United States v. Levitt, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
NOV 3 1999
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
DR. WILLIAM D. LEVITT,
No. 98-2353
(D. Ct. No. CR-98-13-JC)
(D. N. Mex.)
Defendant - Appellant.
ORDER AND JUDGMENT
Before TACHA , McWILLIAMS , and EBEL , Circuit Judges.

Defendant appeals his conviction for issuing prescriptions without a
legitimate medical purpose in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C).
He asserts that the district courts denial of his motion to obtain the personal
medical files of two undercover agents violated both his due process rights and
Rule 16 of the Federal Rules of Criminal Procedure. In addition, he claims that
sufficient evidence did not exist for a jury to find him guilty. We exercise
jurisdiction pursuant to 28 U.S.C. 1291 and affirm.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*
I. Background
Upon receiving information that defendant, an osteopath, was prescribing
narcotics illegally, the Drug Enforcement Administration and the New Mexico
Attorney Generals office sent undercover agents Lori Gallandt and Lou Kilgas to
pose as patients at defendants clinic. Gallant and Kilgas both had two
appointments with defendant and audiotaped each of their visits.
A. Agent Gallandt
When Gallandt arrived at defendants office, she completed a one-page
form that did not ask for any medical information. Defendant began his
examination by asking Gallandt if there was anything in her past medical history
that he needed to know. Gallandt responded that there was nothing.
then asked Gallandt if she had a drug or alcohol problem.
she had been doing a little bit of this and that.
Defendant
Gallandt replied that
R. at 888. Defendant inquired
whether Gallandt had ever had surgery or was taking any medications.
Gallandt
answered that she did not take legal medication, but she smoked cocaine each day.
Defendant then indicated that he would treat Gallandt with valium to get her off
the cocaine.
At that point, Gallandt stated that she was hoping to get some
demerol. Defendant asked Gallandt if demerol helped her.

They kick butt . . . I can really party on those.
Gallandt responded,
R. at 890. Defendant then
Agent Kilgass recording device failed on her first visit to defendants office.
-2-
conducted a routine physical examination. Ultimately, defendant prescribed both

demerol and valium for Gallandt.
Approximately one month later, Gallandt returned to defendants office for
a second visit. When defendant entered the examining room, Gallandt asked for
a couple more. R. at 896. Defendant refused to prescribe more demerol, but
stated that he would prescribe more valium or another drug instead of demerol.
Gallandt then requested a prescription for percoset. Defendant asked Gallandt if
percoset helped her, and she replied that it did.
Defendant examined Gallandt by
listening to her heart with a stethoscope and gave her prescriptions for percoset
and valium. The appointment lasted approximately five minutes.
B. Agent Kilgas
When Kilgas arrived at the clinic, she also filled out a one-page form that
did not ask for any medical information.
Defendant began his examination of
Kilgas by asking her a few questions about her medical history. Kilgas replied
truthfully that she smoked and drank moderately and that she had had two prior
surgeries, a cesarean section and a hysterectomy.
Kilgas further explained that
she had the hysterectomy three years ago after she was diagnosed with cancer.
Kilgas stated that she began taking valium and percoset after the hysterectomy,
that she had been buying the drugs on the street, and that she had heard from
friends that defendant could help her.
Kilgas specifically told defendant that she

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was not in any pain and that she was taking the two drugs habitually.
Defendant
agreed to prescribe valium and percoset for Kilgas.

Defendant then briefly examined Kilgas by rubbing her back and neck,
asking her to lie down, and pulling up her shirt.
Kilgas pulled her shirt back
down and defendant touched her stomach through her shirt.

Kilgas a prescription for valium and percoset.
Defendant then gave
Defendants examination of Kilgas
lasted for no more than ten minutes.

During Kilgass second visit to defendants clinic, defendant entered the
examining room and asked Kilgas how she was responding to her medications.
Kilgas replied that her medications were working well and she needed to get
more. Defendant conducted a brief physical exam and stated that he wanted
Kilgas to taper off the drugs. He then gave Kilgas a prescription for percoset and
valium. The entire appointment lasted approximately four minutes.
II. Motion to Obtain Medical Records
A. Brady Violation
Defendant contends that the district court violated his due process rights
under Brady v. Maryland , 373 U.S. 83 (1963), when it denied his motion to obtain
Gallandts and Kilgass personal medical files. We review defendants
claim de novo.
Smith v. Secretary of N.M. Dept of Corrections
827 (10th Cir. 1995).
Brady
, 50 F.3d 801,
Brady requires the prosecution to disclose exculpatory

-4-
evidence to the defense.
Id. at 822 (citing Brady , 373 U.S. at 87; United States v.
Buchanan , 891 F.2d 1436, 1440 (10th Cir. 1989)). To establish a
Brady violation,
defendant must prove 1) that the prosecution suppressed evidence; 2) that the
evidence was favorable to the accused; and 3) that the evidence was material.
Id. at 824 (quoting United States v. Hughes , 33 F.3d 1248, 1251 (10th Cir.
1994)).
The first Brady element requires a defendant to demonstrate that the
government had knowledge or possession of the disputed evidence, whether actual
or constructive, and failed to disclose it.
See United States v. Beers , __ F.3d __,
No. 98-2250, 1999 WL 691656, at *6 (10th Cir. Sept. 7, 1999);
Smith , 50 F.3d at
824-25. Defendant has presented no evidence to show that the government

actually or constructively possessed or had any knowledge of the agents personal
medical records. Thus, defendant has failed to prove that the prosecution
suppressed evidence. Furthermore, defendant cannot establish the second
Brady
element because he has offered no evidence to show that the agents private
medical files contain exculpatory evidence.
The third Brady element requires defendant to show that the agents
personal medical records contain evidence material to his defense.
[E]vidence
is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.
-5-
A reasonable probability is a probability sufficient to undermine confidence in

the outcome.
Smith , 50 F.3d at 827 (quoting United States v. Bagley , 473 U.S.
667, 682 (1985)). We view[] the undisclosed evidence in relation to the record
as a whole, as the materiality of exculpatory evidence will vary with the overall
strength of the governments case.
Moore v. Reynolds , 153 F.3d 1086, 1112
(10th Cir. 1998), cert. denied , 119 S. Ct. 1266 (1999).

Based upon our review of the record, we hold that there is no reasonable
probability anything in the agents personal medical files would have affected the
outcome of defendants trial. Defendant did not rely on Gallandts and Kilgass
private medical records when he diagnosed and treated them. Consequently, the
agents personal records are irrelevant to defendants conviction for illegally
prescribing narcotics under these circumstances. Moreover, the overwhelming
inculpatory evidence at trial showed that defendant prescribed narcotics for the
agents even though they were not in pain and despite the fact that they admitted to
using the drugs for nonmedical purposes. Thus, we conclude that the agents
private medical records are not material and there was no
Brady violation in this
case.
B. Rule 16
Defendant claims that the district court violated Fed. R. Crim. P.
16(a)(1)(D) when it denied his motion to obtain Gallandts and Kilgass medical
-6-
records. We disagree. Rule 16(a)(1)(D) provides that at defendants request, the

government must disclose any results or reports of physical or mental
examinations . . . which are within the possession, custody, or control of the
government . . . and which are material to the preparation of the defense. We
review a district courts discovery rulings for an abuse of discretion.
United
States v. Hernandez-Muniz , 170 F.3d 1007, 1010 (10th Cir. 1999).

Here, the agents private medical records were not in the governments
possession, custody or control. Furthermore, evidence is material under Rule 16
only if a defendant shows that the evidence would have altered the outcome of the
trial. As our Brady discussion demonstrates, defendant in this case has made no
such showing. Accordingly, the district court did not abuse its discretion in
denying defendants Rule 16 motion.
III. Sufficiency of Evidence
Defendant asserts that the government introduced insufficient evidence to
prove that he prescribed narcotics to the agents without a legitimate medical
purpose. Even though defendant failed to move for judgment of acquittal at the
close of all the proof, we review for plain error.
United States v. Bowie , 892 F.2d
1494, 1496 (10th Cir. 1990). The standard we apply is essentially the same as if
there had been a timely motion for acquittal.
Id. at 1497. Thus, in reviewing the
sufficiency of the evidence, we ask whether, taking [t]he evidence both direct
-7-
and circumstantial, together with the reasonable inferences to be drawn therefrom

. . . in the light most favorable to the government, a reasonable jury could find
the defendant guilty beyond a reasonable doubt.
Id. (quoting United States v.
Hooks , 780 F.2d 1526, 1531 (10th Cir. 1986)).

Here, ample evidence exists from which a jury could have found defendant
prescribed narcotics without a legitimate medical purpose. First, defendant
prescribed narcotics for Gallandt and Kilgas based on incomplete medical
histories and brief examinations. Second, defendant prescribed demerol for
Gallandt after she specifically asked for the drug and told him she could really
party on it. Defendant also prescribed percoset for Gallandt upon her request.
Gallandts medical chart reflects that she complained of 1) moderate to severe
lower back pain, 2) sleeplessness, 3) severe muscle spasms, 4) heavy alcohol
consumption due to acute pain, 5) continued anxiety attacks, and 6) throbbing
headaches. However, Gallandt testified at trial that she never complained of any
of these problems to defendant. The transcripts of Gallandts tape-recorded visits
to defendants office corroborate her trial testimony. Furthermore, defendant
admitted on cross-examination that he prescribed demerol for pain even though
Gallandt never stated that she was in any pain.
Third, Kilgass medical chart states that she complained of (1) stomach
pain and cramps, (2) a three-year history of anxiety since her uterine cancer
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diagnosis, and (3) difficulty sleeping. However, Kilgas testified at trial that she
told defendant she came to his clinic because of her drug habit. Kilgas further
testified that she was not suffering from any physical ailments when she saw
defendant. Moreover, defendant admitted on cross-examination that Kilgas told
him she had a drug habit. Nevertheless, defendant prescribed valium and percoset
for Kilgas on two occasions.
Fourth, the governments expert testified that the narcotics defendant
prescribed for the agents were not medically indicated.
Finally, in the past we
have found similar evidence sufficient to sustain convictions for issuing

prescriptions without a legitimate medical purpose.
Jamieson , 806 F.2d 949, 950-51 (10th Cir. 1986);
F.2d 460 (10th Cir. 1982);
See United States v.

United States v. Varma , 691
United States v. Bartee , 479 F.2d 484, 485-86, 488-89
(10th Cir. 1973).
Thus, viewing the evidence in the light most favorable to the government,
sufficient evidence exists to support the jurys guilty verdict. AFFIRMED.
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ENTERED FOR THE COURT,
Deanell Reece Tacha

Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

UNITED STATES OF AMERICA,

Before TACHA , McWILLIAMS , and EBEL , Circuit Judges.

Gallandt replied that

R. at 888. Defendant inquired

demerol. Defendant asked Gallandt if demerol helped her.

R. at 890. Defendant then

conducted a routine physical examination. Ultimately, defendant prescribed both

Defendant examined Gallandt by

Defendant began his examination of

Kilgas further explained that

Kilgas specifically told defendant that she

agreed to prescribe valium and percoset for Kilgas.

Kilgas pulled her shirt back

down and defendant touched her stomach through her shirt.

Defendant then gave

Defendants examination of Kilgas

lasted for no more than ten minutes.

Smith v. Secretary of N.M. Dept of Corrections

827 (10th Cir. 1995).

Brady requires the prosecution to disclose exculpatory

evidence to the defense.

Id. at 822 (citing Brady , 373 U.S. at 87; United States v.

Buchanan , 891 F.2d 1436, 1440 (10th Cir. 1989)). To establish a

See United States v. Beers , __ F.3d __,

No. 98-2250, 1999 WL 691656, at *6 (10th Cir. Sept. 7, 1999);

824-25. Defendant has presented no evidence to show that the government

A reasonable probability is a probability sufficient to undermine confidence in

Smith , 50 F.3d at 827 (quoting United States v. Bagley , 473 U.S.

Moore v. Reynolds , 153 F.3d 1086, 1112

(10th Cir. 1998), cert. denied , 119 S. Ct. 1266 (1999).

Brady violation in this

records. We disagree. Rule 16(a)(1)(D) provides that at defendants request, the

States v. Hernandez-Muniz , 170 F.3d 1007, 1010 (10th Cir. 1999).

United States v. Bowie , 892 F.2d

Id. at 1497. Thus, in reviewing the

and circumstantial, together with the reasonable inferences to be drawn therefrom

Id. (quoting United States v.

Hooks , 780 F.2d 1526, 1531 (10th Cir. 1986)).

Finally, in the past we

have found similar evidence sufficient to sustain convictions for issuing

See United States v.

United States v. Bartee , 479 F.2d 484, 485-86, 488-89

(10th Cir. 1973).

ENTERED FOR THE COURT,

Deanell Reece Tacha

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See United States v. Beers , F.3d ,