                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                                NOV 3 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                                 No. 98-2353
                                                      (D. Ct. No. CR-98-13-JC)
 DR. WILLIAM D. LEVITT,                                      (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 court’s 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        This order and judgment is not binding precedent, except under the doctrines of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 General’s office sent undercover agents Lori Gallandt and Lou Kilgas to

pose as patients at defendant’s clinic. Gallant and Kilgas both had two

appointments with defendant and audiotaped each of their visits.         1



                                    A. Agent Gallandt

       When Gallandt arrived at defendant’s 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.           Defendant

then asked Gallandt if she had a drug or alcohol problem.         Gallandt replied that

she had been “doing a little bit of this and 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.           Gallandt responded,

“They kick butt . . . I can really party on those.”    R. at 890. Defendant then


       1
        Agent Kilgas’s recording device failed on her first visit to defendant’s office.

                                              -2-
conducted a routine physical examination. Ultimately, defendant prescribed both

demerol and valium for Gallandt.

       Approximately one month later, Gallandt returned to defendant’s 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


                                             -3-
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.        Defendant then gave

Kilgas a prescription for valium and percoset.      Defendant’s examination of Kilgas

lasted for no more than ten minutes.

       During Kilgas’s second visit to defendant’s 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

Gallandt’s and Kilgas’s personal medical files. We review defendant’s          Brady

claim de novo.    Smith v. Secretary of N.M. Dep’t of Corrections       , 50 F.3d 801,

827 (10th Cir. 1995).    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 government’s 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 defendant’s trial. Defendant did not rely on Gallandt’s and Kilgas’s

private medical records when he diagnosed and treated them. Consequently, the

agents’ personal records are irrelevant to defendant’s 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 Gallandt’s and Kilgas’s medical


                                          -6-
records. We disagree. Rule 16(a)(1)(D) provides that at defendant’s 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 court’s 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 government’s

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 defendant’s 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.

Gallandt’s 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 Gallandt’s tape-recorded visits

to defendant’s 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, Kilgas’s medical chart states that she complained of (1) stomach

pain and cramps, (2) a three-year history of anxiety since her uterine cancer


                                          -8-
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 government’s 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.       See United States v.

Jamieson , 806 F.2d 949, 950-51 (10th Cir. 1986);     United States v. Varma , 691

F.2d 460 (10th Cir. 1982);   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 jury’s guilty verdict. AFFIRMED.




                                           -9-
ENTERED FOR THE COURT,



Deanell Reece Tacha
Circuit Judge




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