Samuel S. Jackson, D.D.S.; Grant of Application, 23848-23854 [E7-8261]
Agencies
[Federal Register Volume 72, Number 83 (Tuesday, May 1, 2007)]
[Notices]
[Pages 23848-23854]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-8261]
-----------------------------------------------------------------------
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existing DEA registration was revoked by order of the then Deputy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
