U.S. v. Rogers, No. 79-5259

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore COLEMAN, Chief Judge, HILL and GARZA; PER CURIAM
Citation609 F.2d 834
Docket NumberNo. 79-5259
Decision Date14 January 1980
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry Anthony ROGERS, M.D., Defendant-Appellant. Summary Calendar. *

Page 834

609 F.2d 834
UNITED STATES of America, Plaintiff-Appellee,
v.
Larry Anthony ROGERS, M.D., Defendant-Appellant.
No. 79-5259
Summary Calendar. *
United States Court of Appeals,
Fifth Circuit.
Jan. 14, 1980.

Page 835

Louis M. Moore, Bertrand C. Moser, Houston, Tex., for defendant-appellant.

Anna E. Stool, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before COLEMAN, Chief Judge, HILL and GARZA, Circuit Judges.

PER CURIAM:

Larry Anthony Rogers, M.D., appeals from his conviction on all counts of an eleven count indictment charging him with unlawfully dispensing and causing to be dispensed Schedule II and IV controlled substances in violation of Title 21, United States Code, § 841(a)(1); Title 21, Code of Federal Regulations, § 1306.04(a); and Title 18, United States Code, § 2(b).

Each count charged that he had dispensed or caused to be dispensed these controlled substances not in the usual course of professional practice and not for a legitimate medical purpose. Counts 1, 2, 4, 6, 7, 9, 10 and 11 dealt with Schedule II controlled substances and counts 3, 5 and 8 dealt with a Schedule IV substance, Valium. After the guilty verdict by the jury, Dr. Rogers was sentenced for a period of four years in the penitentiary with a special parole term of two years as to each of counts 1, 2, 4, 6 and 7, to run concurrently with each other. He was further sentenced to three years imprisonment with a special parole term of two years as to each of counts 3, 5 and 8 to run concurrently with each other, but consecutive to the sentences imposed as to counts 1, 2, 4, 6 and 7, making a total of seven years that he had to serve with a special term of parole of four years. On counts 9, 10 and 11, he was sentenced to five years with a special term of parole of two years, the execution of which was suspended and the defendant placed on probation with supervision for a period of five years. These sentences were to run concurrently with each other, but consecutive to the sentences imposed as to counts 1, 2, 3, 4, 5, 6, 7 and 8.

Appellant Rogers attacks his conviction on counts 3, 5 and 8, the counts dealing with his prescribing Valium, a Class IV controlled substance, on the ground that the evidence was insufficient in that the Government failed to put on any expert testimony as to what physical examination, if any, a doctor must perform before he can legitimately prescribe Valium. Appellant also complains about the admission into evidence of prescriptions written by him for non-testifying patients.

The thrust of the Government evidence was to show that Dr. Rogers was indiscriminately writing prescriptions for controlled substances to patients that he never even examined and that he was, in the words of the medical profession, a "paper hanger" or a "scrip writer", as characterized by Dr. Barr, the expert witness for the Government. The evidence is clear that he asked his patients what they wanted prescribed, instead of his prescribing what he thought they needed after examining them. The eleven counts of the indictment are based on Dr. Rogers' prescribing controlled substances to two undercover law officers, Don Sparks and Jane Herber, who posed as patients on four occasions between May 6 and June 27, 1977. The investigation of Dr. Rogers began when one Miss Lonnie Patrick, working in an undercover capacity with the Bellaire, Texas, Police Department, had an appointment to see the appellant. Officer Don Sparks and Officer Cohen, agents with the Texas Department of Public Safety, Narcotics Division, accompanied her to the appellant's office, but remained outside while she kept her appointment. Ms. Patrick filled out a medical history form, had her blood pressure taken, and was weighed by the receptionist. When she went in to see the defendant Rogers he had the form that she had filled out with him. He asked her what her problem was and she informed him that she was having trouble sleeping and that in the mornings she was unable to stay awake.

Page 836

Instead of the appellant Rogers prescribing for Ms. Patrick, he asked her what she wanted and she told him Quaalude and Desoxyn. After she informed Dr. Rogers what she wanted he proceeded to write her three prescriptions; one for Quaalude, one for Desoxyn, and one for Valium or Librium that she had not even asked for. Then the appellant Rogers asked Ms. Patrick if she wanted anything else and she asked him if he had any suggestions. He then told her just to try those for a while. Ms. Patrick paid $25.00 in cash for her visit to the doctor's office and left.

On May 6th Ms. Patrick returned to the office, this time accompanied by Agent Sparks. When they arrived at the appellant's office a large number of young people covering nearly every inch of the reception area were waiting to see the appellant. When she was able to go in to see the doctor she told him she was having the same problem as the last time. He again wrote her prescriptions for a Desoxyn and Quaalude. Ms. Patrick testified that Dr. Rogers did not examine her on either of these two visits. While her blood pressure and weight were taken on the first visit, nothing like that was done on the visit of May 6th. After appellant had written her prescriptions he asked for his $25.00 fee. Ms. Patrick told him that she had a friend of hers, Don Sparks, who had the money and also wanted to see him. Agent Sparks was allowed into the doctor's office, talked to the appellant briefly, then appellant Rogers asked him what he wanted and started writing prescriptions. No history of Sparks was taken. He was not weighed nor was his blood pressure taken by the receptionist, and he received no physical examination of any kind. Agent Sparks testified that after introducing himself to the appellant, the appellant asked him what he wanted, that he replied that he wanted some Desoxyn and then the appellant asked him, "What else?" and that he replied that he also wanted some Quaalude. Appellant asked him if he wanted anything else, and before Sparks could reply, the appellant said, "How about Valium or Librium?" and that he told him, "I want some Valium." At the conclusion of his brief visit on May 6th, Agent Sparks paid $50.00 in cash for himself and Ms. Patrick, since checks were not accepted and all visits to the appellant had to be paid in cash. During cross-examination of Ms. Patrick it was brought out that Agent Sparks, on the first visit, told the appellant Rogers that he was a truck driver and had turn-around routes which caused him insomnia at night and difficulty staying awake during the day.

On June 2, 1977, Agent Sparks, accompanied by Ms. Patrick, made another visit to the appellant's office. This time the receptionist...

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16 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
    ...medical purpose from adequate lay witness evidence surrounding the facts and circumstances of the prescriptions. United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980). There are § 841 cases in which the trier of fact does not need outside, specialized knowledge to understand the evidenc......
  • United States v. Ruan, No. 17-12653
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 10, 2020
    ...lay witnesses surrounding the facts and circumstances of the prescriptions." Joseph , 709 F.3d at 1103 (quoting United States v. Rogers , 609 F.2d 834, 839 (5th Cir. 1980) ). In additional support of these counts, Officer Kelley himself testified that he did not need the opioids that Couch ......
  • State v. Young, No. 19647
    • United States
    • Supreme Court of West Virginia
    • June 28, 1991
    ...(1984), and cert. denied sub nom. Sando v. United States, 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984); United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980); United States v. Kirk, 584 F.2d 773, 784 (6th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 708 (1978); Un......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...United States v. Leigh, 487 F.2d 206, 208 (5th Cir.1973), and has affirmed a conviction for illegal dispensation, United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980). In United States v. Dunbar, 614 F.2d 39, 41 (5th Cir.) (per curiam), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.......
  • Request a trial to view additional results
16 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
    ...medical purpose from adequate lay witness evidence surrounding the facts and circumstances of the prescriptions. United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980). There are § 841 cases in which the trier of fact does not need outside, specialized knowledge to understand the evidenc......
  • United States v. Ruan, No. 17-12653
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 10, 2020
    ...lay witnesses surrounding the facts and circumstances of the prescriptions." Joseph , 709 F.3d at 1103 (quoting United States v. Rogers , 609 F.2d 834, 839 (5th Cir. 1980) ). In additional support of these counts, Officer Kelley himself testified that he did not need the opioids that Couch ......
  • State v. Young, No. 19647
    • United States
    • Supreme Court of West Virginia
    • June 28, 1991
    ...(1984), and cert. denied sub nom. Sando v. United States, 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984); United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980); United States v. Kirk, 584 F.2d 773, 784 (6th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 726, 58 L.Ed.2d 708 (1978); Un......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...United States v. Leigh, 487 F.2d 206, 208 (5th Cir.1973), and has affirmed a conviction for illegal dispensation, United States v. Rogers, 609 F.2d 834, 839 (5th Cir.1980). In United States v. Dunbar, 614 F.2d 39, 41 (5th Cir.) (per curiam), cert. denied, 447 U.S. 926, 100 S.Ct. 3022, 65 L.......
  • Request a trial to view additional results

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