Jeffery M. Freesemann, M.D.; Decision and Order, 60873-60889 [2011-25224]
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Patent No. 7,391,320 (‘‘the ’320 patent’’),
U.S. Copyright Reg. No. TX–7–226–001
(‘‘the ’001 copyright’’), and U.S.
Trademark Reg. No. 3,080,770 (‘‘the 770
mark’’). The complaint further alleges
the existence of a domestic industry.
The Commission’s notice of
investigation named Koko and Cyclone
as the only respondents. The complaint
and notice of investigation were served
on respondents on March 3, 2011. No
responses were received.
On April 11, 2011, Horizon moved,
pursuant to 19 CFR 210.16, for: (1) An
order directing respondents Koko and
Cyclone to show cause why they should
not be found in default for failure to
respond to the complaint and notice of
investigation as required by § 210.13;
and (2) the issuance of an ID finding
Koko and Cyclone in default upon their
failure to show cause. Koko and Cyclone
did not respond to the motion. On April
22, 2011, the presiding administrative
law judge (‘‘ALJ’’) issued Order No. 5
which required Koko and Cyclone to
show cause no later than May 12, 2011,
as to why they should not be held in
default and judgment rendered against
them pursuant to § 210.16. No response
was received from either Koko or
Cyclone to the show cause order.
The ALJ issued an initial
determination (‘‘ID’’) (Order No. 6) on
May 16, 2011, finding both Koko and
Cyclone in default, pursuant to
§§ 210.13, 210.16, because both
respondents did not respond to the
complaint and notice of investigation, or
to Order No. 5 to show cause. Also, on
May 17, 2011, the ALJ issued an ID
(Order No. 7) terminating the
investigation because Koko and Cyclone
are the only respondents in the
investigation. On June 3, 2011, the
Commission issued notice of its
determination not to review the ALJ’s
IDs finding Koko and Cyclone in default
and terminating the investigation. 76 FR
33362–63 (June 8, 2011). In the same
notice, the Commission requested
written submissions on the issues of
remedy, the public interest, and
bonding with respect to respondents
found in default.
Horizon and the Commission
investigative attorney (‘‘IA’’) submitted
briefing responsive to the Commission’s
request on June 24, 2011, and the IA
submitted a reply brief on July 1, 2011.
Horizon requested both a limited
exclusion order directed to Koko’s and
Cyclone’s infringing products and a
general exclusion order as well. The IA
recommended a limited exclusion order
and opposed Horizon’s request for a
general exclusion order.
Having reviewed the record in the
investigation, including the written
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submissions of the parties, the
Commission has made its determination
on the issues of remedy, the public
interest, and bonding. The Commission
has determined to issue relief directed
solely to the defaulting respondents
pursuant to Section 337(g)(1). 19 U.S.C.
1337(g)(1). The Commission found that
the statutory requirements of section
337(g)(1)(A)–(E) (19 U.S.C.
1337(g)(1)(A)–(E)) were met with respect
to the defaulting respondents. Pursuant
to section 337(g)(1) and Commission
Rule 210.16(c) (19 CFR 210.16(c)), the
Commission presumed the facts alleged
in the complaint to be true. Based on the
record in this investigation and the
written submissions of the parties, the
Commission has determined that the
appropriate form of relief is a limited
exclusion order directed to the
defaulting respondents prohibiting the
unlicensed entry of radio control hobby
transmitters and receivers and products
containing same that are covered by one
or more of claims 1–5 of the ’320 patent,
the ’001 copyright, or the ’770 mark, and
that are manufactured abroad by or on
behalf of, or are imported by or on
behalf of, Koko or Cyclone, or any of
their affiliated companies, parents,
subsidiaries, licensees, contractors, or
other related business entities, or its
successors or assigns. 19 U.S.C.
1337(g)(1). The Commission has
determined not to issue a general
exclusion order because Horizon did not
establish the evidentiary showing
required by 19 U.S.C.1337(g)(2) and it
did not declare that it sought a general
exclusion order under Commission rule
210.16(c)(2) (19 CFR 210.16(c)(2)).
The Commission has further
determined that the public interest
factors enumerated in section 337(g)(1)
(19 U.S.C. 1337(g)(1)) do not preclude
issuance of the limited exclusion order.
Finally, the Commission has determined
that a bond of 100 percent of the entered
value of the covered products is
required during the period of
Presidential review (19 U.S.C. 1337(j)).
The Commission’s order was delivered
to the President and to the United States
Trade Representative on the day of its
issuance.
The Commission has terminated this
investigation. The authority for the
Commission’s determination is
contained in section 337 of the Tariff
Act of 1930, as amended (19 U.S.C.
1337), and in sections 210.16(c) and
210.41 of the Commission’s Rules of
Practice and Procedure (19 CFR
210.16(c) and 210.41).
By order of the Commission.
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60873
Issued: September 27, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011–25280 Filed 9–29–11; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10–69]
Jeffery M. Freesemann, M.D.; Decision
and Order
On January 24, 2011, Administrative
Law Judge (ALJ) John J. Mulrooney, II,
issued the attached recommended
decision. The Respondent did not file
exceptions to the decision.
Having considered the ALJ’s decision
and the record in light of the parties’
post-hearing briefs, I have decided to
adopt the ALJ’s rulings, findings of fact,
and conclusions of law.1 Accordingly, I
also adopt the ALJ’s recommended
Order.
Order
Pursuant to the authority vested in me
by 21 U.S.C. 824(a)(2) & (4), as well 28
CFR 0.100(b), I order that DEA
Certificate of Registration, BF4089125,
issued to Jeffery M.Freesemann, M.D.,
be, and it hereby is, revoked. This Order
is effective October 31, 2011.
Dated: September 19, 2011.
Michele M. Leonhart,
Administrator.
Christine M. Menendez, Esq., for the
Government.
Dennis R. Thelen, Esq., for the
Respondent.
1 The ALJ made extensive findings under the
public interest factors. See ALJ Slip Op. at 32–40.
While the Government cited both 21 U.S.C.
824(a)(2) & (4) as the legal authority for the
proposed revocation, the factual basis—as alleged—
was limited to Respondent’s convictions (and the
circumstances surrounding them) for a felony
offense that falls within 21 U.S.C. 824(a)(2). See ALJ
Ex. 1; see also ALJ Slip op. at 32. Moreover, there
was no application pending at the time of the
proceeding and Respondent’s conviction was no
longer subject to appeal.
Because a conviction for a felony offense that falls
within section 824(a)(2) provides an independent
and adequate ground for revoking a registration,
and there was no pending appeal of the conviction
or pending application for a new registration, the
ALJ was not required to make findings under the
public interest factors. While such a conviction
satisfies the Government’s prima facie burden, it is
not a per se bar to registration. Cf. The Lawsons, 72
FR334, 74338 (2007). Accordingly, in a case brought
under section 824(a)(2), the ALJ is still required (as
he did here) to make findings as to whether the
registrant has accepted responsibility for his
misconduct and demonstrated that he will not
engage in future misconduct. Cf. Ronald Lynch,
M.D., 75 FR 78745, 78749 (2010).
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The Evidence
The OSC issued by the Government
alleges that revocation of the
Respondent’s COR is appropriate
because of the Respondent’s May 8,
2009 conviction for three felony counts
of transportation of controlled
substances, i.e. methamphetamine,
ecstasy, and cocaine, in violation of
California state law.1 OSC at 1.
The parties, through their respective
counsel, have entered into stipulations
regarding the following matters:
Stipulation A: Respondent is a
licensed physician in the state of
California pursuant to license number G
83122. Respondent’s license status is
current. ALJ Ex. 9 at 1.
Stipulation B: On May 8, 2009,
Respondent pleaded no contest to, and
was convicted on, three criminal felony
counts of transportation of controlled
substances by the Superior Court of
California, County of Kern. The
controlled substances were
methamphetamine, ecstasy, and
cocaine. The Respondent also pleaded
no contest to, and was convicted on, one
misdemeanor count of carrying a loaded
firearm. ALJ Ex. 9 at 1.
Stipulation C: Prior to the night the
Respondent was arrested, he had no
adverse interaction with law
enforcement authorities. Tr. vol. 1, 129,
Dec. 14, 2010.
Stipulation D: That neither party
would interpose any objection to the
admission of any of the proposed
exhibits noticed prior to the hearing. Tr.
7–10.
Stipulation E: A blue pouch depicted
on page 3 of Government Exhibit 5 did
not contain the firearm seized from the
Respondent’s motor home on the night
he was stopped and detained by the
police. Tr. 354–55.
Among the exhibits admitted into
evidence through stipulation was a state
criminal court transcript, dated May 8,
2009, wherein the Respondent entered
pleas of no contest to three felony drug
transportation counts and one loaded
firearm misdemeanor in satisfaction of
the indictment pending against him.
Resp’t Ex. 3 at 4–7; Gov’t Ex. 11 at 4–
7; Gov’t Ex. 10 at 1–3. Specifically, the
Respondent pleaded no contest to
transporting methamphetamine in
violation of Cal. Health & Safety Code
§ 11379 (West 2008), transporting
Ecstasy or MDMA in violation of Cal.
Health & Safety Code § 11379 (West
2008), transporting cocaine in violation
of Cal. Health & Safety Code § 11352
(West 2008), and possession of a loaded
firearm in a vehicle in violation of Cal.
Penal Code § 12031(a) (West 2008).
Resp’t Ex. 3 at 6–7; Gov’t Ex. 11 at
6–7; Gov’t Ex. 10 at 1–3.
Also included among the
Government’s exhibits admitted into
evidence is the October 20, 2010
Decision and Order (Order) of the
Medical Board of California (Medical
Board) following a state administrative
hearing that took place on August 23,
2010.2 Gov’t Ex. 15–16. In its Order, the
Medical Board, adopting the
recommended decision issued by the
state Administrative Law Judge, found
that the Respondent was stopped by
police with his wife, Mrs. Shelly
1 The same day, the Respondent also pleaded no
contest to a misdemeanor charge of carrying a
loaded firearm. Gov’t Ex. 11; see Cal. Penal Code
12031(a) (West 2008).
2 Although both parties noticed the Medical
Board Order, in the interest of avoiding unnecessary
duplication, it was admitted as a Government
exhibit. Tr. 9–10.
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Recommended Rulings, Findings of
Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
John J. Mulrooney, II, Administrative
Law Judge. The Deputy Assistant
Administrator, Drug Enforcement
Administration (DEA or Government),
issued an Order to Show Cause (OSC),
dated August 13, 2010, seeking
revocation of the Respondent’s
Certificate of Registration (COR),
Number BF4089125, as a practitioner,
pursuant to 21 U.S.C. 824(a)(2) and
(a)(4) (2006), and denial of any pending
applications for renewal or modification
of such registration, pursuant to 21
U.S.C. 823(f), alleging that the
Respondent has been convicted of three
felonies involving controlled
substances, and that his continued
registration is otherwise inconsistent
with the public interest, as that term is
used in 21 U.S.C. 823(f). On August 25,
2010, the Respondent timely requested
a hearing, which was conducted in Los
Angeles, California, on December 14
through December 15, 2010.
The issue ultimately to be adjudicated
by the DEA Deputy Administrator, with
the assistance of this recommended
decision, is whether the record as a
whole establishes by substantial
evidence that the Respondent’s
registration with the DEA should be
revoked as inconsistent with the public
interest as that term is used in 21 U.S.C.
823(f) and 824(a)(4). The Respondent’s
DEA COR is set to expire by its terms
on September 30, 2012.
After carefully considering the
testimony elicited at the hearing, the
admitted exhibits, the arguments of
counsel, and the record as a whole, I
have set forth my recommended
findings of fact and conclusions below.
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Freesemann, on August 28, 2008 en
route in a motor home to the ‘‘Burning
Man Festival’’ in Nevada. Gov’t Ex. 15
at 3. The Order indicated that at his
hearing before the Medical Board, the
Respondent testified that his wife, by
his account, unbeknownst to him,
packed the cocaine, ecstasy, and
methamphetamine found by the police
in the vehicle for use at the festival at
which they had intended to meet
friends. Id. However, while the
Respondent, at his state Medical Board
hearing, denied knowingly transporting
controlled substances, the Medical
Board found that under its precedent, he
is nevertheless guilty of willfully
transporting those drugs because he
pleaded nolo contendere and was
convicted pursuant to his plea. Id. at 2.
At his Medical Board hearing, the
Respondent testified that although his
wife was by far the more culpable actor,
he chose to bear the burden of
incarceration so that his wife could
complete a drug rehabilitation program
and care for their children. Gov’t Ex. 15
at 3. The Respondent apparently
explained to the Medical Board that he
chose this course because he had ‘‘the
greater strength to endure
incarceration,’’ and declared that
‘‘children outweigh cash and income on
my scale any day.’’ Id. The Medical
Board expressed some level of concern
regarding the Respondent’s credibility,
but ultimately concluded that there was
insufficient indicia of deceit to support
a finding that he was ‘‘dishonest in his
testimony.’’ Id. at 4. The Medical Board
noted the Respondent’s seemingly
inconsistent positions of blaming his
wife while simultaneously
acknowledging that he is ‘‘responsible
for his crime.’’ Id.
The Medical Board ultimately
determined that although ‘‘[c]ause exists
to revoke or suspend’’ the Respondent’s
state medical privileges, a stayed
revocation accompanied by a seven-year
term of probation with limitations,
reporting conditions, and ethics training
would ‘‘provide adequate protection of
the public health, safety and welfare.’’
Id.
At the DEA hearing conducted in this
matter, the Government presented the
testimony of five police officers from
Bakersfield, California who worked on
the investigation that culminated in the
Respondent’s convictions as set forth in
Stipulation B, and also called the
Respondent as a witness. The first
officer who testified was Detective (Det.)
David Boyd, the lead case detective for
the investigation. Tr. 29. Det. Boyd, a
twenty-two-year veteran of the
Bakersfield Police Department
(Bakersfield PD), nine of which was
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spent as a detective,3 testified that he
first encountered the Respondent during
the course of a narcotics investigation
primarily targeted at an individual
named Stephen Galvan (Galvan).4 Tr.
28. A cell phone wiretap that had been
judicially authorized during the
investigation revealed voice and text
traffic between Galvan’s cell phone and
phones connected to the Respondent
and his wife, Shelly Freesemann. Tr.
29–30, 50.
On August 24, 2008, the investigating
officers monitored some phone traffic
between Galvan and a female who was
later identified as Galvan’s sister, Tessa.
Tr. 38–39, 41–43. During the call,
Galvan was attempting to procure a
‘‘zip,’’ which, based on Det. Boyd’s
training and experience, he identified as
referring to an ounce of illicit drugs. Tr.
43–47. Galvan told his sister that he was
willing to pay $1,200.00 to $1,300.00,
but needed it by the following day. Tr.
45.
At about 2 p.m. the following day
(August 25th), the officers intercepted a
text message from Galvan’s cell phone
to Shelly Freesemann 5 that read: ‘‘Hey,
back in town, can take care of that 4 U
ASAP.’’ Tr. 47–48. After a five-hour
period without a response from Shelly
Freesemann, Galvan’s phone issued
another text message to her phone with
the message: ‘‘???’’ Tr. 49. Galvan’s
second text received a reply from a cell
phone registered to Mrs. Freesemann
within three minutes that read: ‘‘Sorry
* * * Jeff will call you later.’’ Tr. 50.
Galvan called Shelly Freesemann’s
phone and had a conversation with a
female voice the officers believed to be
hers. Tr. 51. In the conversation, Mrs.
Freesemann told Galvan that the
following day she and her husband
would be retrieving a motor home and
departing the area around 7:30 p.m. Tr.
52. Galvan told her that around noon he
would pick up ‘‘paperwork’’ (a term that
Det. Boyd testified is commonly used in
narcotics transactions to refer to cash).
Id.
At 8:06 a.m. the next morning (August
26th), a text message emanated from
Mrs. Freesemann’s phone to Galvan’s
cell phone that advised: ‘‘Me, not
Shelley, 29th and Fth.6 Call my work #
[the Respondent’s work telephone
3 Tr.
23.
testified that Galvan was identified to the
Bakersfield PD by a paid informant. Tr. 39–40.
5 Although Det. Boyd initially testified that he
believed that the Freesemanns were identified as
acquaintances of Galvan earlier in the investigation
through prior surveillance, Tr. 51, he later clarified
that he only became aware of the Freesemanns
through this investigation and their telephonic
contact with Galvan. Tr. 124–26.
6 Det. Boyd testified that there is such an
intersection in Bakersfield. Tr. 53–54.
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4 Boyd
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number]. Jeff.’’ Tr. 54. Sometime after
the text message instructing him to do
so, Galvan did call the Respondent at
the number provided in the text and
spoke to him. Tr. 55. During their
conversation the two men discussed the
Respondent’s plans to leave town that
evening and that Galvan needed to meet
with the Respondent to get money from
him.7 Tr. 55. After some discussion
related to the logistics of their meeting,
the pair agreed to meet at the Valley
Gun Store (Valley Gun) located in
Bakersfield. Tr. 55–56.
Det. Boyd testified that he and his
team were able to confirm that Galvan
and the Respondent did indeed meet
that day at noon at the Valley Gun. Tr.
56. Surveillance units posted near the
Respondent’s car, Galvan’s car, and
Valley Gun tracked the two men driving
to their rendezvous point at Valley Gun,
observed them enter the store separately
within two to three minutes of one
another, and watched them depart
separately after spending about five
minutes in the store. Tr. 56–58. The
Respondent drove from his office to
Valley Gun, even though the two
locations were diagonally across from
each other on the same intersection of
Bakersfield. Tr. 58–62. After the
meeting, officers followed the
Respondent in his car to a Barnes &
Noble bookstore. Tr. 62.
Det. Boyd testified that Galvan placed
numerous phone calls after his meeting
with the Respondent. Tr. 63. The
officers monitored phone calls from
Galvan to his sister and to his father. Id.
The object of the phone calls to both
parties was to arrange to purchase
methamphetamine. Id. Galvan also
telephoned Phil Nunez (Nunez), an
individual the officers had earlier
identified as one of Galvan’s sources of
methamphetamine.8 Tr. 63–64. At about
7:00 p.m., after Galvan and Nunez
agreed to a meeting, the former placed
another call to the Freesemanns. Tr. 65–
66. When Mrs. Freesemann picked up
the phone, Galvan asked to speak to the
Respondent and informed him that he
should expect him at the Freesemann
residence in approximately twenty to
thirty minutes. Id. The officers
monitored several additional phone
calls between Galvan and Nunez related
to the logistics of locating each other for
their meeting and frustration with cell
phone service problems. Tr. 67. Galvan
and Nunez met in a public parking lot,
7 According to Det. Boyd, Galvan used the terms
‘‘money’’ and ‘‘paperwork’’ interchangeably during
this phone call. Tr. 55.
8 Nunez is also identified as a co-defendant on the
felony complaint and information associated with
the Respondent’s criminal case. Gov’t Exs. 7 at 1;
Gov’t Ex. 9 at 1.
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after which Galvan drove directly to the
Freesemann residence which was being
staked out by another police officer,
Sergeant 9 (Sgt.) Chris Johnson, at Det.
Boyd’s direction. Tr. 67–68.
Sgt. Johnson, who is also a member of
the Bakersfield PD narcotics unit, also
testified for the Government. Sgt.
Johnson testified that he participated in
and provided support to Det. Boyd
during his narcotics investigation of
Galvan, and that during the evening
hours of August 26, 2008, he was
conducting a surveillance of the
Respondent’s home. Tr. 201. Johnson
testified that he arrived at the stakeout
around 7:30 pm, remained there for
approximately five hours, and could see
the Freesemann home and a motor
home parked at the curb. Tr. 201–03.
Sgt. Johnson’s visual observations, made
from three houses away, had the benefit
of street lighting, porch lights, and
motor home lights after the sun set. Tr.
202–03. He testified that the
Freesemanns were loading the motor
home when he observed Galvan drive
up in a truck and park across the street.
Tr. 203. Galvan greeted the Respondent
in the front yard and followed him into
the motor home carrying an oblongsized object about the size of a
grapefruit. Tr. 204. After a brief period
of time, Galvan exited the motor home,
encountered Mrs. Freesemann, hugged
her goodbye, shook the Respondent’s
hand, and drove away, but without the
oblong, grapefruit-sized object. Tr. 204–
05. Sgt. Johnson further testified that
Galvan’s entire visit lasted
approximately five minutes. Tr. 204,
211. He also testified that he saw Mrs.
Freesemann leave the motor home and
enter the residence carrying an object
that was similar in size and shape to the
grapefruit-sized item brought to the
scene by Galvan. Tr. 205–06. Sgt.
Johnson testified that he watched the
Respondent and his wife continue to
load the motor home for about another
hour and watched as the motor home
and the Freesemanns drove off. Tr. 207,
211.
Bakersfield PD Police Officer (PO)
Kevin O. Hock also testified for the
Government. PO Hock testified that he
has worked for Bakersfield PD for the
past fifteen years. Tr. 156. PO Hock
testified he is assigned to the Special
Enforcement Unit (SEU) at Bakersfield
PD, and that in addition to working on
gang crime cases and gang intelligence,
SEU also provides uniformed and
‘‘black and white’’ patrol car assistance
to investigations as needed. Tr. 156–57.
PO Hock testified that on August 26,
9 At the time of the Respondent’s arrest, Sgt.
Johnson was a detective. Tr. 198.
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2008, he was working a uniformed
assignment in a marked patrol car and
was directed by Sgt. Tunnicliffe, a
Bakersfield PD narcotics division
supervisor, to conduct a vehicle stop on
a white motor home that the narcotics
unit was actively surveilling.10 Tr. 159–
60. When PO Hock caught up to the
white motor home, he noticed that it
had no license plate light 11 and
initiated a vehicle stop. Tr. 162 PO Hock
testified that he encountered the
Respondent driving the vehicle,
procured his California driver’s license
from him, and asked (as is his custom
with all vehicle stops) whether there
were any illegal substances inside the
vehicle. Tr. 163–64. The Respondent
responded in the negative and
consented to a search of the motor
home.12 Tr. 165. Hock testified that Mrs.
Freesemann and a female, named
Michelle Hori,13 were also in the motor
home when it was pulled over. Tr. 163.
PO Hock testified that he ordered all the
occupants of the vehicle to step out and
radioed a K–9 officer, Det. Cox, to
respond to the scene, which he did
within five minutes. Tr. 165–66. PO
Hock testified that Det. Cox searched the
entire vehicle and told him that his
narcotics dog, ‘‘Gracie,’’ alerted to three
different areas within the motor home.
Tr. 167. In one of the alert areas between
the front seats, Hock opened a bag that
contained a pink pouch. Tr. 167–68,
171–74; Gov’t Ex. 5 at 7–11, 16, 48–50.
The pink pouch contained what PO
Hock believed to be MDMA tablets and
powder cocaine. Tr. 170. Hock testified
that the motor home was driven to the
Bakersfield PD station and searched
more thoroughly there under the
authority of the search warrant procured
by Det. Hale. Tr. 174–75.
The testimony of the responding K–9
officer, Bakersfield Det. David Cox,
corroborated the testimony of PO Hock.
Det. Cox testified that on the night of the
Respondent’s arrest, he was assigned as
a K–9 officer in the narcotics unit and
was Gracie’s handler. Tr. 182. Det. Cox
testified that he responded on August
26, 2008 to PO Hock’s request to sweep
10 Det. Boyd testified that it was he who made the
decision to have the motor home stopped and
conveyed that decision to his supervisor, Sgt.
Tunnicliffe. Tr. 68–69.
11 A violation of Cal. Veh. Code § 24601 (West
2008).
12 PO Hock testified that the Respondent was
cooperative throughout the entire evolution on the
side of the road. Tr. 178.
13 Det. Boyd testified that police intercepted a
phone conversation wherein Ms. Hori indicated
that she was intending to transport six ecstasy
capsules to a Tacoma, Washington surgeon by the
name of Dr. Wendell Smith. Tr. 134–35, 145.
According to Det. Boyd, Ms. Hori ultimately entered
a guilty plea to some unspecified criminal charge
and received a sentence of probation. Tr. 132.
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the Respondent’s motor home with
Gracie after he stopped it.14 Tr. 185–87.
As testified to by PO Hock, Cox recalled
that Gracie had alerted to three different
areas of the motor home. The first alert
was on the area between the two front
passenger seats, another was on a
drawer or compartment above the motor
home bed, and a third was on an area
with approximately two to four bags
located on the interior floor of the motor
home near some bicycles. Tr. 188–93.
Det. Cox then testified that he related
the areas of K–9 alert to PO Hock for
action, but that his part of that vehicle
search evolution substantially ended at
that point. Tr. 192. He testified that he
did not personally see any controlled
substances seized from the motor home,
nor did he even see the aforementioned
pink pouch containing
methamphetamine and BZP tablets and
powder methamphetamine, nor did he
see a yellow pelican case that, per Det.
Boyd’s testimony, the laboratory results,
and the return to search warrant,
contained copious amounts of illicit
substances. Tr. 195.
Det. Boyd, testified that sometime
after the commencement of the search
on the motor home, he directed another
officer, Det. Michael Hale, to prepare an
affidavit and seek a warrant to search
the stopped motor home and the
Respondent’s residence. Tr. 72–73. The
Government also presented Det. Hale’s
testimony at the hearing. Hale, a
fourteen-year veteran Bakersfield police
officer, testified that on the night of the
motor home stop he was assigned to the
Narcotics Unit at the Bakersfield PD and
had been involved in the Galvan
investigation. Tr. 217–18. He testified
that he was the affiant on the supporting
affidavit (PC Affidavit) which was
utilized to secure a state-court-issued
search warrant that was executed on the
stopped motor home and on the
Respondent’s residence in the early
hours of the next morning.15 Tr. 218–21;
Gov’t Ex. 3; Gov’t Ex. 4.
The PC Affidavit tracked the bones of
the investigation consistently with the
testimony of Det. Boyd. The PC
Affidavit informs how the Bakersfield
PD was led to the Respondent and his
wife through its monitoring of Galvan,
who was suspected of being a drug
dealer. Gov’t Ex. 3. The document
explains that the state-court-authorized
cell phone intercept (cell phone tap)
resulted in the intercept of telephone
14 Det. Cox also testified that earlier in the day he
assisted in conducting surveillance on Galvan and
the Freesemanns. Tr. 185, 193–94.
15 The search warrant and the PC Affidavit were
received into evidence at the hearing by mutual
stipulation of the parties. Tr. 7–10; Stipulation D;
see Gov’t Ex. 3.
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calls and text messages from Galvan’s
cell phone to the Respondent and his
wife. Id. at 8. The PC Affidavit sets forth
the August 25th cell call from Galvan to
the Respondent’s wife wherein she
explained to Galvan that she was
leaving the next night and that a third
party had inquired as to whether she
wanted to bring ‘‘that.’’ Id. at 9. In his
PC Affidavit, Det. Hale explained that,
based on his training and years of
experience involving narcotics
investigations, it is his opinion that the
word ‘‘that’’ is an expression commonly
used in connection with narcotics. Id. at
11. Before the call ended, the
Respondent’s wife explained that she
would be leaving the next night at 7:30
p.m. after picking up a motor home. Id.
The PC Affidavit progresses through
August 26th, as Bakersfield PD officers
intercepted a text message to Galvan’s
cell phone that stated ‘‘Meet me at noon
instead of shelly at 29th and Fth. if diff.
plans call my work# 340–2323 jeff
[sic].’’ Id. at 9. The PC Affidavit
continues that later in the day, the cell
phone tap revealed that Galvan called
the number provided by ‘‘jeff’’ in the
text message. Id. The phone was
answered by an individual who
identified himself as ‘‘Jeff.’’ Id. Galvan
explained to Jeff that he wanted to take
care of ‘‘all that’’ today, but then
indicated that they needed to meet first
so he could collect money from Jeff. Id.
After Galvan asserted that he needed a
couple of hours, they agreed to meet at
noon at Valley Gun where they had met
previously. Id.
The PC Affidavit also narrates the
surveillance conducted at Valley Gun
wherein detectives observed the
Respondent pull up in a car registered
to himself and his wife at about noon
and enter the store. Id. The document
explains how, after a few minutes,
Galvan arrived at Valley Gun and joined
the Respondent inside. Id. After what
Hale’s affidavit characterizes as ‘‘a short
period,’’ the two men concluded their
meeting inside the store and the
Respondent drove off. Id.
The PC Affidavit relates that shortly
after Galvan’s noon meeting at Valley
Gun, detectives intercepted numerous
calls between Galvan and his sister,
Tessa, wherein the two unsuccessfully
attempted to close a drug deal to secure
a ‘‘whole one,’’ which, in Det. Hale’s
experience, refers to an ounce of
suspected narcotics. Id. at 10–11. At
6:15 p.m., finding himself unable to
successfully broker for illegal drugs
with his sister, the cell phone tap
revealed that Galvan turned to his
father, explaining that he needed to
provide crystal methamphetamine to a
friend who was set to leave town at 7:30
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(the same time the Respondent’s wife
had previously related to Galvan as her
planned departure time). Id. at 9–10.
According to the PC Affidavit,
approximately fifteen minutes after
placing the call to his father, Galvan
called Nunez, and the two agreed to
meet. Id. at 10. During that cell phone
conversation, the latter asked the former
if his sister had called for ‘‘it’’ and was
informed that their efforts to reach
agreement had been fruitless. Id.
Following numerous calls placed to find
each other, Galvan met Nunez in a
restaurant parking lot and, in the
opinion of the police, conducted an
illegal narcotics transaction. Id. Upon
leaving the parking lot, Galvan called
the Respondent’s wife and asked to
speak with ‘‘Jeff.’’ Galvan informed Jeff
that he was on his way. Id.
The PC Affidavit further states that at
the Respondent’s home, another
Bakersfield PD detective was observing
the Respondent and his wife load items
into a motor home that was parked there
when Galvan drove up. Id. at 11. The PC
Affidavit elucidates how Galvan handed
a light-colored, oblong package about
the size of a grapefruit to the
Respondent before the two entered the
motor home, and how, after a while, the
Respondent’s wife carried the package
into their attached garage. Id. According
to the PC Affidavit, Galvan departed
after shaking the Respondent’s hand and
hugging Mrs. Freesemann. Id. The
Respondent and his wife departed at
8:05 p.m. in the motor home which, as
had been sworn to by Det. Hale, was
stopped thirty minutes later and
searched. Id. at 12.
Det. Hock, the officer who pulled over
the motor home, testified that after he
identified what he suspected to be
illicitly-possessed controlled
substances, he notified Sgt. Tunnicliffe,
who then directed that the Respondent,
his wife, and Ms. Hori be transported to
the Bakersfield PD.16 Tr. 171. Another
officer drove the motor home back to the
Bakersfield PD station where it was
searched. Tr. 172. While Det. Hock
testified that he participated in the
roadside search of the motor home with
other officers, as well as the search of
the motor home back at the police
department pursuant to the search
warrant, he testified at the hearing that
the only controlled substances he
specifically remembered seeing during
16 Det. Boyd testified that the occupants of the
motor home were not booked for an arrest that night
but were ‘‘detained and then later released pending
further investigation.’’ Tr. 108. He testified that this
was done to facilitate the continuing investigation
of Galvan without having to disclose the existence
of the cell phone tap. Tr. 131.
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the roadside search were contained in
the pink pouch. Tr. 174.
The search warrant return prepared in
connection with the search of the motor
home listed the seizure of seventy-seven
items. Gov’t Ex. 4. Among the seized
items were many individually packaged
containers with pills, powders, liquids,
and substances that, when tested, were
confirmed to be scheduled controlled
substances, including
methylenedioxymethamphetamine
(MDMA or ecstasy), methamphetamine,
cocaine, and psilocybin mushrooms
(psilocybin or mushrooms). Gov’t Exs. 4,
8; Tr. 99. More specifically, the
controlled substances secreted in the
motor home and seized were 277 pills
that included various quantities of
Adipex-P,17 methamphetamine,18
BZP,19 zolpidem,20 Lunesta,21
ketamine,22 and ecstasy; 23 25.9 grams of
powdery or rocky substances that
included ketamine, cocaine,24 and
methamphetamine; liquid in multiple
bottles constituting gammabutyrolactone (GBL); 25 2.4 grams of
marijuana; 26 and 0.8 grams of
psilocybin mushrooms.27 Gov’t Ex. 4.
While most of the drugs that were tested
yielded positive results for the same
illicit nature for which they were
suspected, a cross-reference of the
return to search warrant with the
laboratory analysis results reveals some
anomalies. For instance, a portion of the
suspected MDMA tablets tested positive
for methamphetamine and
17 A Schedule IV controlled substance listed
under phentermine. 21 CFR 1308.14(e)(9) (2010).
18 A Schedule II controlled substance. Id.
§ 1308.12(d)(2).
19 A Schedule I controlled substance. Id.
§ 1308.11(f)(2).
20 A Schedule IV controlled substance. Id.
§ 1308.14(c)(51).
21 A Schedule IV controlled substance listed
under zopiclone. Id. § 1308.14(c)(52).
22 A Schedule III controlled substance. Id.
§ 1308.13(c)(7).
23 A Schedule I controlled substance. Id.
§ 1308.11(d)(11).
24 A Schedule II controlled substance. Id.
§ 1308.12(b)(4).
25 A List I chemical. Id. § 1310.02(a)(24).
Analogues of controlled substances, like GBL to
gamma-hydroxybutyric acid (GHB), a Schedule I
controlled substance, id. § 1308.11(e)(1), can be
treated under federal law as a Schedule I controlled
substance if intended for human consumption. 21
U.S.C. 813 (2006).
26 A Schedule I controlled substance. Id.
§ 1308.11(d)(22).
27 A Schedule I controlled substance. Id.
§ 1308.11(d)(28). While 13.5 pills of Xanax, a
Schedule IV controlled substance listed under
alprazolam at id. § 1308.14(c)(1), were also seized
from the motor home, they were within a vial
labeled as a prescription to the Respondent. Gov’t
Ex. 4 at 4. The Government makes no allegation that
the Xanax was invalidly prescribed, abused, or
diverted. Other uncontrolled substances seized,
prescription or otherwise, are not considered in this
decision under the public interest factors.
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benzylpiperazine (BZP). Compare Gov’t
Ex. 4 at 4 (see item #61), with Gov’t Ex.
8 at 5 (see item #18). Also, some of the
suspected cocaine HCl tested positive
for methamphetamine. Compare Gov’t
Ex. 4 at 4 (see item #62), with Gov’t Ex.
8 at 7 (see item #25).
As discussed earlier in this
recommended decision, a separate
return was prepared in connection with
the items seized from the Respondent’s
home. Among the controlled substances
seized at the residence were 258.5
tablets of suspected ecstasy, 5.3 grams of
suspected cocaine, and an unspecified
quantity of suspected ‘‘liquid ecstasy.’’
Id. A loaded handgun was seized from
the motor home, and a loaded handgun
and extra ammunition were seized from
the Respondent’s residence.28 Id. at 4, 6.
Det. Boyd testified that the narcotics
seized from the motor home and the
residence were packaged in small
dosage amounts in numerous
containers. According to Det. Boyd,
based on his training, this manner of
packaging is consistent with the manner
in which individuals commonly
package illicit drugs for sale.29 Tr. 76–
77, 117.
Notwithstanding the fact that the
Respondent did not contest the illicit
nature of the seized contraband, Det.
Boyd also provided a narration of sorts
regarding numerous photographs of the
items seized from the motor home that
had been stipulated into evidence.30
While the detective was able to identify
a quantity of marijuana,31 and devices
he styled as ‘‘marijuana pipes,’’ 32 much
of his testimony regarding the
photographs constituted little more than
arguably unhelpful guesses and
multiple choice options of illicit drug
possibilities. For example, in describing
28 Hypodermic needles and a pill cutter were also
seized from the Freesemann residence. Gov’t Ex. 6
at 18–19; Tr. 115. On the present record, these items
have not been sufficiently linked to illegal activity
to adversely factor against the Respondent. There is
nothing in the present record to discount the
Respondent’s testimony that the hypodermic
needles were present in the residence for the
treatment of his ailing mother, who has since
passed away. Tr. 270, 279–81.
29 Det. Boyd also testified that he is aware of other
indicia of controlled substance dealing, such as
particular currency denominations, scales,
packaging materials, and sometimes even ‘‘pay and
owe sheets’’ that actually record drug transactions,
none of which were located on the Freesemanns or
in their rented motor home on the night they were
arrested. Tr. 78–80, 133.
30 Four photographs depict the sum total of the
contraband seized from the motor home. Gov’t Ex.
5 at 55–58; Tr. 93–94.
31 Tr. 80; Gov’t Ex. 5 at 18. Interestingly, Det.
Boyd testified that the suspected marijuana seized
in this case was not sent out for confirmatory
testing. Tr. 100.
32 Tr. 80–81, 91; Gov’t Ex. 5 at 19, 52.
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evidence at the hearing, indicated that
the seized substance that the Bakersfield
PD assigned as ‘‘agency #10’’ was not
cocaine hydrochloride as had been
believed by Det. Boyd (and submitted by
the Government within its Proposed
Finding of Fact 85), but ketamine.40
Gov’t Ex. 8 at 9; Gov’t Ex. 5 at 20; Tr.
81–82; Gov’t Br. at 13.
More helpfully, Det. Boyd described
numerous containers of over-thecounter pill bottles where material that
resembled illicit drugs were placed
below several doses of the pills that the
vials were intended for. Tr. 86–91; see
Gov’t Ex. 5 at 32–35, 38–39, 41, 43–50,
52. Boyd testified that based on his
training and experience, he has
observed the utilization of this
technique to give the appearance of a
benign over-the-counter medication or
supplement to inspecting eyes that are
not inclined to dig deeper, and that it is
a common method used to secrete
illegal drugs. Tr. 86. Pills that he
considered suspect were also identified
in two Starbucks tin mint containers. Tr.
88; see Gov’t Ex. 5 at 36–37.
Sgt. Johnson testified that he
participated in the execution of the
search warrant on the Respondent’s
residence, assisted with other officers,
to the extent that he helped secure the
residence and the people inside of it. Tr.
209–10. He testified that he did not,
[The first photo] [w]ould be those three
cylinders, open to show the contents, two of
them having white powdery substances,
which I believe to be either cocaine or
methamphetamine, and the other is either, I
can’t remember which photograph it is that
depicts it. It’s either depicting the small
amount of psilocybin that was seized or
marijuana. * * * [The second photo is of]
two sets of blue pills, different in size. One
individual blue pill and then two yellow
pills that appear to be prescription-style
medication. The blue oblongy-looking one
appears to be a prescription[-]style
medication. The blue pills down here appear
to me to be similar to ecstasy[/]MDMA.
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one photograph 33 he stated that it
showed ‘‘a glass vial with a black lid,
with a white powdery substance in it
[and explained that] [f]rom the
photograph, [he] would believe it to be
either cocaine[ ] HC[l] or
methamphetamine.’’ Tr. 82 (emphasis
supplied). Another photograph 34 was
described as depicting ‘‘three oblong
pills, white in color with what looks
like blue spectacles in it,’’ and when
asked whether he ‘‘believe[s] [it] to be an
illicit controlled substance,’’ responded
that he ‘‘believe[s] it was possible it
would be some type of pharmaceutical.’’
Tr. 82 (emphasis supplied). Still another
photo 35 was described as including a
container holding ‘‘a white powdery
substance in it which [he] would believe
to be either cocaine[] HC[l] or
methamphetamine.’’ Tr. 82–83
(emphasis supplied). Other photographs
were described as containing ‘‘orangishred pills which [he] believe[s], through
[his] training and experience, to be that
of ecstasy or MDMA [and other
material] that [he] believe[s] to contain
either methamphetamine or cocaine,’’ 36
and ‘‘[s]everal gel caps or capsules with
a brown material [and states that he is]
not sure what they are.’’ 37 The record
contains multiple examples of this
approach, but the following excerpt
addressing two photographs 38 is
representative:
40 Although Det. Boyd testified that the laboratory
analysis report provided by the Government set
forth the results of materials seized from the motor
home as well as the residence, a comparison of the
itemized materials by the agency numbers assigned
in the lab report (which correspond to item
numbers in the search warrant return) indicates that
only the motor home contraband results may be
detailed in the report submitted in evidence.
Compare Gov’t Ex. 8, with Gov’t Ex. 4. It is possible
that because the crime lab’s own item numbering,
the system of which appears to be assigned by test
batches, begin at ‘‘06’’ that the first five item
numbers corresponded to tests of substances found
in the residence. When pressed on the issue at the
hearing, Boyd indicated that he was ‘‘not 100
percent’’ sure that the lab report contained results
from both searches. Tr. 104. Although afforded the
opportunity to clarify any ambiguity regarding the
report during the proceedings, neither the witness
nor the Government took any steps to do so. Tr.
104–06. When pressed on whether the suspected
contraband seized from the residence tested
positive for controlled substances, Hale could only
represent that he ‘‘would assume they were.’’ Tr.
235. Interestingly the Respondent’s guilty pleas
(and corresponding stipulation) relate only to the
illicit substances he was transporting (in the motor
home), not the items seized at his residence.
Stipulation B; Gov’t Exs.9–11. In any event,
inasmuch as the Respondent has not contested that
illicit controlled substances were seized from both
locations, and in light of Mrs. Freesemann’s
testimony that their master bedroom closet did, in
fact, contain illegal drugs, Tr. 459, the potential
discrepancy is of little moment in these
proceedings. Significantly, this portion of Mrs.
Freesemann’s testimony was included in that
segment that was subject to a Government objection
at the hearing, which was renewed (for emphasis?)
in its closing brief. Gov’t Br. at 21 n.2.
Tr. 84–85. Although later in his
testimony, Det. Boyd indicated that
confirmatory testing on the seized
materials yielded results consistent with
his expectations that the seized items
were the controlled substances he
anticipated they would be,39 this did
not prove to be entirely true. For
example, the laboratory analysis report
relative to the material seized in the
motor home, which was admitted into
33 Gov’t
Ex. 5 at 20.
Ex. 5 at 22.
35 Gov’t Ex. 5 at 24.
36 Tr. 83; see Gov’t Ex. 5 at 28.
37 Tr. 84; see Gov’t Ex. 5 at 29.
38 Gov’t Ex. 5 at 30–31.
39 Tr. 101–02.
34 Gov’t
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however, take photographs, and because
he did not conduct the actual search of
the inside of the residence, he does not
have any personal knowledge of the
controlled substances found in the
home. Tr. 210.
Det. Hale, the affiant on the PC
Affidavit testified in greater detail about
the search conducted in the house.
According to Hale, after the children
and their babysitter were located and
isolated, the Respondent’s home was
searched. Tr. 221–23. A description
litany reminiscent of Det. Boyd’s
account of the photographs and his
opinion of the illicit substances seized
from the motor home was elicited from
Hale regarding the items seized from the
Freesemann residence, with similar
efficacy. Id.; Gov’t Ex. 6. A safe, that
Hale recalled as being unsecured,
yielded a black plastic case that
contained individually packaged
amounts of what Hale suspected to be
ecstasy and cocaine.41 Tr. 223–27.
Det. Boyd testified that a firearm was
seized from the Respondent’s residence
during the search. Tr. 96. According to
Boyd, although the firearm was
registered and there was no illegality
that stemmed from the weapon’s
discovery at the Freesemann residence,
it is standard police procedure to seize
identified firearms during searches
related to narcotics. Id.
After personally observing the police
witnesses testimony and demeanor, I
find the testimony of each of these
witnesses to be sufficiently plausible,
detailed, internally consistent, and
externally consistent with other
witnesses, evidence and each other, to
be deemed credible.42
Although the Respondent noticed
himself as a witness, the Government
41 Also seized in the search was a loaded firearm
in the closet of the home’s master bedroom and
samples of medications commonly-known to be
used to treat erectile dysfunction (ED) that were
seized from the trunk of a vehicle parked in the
home’s garage. Tr. 231, 237–38. No illegality has
been alleged or established regarding the ED
medications or the gun found in the Respondent’s
bedroom. The Respondent testified that the weapon
is registered to his father, Tr. 230–31, and Det. Hale
did not recall whether the weapon was returned to
the Respondent. The testimony about these seized
items was admitted in the interest of completing the
narrative connected to the search, but this evidence
does not impact on the determination of whether
maintaining the Respondent’s COR is in the public
interest.
42 While some minor inconsistencies are noticed
between Det. Hale’s testimony and other witness
testimony or documentary evidence, such as
whether the standing safe inside the Freesemann’s
bedroom closet was unlocked or required him to
obtain the combination from the Freesemanns, Tr.
242–43, 274, or whether the gun was registered to
the Respondent or his late father, the nature of these
inconsistencies are sufficiently tangential and
inconsequential that they do not materially affect
the credibility to be attached to the testimony.
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elected to call him to testify as part of
its case-in-chief. Tr. 244. The
Respondent testified that he has been a
physician for the last seventeen years
and is presently licensed in California.
Tr. 246–47. The Respondent described
his rural roots, and how, after an initial,
unsuccessful college experience, and
following stints working as an oil-field
roustabout and an apprentice
electrician,43 he returned to academia,
completed his undergraduate degree at
the University of California at Berkely,
graduated from Georgetown Medical
School, and completed his internship
and residency at the Oregon Health
Sciences University. Tr. 246, 282–84.
According to the Respondent, in 1996
(the same year he was admitted to
practice medicine in California) he was
hired by a Bakersfield physician. Tr.
248. The Respondent explained that he
and several other doctors entered a joint
venture to purchase his employer’s
practice, where he was engaged in the
practice of internal medicine until the
time of his current difficulties. Tr. 248,
252, 256. He described himself as
having been ‘‘a high profile physician in
[his] community of Bakersfield,’’ having
held the position of hospital chief of
staff until the adverse press generated
by his legal difficulties made the
continuation of his medical practice
untenable and resulted in the sale of his
portion of his practice back to his
partners. Tr. 257. He testified that he
has never been sued for medical
malpractice and prior to the
transgressions that are the subject of
these proceedings, he had never been
subject to disciplinary action by the
Medical Board. Tr. 282–83.
The Respondent also described a high
level of prestigious activity and
achievements that he attained in the
medical profession, including
appointments as a local delegate to the
California Medical Association for ten
years, board member and former
president of his county medical
association, and board member at San
Joaquin Hospital, as well as
appointments demonstrating increasing
levels of responsibility at Mercy
Hospital, to include service on the
credentialing board, medicine chairman,
vice chief of staff, and ultimately chief
of staff. Tr. 288–89.
The Respondent’s testimony
presented an interesting window into
the extent of his perceived need for the
COR that is the subject of these
proceedings. The Respondent explained
that the primary focus of his internal
43 The Respondent testified that he attained
journeyman electrician status before returning to
college. Tr. 284.
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medicine practice was elder care, and
although he has maintained a COR to
prescribe (not dispense) controlled
substances, he actually prescribes
controlled substances to his patients on
a ‘‘[v]ery, very low’’ basis. Tr. 251. In a
bizarre exchange, the Respondent, a
physician with seventeen years of
internal medicine practice and former
hospital chief of staff, revealed that he
believed that he needed a DEA
controlled substance COR to prescribe
all medications, not just scheduled
controlled substances.44 Tr. 249–52. The
Respondent indicated that it his
(incorrect) ‘‘understanding [that] you
need a [COR] even to prescribe
antihypertensive medications or
cholesterol or diabetes medications.’’ Tr.
250.
The Respondent denied ever doing
illegal drugs at any point in his life
through high school to the present
day.45 Tr. 284–85, 289.46 According to
his testimony, between building a
practice and raising young children, the
ten years following his arrival in
California were busy ones for him and
his wife. Tr. 286–88. The Respondent
testified that the reintroduction of a
former high-school friend of his wife
into her life was the catalyst for
powerful life changes for the
Freesemanns. Tr. 289–91. He testified
that Mrs. Freesemann’s new-old friend
began inviting the couple out to Los
Angeles for nights of dancing, dinner,
and shows. Tr. 289. Overnight trips to
the city followed, as did, at least by the
Respondent’s estimation, a variety of
relationship rekindling. Tr. 291, 294.
Coincidentally at this time, the
44 The Respondent also indicated that he believed
that he needed to maintain his COR for other
reasons, such as being able to prescribe some
controlled substances on a brief basis, and because
some potential employers have an interest in
minimizing referrals to specialists. Tr. 255.
45 Some conflicting evidence in this regard was
produced through the testimony of Det. Boyd when
the Government recalled him as a witness. Det.
Boyd had previously elicited a statement from
Michelle Hori to the effect that she observed the use
of ecstasy sometime in 2005. Tr. 360. Boyd testified
that Hori had related this information about the
Respondent during a conversation with him after
receiving Miranda warnings and that although the
results of the interview may have been contained
in a report, no statement signed by Ms. Hori was
ever prepared. Tr. 146, 361. Even if it were
conceded, arguendo, that Ms. Hori provided this
information to Det. Boyd, the vague nature of the
statement, the relative remoteness in time of the
alleged drug use, and the broad time spam alleged
(sometime in 2005), coupled with the inability to
cross examine Ms. Hori, sufficiently undermine this
evidence below a point where it can be, should be,
and is useful for any fact relevant to these
proceedings. Accordingly, this evidence has been
afforded no weight in this recommended decision.
46 The Respondent also testified that as a
condition of his probation imposed by the Medical
Board, he is drug tested a minimum of four times
per month. Tr. 314.
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Respondent was more available to
spend time with his wife, including
time in Los Angeles for overnight trips
away from the children, whereas during
the preceding decade the Respondent
worked too frequently and Mrs.
Freesemann was so busy taking care of
their children that the Freesemanns
‘‘didn’t have much of a relationship.’’
Tr. 289–91. During this period in which
the Respondent testified that ‘‘[he]
found that [they] were getting closer as
a couple during that time [like when
they] first started dating,’’ Tr. 291, the
Respondent testified that he and Mrs.
Freesemann began meeting more people
through successive chain introductions,
much like a ‘‘Brownian Motion,’’ 47
until they had a regular group in which
to socialize, Tr. 289–92.
By the Respondent’s account, it was
during this period of dancing, clubbing,
and reconnecting that Galvan entered
the picture. Tr. 258–59, 295. Apparently
the favor of an introduction to Galvan
was effected in December of 2007 by
another physician’s wife, who
introduced him as a club promoter at
‘‘The Replay’’ in Bakersfield who could
provide VIP table access and bottle
service, as well as parking. Tr. 258.
Galvan was someone with whom the
Respondent admitted to moderate,
intermittent contact,48 but who would
periodically visit at his home with Mrs.
Freeemann while the Respondent was
elsewhere. Tr. 297–99.
The Respondent further testified
regarding his wife’s behavior and the
likelihood she was abusing illicit
controlled substances during the period
of their shared social boom. The
Respondent admitted being suspicious
that Mrs. Freesemann was using drugs,
in particular because of her behavioral
changes. Tr. 293–94. For instance, the
Respondent noted ‘‘infrequent
episodes’’ where people would go to the
bathroom, including his wife, and they
would come back more excited, their
pupils would be more dilated which he
could discern despite the low light
level, or exhibited other suspicious
behaviors. Id. The Respondent
suspected enough of his wife to confront
her on multiple occasions about illicit
drug use, but he testified that she would
either deny it or claim it was a ‘‘onetime thing.’’ Tr. 276–77. However, the
Respondent also testified that his wife’s
drug use caused certain changes in her
47 The Respondent explained a Brownian Motion
to be ‘‘the random movement of molecules that’s
spread out in gas, that causes all the other
molecules around it to interact.’’ Tr. 292.
48 The Respondent admitted to approximately
fourteen social interactions with Galvan at clubs or
in the Freesemann home over a nine-month period.
Tr. 297.
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that he found more ‘‘attractive,’’ such as
how she was more prone to stay up late
and match his high energy level despite
her former routine 9 p.m. bedtime, and
she had more enthusiasm.49 Tr. 294.
The Respondent testified that he
loaned Galvan $1,000.00 in March of
2008 (five months prior to the night he
was detained by the police) at the behest
of Mrs. Freesemann. Tr. 303. It was the
Respondent’s understanding that he was
loaning Galvan money at that time
because the latter needed funds to pay
his rent, and the Respondent expressed
surprise that the borrower actually
returned the money several weeks
thereafter. Tr. 303–04, 327. The
Respondent indicated that no interest
was paid by Galvan for the loaned
money. Tr. 327.
The Respondent acknowledged that
he provided Galvan with another
$1,000.00 on August 26, 2008 at Valley
Gun. Tr. 260. However, (unlike the
previous money which he understood to
be a loan) he testified that he had no
idea why Galvan was the beneficiary of
this largess. Tr. 261, 323. Although the
Respondent maintained that he
accepted his spouse’s tasking to present
Galvan (whom he alternately described
as ‘‘a surly-looking guy,’’ a ‘‘scarylooking character, and a ‘‘shady
character’’) 50 with $1,000.00 at a
prearranged location away from his
office without so much as asking her
why he was doing it or for what purpose
the money was being tendered, he
conceded that at the time, he ‘‘had [his]
suspicions.’’ Tr. 262, 324. When pressed
about the nature of his ‘‘suspicions,’’ the
Respondent stated that he ‘‘suspected
that, given [Galvan’s] appearance, given
[his] wife’s behavior, given other things,
that possibly there could be controlled
substances involved.’’ Tr. 271.
The Respondent’s dual
acknowledgements that he believed that
his wife was likely abusing controlled
substances and that Galvan was an
unsavory character render his position
that he assumed that he was presenting
Galvan with a rent-money loan on the
day that the Freesemanns were headed
on vacation singularly implausible.
Factoring in the Respondent’s
impressive educational pedigree and his
impressive professional
accomplishments and qualifications, his
assertion that ‘‘[a]ll I can claim is to be
the stupidest doctor at the time’’ 51 is
unpersuasive.
49 The Respondent also testified that Mrs.
Freesemann would be ‘‘overly excited at times,
overly sad at times, and overly hyper at times,’’
precipitating conversations over her suspected drug
abuse. Tr. 272.
50 Tr. 261–62, 264–65.
51 Tr. 332.
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The reasons for which Valley Gun
was chosen as a meeting location,
according to the Respondent’s
testimony, despite its walkability across
the street from the Respondent’s
practice, was because Galvan looked
‘‘surly * * * [with a] shaved head [and]
tended to dress a little bit more gamelooking [and] had big arms with
tattoos[,] [so] he’s kind of a scarylooking character [so the Respondent]
didn’t want him walking in the front
office of [his] very conservative regular
medical practice;’’ Galvan and the
Respondent met at Valley Gun the last
time the Respondent gave him cash; and
lastly because it was close. Tr. 263–64.
The Respondent also testified that they
chose to meet at Valley Gun rather than
at the bookstore, where he drove to
afterwards, because driving to the
bookstore was an impromptu
afterthought following his conversation
setting up a meeting with Galvan. Tr.
335. If the Respondent was, as he
claims, gullibly providing money to a
friend of his wife for unknown, but
presumably benign reasons, and was
intending to shop at a bookstore, it
would be more likely that their meeting,
if it could not take place at the
Respondent’s office, would be at the
bookstore. The meeting at nearby gun
shop with both men (neither of whom
had business to conduct at Valley Gun)
arriving and departing within minutes
of each other, but not together,
possesses a clandestine quality that
undermines the Respondent’s assertion
that the encounter and transaction was
designed (by the Respondent) for a
legitimate purpose.
Consistent with the conversations
overheard by the police on the cell
phone tap, the Respondent testified that
on the day he was detained by police,
he and Mrs. Freesemann were headed
out of town in their rented motor home
to the Burning Man Festival in Nevada,
a twelve-hour drive. Tr. 305–06. He
testified that the Burning Man Festival
is an art festival that occurs annually in
a desert near Reno, Nevada that attracts
crowds of 45,000 people who make
camp. Tr. 299. The Respondent
represented that sharing and trading is
a significant feature of the festival, and
that he intended to make and share
grilled-cheese sandwiches there. Tr.
300. He testified that he took a loaded
firearm with him in case he encountered
snakes. Tr. 310, 341–43. Suffice it to say
that the Respondent’s account of why he
brought a loaded handgun to the 45,000person strong Burning Man Festival is
not among the more plausible aspects of
his testimony. Regarding the illegal
drugs found in the motor home, the
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Respondent testified that he had no
actual knowledge of anything illegal in
vehicle. Tr. 272. However, he also
testified that he should have known
there were controlled substances on
board, and that any reasonable person
would have known, in light of Galvan’s
appearance earlier in the evening, that
there were drugs in the motor home. Tr.
337.
The Respondent similarly denied any
knowledge of the illicit substances
found in the closet of his bedroom. Tr.
273. While the drugs were found in a
black Pelican case similar to valises
owned by the Respondent, the case
which contained the drugs was located
within a home safe that is always
locked, the combination for which was
known only to Mrs. Freesemann
(although the Respondent testified that
he knew where in the house to find the
combination code). Tr. 273–74.
The Respondent testified that he
accepted the plea bargain offered by the
prosecution in his criminal case to spare
his wife the experience of incarceration
and to ensure that she could remain at
home to mind their children. Tr. 311.
He imputed political motives to the
criminal prosecutor. Tr. 336. He
likewise assigned the responsibility for
the decision to accept the plea bargain
and enter the plea to advice he received
from his criminal defense attorney. Tr.
338. The Respondent stated that he
entered the no-contest plea to attain the
benefit of the plea bargain. Tr. 338.
The Respondent also took pains
during his testimony to point out that
after conducting its own evaluation, the
probation authorities established that he
was not a drug-treatment candidate and
determined that substance-abuse classes
were not needed. Tr. 312. He further
stated that the drug testing mandated by
the Medical Board has been conducted
thus far without adverse incident. Tr.
312, 314.
During his testimony, the Respondent
acknowledged that he and his wife have
discussed the night they were taken into
custody and the events that led up to
that unfortunate event. Tr. 328. The
Respondent indicated that his wife has
since informed him that the $1,000.00
that he provided to Galvan at noon on
the date in question was for the purpose
of purchasing mushrooms (psilocybin).
Tr. 328–29, 345. Illogically, he also
testified that when Galvan appeared at
his motor home and residence on the
evening of the day he was paid, he did
so without delivering any mushrooms,
and was warmly received by himself
and Mrs. Freesemann. Tr. 329.
The Respondent presented both
documentary and testimonial evidence
on his own behalf. Included in his
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documentary presentation, the
Respondent introduced a certified letter
of standing dated February 17, 2010
regarding his California medical license.
Resp’t Ex. 2. The letter of standing
unhelpfully declares that the
Respondent’s state medical license is
current and no disciplinary action has
been taken against it. Id. However, this
obviously dated information is squarely
contradicted by the decision of the
California Medical Board, effective
November 19, 2010, revoking the
Respondent’s license, staying the
revocation, and placing the Respondent
on probation for seven years under
certain specified terms and conditions.
Gov’t Ex. 15 at 6; Gov’t Ex. 16; Resp’t
Ex. 25 at 1, 7.
The Respondent provided numerous
letters of support, the overwhelming
majority of which were obviously
prepared for and tendered to the
prosecutor in the state criminal matter
in an effort to inspire leniency on the
Respondent’s behalf regarding the
disposition of that case. Resp’t Exs. 4–
24; Tr. 344–45.52 One letter, written by
Tony M. Deeths, M.D., attests to the
Respondent’s professional success, high
caliber of medical skill, intelligence,
and contribution to the community
during the twelve years Dr. Deeths has
known the Respondent. Resp’t Ex. 4. Dr.
Deeths opines that the community
would suffer if deprived of the
Respondent’s ability to continue to
practice medicine. Id. Interestingly, in
his letter, Dr. Deeths admits that he is
unfamiliar with the Respondent’s ‘‘legal
problems,’’ but postulates (contrary to
the Respondent’s position that he has no
substance abuse or dependence issues)
that the Respondent’s substance abuse
issues were born from the high stress
that comes with practicing medicine. Id.
The weight that can be attached to this
letter is significantly undermined by the
fact that the Respondent rejects the
underlying premise that he deserves
clemency based on a substance abuse
issue.53 Hence the letter does not
provide strong evidence opposing the
revocation sought by the Government.
V. Amirpour, M.D. authored a pithy
letter indicating he has practiced
52 An inspection of Respondent’s exhibits four
through twenty-four, including the dates of the
letters and the addressees, makes it evident that
every letter was prepared as a character reference
on the Respondent’s behalf for consideration by the
criminal court or the Kern County District
Attorney’s Office.
53 The state charged the Respondent with various
counts of possessing and transporting controlled
substances, conspiracy related to same, conspiracy
to sell controlled substances, and carrying a loaded
firearm in a motor vehicle. Gov’t Ex. 9 at 2, 4, 7–
13; Gov’t Ex. 11 at 4. None of the charges or
allegations against the Respondent relate to
substance abuse.
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medicine for twenty-four years and has
known the Respondent for at least
twelve of those years. Resp’t Ex. 6. Dr.
Amirpour’s stated opinion is that the
Respondent has helped the community
including San Joaquin Hospital, that he
trusts him as a physician, that the
Respondent ‘‘did a great job treating
people,’’ and Dr. Amirpour hopes that
the Respondent’s service to the
community will be considered by the
criminal court in his sentencing.54 Id.
Like the other letters, Dr. Amirpour
professes no knowledge about the
misconduct that was at the root of the
Respondent’s criminal conviction and
forms the basis of these proceedings.
Although Dr. Amirpour touts the level
of the Respondent’s practice, there is no
indication that he has formed an
opinion regarding the Respondent’s
prescribing practices or that he has a
basis to have such an opinion (such as
shared patients). The letter does not
provide a great deal of insight into any
matter that could be helpful toward
reaching a disposition of the present
case.
A hand-written letter signed by
Shawn C. Shambaugh, M.D. is also
included in the record. Resp’t Ex. 8. In
his letter, Dr. Shambaugh relates that he
has known the Respondent during this
last decade in a variety of professional
medical capacities, including the
treating of common patients. Resp’t Ex.
8 at 1. Dr. Shambaugh states that he has
found the Respondent to be
‘‘continuously devoted to improve the
quality of care the physicians and staff
delivered to patients’’ and that he
‘‘consistently exceeded the community
standards in the level of quality care he
delivered to his patients,’’ earning
frequent patient praise regarding ‘‘his
commitment to their overall health and
well[-]being.’’ Id. at 1–2. The strength of
Dr. Shambaugh’s letter is enhanced by
the circumstances under which he
interacted with the Respondent. He
worked with the Respondent on several
medical staff committees while
Shambaugh was hospital chief of staff
and the two physicians apparently
shared in the care of common patients.
Id. at 1. While there are no specific
references to Dr. Shambaugh’s
knowledge or awareness of the
Respondent’s prescribing practices, this
letter is generally supportive of the
Respondent’s competence as a
physician.
54 Although Dr. Amirpour’s letter states that it is
his ‘‘hope that [the Respondent’s] service to the
community will be forgotten,’’ Resp’t Ex. 6, it is
reasonable, from the context of the balance of the
letter, that the word ‘‘not’’ was inadvertently
omitted from the sentence.
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A criminal clemency letter by Ricardo
R. Vega, M.D. is also included in the
record. Dr. Vega indicates that he and
the Respondent have shared patients
and that, in his view, the Respondent is
a ‘‘superior physician’’ whose
‘‘competence, compassion and ethics as
a physician are exemplary.’’ Resp’t Ex.
15. Dr. Vega characterizes the
Respondent’s ‘‘patient care to be both
thorough and above the standard of
care.’’ Id. Although the letter does not
specifically refer to the Respondent’s
prescribing practices, Dr. Vega’s
experience acting as a pulmonary
consultant to the Respondent’s patients
does provide a basis for his favorable
professional opinion of the
Respondent’s medical acumen.
Interestingly, as discussed in her
testimony infra at 37, Mrs. Freesemann
testified that it was Dr. Vega’s wife,
Michele Vega, who introduced the
Freesemanns to Galvan. Tr. vol. 2, 447,
Dec. 15, 2010. Michele Vega was also
present during the daytime visit to Mrs.
Freesemann at her home when Galvan’s
cousin raised the issue of Galvin’s drugbrokerage services. Tr. 448–49.
Lawrence N. Cosner, Jr., M.D. who
previously worked with the Respondent
on the board of the Kern County
Medical Society, also supplied a letter
for the Respondent for use during his
criminal sentencing. Resp’t Ex. 11. Of
note, Dr. Cosner considers the
Respondent ‘‘honorable, sincere and
worthy of trust and respect,’’ while
admitting he ‘‘know[s] nothing of [the
Respondent’s] current troubles, and
wrote the letter ‘‘solely because [he]
consider[s] [the Respondent] a friend
and colleague, and because he said he
needed help.’’ Id. The letter does not
address the Respondent’s prescribing
practices and does not provide a basis
to evaluate the author’s level of
knowledge about the Respondent’s
medical skills or his handling of
controlled substances, but is supportive
of the Respondent as being honorable,
sincere, and worthy of respect.
Tonny Tanus, M.D. also provided a
criminal clemency letter on the
Respondent’s behalf at the Respondent’s
request. Resp’t Ex. 13. Dr. Tanus states
that he has known the Respondent for
over a decade in settings ranging from
professional to social. Id. Dr. Tanus
writes that in situations where both his
and the Respondent’s family were
present, the Respondent never behaved
improperly. Id. Dr. Tanus expresses that
he ‘‘was shocked to learn about the
charges, because [he has] never seen
[the Respondent] being under the
influence.’’ Id. The letter is somewhat
undermined by lack of any stated
foundation for a basis to evaluate the
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Respondent’s professional work as a
physician, and more fundamentally, by
its underlying subtle assumption,
consistently denied by the Respondent,
that substance abuse was at the root of
his misconduct and resultant criminal
case.55
James B. Grimes, M.D. authored a
letter, stating that he knows the
Respondent on a personal and
professional basis. Resp’t Ex. 14. He
writes that the Respondent ‘‘is a very
good person, who apparently made a
mistake,’’ and who ‘‘has suffered greatly
due to negative publicity and loss of his
medical practice.’’ Id. Dr. Grimes
advocates taking into consideration the
‘‘tremendous amount of good’’ that the
Respondent has provided to the
community and because the community
‘‘is far better off having [the
Respondent] remain among us.’’ Id.
Although Dr. Grimes opines that he
‘‘would feel very confident having [the
Respondent] as [his] personal
physician,’’ id., the letter does not state
that he and the Respondent have had
patients in common or that he has any
particular basis for his professional
opinion. Still, the letter stands as a letter
of support from a fellow member of the
medical community, albeit offered for
support to mitigate a criminal sanction
at a different forum.
A letter, provided by area podiatrist
Mark F. Miller, DPM, asserts that the
author knows the Respondent and his
wife for over a decade professionally
and personally. Resp’t Ex. 17. The letter,
under the subject heading of ‘‘character
reference,’’ does not provide a
professional opinion regarding the
Respondent’s medical ability or
prescribing practices, but offers support
as a friend would offer regarding the
Respondent’s criminal case. Id.
Accordingly, little weight can be
afforded this letter under the public
interest factors in consideration of
whether the Respondent should retain
his DEA COR to handle controlled
substances.
The Respondent also provided two
letters written by area dentists who
supported him in his criminal case. One
succinct note, provided by Peter Bae,
D.D.S., characterizes the Respondent as
a ‘‘community leader in [m]edicine,’’
‘‘very kind,’’ and ‘‘act[s] with utmost
professionalism.’’ Resp’t Ex. 12. The
Respondent knows Dr. Bae as a patient
and as members together in a country
club, and Dr. Bae ‘‘hope[s] and feel[s]
confident that whatever decision is
handed down during [the criminal]
sentencing [that the Respondent] will
emerge from this ordeal to be a better
55 See
supra note 53.
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citizen and physician in our
community.’’ Id.
A second dentist, Thomas A. Gordon,
D.D.S., also provided a letter to the
Respondent to assist him in attaining
leniency in the criminal case. Resp’t Ex.
7. Dr. Gordon relates that he and his
wife encountered the Respondent and
Mrs. Freesemann while the four
volunteered together at ‘‘Couples
Against Cancer.’’ Id. While Dr. Gordon
declares knowing the Respondent for
over a decade, he readily acknowledges
that he has no knowledge of the
Respondent’s personal life. Id. In his
carefully-worded letter, Dr. Gordon
guardedly asserts that he ‘‘never heard
a negative comment regarding [the
Respondent’s] professional life and in
fact, believed [sic] him to be an
accomplished and dedicated physician
and contributor to the Bakersfield
community.’’ Id. Since Dr. Gordon’s
written assessment of the Respondent’s
professional conduct stems only from an
absence of negative comments, not
shared patients, experience, or any other
rational professional basis, and he
eschews any knowledge about the
Respondent’s personal life, the letter
sheds no light on the Respondent’s
prescribing practices and scarce little
light on any other issue that must be
decided in connection with a
disposition in this case. The letters from
the two dentists are supportive letters
from other medical professionals who
know the Respondent either personally
or by reputation and generally wished
him some level of leniency in the
disposition of his criminal matter.
However, they are of little value under
the public interest factors that must be
balanced in making a final
determination regarding the status of the
Respondent’s COR.
Numerous letters penned by personal
friends and acquaintances prepared in
connection with the criminal case were
also offered by the Respondent and
received into the record. One such letter
is from personal family friend and
aspiring film producer, John Burgess.
Resp’t Ex. 18. While Mr. Burgess fully
details the nature, length, and extent of
his personal relationship with the
Respondent for the criminal court, the
letter, in its best light, is an affirmation
of how good a friend the Respondent
has been to Mr. Burgess. Mr. Burgess
made a point to communicate his view
to the criminal prosecutor that the
Respondent and his wife are ‘‘not
criminals,’’ that they ‘‘contribute much
to society and regularly give back to
their community,’’ and that the
Respondent has ‘‘a passion for healing
and helping others.’’ Id. In his letter,
Burgess refers to the Respondent’s
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‘‘arrest and prosecution’’ as
‘‘misunderstandings.’’ Id. Unfortunately,
the strength and length of the
Respondent’s friendship with Mr.
Burgess is not dispositive of any issue
that must be decided in this
recommended decision.
Another personal and family friend,
Daniel J. Pardoe, also provided a letter
for the Respondent to be used in
connection with the criminal case.
Resp’t Ex. 19. Like Mr. Burgess’s letter,
Mr. Pardoe’s letter sets forth the nature
and length of his friendship with the
Respondent in considerable detail, and
those personal friendship-related details
are the only elements of the submission
that appear to be based on the author’s
personal knowledge. Id. There is very
little in this obviously well-intentioned
criminal clemency letter that can be
used to reach a disposition of the
present case.
A letter written by Kevin Fiori,
another personal friend and patient of
the Respondent who knew him for over
a decade, which is also similar to the
letters written by Mr. Burgess and Mr.
Pardoe, bears testament to the type of
person the Respondent is, yet candidly
admits all he knows about the
Respondent’s criminal case is what he
read through online news articles.
Resp’t Ex. 20. It therefore lacks
foundation and relevance to the public
interest factors that must be considered
in this case.
Similarly, David Harb, another
personal friend of the Respondent,
authored a letter in which he relates his
experience with testicular cancer and
the commendable emotional support
that the Respondent provided him.
Resp’t Ex. 21. Again, this letter speaks
well of the Respondent’s attributes as a
friend, but lacks any indication of the
Respondent’s prospective ability and
responsibility to handle controlled
substances under a DEA registration in
compliance with federal and state law.
Accordingly, it is of limited value in
evaluating the issues in this case.
A letter drafted by Jessica Wood,
another personal friend of the
Respondent’s family, discusses various
members of the Respondent’s family,
extols the virtues of the family members
as friends, but adds very little to the
analysis here. Resp’t Ex. 23.
The same observations can be made of
a letter provided by long-time
Freesemann family friend Toni
Swanson. Resp’t Ex. 24. Like other
letters in the record, Ms. Swanson uses
a considerable portion of her letter to
plead with the district attorney to be
merciful, and implicitly requests the
district attorney not seek incarceration
of the Respondent. Id. 1–4. It is
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similarly unhelpful to these
proceedings.
The Respondent also provided two
letters that reflected non-medical
business relationships. One of these is
signed by Derek Holdsworth, president
of KSA Group Architects, the firm
which designed the Highgrove Medical
Group’s building. Resp’t Ex. 5. Mr.
Holdsworth’s letter indicates that his
contact with the Respondent ran the
course of a two-year building period
where the two collaborated on issues
related to the design and construction of
the Respondent’s building. Id. Although
Mr. Holdsworth states that he ‘‘found
[the Respondent] to be the ultimate
professional, fair, [and] very
knowledgeable about the medical field,’’
id., there is nothing in the letter or the
record that would supply a basis for
Holdworth’s opinion regarding the
breadth of the Respondent’s medical
knowledge. Mr. Holdsworth did
indicate that he thought the Respondent
‘‘was very concerned about the impact
of the proposed new building on his
patients, the community and
specifically downtown Bakersfield.’’ Id.
Boiled down to its essence, the letter
provides commentary by a local
architect on his experience with the
Respondent during a mutuallybeneficial business transaction. Hence,
this letter is not particularly helpful to
the Respondent’s case.
Another non-medical business
relationship letter was penned by
George R. Smith, Jr., president of a
general contracting company. Resp’t Ex.
9. Similar to the letter by Mr.
Holdsworth, the letter describes how
Respondent and Smith became
acquainted through a business
arrangement in which the Respondent’s
medical practice built the Highgrove
Medical Clinic. Id. In the letter, Mr.
Smith compliments the Respondent’s
business acumen and ethics, but also
attests to his personal experience as a
patient of the Respondent. Id. According
to Smith’s letter, the Respondent spent
some period of time as his general care
practitioner while Mr. Smith endured
some ‘‘serious health problems’’ and
was helpful in assisting him to procure
medical services. Id. Smith’s letter
includes his opinion that the
Respondent’s ‘‘medical knowledge and
compassion saved [his] life,’’ and that
the Respondent’s ‘‘problems’’ are ‘‘out
of character for him.’’ Id. While the
opinions borne from Mr. Smith’s
business experience with the
Respondent do not assist any in
evaluating the issues in this case, and
while this letter lacks observations and
judgment relating to the Respondent’s
prescribing practices or responsibility
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handling controlled substances, it does
generally provide support as to the
Respondent’s bedside manner as a
health care practitioner.
Letters written by Army Feth, Lara
Riccomini, and Jill White are primarily
focused on supporting the Respondent’s
wife at her sentencing hearing and are
of negligible value in reaching a
disposition in the present case. Resp’t
Exs. 10, 16, 22.
In summary, the letters provided by
the Respondent were all addressed to
the district attorney who prosecuted his
criminal case and all sought some form
of favorable consideration related to the
exercise of criminal prosecutorial
discretion. The letters were all from
2009, and while some contained some
limited reference to issues that arguably
relate to varying extents to the issues in
this administrative case, not one letter
addresses the issue of whether the
Respondent can or should be entrusted
with a DEA COR. To the extent that any
of the numerous doctors, dentists,
business acquaintances, and one patient
who authored letters of support had an
opinion or a basis for an opinion related
to whether the Respondent should
continue to have authority to handle
controlled substances, none of the
submitted letters provided that input.
The letters submitted by the
Respondent, while deemed credible, are
of little practical value in reaching a
determination regarding whether
revocation of his COR is in the public
interest.
Although aspects of his defense were
presented through the testimony elicited
at the time he was called as witness by
the Government, the Respondent’s
testimonial case also included the
testimony of his wife, Mrs. Shelly
Freesemann, who supplied details as to
the duration and strength of their
marriage, relationship, and family life.
Tr. 424–25. She testified that she has a
bachelor’s degree in biological sciences
from the University of California at
Berkeley, is taking some nursing classes
at Taft College, and has applied for
admission to the nursing program at
California State University at
Bakersfield. Tr. 426. Mrs. Freesemann
testified that she worked in various
occupations during the Respondent’s
medical training until 1996, and that
since about 2000 she has been working
as a yoga instructor. Tr. 427–31.
Regarding her history of drug abuse,
Mrs. Freesemann testified that she
smoked marijuana in high school a
couple times per week one summer with
friends. Tr. 431–32. She thereafter
refrained from illegal drugs through her
college years and courtship-turnedmarriage to the Respondent until the
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summer of 2006 when she became
reacquainted with a high-school
classmate, Karen West (Karen). Tr. 432–
33, 436–37. The Respondent, according
to Mrs. Freesemann, has no interest in
using illegal drugs and rarely drinks
alcohol. Tr. 435.
After a few lunch dates with rediscovered friend Karen, the two former
schoolmates began stepping out at night.
Tr. 437. While the Respondent was on
a business trip, Mrs. Freesemann
accepted an ecstasy pill from Karen and
‘‘just loved it’’ because it gave her a
‘‘thrill, like wow.’’ Tr. 437–38. Mrs.
Freesemann testified that thereafter she
was enraptured in a ‘‘whole other
underworld’’ in which she would be
invited to many parties, be introduced
to lots of different people, attend events,
and in her excitement, became
perpetually preoccupied with planning
the next overnight weekend to Los
Angeles and meeting new people,
including celebrities. Tr. 439–40.
Through Karen, Mrs. Freesemann
became part of a clique whose activities
consisted of yoga, personal training,
working out, and frequenting the night
life while recreationally abusing
controlled substances. Tr. 441–42.
Mrs. Freesemann testified to using
ecstasy, cocaine, methamphetamine,
and marijuana. Tr. 442. She also
testified to experimenting with drugs to
regulate the effects of her drugs of
choice: Cocaine and ecstasy. She would
employ marijuana to ‘‘bring [her] down
a little bit’’ to counteract the
hyperactivity caused by ecstasy. Tr. 450.
She also used crystal meth
(methamphetamine) regularly toward
the end of her party sessions to ‘‘wake
[her] up if [she] had been partying too
long and [she] needed to straighten up.’’
Tr. 466. Mrs. Freesemann further
testified that because she knew the
Respondent would not approve of her
drug use, if he was around she would
conceal her activities by using in a
bathroom or some other room out of his
sight. Tr. 442–43. Other than the
newfound excitement and attention
borne of her drug abuse, Mrs.
Freesemann testified that she liked the
change in lifestyle; she enjoyed the
power to resist fatigue, partying all night
rather than retiring to bed early, as had
been her custom. To enable access to
her new habit, Mrs. Freesemann
arranged overnight babysitters or had
her mother, mother-in-law, or sister-inlaw watch her children. Tr. 443–44.
The Respondent’s wife testified that
she and her new group of revelers
procured illicit drugs by pooling their
money and purchasing them from a
drug dealer known to Karen. Tr. 451.
However, in December 2007 another
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friend, Michele Vega (Michele),56
introduced Mrs. Freesemann to Galvan
at The Replay nightclub in Bakersfield
as a friend, promoter of the club, and
one who did side jobs for Michele. Tr.
444–48. It was about six weeks after this
fateful introduction, during a visit to the
Freesemann home by Michele, Galvan,
and his cousin, that Mrs. Freesemann
learned that Galvan would be a willing
provider of illegal drugs. Tr. 448–49.
Thereafter, Mrs. Freesemann began
purchasing drugs from Galvan,
primarily ecstasy and cocaine. Tr. 450.
What made Galvan an attractive seller
was that she could get a lot more
product for her money than her sources
in Los Angeles. Id. Galvan also included
what seemed to Mrs. Freesemann as
freebies; for instance, she would furnish
him some monetary amount and ask for
whatever the equivalent would be in
cocaine, and in turn he provided her
cocaine, and some methamphetamine
would tend to just ‘‘show up’’ with the
order as a bonus. Tr. 466. Mrs.
Freesemann testified that whether she
was purchasing drugs from Galvan or
other sources, she knew she could only
get certain substances in certain places,
so she would accumulate them and
squirrel them away with a ‘‘pack rat’’
mentality, concealing them from the
Respondent, keeping some and sharing
some with friends. Tr. 443, 471.
Mrs. Freesemann also testified
regarding the controlled substances
found in the motor home. In her
testimony she claimed responsibility for
packing the vehicle with the drugs, and
testified that the Respondent had no
knowledge of them.57 Tr. 458. Regarding
their destination on the night they were
detained, the Burning Man Festival,
Mrs. Freesemann acknowledged that in
addition to the artistic attributes of the
festival that were expounded upon by
her husband, it is a festival with ‘‘a lot
of drugs.’’ Tr. 468.
Mrs. Freesemann admitted that she
could never personally use all of the
drugs found in the van over the course
of the weeklong Burning Man Festival.
Tr. 471. As discussed, supra, she
indicated that the Respondent had no
interest in using drugs. Tr. 435. When
asked what her plan for the large
quantity of contraband was, the
Respondent’s wife testified that it was:
To party and do what I could do and then
take it back home, and keep it a secret and
just—it was beyond my control at that point,
56 Michele Vega’s husband, Dr. Ricardo R. Vega,
authored a criminal clemency letter on the
Respondent’s behalf for use while his criminal case
was pending. See supra p. 29.
57 Mrs. Freesemann also testified to owning the
pink pouch and yellow Pelican case found within
the motor home. Tr. 456.
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having just more than I could deal with, but
not knowing quite what to do with it.
Tr. 472.
Regarding the $1,000.00 that the
Respondent paid to Galvan, Mrs.
Freesemann testified that it was
dispensed to purchase a quantity of
mushrooms (psilocybin) to take with her
to the Burning Man event because ‘‘it’d
be fun to do mushrooms at Burning
Man’’ and it would be ‘‘[j]ust a different
drug to try.’’ Tr. 476–77. This version of
events is difficult to reconcile with both
Mrs. Freesemann’s acknowledgement
that the stash of illicit drugs already
secreted in the motor home (with
additional reserves remaining behind in
her bedroom closet) was more than she
(the only drug-using Freesemann) could
inflict upon herself during the planned
week-long sojourn,58 and the fact that a
quantity of psilocybin was located and
seized in the motor home. Gov’t Ex. 4
at 2. In short, Mrs. Freesemann had
plenty of drugs to use at the festival and
even had mushrooms.
The details of the money transaction
between the Respondent and Galvan are
similarly lacking in plausibility.
According to Mrs. Freesemann’s
account, her yoga classes were only
taught in the morning,59 yet she had her
husband (who was working during the
day) deliver $1,000.00 to Galvan for
mushrooms because she was picking up
a motor home for a trip that was to
commence in the evening. This
occurred during a time in her life where
she testified that she suddenly found
herself with more time on her hands
than she was used to because her
children were getting older. Tr. 437,
440. Notwithstanding the flurry of text
messaging that preceded the transaction
and the special arrangements that the
Respondent made with Galvan to get
him his ‘‘paperwork’’ at noon on the
date of the Freesemanns’ departure, it is
Mrs. Freesemann’s position that the
surveillance officers were incorrect in
their observation that Galvan came to
her home equipped with a grapefruitsized package on the evening of the day
he got his money and left without that
package. Tr. 474–76. By her account,
she had her husband pay Galvan
$1,000.00, and when the latter visited
the couple immediately prior their
departure, he delivered nothing but a
handshake to the Respondent and a hug
to Mrs. Freesemann—no mushrooms.
Tr. 476. This occurred, under Mrs.
Freesemann’s version, without any
manner of objection or even inquiry on
58 Tr.
59 Tr.
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473.
Frm 00086
her part concerning the missing drugs.
Tr. 475–76.
It is far more plausible that one or
both of the Freesemanns possessed
safety concerns associated with meeting
Galvan (who Mrs. Freesemann
acknowledges is a drug dealer) 60 and
determined that the Respondent was
better suited for the potentially
dangerous task at a public place away
from his medical practice.
Considerations associated with safety
are almost certainly the more reasonable
explanation concerning the
Respondent’s decision to bring a
handgun with him to the Burning Man
Festival than his almost laughable
contention that the intended purpose of
the weapon was to protect himself from
the sort of snakes that slither upon the
desert floor. It is likewise more
consistent with the evidence presented
from both sides that Galvan received his
money from the Respondent and
delivered illicit drugs in a grapefruitsized package to the Freesemanns just in
time for their departure. Any argument
that the Respondent harbored any doubt
that he was engaged in an illegal
transaction involving Galvan is
effectively undermined by Galvan’s
reference to the money he was to get as
‘‘paperwork’’ in his phone call with the
Respondent. Likewise, the arrangements
the two men (involved in a developing
relationship) made to see each other at
the Respondent’s home that night
provided insight into the true nature of
the transaction. Money tendered for
legal purposes can be referred to by its
true name, not a euphemism designed to
evade detection, and a meeting so
temporally close to a cash exchange
under the circumstances presented here
was most assuredly arranged and
conducted to provide the merchandise
purchased; in this case, more of the
illicit drugs that the Respondent well
knew his wife had become dependent
on.
The Respondent’s depiction of
himself as an unwitting dupe to his
wife’s drug-dependent cleverness is
likewise unpersuasive. He testified that
he had already deemed Galvan to be a
shady character and was sufficiently
concerned about his physical
appearance that he was unwilling to
have him materialize near his medical
practice. This is particularly remarkable
in the context that a medical practice
(which in this case was located away
from the Respondent’s home) is
generally a location where it is
commonplace for new, never-beforeseen patients to appear for their first
appointments on a regular basis without
60 Tr.
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any manner of visual vetting process. If
the Respondent were to be believed in
this regard, Galvan’s appearance,
whatever it was, was deemed by the
Respondent to be sufficiently unnerving
that he could not countenance the
patients and employees of his practice
being exposed to it. It was likely not
Galvan’s appearance that caused
discomfiture, but the reality of who he
was and the drug-related money
transaction that was planned to occur.
The evidence supports the conclusion
that the Respondent, an experienced
physician who testified to his own
recognition of his spouse’s drug use and
distrust of Galvan, knew well that he
was purchasing illicit drugs for his wife
for $1,000.00 and shook Galvan’s hand
outside his home at the consummation
of the deal prior to his wife’s embrace.
Each party associated with the
transaction received the benefit that
each had knowingly bargained for.
The manner in which the seized
contraband was packaged also spoke
volumes about the intent of its
possessors. Det. Boyd testified that the
drugs were packaged in multiple smalldose containers, many of which had
benign outward labels, and some of
which had several dosage units of the
material described on the packages on
top of the illicit substances within.
According to Boyd, based on his
training and experience, this manner of
packaging is consistent with the manner
used by those intending to sell drugs.
Tr. 76–77, 117. The packaging observed
in this case less resembled the work of
an out-of-control drug addict than it did
an individual (or individuals) who were
transporting large doses of controlled
substances in a manner designed for
easy distribution and evasion of
discovery.
While there were doubtless credible
portions of the testimony offered by the
Freesemanns, such as their education,
background, and the lifestyle changes
brought about by Mrs. Freesemann’s
drug use, those portions of their
testimony related to the acquisition and
intended purposes of the traded
currency and seized illegal drugs are
simply not credible.
Other evidence required for a
disposition of this issue is set forth in
the analysis portion of this decision.
The Analysis
The Deputy Administrator 61 is
authorized to revoke a COR when
convinced that the registrant has been
convicted of a felony under the CSA or
any state law relating to a controlled
61 This authority has been delegated pursuant to
28 CFR 0.100(b) and 0.104.
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substance. 21 U.S.C. 824(a)(2) (2006). It
is undisputed in this case that the
Respondent has been convicted of
California state felonies relating to
controlled substances. Stipulation B.
Pursuant to 21 U.S.C. 824(a)(4) (2006),
the Deputy Administrator is permitted
to revoke a COR if persuaded that the
registrant ‘‘has committed such acts as
would render * * * registration under
section 823 * * * inconsistent with the
public interest * * * .’’ The following
factors have been provided by Congress
in determining ‘‘the public interest’’:
(1) The recommendation of the
appropriate State licensing board or
professional disciplinary authority.
(2) The applicant’s experience in
dispensing, or conducting research with
respect to 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.
21 U.S.C. 823(f).
‘‘[T]hese factors are considered in the
disjunctive.’’ Robert A. Leslie, M.D., 68
FR 15227, 15230 (2003). Any one or a
combination of factors may be relied
upon, and when exercising authority as
an impartial adjudicator, the Deputy
Administrator may properly give each
factor whatever weight she deems
appropriate in determining whether an
application for a registration should be
denied. Morall v. DEA, 412 F.3d 165,
173–74 (DC Cir. 2005); JLB, Inc., d/b/a
Boyd Drugs, 53 FR 43945, 43947 (1988);
David E. Trawick, D.D.S., 53 FR 5326,
5327 (1988); see also David H. Gillis,
M.D., 58 FR 37507, 37508 (1993); Joy’s
Ideas, 70 FR 33195, 33197 (2005); Henry
J. Schwarz, Jr., M.D., 54 FR 16422,
16424 (1989). Moreover, the Deputy
Administrator is ‘‘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 v. DEA, 412
F.3d 165, 173–74 (DC Cir. 2005). The
Deputy Administrator is not required to
discuss consideration of each factor in
equal detail, or even every factor in any
given level of detail. Trawick v. DEA,
861 F.2d 72, 76 (4th Cir. 1988) (the
Administrator’s obligation to explain
the decision rationale may be satisfied
even if only minimal consideration is
given to the relevant factors and remand
is required only when it is unclear
whether the relevant factors were
considered at all). The balancing of the
public interest factors ‘‘is not a contest
in which score is kept; the Agency is not
required to mechanically count up the
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factors and determine how many favor
the Government and how many favor
the registrant. Rather, it is an inquiry
which focuses on protecting the public
interest * * * .’’ Jayam Krishna-Iyer,
M.D., 74 FR 459, 462 (2009).
In an action to revoke a registrant’s
DEA COR, the DEA has the burden of
proving that the requirements for
revocation are satisfied. 21 CFR
1301.44(e). Once DEA has made its
prima facie case for revocation of the
registrant’s DEA Certificate of
Registration, the burden of production
then shifts to the Respondent to show
that, given the totality of the facts and
circumstances in the record, revoking
the registrant’s registration would not be
appropriate. Morall, 412 F.3d at 174;
Humphreys v. DEA, 96 F.3d 658, 661
(3d Cir. 1996); Shatz v. U.S. Dept. of
Justice, 873 F.2d 1089, 1091 (8th Cir.
1989); Thomas E. Johnston, 45 FR
72311, 72312 (1980). Further, ‘‘to rebut
the Government’s prima facie case, [the
Respondent] is required not only to
accept responsibility for [the
established] misconduct, but also to
demonstrate what corrective measures
[have been] undertaken to prevent the
reoccurrence of similar acts.’’ Jeri
Hassman, M.D., 75 FR 8194, 8236
(2010).
Where the Government has sustained
its burden and established that a
registrant has committed acts
inconsistent with the public interest,
that registrant must present sufficient
mitigating evidence to assure the
Deputy Administrator that he or she can
be entrusted with the responsibility
commensurate with such a registration.
Steven M. Abbadessa, D.O., 74 FR
10077, 10078, 10081 (2009); Medicine
Shoppe-Jonesborough, 73 FR 364, 387
(2008); Samuel S. Jackson, D.D.S., 72 FR
23848, 23853 (2007). Normal hardships
to the practitioner, and even the
surrounding community, that are
attendant upon the lack of registration
are not a relevant consideration.
Abbadessa, 74 FR at 10078; see also
Gregory D. Owens, D.D.S., 74 FR 36751,
36757 (2009).
The Agency’s conclusion that past
performance is the best predictor of
future performance has been sustained
on review in the courts, Alra Labs. v.
DEA, 54 F.3d 450, 452 (7th Cir. 1995),
as has the Agency’s consistent policy of
strongly weighing whether a registrant
who has committed acts inconsistent
with the public interest has accepted
responsibility and demonstrated that he
or she will not engage in future
misconduct. Hoxie, 419 F.3d at 483;
Ronald Lynch, M.D., 75 FR 78745,
78749 (2010) (Respondent’s attempts to
minimize misconduct held to
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undermine acceptance of
responsibility); George Mathew, M.D.,
75 FR 66138, 66140, 66145, 66148
(2010); George C. Aycock, M.D., 74 FR
17529, 17543 (2009); Abbadessa, 74 FR
at 10078; Krishna-Iyer, 74 FR at 463;
Medicine Shoppe, 73 FR at 387.
While the burden of proof at this
administrative hearing is a
preponderance-of-the-evidence
standard, see Steadman v. SEC, 450 U.S.
91, 100–01 (1981), the Deputy
Administrator’s factual findings will be
sustained on review to the extent they
are supported by ‘‘substantial
evidence.’’ Hoxie, 419 F.3d at 481.
While ‘‘the possibility of drawing two
inconsistent conclusions from the
evidence’’ does not limit the Deputy
Administrator’s ability to find facts on
either side of the contested issues in the
case, Shatz, 873 F.2d at 1092; Trawick,
861 F.2d at 77, all ‘‘important aspect[s]
of the problem,’’ such as a respondent’s
defense or explanation that runs counter
to the Government’s evidence, must be
considered. Wedgewood Vill. Pharmacy
v. DEA, 509 F.3d 541, 549 (DC Cir.
2007); Humphreys, 96 F.3d at 663. The
ultimate disposition of the case must be
in accordance with the weight of the
evidence, not simply supported by
enough evidence to justify, if the trial
were to a jury, a refusal to direct a
verdict when the conclusion sought to
be drawn from it is one of fact for the
jury. Steadman, 450 U.S. at 99 (internal
quotation marks omitted).
Regarding the exercise of
discretionary authority, the courts have
recognized that gross deviations from
past agency precedent must be
adequately supported, Morall, 412 F.3d
at 183, but mere unevenness in
application does not, standing alone,
render a particular discretionary action
unwarranted. Chein v. DEA, 533 F.3d
828, 835 (DC Cir. 2008) (citing Butz v.
Glover Livestock Comm. Co., Inc., 411
U.S. 182, 188 (1973)), cert. denied, __
U.S. __, 129 S. Ct. 1033, 1033 (2009). It
is well-settled that since the
Administrative Law Judge has had the
opportunity to observe the demeanor
and conduct of hearing witnesses, the
factual findings set forth in this
recommended decision are entitled to
significant deference, Universal Camera
Corp. v. NLRB, 340 U.S. 474, 496 (1951),
and that this recommended decision
constitutes an important part of the
record that must be considered in the
Deputy Administrator’s decision,
Morall, 412 F.3d at 179. However, any
recommendations set forth herein
regarding the exercise of discretion are
by no means binding on the Deputy
Administrator and do not limit the
exercise of that discretion. 5 U.S.C.
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557(b); River Forest Pharmacy, Inc. v.
DEA, 501 F.2d 1202, 1206 (7th Cir.
1974); Attorney General’s Manual on the
Administrative Procedure Act 8 (1947).
Factor 1: The Recommendation of the
Appropriate State Licensing Board or
Professional Disciplinary Authority
Action taken by a state medical board
is an important, though not dispositive,
factor in determining whether the
continuation of a DEA COR is consistent
with the public interest. Patrick W.
Stodola, M.D., 74 FR 20727, 20730
(2009); Jayam Krishna-Iyer, 74 FR at
461. The considerations employed by,
and the public responsibilities of, a state
medical board in determining whether a
practitioner may continue to practice
within its borders are not coextensive
with those attendant upon the
determination that must be made by
DEA relative to continuing a registrant’s
authority to handle controlled
substances. It is well-established
Agency precedent that a ‘‘state license is
a necessary, but not a sufficient
condition for registration.’’ Leslie, 68 FR
at 15230; John H. Kennedy, M.D., 71 FR
35705, 35708 (2006). Even the
reinstatement of a state medical license
does not affect the DEA’s independent
responsibility to determine whether a
registration is in the public interest.
Mortimer B. Levin, D.O., 55 FR 8209,
8210 (1990). The ultimate responsibility
to determine whether a registration is
consistent with the public interest has
been delegated exclusively to the DEA,
not to entities within state government.
Edmund Chein, M.D., 72 FR 6580, 6590
(2007), aff’d, Chein v. DEA, 533 F.3d
828 (DC Cir. 2008), cert. denied, __ U.S.
__, 129 S. Ct. 1033, 1033 (2009).
Congress vested authority to enforce the
Controlled Substances Act (CSA) in the
Attorney General and not state officials.
Stodola, 74 FR at 20375.
Here the California Medical Board
determined that the Respondent’s
misconduct authorized an outright
revocation of his state medical
privileges. Gov’t Ex. 15 at 6. However,
the Medical Board ultimately
determined that it could discharge its
responsibility to protect the ‘‘public
health, safety and welfare’’ 62 by staying
its revocation and imposing a
probationary period with limitations,
conditions, reporting requirements and
ethics training. Gov’t Ex. 15 at 6–11.
While the action of a state medical
board must be considered under Factor
1, a state’s action pertaining to the
Respondent’s medical license or ability
to handle controlled substances, falling
short of an executed revocation, is not
62 Gov’t
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dispositive in DEA’s determination
regarding the appropriateness of a
sanction. See George Mathew, M.D., 75
F.R. 66138, 66145 (2010) (Administrator
declines to adopt as dispositive under
Factor 1 the state medical board’s
sanction of suspending respondent’s
medical license, then staying the
suspension, in case where respondent
was prescribing controlled substances
without physically examining patients
or maintaining medical records). There
is no evidence that the Respondent has
been non-compliant with the terms
imposed by the state medical board, but
the relatively brief period of time that
has passed since the issuance of the
Medical Board’s Order does not allow
for a meaningful extrapolation regarding
the Respondent’s level of compliance
with the probationary terms over the
next seven years.
Thus, consideration of the evidence
under this factor presents something of
a mixed bag. That the California
Medical Board determined that the
Respondent’s misdeeds justified the
imposition of revocation, its most severe
penalty, tends to militate in favor of the
revocation sought by the Government.
Contrariwise, the Board’s decision that
the public would be adequately
protected by allowing the Respondent to
practice medicine with supervision and
conditions is arguably supportive of the
Respondent’s position that an outright,
un-stayed revocation is not warranted
under the circumstances. Consideration
of the Medical Board’s actions in this
case does not militate for or against
revocation.
Factor 3: The Applicant’s Conviction
Record Under Federal or State Laws
Relating to the Manufacture,
Distribution, or Dispensing of
Controlled Substances
As discussed in considerable detail
elsewhere in this decision, the record
reflects that the Respondent was
convicted 63 under California state law
on three counts for the felony
transportation of ecstasy,
methamphetamine, and cocaine. Gov’t
Ex. 11 at 6–7; Gov’t Ex. 10 at 2. The
Government, without analysis on the
point, urges that in view of the
Respondent’s convictions, ‘‘factor three
weighs in favor of finding that
Respondent’s continued registration
63 Pursuant to the terms of a plea agreement, the
Respondent pleaded no contest to three counts of
transportation of controlled substances and a state
misdemeanor offense for carrying a loaded firearm.
Gov’t Ex. 10 at 2–3. Consistent with the plea
agreement provisions, other counts, including
numerous conspiracy and possession with intent to
sell and/or transport various controlled substances
were dismissed in exchange for his no contest
pleas. Id.
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would be inconsistent with the public
interest.’’ Gov’t Br. at 20.
While the Respondent’s state criminal
convictions are undoubtedly related to
controlled substances, Agency
precedent is less clear on whether such
a conviction relates to the
‘‘manufacture, distribution, or
dispensing’’ of controlled substances
under the third public interest factor. In
Stanley Alan Azen, M.D., 61 FR 57893,
57895 (1996), aff’d, Azen v. DEA, 76
F.3d 384 (9th Cir. 1996), a state felony
conviction for possession of cocaine was
held to be relevant to Factor 3. Likewise,
in Jeffrey Martin Ford, D.D.S., 68 FR
10750, 10753 (2003), a cocaine
possession felony conviction was held
to implicate this factor. In Super-Rite
Drugs, 56 FR 46014, 46015 (1991), the
Agency determined that a cocaine
possession conviction did not implicate
Factor 3 based on the reasoning that
‘‘[a]lthough [the respondent] entered a
guilty plea to a drug-related felony, his
actions did not relate to the
manufacture, distribution, or dispensing
of controlled substances.’’ Id. (emphasis
supplied). Ironically, although SuperRite Drugs is the more dated precedent,
it is the most persuasive and should be
followed. The analysis in Azen centered
on the subsequent state court reversal of
the conviction, and in Ford, the decision
analysis actually omitted the phrase
‘‘relating to the manufacture,
distribution, or dispensing’’ when
addressing the issue. A contrary
interpretation would eviscerate the
difference between public interest
Factors 3 and 4 and ignore the specific
language inserted by Congress.
Guidance can be found in the accepted
maxims of statutory interpretation that
‘‘a statute of specific intention takes
precedence over one of general
intention,’’ United States v. Dozier, 555
F.3d 1136, 1140 n.7 (10th Cir. 2009)
(citing NISH v. Rumsfeld, 348 F.3d
1263, 1272 (10th Cir. 2003)), and that
‘‘words should ordinarily be given their
ordinary meaning,’’ Moskal v. United
States, 498 U.S. 103, 108 (1990), and
that ‘‘where language is clear and
unambiguous, it must be followed,
except in the most extraordinary
situation where the language leads to an
absurd result contrary to clear
legislative intent.’’ United States v.
Plots, 347 F.3d 873, 876 (10th Cir. 2003)
(citing United States. v. Tagore, 158
F.3d 1124, 1128 (10th Cir. 1998)); see
Griffin v. Oceanic Contractors, 458 U.S.
564, 572 (1982); Comm’r v. Brown, 380
U.S. 563, 571 (1965). The ordinary
meaning of the clear, unambiguous,
specifically limiting words ‘‘relating to
the manufacture, distribution, or
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dispensing of controlled substances’’ set
forth in 21 U.S.C. 823(f) compels the
result that a conviction that is related to
illegal drugs generally (transportation
here), but not to manufacturing,
distributing, or dispensing specifically,
is not relevant to public interest Factor
3.
Accordingly, consideration of this
factor does not support the
Government’s petition for revocation of
the Respondent’s COR.
Factor 2: The Respondent’s Experience
in Dispensing Controlled Substances
Regarding Factor 2, in cases where the
quality of a registrant’s prescribing
practices are at issue, the qualitative
manner and the quantitative volume in
which that registrant has engaged in the
dispensing of controlled substances, and
how long he has been in the business of
doing so, are significant factors to be
evaluated in reaching a determination as
to whether he should be entrusted with
a DEA certificate. In some cases,
viewing a registrant’s proven acts of
misconduct (such as a criminal
conviction related to controlled
substances) against a backdrop of how
he has performed activity within the
scope of the certificate can provide a
contextual lens to assist in a fair
adjudication of whether continued
registration is in the public interest.
However, the Agency has taken the
reasonable position that although
evidence that a practitioner may have
conducted a significant level of
sustained activity within the scope of
the registration for a sustained period is
a relevant and correct consideration,
this factor can be outweighed by acts
held to be inconsistent with the public
interest. Jayam Krishna-Iyer, 74 FR at
463.
In this case, the Government has
neither alleged nor produced evidence
in support of prescribing malfeasance.
Although the record in this case is not
analytically focused on the
Respondent’s prescribing and
dispensing practices, the nature and
history of the Respondent’s past
prescribing practices are a proper area
for consideration in reaching a
determination regarding the issue of
whether he can be entrusted with the
responsibilities attendant upon a
registrant. In these proceedings, the
Respondent has offered evidence in the
form of letters from colleagues, business
associates, former patients, and personal
family friends. Unfortunately, the letters
were all focused on persuading the state
prosecutor in his criminal case to
exercise leniency, and none of the
letters’ authors engage in any discussion
related to the Respondent’s prescribing
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60887
practices and dispensing conduct. The
Respondent did not produce a single
letter wherein the writer provided an
opinion regarding the Respondent’s past
history of handling, or suitability to
continue to handle, controlled
substances. That being said, however,
taken as a whole, the criminal clemency
letters generally attest that the
Respondent, consistent with his
impressive credentials and prestigious
professional achievements, possesses
some level of acuity for practicing
medicine, and is well-respected and/or
liked by friends, business
acquaintances, patients, and peers in the
community.
There is no indication in the record
that the acts that formed the basis of the
Respondent’s convictions were
contemporaneously known to the
Respondent’s patients or the hospital
staff where he was practicing medicine.
Before his current transgressions, the
Respondent had engaged in fourteen or
so years of presumably uneventful
practice that was apparently unmarred
by proven allegations of controlled
substance mishandling or prescribing
misconduct. Although the authors of the
letters have not been subject to cross
examination, the evidence was received
without Government objection and, for
the limited purposes for which it can be
utilized here, stands unrefuted. While
true that on this record consideration of
this factor is not supportive of the
Government’s petition to revoke the
Respondent’s COR, neither has the
Respondent provided evidence from
which his prescribing and dispensing
practices can be characterized. In short,
consideration of this factor militates
neither for nor against revocation.
Factors 4 and 5: Compliance With
Applicable State, Federal or Local Laws
Relating to Controlled Substances; and
Such Other Conduct Which May
Threaten the Public Health and Safety
Regarding Factor 4, to effectuate the
dual goals of conquering drug abuse and
controlling both legitimate and
illegitimate traffic in controlled
substances, ‘‘Congress devised a closed
regulatory system making it unlawful to
manufacture, distribute, dispense, or
possess any controlled substance except
in a manner authorized by the CSA.’’
Gonzales v. Raich, 545 U.S. 1, 13 (2005).
Every DEA registrant serves as a
guardian with specific obligations
aimed at protecting against improper
diversion. It would be difficult to
imagine a more deliberate, flagrant
disregard of the Respondent’s
obligations as a registrant than his
decision to participate in the possession
and transportation of illegal drugs at the
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request of his wife (who he suspected to
be drug-addicted) in amounts too great
for her to consume herself and so
copious and packaged in a manner as to
make it not unlikely that they were
intended for distribution to others
willing, happy, and/or desperate to
abuse them. Perversely contrary to his
registrant-borne obligations to minimize
the risks of controlled substance
diversion, the evidence demonstrates
that the Respondent was acting as a
conduit for his wife’s abuse and even
possibly for illegal street drug
distribution at a highly-populated arts
festival conducted in the desert.
Contrary to the posture assumed by the
Respondent during these proceedings
and at his state medical board hearing,
the evidence of record here makes it
clear that he was not a well-meaning, if
misguided spouse ‘‘taking the rap’’ for a
culpable wife, but an active planner and
willing participant in an evolution to
transport illegal drugs—at a minimum—
for his wife’s use. From the
Respondent’s own testimony, it is clear
that on the date he was apprehended, he
recognized that his wife had a drug
addiction problem, he (correctly)
suspected that the man he was tasked
with paying $1,000.00 to was a drug
dealer, he admitted that a reasonable
person would have known as much, he
sent and received phone calls and text
messages to arrange a clandestine
meeting with the drug dealer, and he
received a large quantity of illegal drugs
that were packaged for sale. The level of
participation demonstrated by this
Respondent—a supposed registrantguardian of the closed regulatory
system—is so abjectly repugnant to the
integrity of the system and the
Respondent’s obligations under the law
that consideration of this factor alone
militates powerfully in favor of
revocation.
Under Factor 5, the Deputy
Administrator is authorized to consider
‘‘other conduct which may threaten the
public health and safety.’’ 21 U.S.C.
823(f)(5). It is settled Agency precedent
that, ‘‘offenses or wrongful acts
committed by a registrant outside of his
professional practice, but which relate
to controlled substances may constitute
sufficient grounds for the revocation of
a registrant’s DEA Certificate of
Registration.’’ David E. Trawick, D.D.S.,
53 FR 5326, 5327 (1988); see Jose
Antonio Pla-Cisneros, M.D., 52 FR
42154, 42154 (1987); Walker L. Whaley,
M.D., 51 FR 15556, 15557 (1986). It is
beyond doubt that Mrs. Freesemann was
correct that the massive volume of
controlled substances seized from the
Respondent’s motor home was too great
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for her to consume during the couple’s
planned vacation. The drugs were
absolutely headed for Mrs.
Freesemann’s use, and judging by the
testimony of the trained and
experienced police officers who seized
them, were packaged as if prepared for
sale to the public. Whether the
Respondent was transporting this
abundant cache of contraband for the
exclusive use of his drug-abusing
spouse or whether the drugs were
headed for distribution to festival
attendees, the public health and safety
was a guaranteed intended casualty. But
for the intervention of the Bakersfield
PD, the drugs the Respondent was
ferrying would have been pumped into
Mrs. Freesemann’s likely drugdependent body or out on the street
through the Burning Man Festival,
putting members of the public in all age
groups in danger. The Respondent’s
simultaneous possession of a handgun
with a readily available clip full of
ammunition reinforces his own
understanding of the dangers attendant
upon dealing with the likes of his wife’s
supplier and facilitating the interstate
transportation of illegal drugs for
whatever purpose. Consideration of the
Respondent’s conduct under this factor
alone would be sufficient to justify the
revocation of his COR.
Consideration of Factors 4 and 5
militate powerfully and conclusively in
favor of the revocation of the
Respondent’s COR.
Recommendation
Based on the foregoing, the evidence
supports a finding that the Government
has established that the Respondent has
been convicted of a felony relating to
controlled substances and has also
committed acts that are inconsistent
with the public interest. A balancing of
the statutory public interest factors
supports a revocation of the
Respondent’s Certificate of Registration.
In tacit acknowledgement of this reality,
the Respondent, through counsel, seeks
amelioration in terms of the
recommended sanction. In his Proposed
Findings of Facts and Conclusions of
Law (Respondent’s Brief), the
Respondent petitions for a stayed
suspension that mirrors the order issued
by the California Medical Board in
terms and duration. Resp’t Br. at 6.
In cases, such as the present case,
where the Government has made out a
prima facie case that the Respondent
has committed acts that render his
continued registration inconsistent with
the public interest, Agency precedent
has firmly placed acknowledgement of
guilt and acceptance of responsibility as
conditions precedent to merit the
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Sfmt 4703
continued status as a registrant and
avoid revocation. Hoxie v. DEA, 419
F.3d 477, 483 (6th Cir. 2005); Ronald
Lynch, M.D., 75 FR 78745, 78749
(Respondent’s attempts to minimize
misconduct held to undermine
acceptance of responsibility); George
Mathew, M.D., 75 FR 66138, 66140,
66145, 66148 (2010); George C. Aycock,
M.D., 74 FR 17529, 17543 (2009); Steven
M. Abbadessa, D.O., 74 FR 10077, 10078
(2009); Jayam Krishna-Iyer, M.D., 74 FR
459, 463 (2009); Medicine ShoppeJonesborough, 73 FR 364, 387 (2008).
Here, while the Respondent has
acknowledged his conviction and that
he was caught transporting a large
shipment of illicit drugs, he has truly
acknowledged very little. He accepted a
no-contest guilty plea on the criminal
matter, but the essence of his testimony
at his DEA hearing, like his testimony
at his hearing before the California
Medical Board, was to assign
responsibility for his convictions on the
overzealous prosecutor, his defense
attorney, and a desire to accept a
disproportionate helping of culpability
to shield his wife (whom he essentially
demonizes as the truly culpable party).
He did not acknowledge that he knew
he was paying money for drugs, that he
received drugs, or that he was a
principal player in choreographing the
entire event. In truth, the Respondent
has not accepted responsibility for his
actions, expressed remorse for anything
other than the consequences of those
actions at any level, or presented
evidence that could reasonably support
a finding that the Deputy Administrator
should continue to entrust him with a
Certificate of Registration. See Mathew,
75 FR at 66140, 66165 (failure of
registrant to accept responsibility for
established misconduct held fatal to his
attempt to rebut the Government’s
establishment of a prima facie case for
COR revocation); George Jeri Hassman,
M.D., 75 FR 8194, 8236 (2010) (requiring
the Respondent to accept responsibility
for his misconduct related to controlled
substances and to demonstrate the
corrective measures that he has taken to
prevent similar future misconduct in
order to rebut the Government’s prima
facie case). Rather than accept
responsibility, the Respondent instead
puts the principal blame for his current
difficulties on his wife, while
conveniently dismissing the
uncontroverted evidence of his own
pervasive entanglement (text messages,
phone calls, meetings, etc.) in a scheme
to move and distribute copious amounts
of dangerous and highly controlled
drugs. An illicit drug transaction like
the one in which involved the
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Respondent as the primary drug and
money courier strikes at the heart of the
CSA, the very statute that privileged the
Respondent to handle controlled
substances in his medical practice. The
deleterious potential effect that these
drugs can have on the human body, the
peril in which they put human life
when indiscriminately ingested by
willing abusers, and the sheer volume
by which the Respondent was caught
delivering them cannot be overstated.
The reckless danger that the
Respondent’s course of action posed to
the public health and safety of his wife,
at a minimum, and possibly even the
surrounding area and community where
the Burning Man Festival was to take
place, would not be counterbalanced
even if the Respondent had deemed to
submit evidence of many years of
admirably-conducted medical practice.
The offensiveness of his actions,
including the duty imposed by his
Hippocratic oath to abstain from doing
harm, as well as his lack of candor at his
hearing in minimizing the extent to
which he helped orchestrate this
scheme, all militate strongly in favor of
revocation.
Even if the Respondent’s position
regarding the operative facts were
embraced, it would not change the
outcome of this recommended decision.
The Respondent acknowledged during
his testimony that he (correctly)
suspected that his wife was abusing
illicit drugs based on a readily-available
set of objective facts that he was even
able to catalogue upon request during
his testimony. He acknowledged that he
was paying a $1,000.00 to a man who
made him uneasy at the request of his
(likely drug-abusing) spouse. The
Respondent even conceded that any
reasonable person would have realized
that there were illicit drugs in the motor
home he was driving that evening,64 and
that ‘‘[a]ll [he] can claim is to be the
stupidest doctor at the time’’ 65 is (even
if credited) wholly unpersuasive, and
‘‘manifests a degree of irresponsibility
that is incompatible with what DEA
expects of a registrant.’’ Cf. Lynch, 75 FR
at 78753 (registrant’s position that it was
acceptable for him to prescribe
controlled substances in the face of
known and obvious diversion risks on
the theory that he is not a lawyer or
police agent characterized as
‘‘manifest[ing] a degree of
irresponsibility that is incompatible
with what DEA expects of a registrant’’).
Reduced to its essence, the Respondent
seeks relief from his actions and
convictions by a claim that he
64 Tr.
65 Tr.
337.
332.
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stubbornly refused to acknowledge what
his trained eyes and ears informed him
of: that he was giving money to a drug
dealer and receiving illicit drugs for his
wife that were packaged as if for sale
and driving those drugs to an art festival
in the Nevada desert. The Respondent’s
odd theory that turning a blind eye to
circumstances that required him to
refrain from actions that were repugnant
to his responsibilities as a registrant,
and whistling past the graveyard of
what was obviously a drug transaction
where he was playing an integral role,
is not a persuasive argument in favor of
continuing to entrust him with the
responsibilities of a DEA registrant.
Cf. Holloway Distrib., 72 FR 42118,
42124 (2007) (in the context of a List I
distributer, a policy of ‘‘see no evil, hear
no evil’’ is fundamentally inconsistent
with the obligations of a DEA
registrant). In short, his efforts to
convince DEA that he is ‘‘the stupidest
doctor,’’ 66 even if successful, would
hardly have inspired sufficient
confidence in his ability to continue to
execute the responsibilities attendant
upon a registrant to fairly merit his
continued exercise of that privilege.
Accordingly, the Respondent’s
Certificate of Registration should be
Revoked and any pending applications
for renewal should be Denied.
Dated: January 24, 2011.
John J. Mulrooney, II,
U.S. Administrative Law Judge.
[FR Doc. 2011–25224 Filed 9–29–11; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 09–65]
Stephen L. Reitman, M.D.; Decision
and Order
On July 20, 2010, Administrative Law
Judge Gail A. Randall issued the
attached recommended decision.1
Neither party filed exceptions to the
ALJ’s decision.
Having reviewed the entire record, I
have decided to adopt the ALJ’s rulings,
findings of fact, conclusions of law,2
66 Tr.
332.
citations to the ALJ’s decision are to the slip
opinion as issued by her.
2 The ALJ found that Respondent violated
California law by obtaining controlled substances
from a distributor ‘‘while concealing the fact that
he was dispensing to himself.’’ ALJ at 33 (citing Cal.
Health & Safety Code 11173). The ALJ did not,
however, cite any decisional law holding that
conduct similar to that engaged in by Respondent
violates this provision. See id. Moreover, there is no
evidence establishing that Moore Medical required
1 All
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60889
and recommended order except as
discussed below. Accordingly, while
Respondent’s registration will be
continued, I conclude that the record
requires that several conditions be
placed on it to adequately protect the
public interest.
At the time of the hearing, the
Medical Board of California (MBC) had
filed an accusation against Respondent.
ALJ at 31. However, the MBC did not
issue a final decision in the matter until
December 20, 2010, which became
effective on January 19, 2011. In re
Stephen Lee Reitman, M.D., Decision at
1 (Cal. Med. Bd. Dec. 20, 2010). I take
official notice of the MBC’s Decision
and the Stipulated Settlement and
Disciplinary Order.3 Therein, the Board
revoked Respondent’s medical license
but stayed the revocation and placed
him on probation for five years subject
to numerous conditions. Stipulated
Settlement, at 4. The conditions
include, inter alia, that Respondent
‘‘maintain a record of all controlled
substances ordered, prescribed,
dispensed, administered, or possessed
by’’ him, that he abstain ‘‘from the
personal use or possession of controlled
substances’’ except as ‘‘to medications
lawfully prescribed to [him] by another
practitioner for a bona fide illness or
condition’’ and that he ‘‘notify the
Board’’ within fifteen calendar days of
receiving any such prescription, and
that he take both a prescribing practices
course and an ethics course. Id. at 4–10.
Most significantly, the Order requires
that Respondent, at his own expense,
‘‘contract with a laboratory or service—
approved in advance by the Board or its
designee—that will conduct random,
unannounced, observed, urine testing a
maximum of four times each month.’’
Id. at 5. Moreover, ‘‘[t]he contract shall
require results of the urine tests to be
transmitted by the laboratory or service
directly to [the] Board or its designee
Respondent to make any disclosure as to his
purpose in purchasing the drugs. Cf. Lovejoy v.
AT&T Corp., 92 Cal.App.4th 85, 96 (2001) (noting
that tort of concealment requires that ‘‘the
defendant must have been under a duty to disclose
the fact to the plaintiff’’). I therefore do not adopt
this finding. However, the evidence does establish
the other violations of the CSA and State law as
discussed by the ALJ.
3 Under the Administrative Procedure Act (APA),
an agency ‘‘may take official notice of facts at any
stage in a proceeding-even in the final decision.’’
U.S. Dept. of Justice, Attorney General’s Manual on
the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). In accordance
with the APA and DEA’s regulations, Respondent
is ‘‘entitled on timely request, to an opportunity to
show to the contrary.’’ 5 U.S.C. 556(e); see also 21
CFR 1316.59(e). Respondent can dispute the facts
of which I take official notice by filing a properly
supported motion for reconsideration within twenty
days of service of this Order, which shall begin on
the date it is mailed.
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[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Notices]
[Pages 60873-60889]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25224]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-69]
Jeffery M. Freesemann, M.D.; Decision and Order
On January 24, 2011, Administrative Law Judge (ALJ) John J.
Mulrooney, II, issued the attached recommended decision. The Respondent
did not file exceptions to the decision.
Having considered the ALJ's decision and the record in light of the
parties' post-hearing briefs, I have decided to adopt the ALJ's
rulings, findings of fact, and conclusions of law.\1\ Accordingly, I
also adopt the ALJ's recommended Order.
---------------------------------------------------------------------------
\1\ The ALJ made extensive findings under the public interest
factors. See ALJ Slip Op. at 32-40. While the Government cited both
21 U.S.C. 824(a)(2) & (4) as the legal authority for the proposed
revocation, the factual basis--as alleged--was limited to
Respondent's convictions (and the circumstances surrounding them)
for a felony offense that falls within 21 U.S.C. 824(a)(2). See ALJ
Ex. 1; see also ALJ Slip op. at 32. Moreover, there was no
application pending at the time of the proceeding and Respondent's
conviction was no longer subject to appeal.
Because a conviction for a felony offense that falls within
section 824(a)(2) provides an independent and adequate ground for
revoking a registration, and there was no pending appeal of the
conviction or pending application for a new registration, the ALJ
was not required to make findings under the public interest factors.
While such a conviction satisfies the Government's prima facie
burden, it is not a per se bar to registration. Cf. The Lawsons, 72
FR334, 74338 (2007). Accordingly, in a case brought under section
824(a)(2), the ALJ is still required (as he did here) to make
findings as to whether the registrant has accepted responsibility
for his misconduct and demonstrated that he will not engage in
future misconduct. Cf. Ronald Lynch, M.D., 75 FR 78745, 78749
(2010).
---------------------------------------------------------------------------
Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a)(2) &
(4), as well 28 CFR 0.100(b), I order that DEA Certificate of
Registration, BF4089125, issued to Jeffery M.Freesemann, M.D., be, and
it hereby is, revoked. This Order is effective October 31, 2011.
Dated: September 19, 2011.
Michele M. Leonhart,
Administrator.
Christine M. Menendez, Esq., for the Government.
Dennis R. Thelen, Esq., for the Respondent.
[[Page 60874]]
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
John J. Mulrooney, II, Administrative Law Judge. The Deputy
Assistant Administrator, Drug Enforcement Administration (DEA or
Government), issued an Order to Show Cause (OSC), dated August 13,
2010, seeking revocation of the Respondent's Certificate of
Registration (COR), Number BF4089125, as a practitioner, pursuant to 21
U.S.C. 824(a)(2) and (a)(4) (2006), and denial of any pending
applications for renewal or modification of such registration, pursuant
to 21 U.S.C. 823(f), alleging that the Respondent has been convicted of
three felonies involving controlled substances, and that his continued
registration is otherwise inconsistent with the public interest, as
that term is used in 21 U.S.C. 823(f). On August 25, 2010, the
Respondent timely requested a hearing, which was conducted in Los
Angeles, California, on December 14 through December 15, 2010.
The issue ultimately to be adjudicated by the DEA Deputy
Administrator, with the assistance of this recommended decision, is
whether the record as a whole establishes by substantial evidence that
the Respondent's registration with the DEA should be revoked as
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f) and 824(a)(4). The Respondent's DEA COR is set to expire by its
terms on September 30, 2012.
After carefully considering the testimony elicited at the hearing,
the admitted exhibits, the arguments of counsel, and the record as a
whole, I have set forth my recommended findings of fact and conclusions
below.
The Evidence
The OSC issued by the Government alleges that revocation of the
Respondent's COR is appropriate because of the Respondent's May 8, 2009
conviction for three felony counts of transportation of controlled
substances, i.e. methamphetamine, ecstasy, and cocaine, in violation of
California state law.\1\ OSC at 1.
---------------------------------------------------------------------------
\1\ The same day, the Respondent also pleaded no contest to a
misdemeanor charge of carrying a loaded firearm. Gov't Ex. 11; see
Cal. Penal Code 12031(a) (West 2008).
---------------------------------------------------------------------------
The parties, through their respective counsel, have entered into
stipulations regarding the following matters:
Stipulation A: Respondent is a licensed physician in the state of
California pursuant to license number G 83122. Respondent's license
status is current. ALJ Ex. 9 at 1.
Stipulation B: On May 8, 2009, Respondent pleaded no contest to,
and was convicted on, three criminal felony counts of transportation of
controlled substances by the Superior Court of California, County of
Kern. The controlled substances were methamphetamine, ecstasy, and
cocaine. The Respondent also pleaded no contest to, and was convicted
on, one misdemeanor count of carrying a loaded firearm. ALJ Ex. 9 at 1.
Stipulation C: Prior to the night the Respondent was arrested, he
had no adverse interaction with law enforcement authorities. Tr. vol.
1, 129, Dec. 14, 2010.
Stipulation D: That neither party would interpose any objection to
the admission of any of the proposed exhibits noticed prior to the
hearing. Tr. 7-10.
Stipulation E: A blue pouch depicted on page 3 of Government
Exhibit 5 did not contain the firearm seized from the Respondent's
motor home on the night he was stopped and detained by the police. Tr.
354-55.
Among the exhibits admitted into evidence through stipulation was a
state criminal court transcript, dated May 8, 2009, wherein the
Respondent entered pleas of no contest to three felony drug
transportation counts and one loaded firearm misdemeanor in
satisfaction of the indictment pending against him. Resp't Ex. 3 at 4-
7; Gov't Ex. 11 at 4-7; Gov't Ex. 10 at 1-3. Specifically, the
Respondent pleaded no contest to transporting methamphetamine in
violation of Cal. Health & Safety Code Sec. 11379 (West 2008),
transporting Ecstasy or MDMA in violation of Cal. Health & Safety Code
Sec. 11379 (West 2008), transporting cocaine in violation of Cal.
Health & Safety Code Sec. 11352 (West 2008), and possession of a
loaded firearm in a vehicle in violation of Cal. Penal Code Sec.
12031(a) (West 2008). Resp't Ex. 3 at 6-7; Gov't Ex. 11 at 6-7; Gov't
Ex. 10 at 1-3.
Also included among the Government's exhibits admitted into
evidence is the October 20, 2010 Decision and Order (Order) of the
Medical Board of California (Medical Board) following a state
administrative hearing that took place on August 23, 2010.\2\ Gov't Ex.
15-16. In its Order, the Medical Board, adopting the recommended
decision issued by the state Administrative Law Judge, found that the
Respondent was stopped by police with his wife, Mrs. Shelly Freesemann,
on August 28, 2008 en route in a motor home to the ``Burning Man
Festival'' in Nevada. Gov't Ex. 15 at 3. The Order indicated that at
his hearing before the Medical Board, the Respondent testified that his
wife, by his account, unbeknownst to him, packed the cocaine, ecstasy,
and methamphetamine found by the police in the vehicle for use at the
festival at which they had intended to meet friends. Id. However, while
the Respondent, at his state Medical Board hearing, denied knowingly
transporting controlled substances, the Medical Board found that under
its precedent, he is nevertheless guilty of willfully transporting
those drugs because he pleaded nolo contendere and was convicted
pursuant to his plea. Id. at 2. At his Medical Board hearing, the
Respondent testified that although his wife was by far the more
culpable actor, he chose to bear the burden of incarceration so that
his wife could complete a drug rehabilitation program and care for
their children. Gov't Ex. 15 at 3. The Respondent apparently explained
to the Medical Board that he chose this course because he had ``the
greater strength to endure incarceration,'' and declared that
``children outweigh cash and income on my scale any day.'' Id. The
Medical Board expressed some level of concern regarding the
Respondent's credibility, but ultimately concluded that there was
insufficient indicia of deceit to support a finding that he was
``dishonest in his testimony.'' Id. at 4. The Medical Board noted the
Respondent's seemingly inconsistent positions of blaming his wife while
simultaneously acknowledging that he is ``responsible for his crime.''
Id.
---------------------------------------------------------------------------
\2\ Although both parties noticed the Medical Board Order, in
the interest of avoiding unnecessary duplication, it was admitted as
a Government exhibit. Tr. 9-10.
---------------------------------------------------------------------------
The Medical Board ultimately determined that although ``[c]ause
exists to revoke or suspend'' the Respondent's state medical
privileges, a stayed revocation accompanied by a seven-year term of
probation with limitations, reporting conditions, and ethics training
would ``provide adequate protection of the public health, safety and
welfare.'' Id.
At the DEA hearing conducted in this matter, the Government
presented the testimony of five police officers from Bakersfield,
California who worked on the investigation that culminated in the
Respondent's convictions as set forth in Stipulation B, and also called
the Respondent as a witness. The first officer who testified was
Detective (Det.) David Boyd, the lead case detective for the
investigation. Tr. 29. Det. Boyd, a twenty-two-year veteran of the
Bakersfield Police Department (Bakersfield PD), nine of which was
[[Page 60875]]
spent as a detective,\3\ testified that he first encountered the
Respondent during the course of a narcotics investigation primarily
targeted at an individual named Stephen Galvan (Galvan).\4\ Tr. 28. A
cell phone wiretap that had been judicially authorized during the
investigation revealed voice and text traffic between Galvan's cell
phone and phones connected to the Respondent and his wife, Shelly
Freesemann. Tr. 29-30, 50.
---------------------------------------------------------------------------
\3\ Tr. 23.
\4\ Boyd testified that Galvan was identified to the Bakersfield
PD by a paid informant. Tr. 39-40.
---------------------------------------------------------------------------
On August 24, 2008, the investigating officers monitored some phone
traffic between Galvan and a female who was later identified as
Galvan's sister, Tessa. Tr. 38-39, 41-43. During the call, Galvan was
attempting to procure a ``zip,'' which, based on Det. Boyd's training
and experience, he identified as referring to an ounce of illicit
drugs. Tr. 43-47. Galvan told his sister that he was willing to pay
$1,200.00 to $1,300.00, but needed it by the following day. Tr. 45.
At about 2 p.m. the following day (August 25th), the officers
intercepted a text message from Galvan's cell phone to Shelly
Freesemann \5\ that read: ``Hey, back in town, can take care of that 4
U ASAP.'' Tr. 47-48. After a five-hour period without a response from
Shelly Freesemann, Galvan's phone issued another text message to her
phone with the message: ``???'' Tr. 49. Galvan's second text received a
reply from a cell phone registered to Mrs. Freesemann within three
minutes that read: ``Sorry * * * Jeff will call you later.'' Tr. 50.
---------------------------------------------------------------------------
\5\ Although Det. Boyd initially testified that he believed that
the Freesemanns were identified as acquaintances of Galvan earlier
in the investigation through prior surveillance, Tr. 51, he later
clarified that he only became aware of the Freesemanns through this
investigation and their telephonic contact with Galvan. Tr. 124-26.
---------------------------------------------------------------------------
Galvan called Shelly Freesemann's phone and had a conversation with
a female voice the officers believed to be hers. Tr. 51. In the
conversation, Mrs. Freesemann told Galvan that the following day she
and her husband would be retrieving a motor home and departing the area
around 7:30 p.m. Tr. 52. Galvan told her that around noon he would pick
up ``paperwork'' (a term that Det. Boyd testified is commonly used in
narcotics transactions to refer to cash). Id.
At 8:06 a.m. the next morning (August 26th), a text message
emanated from Mrs. Freesemann's phone to Galvan's cell phone that
advised: ``Me, not Shelley, 29th and Fth.\6\ Call my work
[the Respondent's work telephone number]. Jeff.'' Tr. 54. Sometime
after the text message instructing him to do so, Galvan did call the
Respondent at the number provided in the text and spoke to him. Tr. 55.
During their conversation the two men discussed the Respondent's plans
to leave town that evening and that Galvan needed to meet with the
Respondent to get money from him.\7\ Tr. 55. After some discussion
related to the logistics of their meeting, the pair agreed to meet at
the Valley Gun Store (Valley Gun) located in Bakersfield. Tr. 55-56.
---------------------------------------------------------------------------
\6\ Det. Boyd testified that there is such an intersection in
Bakersfield. Tr. 53-54.
\7\ According to Det. Boyd, Galvan used the terms ``money'' and
``paperwork'' interchangeably during this phone call. Tr. 55.
---------------------------------------------------------------------------
Det. Boyd testified that he and his team were able to confirm that
Galvan and the Respondent did indeed meet that day at noon at the
Valley Gun. Tr. 56. Surveillance units posted near the Respondent's
car, Galvan's car, and Valley Gun tracked the two men driving to their
rendezvous point at Valley Gun, observed them enter the store
separately within two to three minutes of one another, and watched them
depart separately after spending about five minutes in the store. Tr.
56-58. The Respondent drove from his office to Valley Gun, even though
the two locations were diagonally across from each other on the same
intersection of Bakersfield. Tr. 58-62. After the meeting, officers
followed the Respondent in his car to a Barnes & Noble bookstore. Tr.
62.
Det. Boyd testified that Galvan placed numerous phone calls after
his meeting with the Respondent. Tr. 63. The officers monitored phone
calls from Galvan to his sister and to his father. Id. The object of
the phone calls to both parties was to arrange to purchase
methamphetamine. Id. Galvan also telephoned Phil Nunez (Nunez), an
individual the officers had earlier identified as one of Galvan's
sources of methamphetamine.\8\ Tr. 63-64. At about 7:00 p.m., after
Galvan and Nunez agreed to a meeting, the former placed another call to
the Freesemanns. Tr. 65-66. When Mrs. Freesemann picked up the phone,
Galvan asked to speak to the Respondent and informed him that he should
expect him at the Freesemann residence in approximately twenty to
thirty minutes. Id. The officers monitored several additional phone
calls between Galvan and Nunez related to the logistics of locating
each other for their meeting and frustration with cell phone service
problems. Tr. 67. Galvan and Nunez met in a public parking lot, after
which Galvan drove directly to the Freesemann residence which was being
staked out by another police officer, Sergeant \9\ (Sgt.) Chris
Johnson, at Det. Boyd's direction. Tr. 67-68.
---------------------------------------------------------------------------
\8\ Nunez is also identified as a co-defendant on the felony
complaint and information associated with the Respondent's criminal
case. Gov't Exs. 7 at 1; Gov't Ex. 9 at 1.
\9\ At the time of the Respondent's arrest, Sgt. Johnson was a
detective. Tr. 198.
---------------------------------------------------------------------------
Sgt. Johnson, who is also a member of the Bakersfield PD narcotics
unit, also testified for the Government. Sgt. Johnson testified that he
participated in and provided support to Det. Boyd during his narcotics
investigation of Galvan, and that during the evening hours of August
26, 2008, he was conducting a surveillance of the Respondent's home.
Tr. 201. Johnson testified that he arrived at the stakeout around 7:30
pm, remained there for approximately five hours, and could see the
Freesemann home and a motor home parked at the curb. Tr. 201-03. Sgt.
Johnson's visual observations, made from three houses away, had the
benefit of street lighting, porch lights, and motor home lights after
the sun set. Tr. 202-03. He testified that the Freesemanns were loading
the motor home when he observed Galvan drive up in a truck and park
across the street. Tr. 203. Galvan greeted the Respondent in the front
yard and followed him into the motor home carrying an oblong-sized
object about the size of a grapefruit. Tr. 204. After a brief period of
time, Galvan exited the motor home, encountered Mrs. Freesemann, hugged
her goodbye, shook the Respondent's hand, and drove away, but without
the oblong, grapefruit-sized object. Tr. 204-05. Sgt. Johnson further
testified that Galvan's entire visit lasted approximately five minutes.
Tr. 204, 211. He also testified that he saw Mrs. Freesemann leave the
motor home and enter the residence carrying an object that was similar
in size and shape to the grapefruit-sized item brought to the scene by
Galvan. Tr. 205-06. Sgt. Johnson testified that he watched the
Respondent and his wife continue to load the motor home for about
another hour and watched as the motor home and the Freesemanns drove
off. Tr. 207, 211.
Bakersfield PD Police Officer (PO) Kevin O. Hock also testified for
the Government. PO Hock testified that he has worked for Bakersfield PD
for the past fifteen years. Tr. 156. PO Hock testified he is assigned
to the Special Enforcement Unit (SEU) at Bakersfield PD, and that in
addition to working on gang crime cases and gang intelligence, SEU also
provides uniformed and ``black and white'' patrol car assistance to
investigations as needed. Tr. 156-57. PO Hock testified that on August
26,
[[Page 60876]]
2008, he was working a uniformed assignment in a marked patrol car and
was directed by Sgt. Tunnicliffe, a Bakersfield PD narcotics division
supervisor, to conduct a vehicle stop on a white motor home that the
narcotics unit was actively surveilling.\10\ Tr. 159-60. When PO Hock
caught up to the white motor home, he noticed that it had no license
plate light \11\ and initiated a vehicle stop. Tr. 162 PO Hock
testified that he encountered the Respondent driving the vehicle,
procured his California driver's license from him, and asked (as is his
custom with all vehicle stops) whether there were any illegal
substances inside the vehicle. Tr. 163-64. The Respondent responded in
the negative and consented to a search of the motor home.\12\ Tr. 165.
Hock testified that Mrs. Freesemann and a female, named Michelle
Hori,\13\ were also in the motor home when it was pulled over. Tr. 163.
PO Hock testified that he ordered all the occupants of the vehicle to
step out and radioed a K-9 officer, Det. Cox, to respond to the scene,
which he did within five minutes. Tr. 165-66. PO Hock testified that
Det. Cox searched the entire vehicle and told him that his narcotics
dog, ``Gracie,'' alerted to three different areas within the motor
home. Tr. 167. In one of the alert areas between the front seats, Hock
opened a bag that contained a pink pouch. Tr. 167-68, 171-74; Gov't Ex.
5 at 7-11, 16, 48-50. The pink pouch contained what PO Hock believed to
be MDMA tablets and powder cocaine. Tr. 170. Hock testified that the
motor home was driven to the Bakersfield PD station and searched more
thoroughly there under the authority of the search warrant procured by
Det. Hale. Tr. 174-75.
---------------------------------------------------------------------------
\10\ Det. Boyd testified that it was he who made the decision to
have the motor home stopped and conveyed that decision to his
supervisor, Sgt. Tunnicliffe. Tr. 68-69.
\11\ A violation of Cal. Veh. Code Sec. 24601 (West 2008).
\12\ PO Hock testified that the Respondent was cooperative
throughout the entire evolution on the side of the road. Tr. 178.
\13\ Det. Boyd testified that police intercepted a phone
conversation wherein Ms. Hori indicated that she was intending to
transport six ecstasy capsules to a Tacoma, Washington surgeon by
the name of Dr. Wendell Smith. Tr. 134-35, 145. According to Det.
Boyd, Ms. Hori ultimately entered a guilty plea to some unspecified
criminal charge and received a sentence of probation. Tr. 132.
---------------------------------------------------------------------------
The testimony of the responding K-9 officer, Bakersfield Det. David
Cox, corroborated the testimony of PO Hock. Det. Cox testified that on
the night of the Respondent's arrest, he was assigned as a K-9 officer
in the narcotics unit and was Gracie's handler. Tr. 182. Det. Cox
testified that he responded on August 26, 2008 to PO Hock's request to
sweep the Respondent's motor home with Gracie after he stopped it.\14\
Tr. 185-87. As testified to by PO Hock, Cox recalled that Gracie had
alerted to three different areas of the motor home. The first alert was
on the area between the two front passenger seats, another was on a
drawer or compartment above the motor home bed, and a third was on an
area with approximately two to four bags located on the interior floor
of the motor home near some bicycles. Tr. 188-93. Det. Cox then
testified that he related the areas of K-9 alert to PO Hock for action,
but that his part of that vehicle search evolution substantially ended
at that point. Tr. 192. He testified that he did not personally see any
controlled substances seized from the motor home, nor did he even see
the aforementioned pink pouch containing methamphetamine and BZP
tablets and powder methamphetamine, nor did he see a yellow pelican
case that, per Det. Boyd's testimony, the laboratory results, and the
return to search warrant, contained copious amounts of illicit
substances. Tr. 195.
---------------------------------------------------------------------------
\14\ Det. Cox also testified that earlier in the day he assisted
in conducting surveillance on Galvan and the Freesemanns. Tr. 185,
193-94.
---------------------------------------------------------------------------
Det. Boyd, testified that sometime after the commencement of the
search on the motor home, he directed another officer, Det. Michael
Hale, to prepare an affidavit and seek a warrant to search the stopped
motor home and the Respondent's residence. Tr. 72-73. The Government
also presented Det. Hale's testimony at the hearing. Hale, a fourteen-
year veteran Bakersfield police officer, testified that on the night of
the motor home stop he was assigned to the Narcotics Unit at the
Bakersfield PD and had been involved in the Galvan investigation. Tr.
217-18. He testified that he was the affiant on the supporting
affidavit (PC Affidavit) which was utilized to secure a state-court-
issued search warrant that was executed on the stopped motor home and
on the Respondent's residence in the early hours of the next
morning.\15\ Tr. 218-21; Gov't Ex. 3; Gov't Ex. 4.
---------------------------------------------------------------------------
\15\ The search warrant and the PC Affidavit were received into
evidence at the hearing by mutual stipulation of the parties. Tr. 7-
10; Stipulation D; see Gov't Ex. 3.
---------------------------------------------------------------------------
The PC Affidavit tracked the bones of the investigation
consistently with the testimony of Det. Boyd. The PC Affidavit informs
how the Bakersfield PD was led to the Respondent and his wife through
its monitoring of Galvan, who was suspected of being a drug dealer.
Gov't Ex. 3. The document explains that the state-court-authorized cell
phone intercept (cell phone tap) resulted in the intercept of telephone
calls and text messages from Galvan's cell phone to the Respondent and
his wife. Id. at 8. The PC Affidavit sets forth the August 25th cell
call from Galvan to the Respondent's wife wherein she explained to
Galvan that she was leaving the next night and that a third party had
inquired as to whether she wanted to bring ``that.'' Id. at 9. In his
PC Affidavit, Det. Hale explained that, based on his training and years
of experience involving narcotics investigations, it is his opinion
that the word ``that'' is an expression commonly used in connection
with narcotics. Id. at 11. Before the call ended, the Respondent's wife
explained that she would be leaving the next night at 7:30 p.m. after
picking up a motor home. Id.
The PC Affidavit progresses through August 26th, as Bakersfield PD
officers intercepted a text message to Galvan's cell phone that stated
``Meet me at noon instead of shelly at 29th and Fth. if diff. plans
call my work 340-2323 jeff [sic].'' Id. at 9. The PC Affidavit
continues that later in the day, the cell phone tap revealed that
Galvan called the number provided by ``jeff'' in the text message. Id.
The phone was answered by an individual who identified himself as
``Jeff.'' Id. Galvan explained to Jeff that he wanted to take care of
``all that'' today, but then indicated that they needed to meet first
so he could collect money from Jeff. Id. After Galvan asserted that he
needed a couple of hours, they agreed to meet at noon at Valley Gun
where they had met previously. Id.
The PC Affidavit also narrates the surveillance conducted at Valley
Gun wherein detectives observed the Respondent pull up in a car
registered to himself and his wife at about noon and enter the store.
Id. The document explains how, after a few minutes, Galvan arrived at
Valley Gun and joined the Respondent inside. Id. After what Hale's
affidavit characterizes as ``a short period,'' the two men concluded
their meeting inside the store and the Respondent drove off. Id.
The PC Affidavit relates that shortly after Galvan's noon meeting
at Valley Gun, detectives intercepted numerous calls between Galvan and
his sister, Tessa, wherein the two unsuccessfully attempted to close a
drug deal to secure a ``whole one,'' which, in Det. Hale's experience,
refers to an ounce of suspected narcotics. Id. at 10-11. At 6:15 p.m.,
finding himself unable to successfully broker for illegal drugs with
his sister, the cell phone tap revealed that Galvan turned to his
father, explaining that he needed to provide crystal methamphetamine to
a friend who was set to leave town at 7:30
[[Page 60877]]
(the same time the Respondent's wife had previously related to Galvan
as her planned departure time). Id. at 9-10.
According to the PC Affidavit, approximately fifteen minutes after
placing the call to his father, Galvan called Nunez, and the two agreed
to meet. Id. at 10. During that cell phone conversation, the latter
asked the former if his sister had called for ``it'' and was informed
that their efforts to reach agreement had been fruitless. Id. Following
numerous calls placed to find each other, Galvan met Nunez in a
restaurant parking lot and, in the opinion of the police, conducted an
illegal narcotics transaction. Id. Upon leaving the parking lot, Galvan
called the Respondent's wife and asked to speak with ``Jeff.'' Galvan
informed Jeff that he was on his way. Id.
The PC Affidavit further states that at the Respondent's home,
another Bakersfield PD detective was observing the Respondent and his
wife load items into a motor home that was parked there when Galvan
drove up. Id. at 11. The PC Affidavit elucidates how Galvan handed a
light-colored, oblong package about the size of a grapefruit to the
Respondent before the two entered the motor home, and how, after a
while, the Respondent's wife carried the package into their attached
garage. Id. According to the PC Affidavit, Galvan departed after
shaking the Respondent's hand and hugging Mrs. Freesemann. Id. The
Respondent and his wife departed at 8:05 p.m. in the motor home which,
as had been sworn to by Det. Hale, was stopped thirty minutes later and
searched. Id. at 12.
Det. Hock, the officer who pulled over the motor home, testified
that after he identified what he suspected to be illicitly-possessed
controlled substances, he notified Sgt. Tunnicliffe, who then directed
that the Respondent, his wife, and Ms. Hori be transported to the
Bakersfield PD.\16\ Tr. 171. Another officer drove the motor home back
to the Bakersfield PD station where it was searched. Tr. 172. While
Det. Hock testified that he participated in the roadside search of the
motor home with other officers, as well as the search of the motor home
back at the police department pursuant to the search warrant, he
testified at the hearing that the only controlled substances he
specifically remembered seeing during the roadside search were
contained in the pink pouch. Tr. 174.
---------------------------------------------------------------------------
\16\ Det. Boyd testified that the occupants of the motor home
were not booked for an arrest that night but were ``detained and
then later released pending further investigation.'' Tr. 108. He
testified that this was done to facilitate the continuing
investigation of Galvan without having to disclose the existence of
the cell phone tap. Tr. 131.
---------------------------------------------------------------------------
The search warrant return prepared in connection with the search of
the motor home listed the seizure of seventy-seven items. Gov't Ex. 4.
Among the seized items were many individually packaged containers with
pills, powders, liquids, and substances that, when tested, were
confirmed to be scheduled controlled substances, including
methylenedioxymethamphetamine (MDMA or ecstasy), methamphetamine,
cocaine, and psilocybin mushrooms (psilocybin or mushrooms). Gov't Exs.
4, 8; Tr. 99. More specifically, the controlled substances secreted in
the motor home and seized were 277 pills that included various
quantities of Adipex-P,\17\ methamphetamine,\18\ BZP,\19\ zolpidem,\20\
Lunesta,\21\ ketamine,\22\ and ecstasy; \23\ 25.9 grams of powdery or
rocky substances that included ketamine, cocaine,\24\ and
methamphetamine; liquid in multiple bottles constituting gamma-
butyrolactone (GBL); \25\ 2.4 grams of marijuana; \26\ and 0.8 grams of
psilocybin mushrooms.\27\ Gov't Ex. 4. While most of the drugs that
were tested yielded positive results for the same illicit nature for
which they were suspected, a cross-reference of the return to search
warrant with the laboratory analysis results reveals some anomalies.
For instance, a portion of the suspected MDMA tablets tested positive
for methamphetamine and benzylpiperazine (BZP). Compare Gov't Ex. 4 at
4 (see item 61), with Gov't Ex. 8 at 5 (see item 18).
Also, some of the suspected cocaine HCl tested positive for
methamphetamine. Compare Gov't Ex. 4 at 4 (see item 62), with
Gov't Ex. 8 at 7 (see item 25).
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\17\ A Schedule IV controlled substance listed under
phentermine. 21 CFR 1308.14(e)(9) (2010).
\18\ A Schedule II controlled substance. Id. Sec.
1308.12(d)(2).
\19\ A Schedule I controlled substance. Id. Sec. 1308.11(f)(2).
\20\ A Schedule IV controlled substance. Id. Sec.
1308.14(c)(51).
\21\ A Schedule IV controlled substance listed under zopiclone.
Id. Sec. 1308.14(c)(52).
\22\ A Schedule III controlled substance. Id. Sec.
1308.13(c)(7).
\23\ A Schedule I controlled substance. Id. Sec.
1308.11(d)(11).
\24\ A Schedule II controlled substance. Id. Sec.
1308.12(b)(4).
\25\ A List I chemical. Id. Sec. 1310.02(a)(24). Analogues of
controlled substances, like GBL to gamma-hydroxybutyric acid (GHB),
a Schedule I controlled substance, id. Sec. 1308.11(e)(1), can be
treated under federal law as a Schedule I controlled substance if
intended for human consumption. 21 U.S.C. 813 (2006).
\26\ A Schedule I controlled substance. Id. Sec.
1308.11(d)(22).
\27\ A Schedule I controlled substance. Id. Sec.
1308.11(d)(28). While 13.5 pills of Xanax, a Schedule IV controlled
substance listed under alprazolam at id. Sec. 1308.14(c)(1), were
also seized from the motor home, they were within a vial labeled as
a prescription to the Respondent. Gov't Ex. 4 at 4. The Government
makes no allegation that the Xanax was invalidly prescribed, abused,
or diverted. Other uncontrolled substances seized, prescription or
otherwise, are not considered in this decision under the public
interest factors.
---------------------------------------------------------------------------
As discussed earlier in this recommended decision, a separate
return was prepared in connection with the items seized from the
Respondent's home. Among the controlled substances seized at the
residence were 258.5 tablets of suspected ecstasy, 5.3 grams of
suspected cocaine, and an unspecified quantity of suspected ``liquid
ecstasy.'' Id. A loaded handgun was seized from the motor home, and a
loaded handgun and extra ammunition were seized from the Respondent's
residence.\28\ Id. at 4, 6.
---------------------------------------------------------------------------
\28\ Hypodermic needles and a pill cutter were also seized from
the Freesemann residence. Gov't Ex. 6 at 18-19; Tr. 115. On the
present record, these items have not been sufficiently linked to
illegal activity to adversely factor against the Respondent. There
is nothing in the present record to discount the Respondent's
testimony that the hypodermic needles were present in the residence
for the treatment of his ailing mother, who has since passed away.
Tr. 270, 279-81.
---------------------------------------------------------------------------
Det. Boyd testified that the narcotics seized from the motor home
and the residence were packaged in small dosage amounts in numerous
containers. According to Det. Boyd, based on his training, this manner
of packaging is consistent with the manner in which individuals
commonly package illicit drugs for sale.\29\ Tr. 76-77, 117.
---------------------------------------------------------------------------
\29\ Det. Boyd also testified that he is aware of other indicia
of controlled substance dealing, such as particular currency
denominations, scales, packaging materials, and sometimes even ``pay
and owe sheets'' that actually record drug transactions, none of
which were located on the Freesemanns or in their rented motor home
on the night they were arrested. Tr. 78-80, 133.
---------------------------------------------------------------------------
Notwithstanding the fact that the Respondent did not contest the
illicit nature of the seized contraband, Det. Boyd also provided a
narration of sorts regarding numerous photographs of the items seized
from the motor home that had been stipulated into evidence.\30\ While
the detective was able to identify a quantity of marijuana,\31\ and
devices he styled as ``marijuana pipes,'' \32\ much of his testimony
regarding the photographs constituted little more than arguably
unhelpful guesses and multiple choice options of illicit drug
possibilities. For example, in describing
[[Page 60878]]
one photograph \33\ he stated that it showed ``a glass vial with a
black lid, with a white powdery substance in it [and explained that]
[f]rom the photograph, [he] would believe it to be either cocaine[ ]
HC[l] or methamphetamine.'' Tr. 82 (emphasis supplied). Another
photograph \34\ was described as depicting ``three oblong pills, white
in color with what looks like blue spectacles in it,'' and when asked
whether he ``believe[s] [it] to be an illicit controlled substance,''
responded that he ``believe[s] it was possible it would be some type of
pharmaceutical.'' Tr. 82 (emphasis supplied). Still another photo \35\
was described as including a container holding ``a white powdery
substance in it which [he] would believe to be either cocaine[] HC[l]
or methamphetamine.'' Tr. 82-83 (emphasis supplied). Other photographs
were described as containing ``orangish-red pills which [he]
believe[s], through [his] training and experience, to be that of
ecstasy or MDMA [and other material] that [he] believe[s] to contain
either methamphetamine or cocaine,'' \36\ and ``[s]everal gel caps or
capsules with a brown material [and states that he is] not sure what
they are.'' \37\ The record contains multiple examples of this
approach, but the following excerpt addressing two photographs \38\ is
representative:
---------------------------------------------------------------------------
\30\ Four photographs depict the sum total of the contraband
seized from the motor home. Gov't Ex. 5 at 55-58; Tr. 93-94.
\31\ Tr. 80; Gov't Ex. 5 at 18. Interestingly, Det. Boyd
testified that the suspected marijuana seized in this case was not
sent out for confirmatory testing. Tr. 100.
\32\ Tr. 80-81, 91; Gov't Ex. 5 at 19, 52.
\33\ Gov't Ex. 5 at 20.
\34\ Gov't Ex. 5 at 22.
\35\ Gov't Ex. 5 at 24.
\36\ Tr. 83; see Gov't Ex. 5 at 28.
\37\ Tr. 84; see Gov't Ex. 5 at 29.
\38\ Gov't Ex. 5 at 30-31.
[The first photo] [w]ould be those three cylinders, open to show
the contents, two of them having white powdery substances, which I
believe to be either cocaine or methamphetamine, and the other is
either, I can't remember which photograph it is that depicts it.
It's either depicting the small amount of psilocybin that was seized
or marijuana. * * * [The second photo is of] two sets of blue pills,
different in size. One individual blue pill and then two yellow
pills that appear to be prescription-style medication. The blue
oblongy-looking one appears to be a prescription[-]style medication.
The blue pills down here appear to me to be similar to ecstasy[/
---------------------------------------------------------------------------
]MDMA.
Tr. 84-85. Although later in his testimony, Det. Boyd indicated
that confirmatory testing on the seized materials yielded results
consistent with his expectations that the seized items were the
controlled substances he anticipated they would be,\39\ this did not
prove to be entirely true. For example, the laboratory analysis report
relative to the material seized in the motor home, which was admitted
into evidence at the hearing, indicated that the seized substance that
the Bakersfield PD assigned as ``agency 10'' was not cocaine
hydrochloride as had been believed by Det. Boyd (and submitted by the
Government within its Proposed Finding of Fact 85), but ketamine.\40\
Gov't Ex. 8 at 9; Gov't Ex. 5 at 20; Tr. 81-82; Gov't Br. at 13.
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\39\ Tr. 101-02.
\40\ Although Det. Boyd testified that the laboratory analysis
report provided by the Government set forth the results of materials
seized from the motor home as well as the residence, a comparison of
the itemized materials by the agency numbers assigned in the lab
report (which correspond to item numbers in the search warrant
return) indicates that only the motor home contraband results may be
detailed in the report submitted in evidence. Compare Gov't Ex. 8,
with Gov't Ex. 4. It is possible that because the crime lab's own
item numbering, the system of which appears to be assigned by test
batches, begin at ``06'' that the first five item numbers
corresponded to tests of substances found in the residence. When
pressed on the issue at the hearing, Boyd indicated that he was
``not 100 percent'' sure that the lab report contained results from
both searches. Tr. 104. Although afforded the opportunity to clarify
any ambiguity regarding the report during the proceedings, neither
the witness nor the Government took any steps to do so. Tr. 104-06.
When pressed on whether the suspected contraband seized from the
residence tested positive for controlled substances, Hale could only
represent that he ``would assume they were.'' Tr. 235. Interestingly
the Respondent's guilty pleas (and corresponding stipulation) relate
only to the illicit substances he was transporting (in the motor
home), not the items seized at his residence. Stipulation B; Gov't
Exs.9-11. In any event, inasmuch as the Respondent has not contested
that illicit controlled substances were seized from both locations,
and in light of Mrs. Freesemann's testimony that their master
bedroom closet did, in fact, contain illegal drugs, Tr. 459, the
potential discrepancy is of little moment in these proceedings.
Significantly, this portion of Mrs. Freesemann's testimony was
included in that segment that was subject to a Government objection
at the hearing, which was renewed (for emphasis?) in its closing
brief. Gov't Br. at 21 n.2.
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More helpfully, Det. Boyd described numerous containers of over-
the-counter pill bottles where material that resembled illicit drugs
were placed below several doses of the pills that the vials were
intended for. Tr. 86-91; see Gov't Ex. 5 at 32-35, 38-39, 41, 43-50,
52. Boyd testified that based on his training and experience, he has
observed the utilization of this technique to give the appearance of a
benign over-the-counter medication or supplement to inspecting eyes
that are not inclined to dig deeper, and that it is a common method
used to secrete illegal drugs. Tr. 86. Pills that he considered suspect
were also identified in two Starbucks tin mint containers. Tr. 88; see
Gov't Ex. 5 at 36-37.
Sgt. Johnson testified that he participated in the execution of the
search warrant on the Respondent's residence, assisted with other
officers, to the extent that he helped secure the residence and the
people inside of it. Tr. 209-10. He testified that he did not, however,
take photographs, and because he did not conduct the actual search of
the inside of the residence, he does not have any personal knowledge of
the controlled substances found in the home. Tr. 210.
Det. Hale, the affiant on the PC Affidavit testified in greater
detail about the search conducted in the house. According to Hale,
after the children and their babysitter were located and isolated, the
Respondent's home was searched. Tr. 221-23. A description litany
reminiscent of Det. Boyd's account of the photographs and his opinion
of the illicit substances seized from the motor home was elicited from
Hale regarding the items seized from the Freesemann residence, with
similar efficacy. Id.; Gov't Ex. 6. A safe, that Hale recalled as being
unsecured, yielded a black plastic case that contained individually
packaged amounts of what Hale suspected to be ecstasy and cocaine.\41\
Tr. 223-27.
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\41\ Also seized in the search was a loaded firearm in the
closet of the home's master bedroom and samples of medications
commonly-known to be used to treat erectile dysfunction (ED) that
were seized from the trunk of a vehicle parked in the home's garage.
Tr. 231, 237-38. No illegality has been alleged or established
regarding the ED medications or the gun found in the Respondent's
bedroom. The Respondent testified that the weapon is registered to
his father, Tr. 230-31, and Det. Hale did not recall whether the
weapon was returned to the Respondent. The testimony about these
seized items was admitted in the interest of completing the
narrative connected to the search, but this evidence does not impact
on the determination of whether maintaining the Respondent's COR is
in the public interest.
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Det. Boyd testified that a firearm was seized from the Respondent's
residence during the search. Tr. 96. According to Boyd, although the
firearm was registered and there was no illegality that stemmed from
the weapon's discovery at the Freesemann residence, it is standard
police procedure to seize identified firearms during searches related
to narcotics. Id.
After personally observing the police witnesses testimony and
demeanor, I find the testimony of each of these witnesses to be
sufficiently plausible, detailed, internally consistent, and externally
consistent with other witnesses, evidence and each other, to be deemed
credible.\42\
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\42\ While some minor inconsistencies are noticed between Det.
Hale's testimony and other witness testimony or documentary
evidence, such as whether the standing safe inside the Freesemann's
bedroom closet was unlocked or required him to obtain the
combination from the Freesemanns, Tr. 242-43, 274, or whether the
gun was registered to the Respondent or his late father, the nature
of these inconsistencies are sufficiently tangential and
inconsequential that they do not materially affect the credibility
to be attached to the testimony.
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Although the Respondent noticed himself as a witness, the
Government
[[Page 60879]]
elected to call him to testify as part of its case-in-chief. Tr. 244.
The Respondent testified that he has been a physician for the last
seventeen years and is presently licensed in California. Tr. 246-47.
The Respondent described his rural roots, and how, after an initial,
unsuccessful college experience, and following stints working as an
oil-field roustabout and an apprentice electrician,\43\ he returned to
academia, completed his undergraduate degree at the University of
California at Berkely, graduated from Georgetown Medical School, and
completed his internship and residency at the Oregon Health Sciences
University. Tr. 246, 282-84.
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\43\ The Respondent testified that he attained journeyman
electrician status before returning to college. Tr. 284.
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According to the Respondent, in 1996 (the same year he was admitted
to practice medicine in California) he was hired by a Bakersfield
physician. Tr. 248. The Respondent explained that he and several other
doctors entered a joint venture to purchase his employer's practice,
where he was engaged in the practice of internal medicine until the
time of his current difficulties. Tr. 248, 252, 256. He described
himself as having been ``a high profile physician in [his] community of
Bakersfield,'' having held the position of hospital chief of staff
until the adverse press generated by his legal difficulties made the
continuation of his medical practice untenable and resulted in the sale
of his portion of his practice back to his partners. Tr. 257. He
testified that he has never been sued for medical malpractice and prior
to the transgressions that are the subject of these proceedings, he had
never been subject to disciplinary action by the Medical Board. Tr.
282-83.
The Respondent also described a high level of prestigious activity
and achievements that he attained in the medical profession, including
appointments as a local delegate to the California Medical Association
for ten years, board member and former president of his county medical
association, and board member at San Joaquin Hospital, as well as
appointments demonstrating increasing levels of responsibility at Mercy
Hospital, to include service on the credentialing board, medicine
chairman, vice chief of staff, and ultimately chief of staff. Tr. 288-
89.
The Respondent's testimony presented an interesting window into the
extent of his perceived need for the COR that is the subject of these
proceedings. The Respondent explained that the primary focus of his
internal medicine practice was elder care, and although he has
maintained a COR to prescribe (not dispense) controlled substances, he
actually prescribes controlled substances to his patients on a
``[v]ery, very low'' basis. Tr. 251. In a bizarre exchange, the
Respondent, a physician with seventeen years of internal medicine
practice and former hospital chief of staff, revealed that he believed
that he needed a DEA controlled substance COR to prescribe all
medications, not just scheduled controlled substances.\44\ Tr. 249-52.
The Respondent indicated that it his (incorrect) ``understanding [that]
you need a [COR] even to prescribe antihypertensive medications or
cholesterol or diabetes medications.'' Tr. 250.
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\44\ The Respondent also indicated that he believed that he
needed to maintain his COR for other reasons, such as being able to
prescribe some controlled substances on a brief basis, and because
some potential employers have an interest in minimizing referrals to
specialists. Tr. 255.
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The Respondent denied ever doing illegal drugs at any point in his
life through high school to the present day.\45\ Tr. 284-85, 289.\46\
According to his testimony, between building a practice and raising
young children, the ten years following his arrival in California were
busy ones for him and his wife. Tr. 286-88. The Respondent testified
that the reintroduction of a former high-school friend of his wife into
her life was the catalyst for powerful life changes for the
Freesemanns. Tr. 289-91. He testified that Mrs. Freesemann's new-old
friend began inviting the couple out to Los Angeles for nights of
dancing, dinner, and shows. Tr. 289. Overnight trips to the city
followed, as did, at least by the Respondent's estimation, a variety of
relationship rekindling. Tr. 291, 294. Coincidentally at this time, the
Respondent was more available to spend time with his wife, including
time in Los Angeles for overnight trips away from the children, whereas
during the preceding decade the Respondent worked too frequently and
Mrs. Freesemann was so busy taking care of their children that the
Freesemanns ``didn't have much of a relationship.'' Tr. 289-91. During
this period in which the Respondent testified that ``[he] found that
[they] were getting closer as a couple during that time [like when
they] first started dating,'' Tr. 291, the Respondent testified that he
and Mrs. Freesemann began meeting more people through successive chain
introductions, much like a ``Brownian Motion,'' \47\ until they had a
regular group in which to socialize, Tr. 289-92.
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\45\ Some conflicting evidence in this regard was produced
through the testimony of Det. Boyd when the Government recalled him
as a witness. Det. Boyd had previously elicited a statement from
Michelle Hori to the effect that she observed the use of ecstasy
sometime in 2005. Tr. 360. Boyd testified that Hori had related this
information about the Respondent during a conversation with him
after receiving Miranda warnings and that although the results of
the interview may have been contained in a report, no statement
signed by Ms. Hori was ever prepared. Tr. 146, 361. Even if it were
conceded, arguendo, that Ms. Hori provided this information to Det.
Boyd, the vague nature of the statement, the relative remoteness in
time of the alleged drug use, and the broad time spam alleged
(sometime in 2005), coupled with the inability to cross examine Ms.
Hori, sufficiently undermine this evidence below a point where it
can be, should be, and is useful for any fact relevant to these
proceedings. Accordingly, this evidence has been afforded no weight
in this recommended decision.
\46\ The Respondent also testified that as a condition of his
probation imposed by the Medical Board, he is drug tested a minimum
of four times per month. Tr. 314.
\47\ The Respondent explained a Brownian Motion to be ``the
random movement of molecules that's spread out in gas, that causes
all the other molecules around it to interact.'' Tr. 292.
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By the Respondent's account, it was during this period of dancing,
clubbing, and reconnecting that Galvan entered the picture. Tr. 258-59,
295. Apparently the favor of an introduction to Galvan was effected in
December of 2007 by another physician's wife, who introduced him as a
club promoter at ``The Replay'' in Bakersfield who could provide VIP
table access and bottle service, as well as parking. Tr. 258. Galvan
was someone with whom the Respondent admitted to moderate, intermittent
contact,\48\ but who would periodically visit at his home with Mrs.
Freeemann while the Respondent was elsewhere. Tr. 297-99.
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\48\ The Respondent admitted to approximately fourteen social
interactions with Galvan at clubs or in the Freesemann home over a
nine-month period. Tr. 297.
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The Respondent further testified regarding his wife's behavior and
the likelihood she was abusing illicit controlled substances during the
period of their shared social boom. The Respondent admitted being
suspicious that Mrs. Freesemann was using drugs, in particular because
of her behavioral changes. Tr. 293-94. For instance, the Respondent
noted ``infrequent episodes'' where people would go to the bathroom,
including his wife, and they would come back more excited, their pupils
would be more dilated which he could discern despite the low light
level, or exhibited other suspicious behaviors. Id. The Respondent
suspected enough of his wife to confront her on multiple occasions
about illicit drug use, but he testified that she would either deny it
or claim it was a ``one-time thing.'' Tr. 276-77. However, the
Respondent also testified that his wife's drug use caused certain
changes in her
[[Page 60880]]
that he found more ``attractive,'' such as how she was more prone to
stay up late and match his high energy level despite her former routine
9 p.m. bedtime, and she had more enthusiasm.\49\ Tr. 294.
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\49\ The Respondent also testified that Mrs. Freesemann would be
``overly excited at times, overly sad at times, and overly hyper at
times,'' precipitating conversations over her suspected drug abuse.
Tr. 272.
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The Respondent testified that he loaned Galvan $1,000.00 in March
of 2008 (five months prior to the night he was detained by the police)
at the behest of Mrs. Freesemann. Tr. 303. It was the Respondent's
understanding that he was loaning Galvan money at that time because the
latter needed funds to pay his rent, and the Respondent expressed
surprise that the borrower actually returned the money several weeks
thereafter. Tr. 303-04, 327. The Respondent indicated that no interest
was paid by Galvan for the loaned money. Tr. 327.
The Respondent acknowledged that he provided Galvan with another
$1,000.00 on August 26, 2008 at Valley Gun. Tr. 260. However, (unlike
the previous money which he understood to be a loan) he testified that
he had no idea why Galvan was the beneficiary of this largess. Tr. 261,
323. Although the Respondent maintained that he accepted his spouse's
tasking to present Galvan (whom he alternately described as ``a surly-
looking guy,'' a ``scary-looking character, and a ``shady character'')
\50\ with $1,000.00 at a prearranged location away from his office
without so much as asking her why he was doing it or for what purpose
the money was being tendered, he conceded that at the time, he ``had
[his] suspicions.'' Tr. 262, 324. When pressed about the nature of his
``suspicions,'' the Respondent stated that he ``suspected that, given
[Galvan's] appearance, given [his] wife's behavior, given other things,
that possibly there could be controlled substances involved.'' Tr. 271.
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\50\ Tr. 261-62, 264-65.
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The Respondent's dual acknowledgements that he believed that his
wife was likely abusing controlled substances and that Galvan was an
unsavory character render his position that he assumed that he was
presenting Galvan with a rent-money loan on the day that the
Freesemanns were headed on vacation singularly implausible. Factoring
in the Respondent's impressive educational pedigree and his impressive
professional accomplishments and qualifications, his assertion that
``[a]ll I can claim is to be the stupidest doctor at the time'' \51\ is
unpersuasive.
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\51\ Tr. 332.
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The reasons for which Valley Gun was chosen as a meeting location,
according to the Respondent's testimony, despite its walkability across
the street from the Respondent's practice, was because Galvan looked
``surly * * * [with a] shaved head [and] tended to dress a little bit
more game-looking [and] had big arms with tattoos[,] [so] he's kind of
a scary-looking character [so the Respondent] didn't want him walking
in the front office of [his] very conservative regular medical
practice;'' Galvan and the Respondent met at Valley Gun the last time
the Respondent gave him cash; and lastly because it was close. Tr. 263-
64. The Respondent also testified that they chose to meet at Valley Gun
rather than at the bookstore, where he drove to afterwards, because
driving to the bookstore was an impromptu afterthought following his
conversation setting up a meeting with Galvan. Tr. 335. If the
Respondent was, as he claims, gullibly providing money to a friend of
his wife for unknown, but presumably benign reasons, and was intending
to shop at a bookstore, it would be more likely that their meeting, if
it could not take place at the Respondent's office, would be at the
bookstore. The meeting at nearby gun shop with both men (neither of
whom had business to conduct at Valley Gun) arriving and departing
within minutes of each other, but not together, possesses a clandestine
quality that undermines the Respondent's assertion that the encounter
and transaction was designed (by the Respondent) for a legitimate
purpose.
Consistent with the conversations overheard by the police on the
cell phone tap, the Respondent testified that on the day he was
detained by police, he and Mrs. Freesemann were headed out of town in
their rented motor home to the Burning Man Festival in Nevada, a
twelve-hour drive. Tr. 305-06. He testified that the Burning Man
Festival is an art festival that occurs annually in a desert near Reno,
Nevada that attracts crowds of 45,000 people who make camp. Tr. 299.
The Respondent represented that sharing and trading is a significant
feature of the festival, and that he intended to make and share
grilled-cheese sandwiches there. Tr. 300. He testified that he took a
loaded firearm with him in case he encountered snakes. Tr. 310, 341-43.
Suffice it to say that the Respondent's account of why he brought a
loaded handgun to the 45,000-person strong Burning Man Festival is not
among the more plausible aspects of his testimony. Regarding the
illegal drugs found in the motor home, the Respondent testified that he
had no actual knowledge of anything illegal in vehicle. Tr. 272.
However, he also testified that he should have known there were
controlled substances on board, and that any reasonable person would
have known, in light of Galvan's appearance earlier in the evening,
that there were drugs in the motor home. Tr. 337.
The Respondent similarly denied any knowledge of the illicit
substances found in the closet of his bedroom. Tr. 273. While the drugs
were found in a black Pelican case similar to valises owned by the
Respondent, the case which contained the drugs was located within a
home safe that is always locked, the combination for which was known
only to Mrs. Freesemann (although the Respondent testified that he knew
where in the house to find the combination code). Tr. 273-74.
The Respondent testified that he accepted the plea bargain offered
by the prosecution in his criminal case to spare his wife the
experience of incarceration and to ensure that she could remain at home
to mind their children. Tr. 311. He imputed political motives to the
criminal prosecutor. Tr. 336. He likewise assigned the responsibility
for the decision to accept the plea bargain and enter the plea to
advice he received from his criminal defense attorney. Tr. 338. The
Respondent stated that he entered the no-contest plea to attain the
benefit of the plea bargain. Tr. 338.
The Respondent also took pains during his testimony to point out
that after conducting its own evaluation, the probation authorities
established that he was not a drug-treatment candidate and determined
that substance-abuse classes were not needed. Tr. 312. He further
stated that the drug testing mandated by the Medical Board has been
conducted thus far without adverse incident. Tr. 312, 314.
During his testimony, the Respondent acknowledged that he and his
wife have discussed the night they were taken into custody and the
events that led up to that unfortunate event. Tr. 328. The Respondent
indicated that his wife has since informed him that the $1,000.00 that
he provided to Galvan at noon on the date in question was for the
purpose of purchasing mushrooms (psilocybin). Tr. 328-29, 345.
Illogically, he also testified that when Galvan appeared at his motor
home and residence on the evening of the day he was paid, he did so
without delivering any mushrooms, and was warmly received by himself
and Mrs. Freesemann. Tr. 329.
The Respondent presented both documentary and testimonial evidence
on his own behalf. Included in his
[[Page 60881]]
documentary presentation, the Respondent introduced a certified letter
of standing dated February 17, 2010 regarding his California medical
license. Resp't Ex. 2. The letter of standing unhelpfully declares that
the Respondent's state medical license is current and no disciplinary
action has been taken against it. Id. However, this obviously dated
information is squarely contradicted by the decision of the California
Medical Board, effective November 19, 2010, revoking the Respondent's
license, staying the revocation, and placing the Respondent on
probation for seven years under certain specified terms and conditions.
Gov't Ex. 15 at 6; Gov't Ex. 16; Resp't Ex. 25 at 1, 7.
The Respondent provided numerous letters of support, the
overwhelming majority of which were obviously prepared for and tendered
to the prosecutor in the state criminal matter in an effort to inspire
leniency on the Respondent's behalf regarding the disposition of that
case. Resp't Exs. 4-24; Tr. 344-45.\52\ One letter, written by Tony M.
Deeths, M.D., attests to the Respondent's professional success, high
caliber of medical skill, intelligence, and contribution to the
community during the twelve years Dr. Deeths has known the Respondent.
Resp't Ex. 4. Dr. Deeths opines that the community would suffer if
deprived of the Respondent's ability to continue to practice medicine.
Id