U.S. v. Larson, No. 73-3109

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BARNES and ELY; PER CURIAM
Citation507 F.2d 385
Decision Date22 May 1974
Docket NumberNo. 73-3109
PartiesUNITED STATES of America, Appellee, v. Harry F. LARSON, M.D., Appellant.

Page 385

507 F.2d 385
UNITED STATES of America, Appellee,
v.
Harry F. LARSON, M.D., Appellant.
No. 73-3109.
United States Court of Appeals, Ninth Circuit.
May 22, 1974, As Amended Nov. 21, 1974.

Page 386

Warren A. Sinsheimer, III, San Luis Obispo, Cal., for appellant.

William S. Hawes, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

OPINION

Before BARNES and ELY, Circuit Judges, and EAST, * District Judge.

PER CURIAM.

Dr. Harry F. Larson, an M.D. licensed to practice medicine in California, was convicted of nine substantive counts of distributing a controlled substance in violation of 21 U.S.C. 841(a)(1) 1 and of conspiracy to violate 21 U.S.C. 841(a)(1) as proscribed by 21 U.S.C. 846.

I. Sufficiency of the Evidence

Dr. Larson's principal argument on appeal questions the sufficiency of the evidence. He urges that because of the absence of expert medical testimony the government failed to carry its burden of proof that the prescriptions written by Dr. Larson were issued without a legitimate medical purpose, and not in the usual course of his professional practice.

The regulation (21 C.F.R. 306.04(a) 2 issued pursuant to 21 U.S.C. 829(a) and (b) exempts medical practitioners from the prohibitions of 21 U.S.C. 841(a) (1) by allowing a practitioner to issue a prescription 'for a legitimate medical purpose,' and 'in the usual course of his professional practice.' On appeal we must review all the evidence and all the reasonable inferences that are to be drawn therefrom, in a light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Amaro, 422 F.2d 1078, 1081 (9th Cir. 1970).

Page 387

Dr. Larson made a motion for judgment of acquittal at the end of the government's case in chief, but failed to renew the motion at the end of all the evidence. Such an unrenewed motion is waived and any error in the denial of the motion is waived by the introduction of the accused's evidence. Benchwick v. United States, 297 F.2d 330 (9th Cir. 1961). Appellant now urges us to consider his insufficiency argument in light of the 'plain error' rule. Rule 52(b) F.R.Crim.P.; See Reisman v. United States,409 F.2d 789 (9th Cir. 1969). In the absence of 'plain error' appellant can not now challenge the dinial of the motion for acquittal. United States v. Lewis, 426 F.2d 266 (9th Cir. 1970). The 'plain error' of Rule 52(b) is invoked only in exceptional situations, '. . . situations wherein it appears to be necessary in order to prevent miscarriage of justice or to preserve the integrity and reputation of the judicial process.' Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). In reviewing the record we do not find that such an exceptional situation existed here requiring us to find the denial of the motion of acquittal represented 'plain error' by the trial judge.

Appellant argues that the government was required to present expert testimony to carry its burden of proof. We do not find that expert testimony was required under the facts of this case.

In United States v. Bartee, 479 F.2d 484 (10th Cir. 1973), which also concerned the prosecution of a doctor for illegally dispensing controlled substances, the expert testimony was contradictory, but the court to some degree minimized the expert testimony by stating:

'Expert testimony from medical practitioners is of course admissible as bearing on the issue as to whether a doctor in prescribing a controlled substance is acting for a legitimate medical purpose and the expert testimony in the instant case was to some degree, at least, in conflict. However, the jury is not bound by such expert testimony and may of course consider all of the facts and circumstances surrounding the prescribing as related by lay witnesses. In this connection, we regard certain of the utterances attributed to Dr. Bartee by Baker and Coller to be particularly damning and the overall facts and circumstances of the case are such as in our view permit the inference that Dr. Bartee in thus prescribing was not acting for a legitimate medical purpose and such was not within the usual course of his professional practice.' Id. at 488-489.

In Bartee, the evidence against the Doctor was deemed sufficient to sustain the conviction. The court found the following evidence significant: the inordinately large quantities of controlled substances, the spreading out of prescriptions in place of one, the use of street slang terms such as 'reds', and the 'most damning evidentiary matter was the testimony by agent Coller that Dr. Bartee said that he had to be careful since the BNDD (Bureau of Narcotics and Dangerous Drugs) checked the drugstores for prescriptions issued . . ..' Id. at 489. Dr. Bartee suggested that the prescriptions be taken to different drugstores and not filled at the same one. The court felt that the evidence was such to permit the jury's determination that the doctor was not acting for a legitimate medical purpose, and was not acting in the usual course of his professional practice.

Many of the factors considered significant in Bartee are present here. (1) Larson did prescribe and/or distribute inordinate quantities to the individuals named in the various counts. (2) He wrote more than one prescription on occasions in order to 'spread' them out. (3) He charged a flat rate cash fee for each prescription. (4) Dr. Larson cautioned the witness butler about having the prescription filled at the same pharmacy because each prescription was for a thirty day supply and he was supplying Butler with prescriptions more frequently

Page 388

than that. (R.T. 398). (5) Dr. Larson also used the street parlance for seconal: 'reds'; and for methamphetamine: 'speed'. (R.T. 392).

Finally, some of the utterances that agents Dalton and Keszler, witness Butler, and the massage parlor witnesses testified that Dr. Larson had made, in view of the previously listed facts and circumstances, support the jury's determination that Dr. Larson was not acting for a legitimate medical purpose or in the usual course of his professional practice. Although Dr. Larson sometimes required a physical examination,...

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49 practice notes
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...visits, and defendant had some knowledge that prescriptions pills were used for parties rather than weight-loss); United States v. Larson, 507 F.2d 385, 387 (9th Cir.1974) (similar). Jurors have had a wide variety of their own experiences in doctors' care over their lives, thus and expert t......
  • State v. Christensen, DA 18-0268
    • United States
    • Montana United States State Supreme Court of Montana
    • September 16, 2020
    ...practice." United States v. Moore , 423 U.S. 122, 124, 96 S. Ct. 335, 337, 46 L.Ed.2d 333 (1975) ; United States v. Larson , 507 F.2d 385, 388 (9th Cir. 1974) ; United States v. MacKay , 715 F.3d 807, 824-25 (10th Cir. 2013). ¶101 Indeed, in enacting Montana's drug legislation, the Mon......
  • Com. v. Kobrin, No. 04-P-1678.
    • United States
    • Appeals Court of Massachusetts
    • September 12, 2008
    ...States v. Badia, 490 F.2d 296, 297 (1st Cir.1973); United States v. Bartee, 479 F.2d 484, 489 (10th Cir.1973); United States v. Larson, 507 F.2d 385, 387-388 (9th Cir.1974); United States v. Green, 511 F.2d 1062, 1066 (7th Cir.1975), cert. denied, 423 U.S. 1031, 96 S.Ct. 561, 362, 46 L.Ed.2......
  • State v. Young, No. 19647
    • United States
    • Supreme Court of West Virginia
    • June 28, 1991
    ...more resemblance to professional dental practice than the conduct of any "street-corner [drug] pusher." United States v. Larson, 507 F.2d 385, 388 (9th F. Other Prescriptions Admitted into Evidence The appellant renews here his timely objection at trial to the admission into evide......
  • Request a trial to view additional results
49 cases
  • U.S. v. Armstrong, No. 07-30286.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 21, 2008
    ...visits, and defendant had some knowledge that prescriptions pills were used for parties rather than weight-loss); United States v. Larson, 507 F.2d 385, 387 (9th Cir.1974) (similar). Jurors have had a wide variety of their own experiences in doctors' care over their lives, thus and expert t......
  • State v. Christensen, DA 18-0268
    • United States
    • Montana United States State Supreme Court of Montana
    • September 16, 2020
    ...practice." United States v. Moore , 423 U.S. 122, 124, 96 S. Ct. 335, 337, 46 L.Ed.2d 333 (1975) ; United States v. Larson , 507 F.2d 385, 388 (9th Cir. 1974) ; United States v. MacKay , 715 F.3d 807, 824-25 (10th Cir. 2013). ¶101 Indeed, in enacting Montana's drug legislation, the Mon......
  • Com. v. Kobrin, No. 04-P-1678.
    • United States
    • Appeals Court of Massachusetts
    • September 12, 2008
    ...States v. Badia, 490 F.2d 296, 297 (1st Cir.1973); United States v. Bartee, 479 F.2d 484, 489 (10th Cir.1973); United States v. Larson, 507 F.2d 385, 387-388 (9th Cir.1974); United States v. Green, 511 F.2d 1062, 1066 (7th Cir.1975), cert. denied, 423 U.S. 1031, 96 S.Ct. 561, 362, 46 L.Ed.2......
  • State v. Young, No. 19647
    • United States
    • Supreme Court of West Virginia
    • June 28, 1991
    ...more resemblance to professional dental practice than the conduct of any "street-corner [drug] pusher." United States v. Larson, 507 F.2d 385, 388 (9th F. Other Prescriptions Admitted into Evidence The appellant renews here his timely objection at trial to the admission into evide......
  • Request a trial to view additional results

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