Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Gottlieb v. State (1/25/2008) ap-2145

Gottlieb v. State (1/25/2008) ap-2145

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878

) Court of Appeals No. A-8350
Appellant, ) Trial Court No. 3AN-00-2954 CR
v. ) O P I N I O N
Appellee. ) No. 2145 January 25, 2008
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage, Elaine M. Andrews, Judge.

          Appearances:  Gayle J. Brown, Anchorage, for
          the   Appellant.   Kenneth   M   Rosenstein,
          Assistant   Attorney  General,   Office   of
          Special Prosecutions and Appeals, Anchorage,
          and   Gregg  D.  Renkes,  Attorney  General,
          Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          STEWART, Judge.

          Jeffrey   Gottlieb  obtained  a  license  to   practice
medicine  in  Alaska  by misrepresenting his credentials.   After
practicing  for several years, Gottlieb came to the attention  of
the  Medicaid Fraud Control Unit of the Department of Law because
of concerns that Gottlieb was overbilling Medicaid.
          After   an   investigation,  the  grand  jury  indicted
Gottlieb  for perjury, forgery, eight counts of first-,  second-,
and  fourth-degree theft; and two hundred and twenty-four  counts
of  second-  and third-degree misconduct involving  a  controlled
substance.1  The trial jury convicted Gottlieb on all counts.
          Gottlieb   raises   several   claims   regarding    his
convictions, ranging from a statute of limitations  issue  to  an
attack  on  the  jury  instructions.  For the  reasons  expressed
below,  we  vacate Gottliebs conviction for perjury, and  reverse
his  convictions  for forgery, two counts of first-degree  theft,
and  one  count  of fourth-degree theft, and we affirm  Gottliebs
remaining convictions.

          Facts and proceedings
          In  an application endorsed under oath on June 3, 1992,
Jeffrey Gottlieb applied to the State Medical Board for a license
to  practice  medicine in Alaska.  One of the  questions  on  the
license  application required Gottlieb to declare  where  he  had
completed  his  post-graduate internship,  also  called  a  post-
graduate year one, which is required when applying for a  medical
license.   Gottlieb answered that he had completed  post-graduate
year one at Monsour Medical Center in Pennsylvania.
          The  State  Medical  Board issued  Gottlieb  a  license
based  on his answer to the above question together with  several
documents  that Gottlieb supplied in support of his  application.
In November 1993, Gottlieb began practicing medicine in Alaska.
          In  the fall of 1997, the Alaska Medicaid Fraud Control
Unit began investigating Gottlieb for overbilling Medicaid.  As a
result  of  the investigation, a search warrant was  executed  on
Gottliebs apartment, which doubled as his office.  The Fraud Unit
seized documents recording his treatment of patients.  The  Fraud
Units   investigation  revealed  that,  although   Gottlieb   had
participated  in  Monsour Medical Centers  post-graduate  medical
program,  he  had not satisfactorily completed the  post-graduate
year  one  requirements.  Ultimately, the case proceeded  through
indictment and Gottlieb was convicted at trial.
          Superior   Court  Judge  Elaine  M.  Andrews  sentenced
Gottlieb  to  concurrent terms of 10 years  imprisonment  with  3
years suspended on the perjury, forgery, first- and second-degree
theft  counts, and second-degree misconduct involving  controlled
substance counts.  Gottlieb received lesser concurrent  terms  on
the remaining counts.  Gottlieb appeals.

          Gottliebs  claim  that the statute of limitations  bars
the  perjury  charge        Gottlieb argues on  appeal  that  the
statute of limitations barred the State from prosecuting  him  on
the  perjury  charge.   The  grand  jury  charged  that  Gottlieb
committed  perjury  by  knowingly and falsely  claiming  to  have
completed post-graduate year one on the notarized application for
a license that he submitted to the State Medical Board on June 3,
1992.   The grand jury returned the indictment on April 27,  2000
          almost eight years after the act for which he was indicted.
Gottlieb raises this claim for the first time on appeal.
          In  Padie v. State,2 the Alaska Supreme Court addressed
the   question  whether  the  statute  of  limitations   was   an
affirmative defense that must be asserted in the trial  court  or
lost,  or  alternatively, that compliance  with  the  statute  of
limitations was a jurisdictional issue that could be  raised  for
the  first  time on appeal.3  The court resolved  this  issue  as
follows:   In  our view, the arbitrary jurisdictional-affirmative
defense   distinction  should  be  abandoned  in   favor   of   a
case-by-case analysis focusing on the language of the  applicable
statute  of  limitations  and  the  public  policies  behind  its
          The  State had charged Padie with first-degree  murder,
which  was  not  time-barred,  but  reached  an  agreement   that
permitted  Padie to plead no contest to manslaughter even  though
prosecution  for  manslaughter was otherwise  time-barred.5   The
supreme  court  held  that the statute of  limitations  could  be
waived   by   a   defendant  if:   the  waiver   was   knowingly,
intelligently, and voluntarily entered;  the waiver was made  for
the  defendants benefit and after consultation with counsel;  and
the  waiver did not contravene the policy reasons underlying  the
statute of limitations.6
          The  normal  statute  of  limitations  for  prosecuting
crimes  is five years.7  If the crime involves a material element
of fraud, AS 12.10.020(a) extends the general time limitation for
up  to  three additional years.  However, if the State relies  on
this  statutory  extension, the prosecution must commence  within
one  year  after  the discovery of the offense  by  an  aggrieved
party[.]8   In  this  case, prosecution  of  the  perjury  charge
commenced when the indictment was returned on April 27, 2000.9
          The  State argues that perjury is a crime that involves
a  material  element of fraud and, furthermore,  that  the  State
commenced   prosecution  of  this  crime  within  one   year   of
discovering that Gottliebs conduct constituted perjury.
          In   an   unreported  case,  Latchem  v.  State,10   we
addressed whether the crime of making a campaign contribution  in
another persons name11 contained a material element of fraud  for
purposes   of  triggering  the  one-year  period  for  commencing
prosecution under AS 12.10.020(a).  We suggested in Latchem  that
the  application  of  AS  12.10.020(a) depends  on  the  material
elements  of  the  crime,  not on the defendants  motivation  for
committing the crime.12
          There  is no specific definition of fraud as that  term
is  used  in  AS  12.10.020(a).  The State points out  that,  for
purposes of the property crimes chapter of Title 11, an intent to
defraud   means  an  intent  to  use  deception.13   Blacks   Law
Dictionary  defines fraud as a knowing misrepresentation  of  the
truth or concealment of a material fact to induce another to  act
to his or her detriment.14
          But  even  if  we  assume that  the  crime  of  perjury
requires  the  State to prove a material element  of  fraud,  the
State  must  still show that Gottlieb was prosecuted  within  one
year  of  the  discovery of the offense.  The  Fraud  Unit  first
learned  of  potential Medicaid billing problems associated  with
          Gottlieb on September 24, 1997, and began investigating shortly
thereafter.  In September 1998, the State obtained and executed a
search  warrant for Gottlieb and his residence.  In  March  1999,
the  Fraud Unit asked its Pennsylvania counterpart for assistance
in  obtaining evidence from Monsour Medical Center.   Fraud  Unit
Investigator  Sharon Magier sent an affidavit,  dated  April  12,
1999,  to  Don  Wojtowich, a special agent  in  the  Pennsylvania
Attorney Generals Office.  The affidavit was sent to support  the
application  for  a  search warrant in  Pennsylvania.   Wojtowich
obtained  a search warrant based on Magiers affidavit on  May  4,
1999,  and executed the warrant the following day at the  Monsour
Medical  Center.  Gottliebs complete personnel file  was  seized.
The   documents  reflected  Gottliebs  failure  to  complete  his
          The   State   argues   that,   for   purposes   of   AS
12.10.020(a),  a  criminal offense is not  discovered  until  the
State  has probable cause to believe that the defendant committed
the  offense.   But  even assuming this is correct,  the  perjury
prosecution against Gottlieb was time-barred.
          The  State maintains it did not have probable cause  to
believe  Gottlieb  committed perjury until a search  warrant  for
Gottliebs  records at the Monsour Medical Center was executed  in
Pennsylvania on May 5, 1999.  Gottlieb points out that the  State
certainly knew by March 1999 that the Monsour Medical Center  had
not  issued Gottlieb an internship certificate (technically known
as  a PGY-1).  The State had received a letter from the hospitals
attorney  in March 1999 confirming that Gottlieb had not received
a  certificate for completing a year of postgraduate training and
had  not  completed  his  required  rotations.   The  Fraud  Unit
investigator  then  decided  to  obtain  the  hospitals  original
records and contacted the Pennsylvania authorities for assistance
with obtaining a search warrant for the records.  And earlier, in
September  1998,  the State had seized documents  from  Gottliebs
residence  that  reflected  Gottliebs  failure  to  complete  his
          The   search  warrant  for  Gottliebs  personnel   file
executed  in  Pennsylvania on May 5, 1999, was supported  by  the
April 12, 1999, affidavit from the Fraud Unit investigator.   The
search  warrant  sought  the  original  records  reflecting  that
Gottlieb  had not completed his internship.  It follows that  the
State   had   evidence  demonstrating  a  fair   probability   or
substantial chance15 that Gottlieb committed perjury by  the  end
of  March 1999, and no later than April 12, 1999.  The indictment
was   returned  April  28,  2000,  more  than  one  year   later.
Therefore,  the perjury prosecution was not commenced within  one
year  of  its discovery.  Accordingly, we conclude that Gottliebs
perjury  prosecution  is time-barred and his  perjury  conviction
must be vacated.

          Gottliebs attack on the forgery conviction
          Next,  we  address  Gottliebs  attack  on  his  forgery
conviction.   Gottlieb  argues that the  State  did  not  present
sufficient  evidence  of  a  forged  instrument  to  sustain  his
conviction.   Gottlieb  was  convicted of  second-degree  forgery
under AS 11.46.505(a)(1).  Alaska Statute 11.46.505(a) provides:
               A  person commits the crime of  forgery
          in  the second degree if he violates  510 of
          this  chapter  and  the  instrument  is   or
          purports to be
               (1)  a  deed, will, codicil,  contract,
          assignment,  negotiable or other  commercial
          instrument, or other document which does  or
          may   evidence,  create,  transfer,   alter,
          terminate,  or  otherwise  affect  a   legal
          right, interest, obligation, or status;  or
               (2) a public record.
Alaska  Statute 11.46.510(a) defines forgery in the third  degree
as follows:
               A  person commits the crime of  forgery
          in  the  third  degree if,  with  intent  to
          defraud, the person
               (1)  falsely makes, completes, or alters a written
               (2) knowingly possesses a forged instrument; or
               (3) knowingly utters a forged instrument.
In  AS  11.46.580(b)(3), the code defines written  instrument  to
          [A]  paper, document, instrument, electronic
          recording, or article containing written  or
          printed  matter  or the equivalent,  whether
          complete or incomplete, used for the purpose
          of   reciting,   embodying,  conveying,   or
          recording  information  or  constituting   a
          symbol   or   evidence  of   value,   right,
          privilege,  or  identification,   which   is
          capable  of  being used to the advantage  or
          disadvantage of some person.
          The  State charged Gottlieb with forgery based  on  the
assertion  that  he submitted an application  for  a  license  to
practice  medicine  that contained false  statements.   But  such
conduct  does not constitute forgery unless the false  statements
are  designed to misrepresent the true identity of the person who
prepared the application.
          Forged  instrument is defined in AS 11.46.580(b)(1)  as
a  written instrument which has been falsely made, completed,  or
altered[.] Alaska Statute 11.46.580(a) defines what it  means  to
falsely  make,  complete, and alter, a  written  instrument.   To
falsely alter a written instrument means to change it so that the
instrument so altered falsely appears or purports to  be  in  all
respects  an authentic creation of its ostensible maker[.]16   To
falsely  complete  a  written instrument  means  to  complete  an
incomplete  written  instrument  so  that  the  complete  written
instrument  falsely appears or purports to be in all respects  an
authentic creation of its ostensible maker[.]17  To falsely  make
a  written  instrument means to create a complete  or  incomplete
written  instrument that purports to be an authentic creation  of
its ostensible maker, but which is not[.]18
          In  other  words, an instrument or document  is  forged
only  if it is altered, completed, or otherwise created so as  to
falsely  appear or purport to be an authentic creation of someone
          other than its true maker.  The State concedes that Gottlieb
prepared and submitted the medical license application, and  that
none  of  the  statements in the application suggests  otherwise.
The State has never asserted that the document falsely appears to
be  an  authentic  creation of Gottliebs. Thus, even  though  the
document   contained  false  assertions  of  fact,  those   false
assertions  did not misrepresent the identity of the  person  who
prepared the document.  Instead, the forgery charge was based  on
the States assertion that the document contained false assertions
of fact.
          The  State  now argues that there was evidence  in  the
record  that Gottlieb falsely altered a letter that was submitted
in  support  of  his  application.  But at Gottliebs  trial,  the
prosecutor never claimed that this altered letter established the
forgery   charge.   Rather,  the  prosecutor  argued   that   the
application  itself  constituted  the  forgery.   The  prosecutor
argued  that  Gottlieb committed forgery when  he  submitted  the
application  that  answered the question where did  you  complete
your training? with the answer the Monsour Medical Center.
               Prosecutor:  [E]ven  though  [Gottlieb]
          knew better [than to claim that he completed
          his  training  at Monsour], he  signed  that
          application  under oath.   That  ladies  and
          gentlemen is perjury and forgery, counts one
          and  two.  Perjury is the lying under  oath,
          count  two  forgery is submitting the  false
          document to the medical board.
Because  there is no evidence in the record that Gottlieb falsely
altered, completed, or made the application he submitted for  his
medical  license,  Gottliebs  conviction  for  forgery  must   be

          Gottliebs    attack   on   the   fourth-degree    theft
          The grand jury indicted Gottlieb in counts 9 and 10  of
the  indictment for two counts of fourth-degree theft.  A  person
commits theft when, with intent to deprive another of property or
to  appropriate the property of another for himself,  the  person
unlawfully  obtains  the  property of  another.19   Fourth-degree
theft is defined as a theft valued at less than $50.20
          In  count   9,  the  grand jury charged  Gottlieb  with
taking  sample  medications from Urgent Care  Medical  Clinic  in
Anchorage on June 14, 1998, when Gottlieb was filling in for  the
regular  doctor  who  was  on  vacation.   Gottlieb  asked  Tonya
Dedomenici, a medical assistant at the clinic, if he  could  have
some  sample  medications.  At trial, Dedomenici  testified  that
Gottlieb  asked  me if he could have um, some sample  medications
and  I  told  him uh, he could.  At that point, Gottlieb  took  a
couple  trash bags  the white kitchen type trash bags   from  the
clinic; opened the boxes containing the sample medications; threw
away  the  warnings  contained  in  the  boxes;  and  placed  the
medications in the trash bags.
          Dedominici   testified  that  she  had   thought   that
Gottlieb  was experiencing discomfort from a cold or  a  headache
and  that  he  wanted  to use a small dose of  cold  or  headache
          medicine to treat the symptoms he was personally experiencing.
Dedominici explained that, when clinic employees had a cold or  a
headache, they regularly treated their cold symptoms or  headache
with sample medication from the clinic, and that clinic employees
were  welcome  to do so.  But Dedominici testified that  Gottlieb
appropriated  from  the  medicine cabinet  a  large  volume  (two
kitchen trash bags full) of a variety of medications.
          Dedominici  also  testified  that  when  Gottlieb   had
finished  taking  samples, there wasnt  very  much  left  in  the
medicine cabinet, and that she was a little surprised by how many
sample medications Gottlieb had taken.  Gottlieb told her that he
was  taking  the samples because he treated patients out  of  his
house  and drug company representatives did not give him  samples
like they did for the clinic.
          When  asked  why  she  had not  stopped  Gottlieb  from
taking so many sample medications, Dedominici testified that  she
was  not  a  confrontational  person.   Dedominici  thought  that
Gottlieb was asking only to swallow[] a pill or something, on the
spot,  to  treat  a cold or a headache.  And she explained  that,
although  she didnt think it was right for Gottlieb  to  take  so
many  sample  medications,  she did not  want  to  stop  Gottlieb
because she was six months pregnant at the time.
          Gottlieb  argues  that there was insufficient  evidence
to  convict  him of theft for taking the samples.  He points  out
that  he  was  given permission to take the samples.   The  State
counters  that  Gottlieb  took more than Dedominici  expected  he
would.  But Dedominici did not express or communicate any of  the
reservations  she had about the number of samples Gottlieb  took.
Viewing the evidence in the light most favorable to the State, we
conclude that Gottliebs conduct in taking the drug samples,  with
the  express permission of a regular member of the clinic  staff,
did  not  constitute theft.  Accordingly, a judgment of acquittal
must enter on that count.
          We  reach  a contrary result on count 10, a  charge  of
fourth-degree  theft  for taking drug samples  from  the  Chugach
Family  Medical Clinic between August 7 and August 16, 1996.   At
the  time, Gottlieb was filling in for a staff doctor who was  on
          Gottlieb  argues  that insufficient evidence  supported
his conviction on this charge because the State failed to present
testimony  from  a  witness  who observed  Gottlieb  take  sample
medications.  But the State presented circumstantial evidence  of
            Rosalie  Stofflet, the laboratory supervisor  at  the
clinic  during the time of the offense, testified that the clinic
stored a great deal of sample medications in a small store  room.
Based on the quantity of samples that were missing after Gottlieb
stopped  working  at the clinic, she believed that  Gottlieb  had
taken  a significant amount of samples from the clinic.  Stofflet
testified that it was very obvious that samples were missing from
the  shelves because drug company representatives kept the clinic
well-supplied with samples, and the shelves were full  of  sample
medications  from floor to ceiling along one side  of  the  store
room.   Finally,  Stofflet  testified  that  she  had  not  given
Gottlieb permission to take any samples from the clinic.
          Viewed  in  the light most favorable to sustaining  the
conviction,  we  conclude  that this  quantum  of  circumstantial
evidence  is  sufficient to sustain this conviction  for  fourth-
degree theft.

          The  attack  on  the jury instructions  for  controlled
          substances misconduct
          Gottlieb  argues that the superior court erred  in  the
jury  instructions that related to the counts charging  him  with
misconduct  involving a controlled substance.  The State  charged
Gottlieb   with  more  than  two  hundred  counts  of  misconduct
involving  a controlled substance for issuing prescriptions  from
1996 through 1999.
          The  jury instructions provided that the State  had  to
prove that Gottlieb knowingly and unlawfully delivered controlled
substances as specified in each count.  The court instructed  the
jury  that  for each count of misconduct involving  a  controlled
substance, the prescriptions for controlled substances issued  by
Gottlieb  were  unlawful  if there did  not  exist  a  legitimate
medical purpose for them.
          The   court  defined  legitimate  medical  purpose   as
          A legitimate medical purpose in this context
          existed   if  each  of  the  following   was
          present: (1) the defendants sole purpose  in
          issuing  the prescription(s) was medical  as
          opposed  to  any  other  purpose,  (2)   the
          prescription(s) was reasonably necessary for
          treatment  of a persons illness  or  injury,
          and,  (3) the prescription(s) was issued  by
          the  defendant while acting within the usual
          course of professional medical practice  and
          in  accordance  with a standard  of  medical
          care   generally  recognized  and   accepted
          within the medical community.
          Gottlieb  argues that this instruction  was  erroneous.
Specifically,  Gottlieb  argues that the  instruction  improperly
allowed  the  jury  to  convict him of incompetently  prescribing
drugs because the instruction allowed the jury to convict him  if
he  prescribed drugs while not acting within the usual course  of
professional medical practice and in accordance with  a  standard
of  medical  care  generally recognized and accepted  within  the
medical community.
          We  recently addressed these same claims in  Grandstaff
v.  State.21  In Grandstaff, the defendant was also convicted  of
numerous  counts of unlawfully distributing controlled substances
by  writing  prescriptions that served no medical purpose.   Like
Gottlieb, Grandstaff argued that the superior courts instructions
to  the jury erroneously allowed the jury to convict him of those
offenses  if  the  State proved that his decision  to  write  the
prescriptions  fell  below  the standard  of  practice  generally
recognized and adopted within the medical community, even  if  he
honestly  believed there was a medical purpose  for  writing  the
prescriptions.22   In  other words, Grandstaff  argued  that  the
instructions  allowed  the  jury  to  convict  him  for   medical
          malpractice.  He also argued that the instructions allowed the
jury  to  convict  him  if  he had some non-medical  purpose  for
prescribing  the  drugs, even if he also  had  a  proper  medical
          In  Grandstaff,  we acknowledged that  the  instruction
defining  legitimate medical purpose in terms of the standard  of
practice  generally accepted in the medical community, considered
in  isolation, potentially violated due process by  allowing  the
jury to convict the defendant of a criminal offense for providing
negligent  medical  care.24  We also  acknowledged  that  a  jury
instruction that allowed the jury to convict the defendant if  he
had  any non-medical purpose for writing a prescription  even  if
he  also had a medical purpose  might also violate due process.25
We  noted,  for  instance,  that it would  be  unconscionable  to
convict  a doctor for prescribing a medication for valid  medical
reasons  just because the doctor also hoped that the  success  of
his  treatment decisions would improve his reputation  and  allow
his practice to grow.26
          But  we found no error in Grandstaffs case because  the
instruction  defining  the elements of the  charged  offenses  of
misconduct involving a controlled substance required the State to
prove  beyond  a  reasonable  doubt  that  Grandstaff  recklessly
disregarded  the fact that the prescriptions he wrote  served  no
legitimate  medical  purpose.   As  we  explained,  the  elements
instruction required the State to prove that there was  no  valid
medical   purpose  for  writing  the  prescriptions    and   that
Grandstaff  knew  of, or was at least reckless  concerning,  this
          Unlike  the jury in Grandstaff, the jury in  this  case
was  not  instructed  that the State had to prove  that  Gottlieb
recklessly disregarded the fact that the prescriptions he  issued
served  no  medical  purpose.  The jury  was  instructed  that  a
prescription  did not serve a legitimate medical  purpose  unless
the  defendants  sole purpose in issuing the prescription(s)  was
medical as opposed to any other purpose.  Theoretically,  a  jury
receiving  this instruction might convict a prescribing physician
if the physician was negligent in issuing prescriptions or if the
physician  had both medical and non-medical reasons  for  writing
the prescriptions.
          But  the  State did not argue that Gottlieb was  merely
negligent  in writing the prescriptions, or that Gottlieb  should
be  convicted because he had some other purpose in addition to  a
medical  purpose when he issued the prescriptions.  Instead,  the
prosecutor  announced in opening statement that the case  against
Gottlieb  for the controlled substances counts relied on evidence
that the prescriptions those counts were based on were issued  in
the  absence  of  any medical necessity, and  that  Gottlieb  was
running a pill mill, a scheme to provide drug seeking individuals
with  drugs  for their own use or for resale on the  street.   In
final  argument, the prosecutor repeatedly argued  that  Gottlieb
issued  all  the prescriptions relevant to this case without  any
medical   necessity,  and  thereafter  summarized  the   evidence
supporting that theory of prosecution.
          This  issue  is presented to us as one of  plain  error
because   Gottlieb   did  not  object  to  the   pertinent   jury
          instructions.  To constitute plain error, an  erroneous
instruction must create a high likelihood that the jury  followed
an erroneous theory[,] resulting in a miscarriage of justice.28
          The  States  theory of prosecution for  the  counts  of
misconduct  involving a controlled substance  was  that  Gottlieb
issued  prescriptions to drug-dependent individuals not to  treat
their medical conditions, but to supply them with drugs they were
seeking.   The  evidence presented by the  State  supported  that
theory.  Our review of the record convinces us that the jury  did
not  follow  an  erroneous theory leading  to  a  miscarriage  of

          The  States attack on the validity of Gottliebs medical
          The  States  theory  of the case for  two  first-degree
theft  counts  was that the State Medical Board should  not  have
issued  a medical license to Gottlieb.  Besides charging Gottlieb
with  perjury and forgery in the application process,  the  State
premised  its  prosecution on the first-degree theft  charges  in
counts  5 and 6 on its assertion that the license issued  by  the
State  Medical Board was invalid.  The State argued that, because
Gottlieb  was  paid for medical services that he performed  under
authority of the invalid license, Gottliebs conduct was theft.
          Under the Alaska Statutes, the State Medical Board  has
the   exclusive  authority  to  issue  medical  licenses.29   The
statutory  scheme creating the Medical Board also  specifies  the
grounds  for  imposing disciplinary sanctions  and  includes  the
specific  ground  of  obtaining a license by  deceit,  fraud,  or
intentional  misrepresentation.30  If  the  Board  finds  that  a
licensee  has  committed  one  (or  more)  of  the  grounds   for
imposition  of a sanction, the Board is authorized  to  impose  a
wide   range  of  disciplinary  sanctions  including  permanently
revoking a license.31
          In  the  superior  court, Gottlieb argued  that,  under
Taylor v. Johnston,32 the State could not contest the validity of
Gottliebs  license  in  the criminal case.   The  superior  court
denied  Gottlieb  relief on this theory.   Gottlieb  raises  this
issue  on  appeal, again relying on Taylor.  The State  does  not
discuss Taylor in its brief.
          In   Taylor,  the  plaintiff  attempted  to  amend  his
medical  malpractice complaint before trial to allege a claim  of
medical  battery.33  Taylor argued that a medical  battery  claim
was possible because the treating physician whom he was suing had
fraudulently obtained his medical license by misrepresenting  his
credentials.34   But  the  supreme court  recognized  the  Boards
exclusive  authority to regulate medical licenses and the  wisdom
of  that  delegation:   Such  a delegation  makes  sense  because
[m]edicine  is  a  complex  subject and  ...  [t]he  Board  is  a
competent  body equipped with the necessary medical knowledge  to
determine  whether  a  doctors  license  to  practice  should  be
revoked.35   Because  the  Board had the exclusive  authority  to
regulate the physicians license, the supreme court reasoned  that
the  proper  forum  in  which  to  attack  the  validity  of  the
physicians license, in the first instance, was the Medical Board,
not the superior court.36
          We  conclude that this same analysis applies here.  The
proper  forum to attack the validity of Gottliebs license was  in
the State Medical Board.  Accordingly, we reverse counts 5 and 6.

          Gottliebs remaining claims
          Gottlieb argues that there is insufficient evidence  in
the  record to support his convictions for first-degree theft  in
counts 3 and 4, and second-degree theft in counts 7 and 8.  Count
3  charged that Gottlieb overbilled Medicaid by more than $75,000
by  upcoding the procedures for which he billed.  (Upcoding means
assigning  a  billing  code that reflects  a  more  intensive  or
complicated  procedure  calling  for  higher  payment  than   the
procedure  performed.)  Count 4 charged that Gottlieb stole  more
than $30,000 by billing for services not performed or documented.
Count  7  charged that Gottlieb stole more than $5,000 for  other
upcoding.   Count 8 charged theft of more than $14,000  based  on
the payment for Gottliebs unwarranted prescriptions.
          Viewing  the evidence in the record, together with  the
reasonable  inferences  from that evidence,  in  the  light  most
favorable to upholding those convictions, we conclude that  there
was  sufficient  evidence presented for  a  reasonable  juror  to
conclude  that  the  State  had  proven  those  counts  beyond  a
reasonable doubt.37

            We VACATE Gottliebs conviction on count 1. We REVERSE
Gottliebs  convictions  on counts 2, 5,  6,  and  9.   We  AFFIRM
Gottliebs  convictions on counts 3, 4, 7, 8, and 10, and  on  the
counts of misconduct involving a controlled substance.

     1  AS  11.56.200(a), AS 11.46.505(a)(1),  AS  11.46.120,  AS
11.46.130, AS 11.46.150, and AS 11.71.030(a)(2), respectively.

2 594 P.2d 50 (Alaska 1979).

     3 Id. at 55-57.

     4 Id. at 57.

     5 Id. at 54.

     6 Id. at 57.

     7 AS 12.10.010.

     8 AS 12.10.020(a).

     9 AS 12.10.030(b).

     10    Alaska App. Memorandum Opinion and Judgment  No.  4084
(August 4, 1999), 1999 WL 587238.

     11     See   former  AS  15.13.070(d),  recodified   as   AS

     12   Latchem, Memorandum Opinion and Judgment No. 4084 at 6,
1999 WL 587238 at *3.

     13   See AS 11.46.990(11)(A).

     14   BLACKS LAW DICTIONARY 685 (8th ed. 2004).

     15    State  v.  Joubert, 20 P.3d 1115, 1119  (Alaska  2001)
(quoting Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997)).

16   AS 11.46.580(a)(1).

     17   AS 11.56.580(a)(2).

     18   AS 11.56.580(a)(3).

19   AS 11.46.100(1).

     20   AS 11.46.150.

21   171 P.3d 1176 (Alaska App. 2007).

     22   Grandstaff, 171 P.3d at 1208.

23   Id.

     24   Id.

     25   Id.

     26   Id.

     27   Id. (emphasis added).

     28    E.g.,  Matter of Estate of McCoy, 844 P.2d 1131,  1134
(Alaska  1993);  Heaps v. State, 30 P.3d 109,  114  (Alaska  App.

     29    AS  08.64.101 (requiring the Board to admit,  license,
and  discipline  physicians); AS 08.64.170  (mandating  that  all
Alaska physicians be licensed by the Board).

     30   AS 08.64.326(a)(1).

     31   AS 08.64.331.

     32   985 P.2d 460 (Alaska 1999).

     33   Id. at 461.

     34   Id. at 463-464.

     35    Id. at 465 (quoting Storrs v. State Med. Bd., 664 P.2d
547, 554 (Alaska 1983)).

     36   Id.

     37   See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights