United States v. Bartee, No. 72-1759.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtSETH, McWILLIAMS and DOYLE, Circuit
Citation479 F.2d 484
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Roy A. BARTEE, Defendant-Appellant.
Docket NumberNo. 72-1759.
Decision Date22 May 1973

479 F.2d 484 (1973)

UNITED STATES of America, Plaintiff-Appellee,
v.
Roy A. BARTEE, Defendant-Appellant.

No. 72-1759.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted February 21, 1973.

Decided May 22, 1973.

Rehearing Denied June 14, 1973.


Paul D. Cooper, Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.

Hugh J. McClearn, Denver, Colo. (Gregory A. Thomas, Boulder, Colo., and

479 F.2d 485
Van Cise, Freeman, Tooley & McClearn, Denver, Colo., on the brief), for defendant-appellant

Samuel P. Guyton and Eugene F. McGuire, Denver, Colo., and Holland & Hart, Denver, Colo., of counsel, for The Denver Medical Society, as amicus curiae.

Before SETH, McWILLIAMS and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

Dr. Roy A. Bartee, a licensed doctor of medicine, was convicted on two counts of dispensing a controlled substance in violation of 21 U.S.C. § 841(a) (1). In one count, Dr. Bartee was convicted of knowingly and intentionally dispensing Percodan on February 29, 1972, to Ronald Baker, a special agent with the Federal Bureau of Narcotics and Dangerous Drugs, which agency will hereinafter be referred to as BNDD. In another count, Dr. Bartee was convicted of knowingly and intentionally dispensing Seconal on March 2, 1972, to William Coller, also a special agent for BNDD. Dr. Bartee was acquitted on a third count involving a Denver policewoman who visited him and for whom he had allegedly prescribed Percobarb and Dexamyl.

Dr. Bartee now appeals his conviction and in our view his principal assignment of error relates to the sufficiency of the evidence. Accordingly, we will summarize the evidence in some detail, keeping in mind that, Dr. Bartee having been convicted, we must on appeal view the evidence, together with all the reasonable inferences that can be drawn therefrom, in a light most favorable to the Government. United States v. Frazier, 434 F.2d 238 (10th Cir. 1970).

On February 14, 1972, agent Ronald Baker first visited Dr. Bartee in the latter's office located at 811 South Pearl Street in Denver, Colorado. Baker, using a cover name of Tony Morris, complained to the doctor of a persistent backache. The doctor, without conducting any physical examination, as such, though he did take a short history, wrote out a prescription for Parafonforte, which is not a controlled substance.

On February 29, 1972, Baker returned to Dr. Bartee, advising him on that occasion that he needed something stronger than Parafon Forte. As concerns the Parafon Forte previously prescribed, Baker informed the doctor that he had traded some of it for some Tuinal, which is a controlled substance. Dr. Bartee then advised Baker that he would prescribe something stronger and began writing out a prescription for twenty-four tablets of Percodan, which is a controlled substance. Baker asked for a larger prescription and the doctor accordingly gave Baker three separate prescriptions, each calling for twenty-four Percodan tablets, with two of the prescriptions being postdated, one to March 4, 1972, and another to March 8, 1972.

On March 7, 1972, Baker returned to Dr. Bartee's office for a third time. On this occasion, Baker told the doctor that he had been selling the Percodan previously prescribed, whereupon Dr. Bartee stated that he would not do any further business with Baker and walked out of the office. The foregoing summarizes the contacts between Baker and Dr. Bartee. As stated above, one count was based on Dr. Bartee's prescribing Percodan for Baker on February 29, 1972. Let us now turn to agent Coller's visitations to Dr. Bartee's office.

On February 4, 1972, agent William Coller, using the cover name of Bill Conan, first visited Dr. Bartee, complaining of nervousness and inability to sleep. After taking a brief history and making no physical examination, the doctor prescribed Librium, which is said to be a noncontrolled substance.

On February 28, 1972, Coller returned to Dr. Bartee and told him that he (Coller) had traded the Librium for Seconal, which he called "reds," because the Librium hadn't helped him any. On this occasion, Dr. Bartee gave Coller a quantity of the drug Triavil, as opposed to writing out a prescription.

479 F.2d 486

On March 2, 1972, Coller again visited Dr. Bartee and insisted on being given some "reds," a slang term for Seconal. As concerns the Triavil, Coller told the doctor that he had used some, and sold the rest. Dr. Bartee on this occasion told Coller that Seconal was a powerful narcotic and wasn't normally prescribed for simple nervousness. Coller insisted and the doctor wrote out a prescription for Seconal, with Coller paying for the office call with a radio.

On March 9, 1972, Coller next visited Dr. Bartee, asking for more "reds." Dr. Bartee indicated he had given Coller plenty of Seconal on the earlier visit and asked what Coller had done with the Seconal thus prescribed. Coller informed the doctor that he had used some, and gave the rest to his roommate. Dr. Bartee said he had to be "careful" since the BNDD from time to time checked the records of drugstores to determine which doctors were prescribing drugs. In response thereto, Coller stated that he would get the prescriptions filled out of Denver, if that would help, to which the doctor replied that such wasn't necessary, with the further admonition that "if you'll just take the prescriptions to different drugstores each time, that should be all right." On this occasion, Dr. Bartee gave Coller one prescription for twenty-four Seconal tablets, and a second prescription, postdated, for twenty-four more Seconal tablets.

On March 21, 1972, Coller made his final visit to Dr. Bartee and said he needed some more "reds." Coller informed the doctor that he had traded some of the Seconal for other drugs. On this occasion, Coller got another prescription for twenty-four Seconal tablets. He also got a second prescription, bearing the same date as the first, for an additional twenty-four Seconal tablets, on the pretext that he was leaving town and needed a larger prescription.

As concerns this second prescription given Coller by Dr. Bartee on March 21, 1972, there was a dispute between Coller and Dr. Bartee as to the reason for such. Dr. Bartee testified that Coller came back in the afternoon claiming that he had lost the prescription given him during the morning of that day...

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47 practice notes
  • U.S. v. Moore, No. 73-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 18, 1975
    ...401 of the Act is in direct conflict with recent decisions in the First, Fifth, Ninth and Tenth Circuits. In United States v. Bartee, 479 F.2d 484, 488 (1oth Cir. 1973), the court specifically held when a medical practitioner issues a prescription which is not for a legitimate medical purpo......
  • U.S. v. Rosenberg, No. 74-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 31, 1975
    ...United States v. Larson, 507 F.2d 385 (9th Cir. 1974); United States v. Badia, 490 F.2d 296 (1st Cir. 1973); United States v. Bartee, 479 F.2d 484 (10th Cir. 1973). There was ample evidence to support the verdict of the Sixth, Dr. Rosenberg argues that his conviction should be overturned be......
  • Com. v. Kobrin, No. 04-P-1678.
    • United States
    • Appeals Court of Massachusetts
    • September 12, 2008
    ...sufficient to prove illegal prescribing. See, e.g., United 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)......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...F.2d 268, 269 (10th Cir.1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974) (distributing); United States v. Bartee, 479 F.2d 484, 488 (10th Cir.1973) (dispensing). Although we have acknowledged that the Controlled Substances Act "is not a model of clarity in this respec......
  • Request a trial to view additional results
47 cases
  • U.S. v. Moore, No. 73-1192
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 18, 1975
    ...401 of the Act is in direct conflict with recent decisions in the First, Fifth, Ninth and Tenth Circuits. In United States v. Bartee, 479 F.2d 484, 488 (1oth Cir. 1973), the court specifically held when a medical practitioner issues a prescription which is not for a legitimate medical purpo......
  • U.S. v. Rosenberg, No. 74-2197
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 31, 1975
    ...United States v. Larson, 507 F.2d 385 (9th Cir. 1974); United States v. Badia, 490 F.2d 296 (1st Cir. 1973); United States v. Bartee, 479 F.2d 484 (10th Cir. 1973). There was ample evidence to support the verdict of the Sixth, Dr. Rosenberg argues that his conviction should be overturned be......
  • Com. v. Kobrin, No. 04-P-1678.
    • United States
    • Appeals Court of Massachusetts
    • September 12, 2008
    ...sufficient to prove illegal prescribing. See, e.g., United 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)......
  • U.S. v. Genser, No. 82-2458
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 24, 1983
    ...F.2d 268, 269 (10th Cir.1973), cert. denied, 416 U.S. 955, 94 S.Ct. 1968, 40 L.Ed.2d 305 (1974) (distributing); United States v. Bartee, 479 F.2d 484, 488 (10th Cir.1973) (dispensing). Although we have acknowledged that the Controlled Substances Act "is not a model of clarity in this respec......
  • Request a trial to view additional results

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