U.S. v. Katz, No. 05-2940.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSmith
Citation445 F.3d 1023
Docket NumberNo. 05-2940.
Decision Date09 May 2006
PartiesUNITED STATES of America, Appellee, v. Harry Meyer KATZ, Appellant.
445 F.3d 1023
UNITED STATES of America, Appellee,
v.
Harry Meyer KATZ, Appellant.
No. 05-2940.
United States Court of Appeals, Eighth Circuit.
Submitted: January 13, 2006.
Filed: May 9, 2006.

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COPYRIGHT MATERIAL OMITTED

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Barry A. Short, argued, St. Louis, MO (Evan Z. Reid, St. Louis, on the brief), for appellant.

John T. Davis, argued, Asst. U.S. Attorney, St. Louis, MO (Sirena M. Wissler, Asst. U.S. Attorney, St. Louis, on the brief), for appellee.

Before SMITH and HANSEN, Circuit Judges, and BOGUE,1 District Judge.

SMITH, Circuit Judge.


Dr. Harry Meyer Katz was charged in a 192-count indictment with attempted or actual distribution of Schedule III and IV controlled substances outside of the scope of medical practice and not for a legitimate medical purpose in violation of 21 U.S.C. §§ 846 and 841(a)(1). Each count of the indictment related to a single prescription written by Dr. Katz for various controlled substances, including Xanax, Darvocet, Alprazolam, Vicodin, and Valium. A jury found Dr. Katz guilty on 176 counts of the indictment, and the district court2 sentenced him to 16 months' imprisonment, a $75,000 fine, and forfeiture of $5,640.3 Dr. Katz appeals, alleging seven grounds for reversal. For the reasons set forth below, we affirm.

I. Facts

Dr. Katz opened what could be considered an atypical medical practice in Cedar Hill, Missouri, in 1982. Dr. Katz maintained office hours seven days a week and did not accept appointments. Dr. Katz lived in his office and was amenable to opening his doors to a patient in need at any hour. He charged a flat fee, $40 or $45, for all office visits, accepting payment in cash, check or charge; he did not accept medical insurance. Dr. Katz prescribed medications to patients upon request and was suspected of violating federal drug laws. Dr. Katz was eventually indicted based upon prescriptions he wrote for fifteen people,4 who all testified for the government at trial.

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Three of these individuals were undercover law enforcement officers sent into Dr. Katz's office, attempting to obtain a prescription for a controlled substance. Officer Mike Otten visited Dr. Katz four times, acting in an undercover capacity, and each time was equipped with an audio recording device. In each of Otten's visits, he requested a prescription for Xanax, claiming that he wanted the pills to "chill out." Dr. Katz took his blood pressure, measured his height and weight then wrote Otten a prescription for Xanax. Otten paid Dr. Katz $40 in cash. Officer Dawn Molkenbur also visited Dr. Katz, acting in an undercover capacity. She too requested a prescription for Xanax, telling Dr. Katz that she had used it before for personal reasons. Dr. Katz wrote her a prescription, and Molkenbur paid Dr. Katz $40 in cash. Lastly, undercover Officer Cynthia Scott visited Dr. Katz, acting in an undercover capacity. Scott asked Dr. Katz for Valium, stating that she liked the way it made her feel. Dr. Katz wrote her a prescription for Diazepam (generic Valium) without conducting a medical examination. Scott paid Dr. Katz $40 in cash.

Daniel Seay first saw Dr. Katz in 1996. Seay testified that he suffered from back and knee pain. He also testified that he had problems with anxiety and panic attacks. Dr. Katz prescribed Seay acetaminophen with codeine for pain, Alprazolam (generic Xanax), and Propoxyphene (generic Darvocet) on his first visit to Dr. Katz's office. Dr. Katz wrote Seay over 82 prescriptions for controlled substances during the course of his treatment.

Charles Beck told Dr. Katz that he wanted medication and specifically asked for Hydrocodone (generic Vicodin), which he was immediately prescribed. Beck continued to visit Dr. Katz between 1999 and 2002, complaining of various injuries and anxiety. During this time, Dr. Katz wrote Beck a total of 117 prescriptions for controlled substances. On one occasion, Dr. Katz wrote Beck a prescription for Vicodin 9 days after he gave Beck a prescription for 30 Vicodin tablets. On another occasion, Dr. Katz wrote Beck a prescription for Vicodin 6 days after he gave Beck a prescription for 30 Vicodin tablets. On a third occasion, Dr. Katz wrote Beck a prescription for Vicodin 7 days after he gave Beck a prescription for 30 Vicodin tablets. Dr. Katz then expressed concern that Beck had a problem with Vicodin abuse, but Dr. Katz continued to prescribe it for him.

Pamela Asher went to see Dr. Katz after a car accident. She told Dr. Katz that she needed medication, and he gave her prescriptions for Darvocet and Diazepam. Pamela Asher pretended to need medication and succeeded in getting Dr. Katz to see her every 2 weeks for 3 years, during which time she received at least 82 prescriptions for Diazepam and Darvocet. Chad Asher, Pamela's husband, first saw Dr. Katz in 1998. Chad claimed that he was having stress and anxiety and a back problem. He specifically asked Dr. Katz for Diazepam and Darvocet. Chad continued to see Dr. Katz every two weeks for the next four years. On occasion, Chad would see Dr. Katz more frequently than every 2 weeks, each time receiving a new 30-day prescription. While seeing Dr. Katz, the Ashers each received the same prescriptions for the same medications.

Dan Bowen, Jr. saw Dr. Katz for several years. Initially, Bowen talked to Dr. Katz about stress and anxiety, resulting from his father's death. Dr. Katz prescribed Xanax. Bowen also told Dr. Katz that he fell on ice and hurt his back and that he suffered from recurrent headaches. Dr. Katz prescribed Hydrocodone for the back pain and Valium for the headaches. Dr. Katz wrote Bowen a total of 51 prescriptions for controlled substances. Peggy

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Sue Bowen, Dan's wife, saw Dr. Katz for four to five years. She complained of migraine headaches. Dr. Katz initially prescribed Vicodin, but the prescription was later changed to Fioricet and Valium. Over time, Dr. Katz wrote her 49 prescriptions for Valium. Angie Luechtmann, daughter of the Bowens, began receiving Diazepam prescriptions from Dr. Katz in 2001. She told Dr. Katz that she was under stress because she left her husband and her brother was in jail. She also received Fioricet prescriptions from Dr. Katz. Dr. Katz was aware that Luechtmann was a methamphetamine user, but he continued to write at least 25 prescriptions for Diazepam. Dan Bowen III, son of the Bowens, began seeing Dr. Katz in 1999, complaining of stress, and received at least 25 prescriptions for Diazepam.

Danny Turman began seeing Dr. Katz when his surgeon refused to give him any more pain pills after a knee replacement. Turman told Dr. Katz that he had pain in his knee from the knee replacement. Dr. Katz wrote Turman a prescription for Darvocet. Turman saw Dr. Katz every two weeks for a year and a half. During that time, Dr. Katz wrote Turman at least 50 prescriptions for Darvocet and 50 for Lorazepam.

William Bradley, a college student, told Dr. Katz that he had school stress and requested a prescription for Xanax. He actually intended to use the Xanax for personal pleasure. On one occasion, Bradley told Dr. Katz that he injured himself and requested pain medication. Dr. Katz, without conducting an examination of the purported injury, prescribed Darvocet.

Maria Taca gave testimony under Federal Rule of Evidence 404(b) because her prescriptions were not charged in the indictment. At the time of trial, Taca was indicted as a part of a heroine conspiracy and was testifying against Dr. Katz in hopes of receiving a lighter sentence in connection with her own case. She testified that she began seeing Dr. Katz in 1999 to obtain Xanax. Dr. Katz prescribed Xanax and Darvocet. Taca visited Dr. Katz at least every two weeks for about three years. Sometimes, she would use an assumed name and get additional prescriptions. During one visit, Dr. Katz told her that if she combined Soma and Librax together, they would produce the same effect as Xanax. Dr. Katz then gave her Soma and Librax prescriptions.

Each patient/witness testified that Dr. Katz required no paperwork at their initial visit. Further, Dr. Katz never asked for medical or family history. There were usually no physical examinations conducted, and Dr. Katz never referred any of these patients to a specialist or for a second opinion. All of the patient/witnesses paid Dr. Katz in cash and did not receive a receipt.

The government offered the expert testimony of Dr. Ted Parran. Dr. Parran gave the jury an overview of the doctor-patient relationship in general. Dr. Parran then addressed his review of Dr. Katz's patient charts for Charles Beck, Daniel Seay, Chad Asher and Pamela Asher. Dr. Parran testified that the prescriptions written for these four patients were outside of the scope of legitimate medical practice and without a legitimate medical purpose.

II. Discussion

Dr. Katz advances the following arguments on appeal: (1) the district court erred in failing to grant his motion for judgment of acquittal or a new trial based on the sufficiency of the evidence; (2) the district court erred in admitting evidence relating to prescriptions not charged in the indictment; (3) the district court erred in admitting the testimony of Maria Taca pursuant to Rule 404(b); (4) the district

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court gave erroneous jury instructions; (5) the district court erred in allowing disputed portions of testimony from the government's expert, Dr. Parran, to be submitted to the jury; (6) the government's rebuttal closing argument deprived him of a fair trial; and (7) the district court erred in failing to grant a mistrial following the inappropriate testimony of Chad Asher.

A. Sufficiency of the Evidence

A prosecution under § 841 requires

proof beyond a reasonable doubt that the doctor was acting outside the bounds of professional medical practice, as his authority to prescribe controlled substances was being used not for treatment of a patient, but for the purpose of assisting...

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35 practice notes
  • Part II
    • United States
    • Federal Register April 06, 2009
    • April 6, 2009
    ...may be held liable for knowingly or intentionally dispensing controlled substances in violation of the CSA: \34\ United States v. Katz, 445 F.3d 1023, 1031 (8th Cir. 2006), cert. denied, 127 S.Ct. 421 (2006). The question, then, in any case where a pharmacist is charged with illegal distrib......
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...still comport with the tenants of medical professionalism. In line with the Supreme Court's decision in Moore, in United States v. Katz, 445 F.3d 1023 (8th Cir.2006), we indicated that prescriptions issued "outside the bounds of professional medical practice" include instances where a docto......
  • U.S. v. Jennings, No. 06-1889.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 6, 2007
    ...the instructions, taken as a whole, fairly and adequately instruct the jurors on the law applicable to the case. United States v. Katz, 445 F.3d 1023, 1030 (8th Cir.2006). The instructions "do not need to be technically perfect or even a model of clarity." Id. (quotation Jennings argues tha......
  • Com. v. Brown, No. 07-P-1631.
    • United States
    • Appeals Court of Massachusetts
    • April 15, 2009
    ...in the maintenance of a drug habit or dispenses controlled substances for other than a legitimate medical purpose. United States v. Katz, 445 F.3d 1023, 1028 (8th Cir.), cert. denied, 549 U.S. 956, 127 S.Ct. 421, 166 L.Ed.2d 275 The Tenth Circuit upheld a conviction of a physician charged w......
  • Request a trial to view additional results
32 cases
  • U.S. v. Smith, No. 07-2956.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 28, 2009
    ...still comport with the tenants of medical professionalism. In line with the Supreme Court's decision in Moore, in United States v. Katz, 445 F.3d 1023 (8th Cir.2006), we indicated that prescriptions issued "outside the bounds of professional medical practice" include instances where a docto......
  • U.S. v. Jennings, No. 06-1889.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 6, 2007
    ...the instructions, taken as a whole, fairly and adequately instruct the jurors on the law applicable to the case. United States v. Katz, 445 F.3d 1023, 1030 (8th Cir.2006). The instructions "do not need to be technically perfect or even a model of clarity." Id. (quotation Jennings argues tha......
  • Com. v. Brown, No. 07-P-1631.
    • United States
    • Appeals Court of Massachusetts
    • April 15, 2009
    ...in the maintenance of a drug habit or dispenses controlled substances for other than a legitimate medical purpose. United States v. Katz, 445 F.3d 1023, 1028 (8th Cir.), cert. denied, 549 U.S. 956, 127 S.Ct. 421, 166 L.Ed.2d 275 The Tenth Circuit upheld a conviction of a physician charged w......
  • U.S. v. Valdivieso Rodriguez, Criminal No. 07-032(JAG).
    • United States
    • U.S. District Court — District of Puerto Rico
    • October 24, 2007
    ...of applicable state definition, authorization and licensing, together with the recognized standards prevail. See United States v. Katz, 445 F.3d 1023, 1030 (8th Cir.2006) (noting that "the material issue [was] whether defendant, a medical doctor, wrote ... prescriptions outside the usual co......
  • Request a trial to view additional results

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