-selling evil. I don't think there is any statute in existence, the violation of which causes more misery, deprivation, or degradation than that covering narcotics. In this case, the amount and value of the contraband were so great that I can see no other course open but to impose this very severe penalty."
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