U.S. v. Gant, s. 95-5091
| Decision Date | 12 January 1996 |
| Docket Number | 95-5178,Nos. 95-5091,s. 95-5091 |
| Parties | NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Allan L. GANT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Allan L. GANT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Jeffrey M. Wakefield, FLAHERTY, SENSABAUGH & BONASSO, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, John L. File, Assistant United States Attorney, Charleston, West Virginia, for Appellee.
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
Allan L. Gant was convicted by a jury of possession of Demerol (meperidine), 21 U.S.C.A. Sec. 844(a) (West Supp.1995) (Count One), for attempting to possess Percodan (oxycodone), 21 U.S.C.A. Sec. 846 (West Supp.1995) (Count Two), and for possession of Percodan (oxycodone), 21 U.S.C.A. Sec. 843(a)(3) (West Supp.1995) (Count Three). He appeals his convictions as well as the district court's denial of his motion for a new trial and his 15-month sentence. We affirm.
Testimony at Gant's trial established that Gant was an osteopathic physician employed at the Richwood Area Medical Center in Richwood, West Virginia. In 1990 he surrendered his Drug Enforcement Administration registration after he stole Demerol and Valium from the hospital. After that, Gant was not authorized to possess or dispense controlled substances. On Friday, January 14, 1994, Gant asked Dr. Inocencio Perez to prescribe Valium and Tylenol 4 for him. Perez wrote the prescriptions. Later the same day, Gant went to the Richwood emergency room with flu-like symptoms and Dr. Perez gave him injections of 6 milligrams of Decadron (a non-controlled substance) and 150 milligrams of Demerol, the maximum adult dose. Perez went home to Beckley, West Virginia, that evening, and did not work during the weekend.
On Saturday morning, January 15, Gant approached Elizabeth King, the nurse who had the keys to the hospital narcotics cabinet. He told her that the morphine supply needed for certain patients had run out and instructed her to take some morphine from the narcotics cabinet to the floor where it was needed. King was reluctant to open the cabinet. She told Gant she preferred to wait until her replacement arrived because two signatures were needed when narcotics were removed from the cabinet. Gant insisted she do it immediately, and said he was authorized to provide the second signature.
When King opened the cabinet, Gant pushed her aside and took out the contents himself. There were three boxes of morphine and one box containing 75 milligrams of Demerol. Gant handed King a box of morphine. While King was signing it out, she saw Gant put a box in his pocket. After taking the morphine to the floor as instructed, King checked the narcotics cabinet and found the Demerol missing.
On Sunday, January 16, Gant called William Reynolds, the Rite-Aid pharmacist in town, and asked whether he had any Demerol in stock. Reynolds told him he had only generic Tylox and Percocet. About twenty minutes later, Gant came in with a prescription for Percodan. Gant told Reynolds he had caught Dr. Perez just before Perez left the hospital. Reynolds did not have Percodan in stock, but he called the Rite-Aid pharmacist in Craigsville, about twelve miles away, who did have it. Gant drove to Craigsville and had the prescription filled.
Later that afternoon, Reynolds became suspicious that the prescription might be a forgery because he had not filled any other prescriptions for Dr. Perez that weekend and because the prescription was for a larger number of tablets than Perez normally prescribed. Reynolds called the hospital and found that Perez was not working that weekend.
Gant worked Monday and Tuesday of the following week. Late on Wednesday, January 19, Gant called Dr. Thomas Cochran, another osteopathic physician at Richwood, and asked to be admitted to the hospital. Gant was admitted to the Richwood hospital with bacterial pneumonia and flu. On the 24th, he was transferred to Ridgeview Institute in Smyrna, Georgia, where he remained until April 1994 in a drug treatment program for doctors. In June 1994, Gant was charged with unlawful possession of Demerol, attempting to obtain Percodan by fraud, and obtaining Percodan by fraud.
Gant attempted to raise an insanity defense at trial. Dr. John Hutton, a psychiatrist, testified for the defense that in 1988 he had diagnosed Gant as suffering from delayed post-traumatic stress disorder resulting from his service in Vietnam as well as substance abuse and depression. Hutton had interviewed Gant in May 1994 on his return to West Virginia from the substance abuse program in Georgia, and his diagnosis then was the same. In September 1994, not long before the scheduled trial date, Hutton evaluated Gant at the request of defense counsel. In this report, he noted a history of delirium in January 1994.
Hutton testified at trial that the drugs prescribed and administered to Gant on Friday, January 14, combined with the flu and with his stress disorder and depression, created delirium in Gant. Hutton described delirium as a condition in which "the brain is acutely disturbed and overloaded and is unable to function in a reliable and predictable manner." At the same time, he said, a delirious person could have brief periods when he would appear normal to others. Hutton testified that he believed Gant was delirious when he was admitted to the hospital on Wednesday, January 19, and that "the symptoms would have preceded the actual admission by several days." Nurse Tanya Monte, who worked with Gant on the weekend, testified that he was agitated, talkative, irritable, and appeared ill. On Friday evening, she administered 150 milligrams of Demerol to him in the emergency room at Dr. Perez's direction, and questioned the amount. She said that on Saturday Gant was louder than usual and impatient, and his eyes were drowsy. While Gant was examining a patient, he said in the patient's hearing, "If this patient dies, I'm going to kill myself." Nurse Diane Dix testified that Gant alternated between being unusually quiet and being agitated and short-tempered. Nurse Elizabeth King, the government witness in whose presence Gant stole the Demerol from the hospital, testified that he was "out of character" on Saturday in that he did not make eye contact when speaking to her...
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...the Owens standard. See United States v. Dixon, 185 F.3d 393, 403-04 (5th Cir.1999); United States v. Gant, 74 F.3d 1234, 1996 WL 13929, at *3 (4th Cir.1996) (per curiam) (unpublished opinion) (insanity defense only generated "if the evidence would permit the jury to find by a high degree o......