Federal
Register Notices > Registrant
Actions - 2007 >
Samuel S. Jackson, D.D.S.; Grant of Application
FR Doc E7-8261 [Federal Register: May 1, 2007 (Volume 72, Number 83)]
[Notices] [Page 23848-23854] From the Federal Register Online via GPO
Access [wais.access.gpo.gov] [DOCID:fr01my07-94]
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 4-41]
Samuel S. Jackson, D.D.S.; Grant of Application
Procedural History
On April 21, 2004, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Samuel S. Jackson, D.D.S. (Respondent) of Nashville,
Tennessee. The Show Cause Order proposed to deny Respondent's pending
application for a certificate of registration as a practitioner on three
grounds: (1) That Respondent had materially falsified his application,
see 21 U.S.C.
824(a)(1); (2) that Respondent had been convicted of a controlled
substances related felony, see id. Sec. 824(a)(2); and (3) that
Respondent's registration would be inconsistent with the public
interest. See id. 824(a)(4); see also Show Cause Order at 1.
The Show Cause Order alleged that Respondent had entered into a
conspiracy with a drug trafficker, who was then wanted on federal
charges, and a confidential informant, whom Respondent also believed to
be a fugitive, to help them avoid apprehension. Show Cause Order at 2.
More specifically, the Show Cause order alleged that Respondent had
agreed to perform cosmetic dental work on these individuals and to
arrange for plastic surgery on them for the purpose of altering their
appearance so that they could evade arrest. Id. The Show Cause Order
alleged that Respondent further admitted to authorities that he knew
that the fugitive was a "big time hoodlum'' and that Respondent had "intentionally
sought to participate in activity which placed the public at risk for
further distribution of illegal controlled substances.'' Id.
The Show Cause Order alleged that Respondent subsequently pled guilty
in the United States District Court for the Middle District of Tennessee
on one count of conspiracy, a crime under 18 U.S.C. 371, and was
sentenced to a term of imprisonment for 30 months. See id. The Show
Cause Order also alleged that on October 1, 2002, Respondent's then-
existing DEA registration was revoked by order of the then Deputy
Administrator. Id. at 1.
The Show Cause Order alleged that on October 20, 2003, Respondent
applied for a new DEA registration. Id. The Show Cause Order alleged
that in completing the application, Respondent stated that he had "voluntarily
surrendered [his] DEA to prescribe medications,'' when, in fact, his
registration had been revoked, and that this constituted a material
falsification of his application. Id. at 1-2. The Show Cause Order
further alleged that, in completing his application, Respondent had also
answered "No'' to the question whether he had ever been convicted of a
drug-related felony. Id. at 2. The Show Cause Order thus concluded that
Respondent's material falsification of his application and his
conviction rendered his registration inconsistent with the public
interest. Id.
Respondent, through his counsel, timely requested a hearing. The case
was assigned to Administrative Law Judge (ALJ) Gail Randall, who
conducted a hearing in Nashville on May 3 and 4, 2005. At the hearing,
both parties called witnesses to testify and introduced documentary
evidence. Following the hearing, the Government submitted a brief
containing its proposed findings of fact, conclusions of law, and
argument.
On May 26, 2006, the ALJ issued her recommended findings of fact,
conclusions of law, and decision. In that decision, the ALJ concluded
that Respondent did not intentionally falsify his application. ALJ at
28. The ALJ further found that while Respondent "was less than
completely candid and forthcoming'' in his testimony regarding
[[Page 23849]]
his criminal conduct, there were several mitigating factors including
Respondent's having cooperated with law enforcement officials and his
having "accepted full responsibility for his past conduct.'' Id. at 30.
The ALJ thus concluded that the denial of Respondent's application "would
be too severe a sanction,'' and that while Respondent should be
reprimanded for providing "less than truthful and complete
information,'' his application should be granted. Id. at 30-31.
The Government filed exceptions to the ALJ's recommended decision.
Specifically, the Government contended that Respondent had not credibly
testified "as to the essential elements of [his] felony conviction,''
and that he had given falsified answers on his application. Gov.
Exceptions at 11-12. The Government further maintained that granting
Respondent's application would not be consistent with DEA precedents
which require that an applicant (or registrant) truthfully testify and
accept full responsibility for his misconduct. Respondent did not file
exceptions.
Having considered the record as a whole, I hereby issue this decision
and final order. I adopt the ALJ's findings of fact except as expressly
noted herein. I hold that the Government has not proved by substantial
evidence that Respondent materially falsified his application. I further
hold that the Government has not proved by substantial evidence that
Respondent has failed to accept responsibility for his criminal conduct.
I thus conclude that Respondent's registration would not be inconsistent
with the public interest and order that his application be granted.
Findings
Respondent is a 1997 graduate of the Meharry Medical College School
of Dentistry. Tr. 148. Respondent currently holds a license from the
State of Tennessee to practice dentistry. Resp. Exh. 1. Respondent
previously held a DEA Certificate of Registration as a practitioner. On
October 1, 2002, my predecessor ordered that Respondent's DEA
registration be revoked (effective November 22, 2002) on the ground that
Respondent had entered into an agreed order with the Tennessee
Department of Health which resulted in the revocation of his state
license and therefore was not entitled to maintain a DEA registration.
Samuel Silas Jackson, 67 FR 65145 (2002).\1\
---------------------------------------------------------------------------
\1\ While the final order relied solely on this
ground, the order further noted the findings of the state board that
Respondent had entered into a conspiracy with a known drug trafficker
and fugitive as well as a confidential informant whom Respondent
believed to also be a drug trafficker and fugitive for the purpose of
assisting these persons to avoid apprehension. Gov. Exh. 2B, at 2.
Specifically, the Tennessee board found that Respondent agreed to
perform dental work on them and to arrange for them to obtain plastic
surgery in California and have a safe place to hide while recovering
from the surgery for the purpose of altering their appearance and
enabling them to evade apprehension. Id. The Tennessee board also
found that even after the authorities arrested the fugitive,
Respondent nonetheless agreed to provide the services to the
confidential informant for a price of $ 150,000. Id. at 3.
Furthermore, according to the findings of the Tennessee board,
Respondent met with the confidential informant and received a piece of
luggage which he believed contained $150,000 in cash. Id.
---------------------------------------------------------------------------
As explained below, the impetus for these actions was Respondent's
entering into a conspiracy under which Respondent agreed to help Paul
Woods, an indicted drug trafficker who was then at large, as well as a
confidential informant (CI) whom Respondent also believed was wanted by
the authorities, to avoid apprehension. According to the record, in 1997
a Nashville-based DEA task force began an investigation into the
criminal activities of Woods and his organization. Tr. 73. The
investigation established that Woods and his organization were involved
in the distribution of multi-kilo amounts of cocaine in the Nashville
area. Id. at 74. The investigation ultimately resulted in the
indictments of over thirty persons including Woods, on charges of
cocaine distribution, firearms violations, money laundering and
conspiracy. Id.
Woods was charged in July 1999, in the initial wave of indictments.
Id. The authorities were, however, unable to arrest Woods who had fled.
Id. at 83. The authorities then approached an individual who was a
lower-tier distributor and a secondary target of the investigation; this
person agreed to work as an informant and to assist the authorities in
locating Woods. Id. at 84.
To gain the confidence of Woods, the authorities portrayed the
informant as a fugitive. Id. Among other things, the informant
specifically agreed to record his telephone calls with Woods and to
provide a copy of the tape to the authorities. Id. at 81. During one of
these phone calls, which occurred in December 1999, Respondent came to
the attention of the authorities when Woods and the informant began
discussing a scheme to alter their appearance by having dental work and
plastic surgery done. Id. at 81-82.
At the time of the investigation, Respondent was dating a woman whose
niece was Woods' live-in girlfriend and the mother of one of Woods'
children. Id. at 134-35. Respondent's girlfriend asked him to assist
Woods to help him "avoid apprehension.'' Id. at 150. Respondent
testified that he was not coerced into helping Woods and that he
understood that it was a crime to do so. Id.
Respondent agreed to perform cosmetic dental work on both Woods and
the informant to alter their appearance and to help them avoid
detection. Id. at 86-87. Respondent also agreed to arrange for Woods and
the informant to obtain plastic surgery in California and to find a
secure location at which Woods and the informant could safely recover
from the surgery. Id.; see also Gov. Exh. 11b at 4. Furthermore, the
transcript of a December 15, 1999, three-way phone call between
Respondent, Woods, and the informant, establishes that Respondent knew
that Woods and the informant were fugitives. Gov. Exh. 11b at 6-7; Tr.
at 113-15. Finally, according to an affidavit summarizing one of the
recorded conversations between Woods and the informant, the price was to
have been $180,000 each. Gov. Exh. 4, at 7.
The ALJ further found that Respondent was aware that Woods and the
informant were drug traffickers at the time he agreed to assist them.
See ALJ at 5 (FOF 16); id. 6 (FOF 21). Moreover, the ALJ also found not
credible Respondent's testimony that he was unaware that Woods and the
Respondent were drug traffickers during this period. Id. at 9 (FOF 37).
In making these findings, the ALJ relied on what she termed "the
extensive media coverage of these events,'' and the testimony of a Task
Force Officer interpreting the street slang of a single transcript of a
telephone conversation between Respondent, Woods and the informant. Id.
I conclude, however, that this evidence does no more than create a
suspicion that Respondent knew that Woods and the informant were engaged
in drug trafficking at the time he agreed to assist them and that the
Government has not proved this fact by substantial evidence. See NLRB v.
Columbia Enameling & Stamping Co., Inc., 306 U.S. 292, 300 (1939) ("Substantial
evidence is more than a scintilla, and must do more than create a
suspicion of the existence of the fact to be established.'')
As for the media coverage of the events, the Lead Task Force Officer
testified that the Task Force's inability to arrest Woods following his
indictment "was covered on the three local stations as well as in * * *
the paper.'' Tr. 134. That was the extent of the evidence; the
Government did not produce any evidence to show how many days the story
was covered by TV stations and the paper. Moreover, the
[[Page 23850]]
Government did not even show that Respondent was in the Nashville
area on the days that the media covered the story, let alone that he
reads the paper or watches the news on TV. In short, the media coverage
is too thin a reed to support the inference that Respondent knew that
Woods and the informant were drug dealers.
Nor does Respondent's participation in the December 15, 1999 phone
conversation provide substantial evidence that he knew Woods and the
informant were drug dealers. At the hearing, the Lead Task Force Officer
testified as to his interpretation of the street slang used in the
December 15, 1999 conversation between Respondent, Woods and the
informant. Specifically, the Task Force Officer testified that Woods'
comments that the informant was "like cool as [expletive \2\] on the
street,'' and "holds a lot of weight,'' establish that the informant was
involved in drug dealing. Tr. 113-14.
---------------------------------------------------------------------------
\2\ The expletive is more commonly used to refer to
a sex act.
---------------------------------------------------------------------------
The Government did not prove, however, that Respondent interpreted
the language as a reference to drug dealing as opposed to other forms of
criminal activity. Indeed, it bears noting that the Government
introduced only this single phone call to support the contention and
even the Task Force Officer apparently did not draw the inference that
Respondent knew that Woods and the informant were drug dealers. See id.
at 134 (testimony of Task Force Officer; "we don't know whether or not
[Respondent] knew [that Woods] was under indictment for drug dealing'').
Moreover, the Government did not otherwise establish that Respondent was
familiar with and understood drug slang. Again, the phone call evidence
creates no more than a suspicion that Respondent knew that Woods and the
informant were engaged in drug trafficking. See Columbia Enameling, 306
U.S. at 300.
Finally, the substantial evidence test requires that the Agency " 'tak[e]
into account contradictory evidence or evidence from which conflicting
inferences could be drawn.' '' Morall v. DEA, 412 F.3d 165, 177 (DC Cir.
2005) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951))
(int. quotations and other citation omitted). Significantly, the Lead
Task Force officer testified that "we don't know whether or not
[Respondent] knew [that Woods] was under indictment for drug dealing. We
do know that he knew that Mr. Woods was a bad guy, a thug.'' Id. at 134.
The same officer subsequently testified that Respondent "was totally
truthful'' during an interview which occurred on the day of his arrest.
Id. at 141. Of consequence, during that interview, Respondent admitted
only to knowing that "Woods was a 'big time hoodlum' and that he was in
big trouble.'' Gov. Exh. 6, at 3. Respondent did not admit to knowing
that Woods and the informant were drug traffickers, a position he has
consistently maintained.\3\ See Id. The ALJ's decision "entirely ignored
[this] relevant evidence,'' Morall, 366 U.S. at 178, which was part of
the Government's case.
---------------------------------------------------------------------------
\3\ The Government also points to the Agreed Order
of Revocation as establishing that Respondent knew that Woods and the
informant were drug traffickers at the time he agreed to assist them.
See Gov. Exceptions at 5. The ALJ did not rely on this exhibit in
making her finding. Respondent was already imprisoned at the time he
entered into the Order and did so under the advice of counsel. Tr.
155. Moreover, the information filed by the U.S. Attorney made no such
allegation. See Gov. Exh. 4 at 1-2. Considering all the evidence on
the issue, I consider the Task Force Officer's testimony that
Respondent "was totally truthful'' regarding his involvement with
Woods and the informant to be the most persuasive.
---------------------------------------------------------------------------
On January 13, 2000, Woods was arrested by U.S. Marshals. Gov. Exh. 4
at 7. Thereafter, on January 17, 2000, the informant called Respondent
to determine whether he was still willing to assist the informant in
evading capture. Tr. 86. Respondent agreed to do so. Id. During the
conversation, Respondent and the informant again discussed the price for
the services and agreed on $150,000. Gov. Exh. 4, at 8.
On January 18, 2000, the informant called Respondent and told him
that "he needed to get his money together.'' Id. The informant advised
Respondent that he would call him later to make arrangements to pay him.
Id. Several hours later, the informant called Respondent back and the
two agreed to meet in a store parking lot. Id.
Later that day, Respondent arrived at the parking lot and entered the
informant's car. Id. The informant and Respondent drove to a different
part of the parking lot where the informant gave Respondent a bag
containing $52,000 in cash.\4\ Id. Task Force officers surrounded
Respondent; Respondent threw the bag away claiming that he did not own
it. Id. Respondent was then arrested and taken to the Nashville DEA
office. Id.
---------------------------------------------------------------------------
\4\ The authorities provided only $52,000 in cash
because they did not have the full amount.
---------------------------------------------------------------------------
That evening, Respondent agreed to an interview. The interview was
conducted by an Assistant United States Attorney and several law
officers. Gov. Exh. 6. During the interview, Respondent fully discussed
the circumstances surrounding his involvement with Woods. During the
interview, Respondent described Woods as a "big time hoodlum'' and that
he was in trouble. Id. at 3. Respondent further stated that his
girlfriend had told him that her niece's boyfriend "was in trouble and
that people were after him.'' Id. Respondent also stated that while "he
knew Woods was in trouble [he] did not know for sure what kind of
trouble.'' Id. Respondent further stated to the investigators that while
the informant was to pay him $150,000, "he was not going to make
anything off this deal but hoped to get some dental referrals.'' Id. at
4. According to the interview report, Respondent contacted an
acquaintance in California to find a plastic surgeon; the acquaintance
subsequently called Respondent back and told him the cost for the
surgery and after-care would be $150,000. Id. Later, Respondent
acknowledged that "he was going to do a full mouth reconstruction'' on
the informant "which meant probably 10 to 20 crowns at $650'' each. Id.
at 5. Respondent also stated that "he was 'greedy and stupid.' '' Id.
At the hearing, the lead Task Force Officer testified that Respondent
"was totally truthful'' with the interviewers and that the information
he provided was consistent with other information obtained in the
investigation. Tr. 141. Respondent also agreed to cooperate with the
investigation by making phone calls to another suspect and wearing a
wire. Id. at.136-37, 152. Finally, the lead Task Force Officer testified
that there was no indication that Respondent was involved in the buying
and selling/distribution of cocaine and had no prior criminal record.
Id. at 130.
The United States Attorney subsequently charged Respondent with one
count of conspiring to violate 18 U.S.C. 3, the "accessory after the
fact'' statute. Gov. Exh. 4; see 18 U.S.C. 371. The accessory after the
fact statute makes it a criminal offense to knowingly provide assistance
to an "offender in order to hinder or prevent his apprehension, trial or
punishment.'' 18 U.S.C. 3. The information specifically alleged that
Respondent had "agreed to provide or arrange for plastic surgery and
dental work for * * * Woods and others after * * * Woods' indictment on
federal drug, money laundering, and firearms felonies.'' Gov. Exh. 4, at
1-2.
On July 20, 2001, Respondent pled guilty and was sentenced to a term
of thirty months imprisonment and a term of three years of supervised
release. Gov. Exh. 3. Respondent received sentence reduction points for
his cooperation with law enforcement officials and for accepting
responsibility for his conduct. Tr. 137. Respondent
[[Page 23851]]
subsequently served approximately twenty-two months at the Federal
Correctional Institute, Forest City, Arkansas, before being transferred
to a halfway house. Id. at 158, 160. According to Respondent's
unchallenged testimony, prison officials allowed him to attend
continuing education classes at the University of Tennessee, College of
Dentistry, in Memphis. Id. at 158-59.
Following his release from prison, Respondent applied for
reinstatement of his state dental license. Id. at 161. Respondent
appeared before the Tennessee Board of Dentistry, which voted
unanimously to reinstate his license. Id. at 161-65.
After the Tennessee Board's decision, Respondent contacted the DEA
office in Atlanta, Georgia, to determine the status of his registration.
Id. at 200. During this conversation, Respondent was told that his DEA
number had been revoked and that he needed to apply for a new
registration. Id.
Thereafter, on October 3, 2003, Respondent re-applied for a DEA
registration. Gov. Exh. 5, at 2. On the application, Respondent was
asked whether he had "ever been convicted of a crime in connection with
controlled substances under state or federal law?'' Id. at 1. Respondent
answered: "No.'' Id. The application also asked whether Respondent had "ever
surrendered or had a federal controlled substance registration revoked,
suspended, restricted or denied?'' Id. Respondent answered: "Yes.''
Finally, Respondent answered "yes'' to the question of whether he had "ever
surrendered or had a state professional license or controlled substance
registration revoked, suspended, denied, restricted, or placed on
probation?'' Id.
The application also requires that an applicant give an explanation
for a "yes'' answer to these questions. In this block, Respondent wrote:
I voluntarily surrendered my license to practice dentistry in the
State of Tennessee as a result of my conviction for accessory after the
fact. I also voluntarily surrendered my DEA to prescribe medications.
The board of * * * Tennessee voted unanimously to reinstate my license
to practice dentistry in the State of Tennessee on 9/19/03.
Id. at 2.
Respondent's Testimony Regarding the Operative Events
Respondent testified regarding his criminal conduct. When asked by
his counsel whether he had committed a crime, Respondent answered: "Absolutely.''
Tr. 150. Respondent further testified that he "agreed to help arrange
for him [Woods] to avoid apprehension, and as much as I want to blame
other people for that, I can't. The onus is firmly and squarely on my
shoulders, and I take full responsibility for that.'' Id. Respondent
also further stated that his girlfriend did not coerce him into
committing the act, and acknowledged that he understood he was
committing a crime when he did it. Id.
Respondent also testified that his conduct in agreeing to help Woods "was
the absolute worst thing--the only thing I could have done worse was
actually murder someone. * * * [I]t's just a terrible, terrible thing.''
Id. at 184. Later, when asked whether he was "wrong in [his] actions?,''
Respondent stated: "I was absolutely wrong. I made a terrible, terrible
mistake. I've paid dearly for that, and I make no excuses. * * *'' Id.
at 188. Finally, when asked by the ALJ why he agreed to assist the
informant after Woods was arrested, Respondent answered: "Stupid.
Absolutely stupid.'' Id. at 223.
Respondent further testified that at the time he committed the act,
he was aware that Woods was a criminal, a "hoodlum,'' and a "hustler.''
Id. at 151-52. Respondent maintained, however, that he was unaware of
Wood's money laundering activities and what firearms offenses he
committed. Id. at 151. Furthermore, Respondent denied that he was aware
that Woods and the confidential informant were cocaine dealers at the
time he committed his crime. Id. at 190; see also id. at 195. Respondent
further maintained that while he was familiar with the term "hustler,''
the term "doesn't necessarily mean a person who sells drugs,'' but
rather, means "any person that's doing something illegal.'' Id. at 210.
During its cross-examination, the Government asked Respondent about
his motive. Specifically, the Government asked Respondent whether "making
a lot of money off of this was'' his motive. Id. at 208. Respondent
initially answered that "[i]t wasn't a moneymaking scheme for me at
all,'' and that he agreed to help because his girlfriend asked him "to
help her niece's boyfriend, and it just kind of snowballed after that.''
Id. at 209. Respondent further maintained that the $150,000 cash payment
(for the informant) was to be shipped to the person in California who
arranged for the plastic surgery. Id.
When pressed by the Government as to whether he was to receive any
money out of this, Respondent testified that his California contact was "going
to do something nice for'' him. Id. Respondent maintained, however, that
there was no agreement under which he would receive a particular
percentage of the payment. Id. at 210.
Respondent also testified regarding his application. Specifically,
Respondent testified that he believed that he had voluntarily
surrendered his DEA registration because "at no time did we put up any
resistance to the process.'' Id. at 180. Respondent further testified
that he thought a voluntary surrender and a revocation "were one [and]
the same.'' Id. at 181. On cross-examination, however, Respondent
admitted that he had not signed any form in which he had agreed to
surrender his DEA registration. Id. at 207. Respondent further testified
that he had "no'' intent to mislead DEA regarding the status of his
previous registration when he made the statement that he had voluntarily
surrendered his DEA number. Id. at 181.
The ALJ specifically found that "Respondent credibly testified that
at the time he completed his application, he believed he had voluntarily
surrendered his previous * * * registration and that he was responding
truthfully.'' ALJ Dec. at 15 (FOF 64). I adopt this finding. See
Universal Camera, 340 U.S. at 496.
Regarding the application's criminal history question, Respondent
testified that he answered "no'' because he did not think that he had
committed a drug-related felony. Id. at 182. Respondent further
testified that he was not "involved'' in selling drugs, that the
prosecutor had not charged him with that, and that the extent of his
role was in helping Woods "evade capture.'' \5\ Id. at 184. Respondent
further stated that he was "absolutely not'' trying to conceal anything
or misrepresent anything from DEA. Id.
---------------------------------------------------------------------------
\5\ On cross-examination, Respondent further
explained that he answered "no'' because he believed "that I was
charged with one count of accessory after the fact, conspiracy to
harbor a fugitive. There was no mention of anything as it relates to
my involvement with the drug conspiracy. I had absolutely no
involvement with the drug conspiracy.'' Id. at 196-97. Later,
Respondent testified: The question was, [h]as the applicant even been
convicted of a crime in connection with a controlled substance? * * *
I didn't feel like I was convicted of that crime. I wasn't charged
with that crime. I wasn't charged with a drug crime or a drug-related
crime. I wasn't involved in any of that activity at any time. I've
never been accused of that, ever. Id. at 213-14.
---------------------------------------------------------------------------
The ALJ specifically credited Respondent's testimony on both issues.
See ALJ at 15-16 (FOF 67). In light of the fact that Respondent fully
disclosed his "conviction for accessory after the fact,'' Gov. Ex. 5, at
2, I find no basis to reject the ALJ's findings.
I further note that there is no evidence that Respondent has ever
illegally used
[[Page 23852]]
controlled substances. Relatedly, there is no evidence that
Respondent ever used his previous DEA registration to prescribe a
controlled substance for an unlawful purpose.
Discussion
Section 303(f) of the Controlled Substances Act provides that an
application for a practitioner's registration may be denied upon a
determination "that the issuance of such registration would be
inconsistent with the public interest.'' 21
U.S.C. 823(f). In making the public interest determination, the CSA
requires the consideration of the following factors:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing * * * controlled
substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
Id.
"These factors are * * * considered in the disjunctive.'' Robert A.
Leslie, M.D., 68 FR 15227, 15230 (2003). I "may rely on any one or a
combination of factors, and may give each factor the weight [I] deem[ ]
appropriate in determining whether * * * an application for registration
[should be] denied.'' Id. Moreover, case law establishes that I am "not
required to make findings as to all of the factors.'' Hoxie v. DEA, 419
F.3d 477, 482 (6th Cir. 2005); see also Morall, 412 F.3d at 173-74.
Furthermore, DEA precedent establishes that the various grounds for
revocation or suspension of an existing registration that Congress
enumerated in section 304(a), 21
U.S.C. 824(a), are also properly considered in deciding whether to
grant or deny an application under section 303. See Anthony D. Funches,
64 FR 14267, 14268 (1999); Alan R. Schankman, 63 FR 45260 (1998); Kuen
H. Chen, 58 FR 65401, 65402 (1993). Thus, the allegation that Respondent
materially falsified his application is properly considered in this
proceeding.
For reasons explained below, I conclude that the Government has not
proved that Respondent materially falsified his application.
Furthermore, while I am deeply troubled by Respondent's criminal
conduct, I am satisfied that he has accepted responsibility for it and
reject the Government's assertion to the contrary.
The Material Falsification Allegations
The Government maintains that Respondent materially falsified his
application in two respects. First, by answering "no'' to the
application's question as to whether Respondent had "ever been convicted
of a crime in connection with controlled substances,'' and second, by
stating that he had "voluntarily surrendered'' his DEA number. Gov.
Exceptions at 7-9. As explained above, the ALJ found that Respondent did
not intentionally falsify his application in either instance.
DEA precedents make clear that culpability short of intentional
falsification is actionable in these proceedings. See, e.g., Samuel
Arnold, 63 FR 8687, 8688 (1998) ("[I]n finding that there has been a
material falsification for purposes of 21
U.S.C. 824(a)(1), it must be determined that the applicant knew or
should have known that the response given to the liability question was
false.''). But even if Respondent should have known that his statements
were false, the Government must still show that each statement was
material. Accordingly, while I hold that Respondent's conviction is a "a
crime in connection with controlled substances'' and that Respondent
should have provided a "yes'' answer on the application, the Government
has not established the materiality of the statement because it ignores
relevant evidence.
As an initial matter, I conclude that the liability question is not
limited to a conviction in which one is directly involved in drug
dealing. The "in connection with * * * controlled substances'' language
is broad in its scope; its intent is to provide the Agency with the
information necessary to determine whether an applicant/ registrant has
committed a felony that may preclude his registration under the CSA. See
21 U.S.C. 824(a)(2).
The text of section 404(a)(2) makes plain that it is not limited to a
felony which directly involves drug dealing. As the provision states, a
registration may be revoked based on a "convict[ion] of a felony under
this subchapter [the CSA] or subchapter II of this chapter [the
Controlled Substances Import and Export Act] or any other law of the
United States, or of any State, relating to any substance defined in
this subchapter as a controlled substance.'' Id. 824(a)(2) (emphasis
added). While it is true that Respondent was not convicted of a felony
under the CSA or the Import/Export Act, his conviction for the felony
offense of conspiring to be an accessory after the fact is a conviction
under "any other law of the United States.'' Id. And his conviction is
related to a controlled substance because his criminal conduct involved
providing assistance to a person engaged in the unlawful distribution of
cocaine which, if successful, would have allowed the drug dealer to
evade apprehension and continue his illegal activity. Cf. Smith v.
United States, 508 U.S. 223, 237 (1993) (quoting Webster's New
International Dictionary 2102 (2d ed. 1939) ("[t]he phrase 'in relation
to' is expansive'' and "means 'with reference to' or 'as regards')
(other citation omitted). Respondent's crime was therefore also--in the
words of the application--"in connection with * * * controlled
substances.''
Respondent was thus required to provide a "yes'' answer to the
liability question. This conclusion does not, however, close the inquiry
because it must also be determined whether Respondent's answer was
material.
"The most common formulation'' of the concept of materiality is that "a
concealment or misrepresentation is material if it 'has a natural
tendency to influence, or was capable of influencing, the decision of'
the decisionmaking body to which it was addressed.'' Kungys v. United
States, 485 U.S. 759, 770 (1988) (quoting Weinstock v. United States,
231 F.2d 699, 701 (DC Cir. 1956)) (other citation omitted); see also
United States v. Wells, 519 U.S. 482, 489 (1997) (quoting Kungys, 485
U.S. at 770). The evidence must be "clear, unequivocal, and
convincing.'' Kungys, 485 U.S. at 772.
Taken in isolation, Respondent's answer is material because this
Agency "relies upon such answers to determine whether an investigation
is needed prior to granting the application.'' Martha Hernandez, 62 FR
61145, 61146 (1997). In almost every case, it is clear that a false
answer to the question of whether one has "been convicted of a crime in
connection with controlled substances,'' Gov. Exh. 5., has "the natural
tendency to influence'' the reviewing official to grant the application
because most applicants do not provide any further explanation.
This, however, is not such a case. Here, Respondent disclosed his
criminal "conviction for accessory after the fact'' on the application
and this description is an accurate representation of the crime he was
charged with and pled guilty to. Id. at 2. The Government offered no
evidence to show how Respondent's "no'' answer would--in light of his
additional disclosure--nonetheless have "the natural tendency to
influence'' agency personnel to grant
[[Page 23853]]
his application without further investigation. The Government has
thus failed to prove that Respondent materially falsified his
application in answering the criminal conviction question.
The Government also alleges that Respondent materially falsified his
application by stating that "I also voluntarily surrendered my DEA to
prescribe medications.'' Id. Here, however, Respondent had previously
answered "yes'' to the question whether he had "ever surrendered or had
a federal controlled substances registration revoked, suspended,
restricted or denied?'' Id. at 1. Again, the information Respondent
provided raised a red flag for agency personnel involved in reviewing
his application.
The Government argues, however, that Respondent's statement was a
material falsification because Respondent's DEA "number actually was
revoked pursuant to a final order.'' Gov. Exceptions at 9. The
Government further points to the ALJ's finding that " 'Respondent's mere
failure to request a hearing or to contest the revocation proceedings is
insufficient for a finding of a voluntary surrender of his DEA' ''
registration. Id. (quoting ALJ at 25).
It is true that Respondent's registration was revoked pursuant to a
final order and was not voluntarily surrendered. But neither the CSA nor
DEA's regulations define the respective terms and no agency precedent
explains that there are consequential differences between them.
Most significantly, even if the statement would--if viewed in
isolation--be capable of influencing the decision by inducing a more
favorable view of Respondent's application--the fact remains that the
statement immediately followed Respondent's factually accurate
representation that he had surrendered his state license "as a result of
[his] conviction for accessory after the fact.'' Gov. Ex. 5, at 2. In
short, viewed in context, Respondent's statements clearly placed agency
personnel on notice that his application should not be summarily
approved, but rather, subjected to an investigation. I thus hold that
even though Respondent's statement was false, it was not capable of
influencing the decision and is thus not material. I therefore conclude
that the Government's allegations that Respondent materially falsified
his application are without merit and turn to the public interest
factors.
The Public Interest Factors
As explained above, in Section 303(f), Congress directed that I
consider five factors in determining whether granting Respondent's
registration would be "inconsistent with the public interest.'' 21
U.S.C. 823(f). While I consider Respondent's criminal conduct to be
outrageous, having considered all of the factors and our precedents, I
conclude that he is entitled to be registered.
Factor One--The State Board's Recommendation
As the ALJ found, following his release from prison, the Tennessee
Board of Dentistry reinstated Respondent's license without conditions.
While this factor is not dispositive, see John H. Kennedy, 71 FR 35705,
35708 (2006), in this case it does support the granting of his
application.
Factors Two and Three--The Applicant's Experience in Dispensing
Controlled Substances and the Applicant's Conviction Record Relating to
the Distribution or Dispensing of Controlled Substances
Significantly, there is no evidence in the record that Respondent
ever used his previous DEA registration to illegally dispense a
controlled substance. Furthermore, there is no evidence in the record
that Respondent ever used his registration to divert controlled
substances for personal use. Relatedly, Respondent has never been
convicted of a crime directly involving the distribution or dispensing
of controlled substances. Thus, both factors support the granting of
Respondent's application.
Factors Four and Five--Respondent's Record of Compliance With
Applicable Laws Relating to Controlled Substances and Such Other Conduct
Which May Threaten Public Health and Safety
As explained above, Respondent committed a federal criminal offense
in violation of 18 U.S.C. 3 and 371, when he entered into a conspiracy
with Woods and an informant in which he agreed to assist them in
altering their appearance and thereby help them avoid apprehension.
Furthermore, even after Woods was apprehended, Respondent agreed to
assist the informant. These are truly outrageous acts of criminality.
Proceedings under sections 303 and 304 of the CSA are, however,
non-punitive. See Leo R. Miller, 53 FR 21931, 21932 (1988). The purpose
of this proceeding is not to impose punishment in addition to the
sentence handed down by the federal district court. As previously
recognized, this proceeding "is a remedial measure, based upon the
public interest and the necessity to protect the public from those
individuals who have misused controlled substances or their DEA
Certificate of Registration, and who have not presented sufficient
mitigating evidence to assure the Administrator that they can be trusted
with the responsibility carried by such a registration.'' \6\ Id.; see
also Robert M. Golden, 61 FR 24808, 24812 (1996).
---------------------------------------------------------------------------
\6\ This is not to say that the revocation of a
registration is limited to those situations where a registrant has
either engaged in personal abuse of a controlled substance or
illegally dispensed a controlled substance. Both sections 303(f) and
304(a) make clear that Respondent's criminal conduct is properly
considered in this proceeding. See 21
U.S.C. 823(f)(4) & (5), id. 824(a)(2).
---------------------------------------------------------------------------
As egregious as his conduct is, Respondent committed his crimes more
than seven years ago. In the interim, Respondent has served his sentence
and there is no evidence that he has violated the terms of his period of
supervised release. Respondent pled guilty to the offense, was found by
the federal district court to have accepted responsibility, and
cooperated with the Task Force in its investigation.
Moreover, in this proceeding, Respondent stated that he had "absolutely''
committed a crime, that he could not "blame other people for'' his
decision to help Woods avoid capture, and that he took "full
responsibility for that.'' Tr. 150. Of note, Respondent also testified
that his conduct "was the absolute worst thing--the only thing I could
have done worse was actually murder someone.'' Id. at 184. Respondent
added that "I was absolutely wrong,'' and that "I made a terrible,
terrible mistake.'' Id. at 188. Finally, Respondent described his
actions in agreeing to assist the informant after Woods' arrest as "[s]tupid[,]
[a]bsolutely stupid.'' Id. at 223. That it was.
The Government nonetheless contends that Respondent has not
sufficiently accepted responsibility. In the Government's view,
Respondent "has not been candid about the facts surrounding his
conviction,'' Gov. Exceptions at 6, because he has maintained in this
proceeding that he did not know that Woods and the informant were drug
traffickers. The Government also maintains that Respondent was not
candid about his motive.
The Government's first contention is disposed of by my finding that
the Government's evidence only creates a suspicion that Respondent knew
that Woods and the informant were engaged in drug trafficking. Having
failed to adduce substantial evidence proving this as a fact, the
Government is precluded from arguing that Respondent
[[Page 23854]]
has not been candid about his knowledge of Woods' and the informant's
criminal activities.
The Government further argues that Respondent lacked candor because
he "asserted at the hearing that he had no pecuniary motive.'' Id. at 7.
Ultimately, however, Respondent did admit that he had a pecuniary
motive. Tr. 210. True enough, to obtain this admission, the Government
was forced to engage in the legal equivalent of pulling teeth. But the
Government offered no evidence to establish the amount that Respondent
was to receive.
While I find Respondent's testimony on this point disturbing, the
record does not contain sufficient evidence to support a finding that
Respondent lacked candor and has not accepted responsibility for his
criminal conduct. I thus conclude that factors four and five do not
support a finding that Respondent's registration would be inconsistent
with the public interest. And having considered all of the factors, I
further conclude that Respondent is entitled to be registered.
Order
Pursuant to the authority vested in me by 21
U.S.C. 823(f) and 28 CFR 0.100(b) and 0.104, I order that the
application of Samuel S. Jackson, D.D.S., for a DEA Certificate of
Registration as a practitioner be, and it hereby is, granted. This order
is effective immediately.
Dated: April 24, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-8261 Filed 4-30-07; 8:45 am]
BILLING CODE 4410-09-P
NOTICE: This is an
unofficial version. An official version of these publications may be obtained
directly from the Government Printing Office (GPO).
|