Stephen E. Owusu, D.P.M.; Decision and Order, 3343-3352 [2022-01108]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3343-3352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01108]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 21-5]


Stephen E. Owusu, D.P.M.; Decision and Order

    On October 22, 2020, a former Assistant Administrator, Diversion 
Control Division, of the Drug Enforcement Administration (hereinafter, 
DEA or Government), issued an Order to Show Cause (hereinafter, OSC) to 
Stephen E. Owusu, D.P.M. (hereinafter, Respondent) of Brooklyn, New 
York. Administrative Law Judge Exhibit (hereinafter, ALJX) 1 (OSC), at 
1. The OSC proposed the denial of Respondent's application for DEA 
Certificate of Registration No. W19061136C (hereinafter, COR or 
registration) and the denial of any applications for any other DEA 
registrations pursuant to 21 U.S.C. 824(a)(2) and 824(a)(5) because 
Respondent was convicted of a felony related to controlled substances 
and because Respondent has been excluded from participation in 
Medicare, Medicaid, and all federal health care programs pursuant to 42 
U.S.C. 1320a-7(a). Id.
    On November 23, 2020, the Respondent timely requested a hearing, 
which commenced (and ended) on February 17, 2021, at the DEA Hearing 
Facility in Arlington, Virginia with the parties, counsel, and 
witnesses participating via video teleconference (VTC). On April 9, 
2021, Administrative Law Judge Teresa A. Wallbaum (hereinafter, the 
ALJ) issued her Recommended Rulings, Findings of Fact, Conclusions of 
Law, and Decision of the Administrative Law Judge (hereinafter, 
Recommended Decision or RD). By letter dated May 4, 2021, the ALJ 
certified and transmitted the record to me for final Agency action. In 
the letter, the ALJ advised that neither party filed exceptions. Having 
reviewed the entire record, I adopt the ALJ's rulings, findings of 
fact, as modified, conclusions of law and recommended sanction with 
minor modifications, where noted herein.*\A\
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    *\A\ I have made minor modifications to the RD. I have 
substituted initials or titles for the names of witnesses and 
patients to protect their privacy and I have made minor, 
nonsubstantive, grammatical changes and nonsubstantive, conforming 
edits. Where I have made substantive changes, omitted language for 
brevity or relevance, or where I have added to or modified the ALJ's 
opinion, I have noted the edits with an asterisk, and I have 
included specific descriptions of the modifications in brackets 
following the asterisk or in footnotes marked with a letter and an 
asterisk. Within those brackets and footnotes, the use of the 
personal pronoun ``I'' refers to myself--the Administrator.
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Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

Teresa A. Wallbaum; Administrative Law Judge

April 9, 2021
    *\B\ Respondent proceeded pro se throughout the entire case.\1\ 
Respondent timely filed a Request for Hearing. A Prehearing Conference 
was conducted on January 12, 2021, via VTC. \2\A hearing on the merits 
of the OSC allegations was conducted on February 17, 2021, via VTC at 
the DEA Hearing Facility in Arlington, Virginia. The Government filed a 
Post-Hearing Brief on March 26, 2021.
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    *\B\ I have omitted a section of the RD's discussion of the 
procedural history to avoid repetition with my introduction.
    \1\ Respondent was advised during the Prehearing Conference 
that, under 21 CFR 1316.50, he had the right to seek representation 
by a qualified attorney at his own expense. Respondent was also 
advised that, if he continued to represent himself, he would be held 
to the same standards and procedural requirements of an attorney, 
including adherence to the procedural orders and rulings of this 
tribunal and to the procedural rules set forth in 21 CFR 1316.41-
1316.68. ALJ Ex. 13 at 2, n.3. During the merits hearing, Respondent 
acknowledged that he had been so advised and confirmed that he 
wanted to proceed pro se. Tr. 7-8.
    \2\ Respondent failed to submit a Prehearing Statement by the 
December 29, 2020, deadline set out in this tribunal's Order for 
Prehearing Statements. ALJ Ex. 3. The tribunal then issued an Order 
Directing Compliance, which gave Respondent until January 4, 2021, 
to show good cause as to why he did not comply with the Order for 
Prehearing Statements. ALJ Ex. 7. Respondent then filed a Prehearing 
Statement on January 4, 2021, but did not offer any attempt to show 
good cause for his late filing. ALJ Ex. 8. The tribunal issued a 
Second Order Directing Compliance on January 4, 2021, requiring 
Respondent to show good cause. ALJ Ex. 9. Respondent then filed a 
document styled ``Requisite Good Cause for Late Filing,'' in which 
he purported to show good cause. ALJ Ex. 10. Thereafter, the 
tribunal issued an Order Regarding Respondent's Late Filed 
Prehearing Statement, which set out several of Respondent's failures 
to comply with the Order for Prehearing Statements, including late 
filings and at least two failures to serve pleadings on opposing 
counsel. ALJ Ex. 11. The Order also directed Respondent to file a 
Prehearing Statement in compliance with the Order for Prehearing 
Statements by January 11, 2021. Id. Respondent finally did file a 
compliant Prehearing Statement on January 10, 2021. ALJ Ex. 12.
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    The issue to be ultimately decided by the Acting Administrator, 
with the assistance of this Recommended Decision, is whether 
Respondent's application should be denied based

[[Page 3344]]

upon his felony conviction related to controlled substances and/or his 
exclusion from participation in a federal health care program pursuant 
to 42 U.S.C. 1320a-7(a).
    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 
of law below.\3\
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    \3\ After conducting the merits hearing in this case, the 
tribunal mailed a hard copy of the transcript of the hearing to both 
parties. Despite two separate delivery attempts, the hard copy could 
not be delivered to Respondent's address. Chambers reached out to 
Respondent to confirm his address, but delivery was never 
effectuated. Respondent was, however, provided with an electronic 
version of the transcript and had an opportunity to submit 
corrections to the transcript.
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I. Findings of Fact

A. Allegations

    The Government alleges that the denial of Respondent's application 
is supported by incontrovertible record evidence that he has been both 
convicted of a felony related to controlled substances and excluded 
from participation in a federal health care program. ALJ Ex. 1. The 
Government further alleges that judgment was entered against Respondent 
in the United States District Court for the Eastern District of New 
York after pleading guilty to one count of Conspiracy to Distribute 
Oxycodone, a Class C Felony, in violation of 21 U.S.C. 841(a), 
(b)(1)(C), and 846.\4\ The Government also alleges that the U.S. 
Department of Health and Human Services, Office of Inspector General 
(HHS/OIG) mandatorily excluded Respondent from participation in 
Medicare, Medicaid, and all federal health care programs pursuant to 42 
U.S.C. 1320a-7(a).\5\ According to the Government, this exclusion was 
effective as of October 19, 2017, and runs for a period of five 
years.\6\ ALJ Ex. 1.
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    \4\ United States v. Stephen Owusu, No. 2:11-CR-0709-001 (LDW) 
(E.D.N.Y. June 13, 2017).
    \5\ Respondent has stipulated to the factual basis underlying 
this allegation. See Stip. 5.
    \6\ Respondent has stipulated to the factual basis underlying 
this allegation. See Stip. 5.
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B. Stipulations

    The following stipulations were mutually agreed upon by the parties 
and are conclusively accepted as fact in these proceedings:

    1. On or about June 12, 2019, Respondent filed with the DEA an 
application for registration as a practitioner in Schedules II 
through V pursuant to DEA control number W19061136C, with a proposed 
registered address of 106 Pennsylvania Ave., Suite 1, Brooklyn, NY 
11207-2427.
    2. On or about July 19, 2011, Respondent surrendered for cause 
his previous DEA registration, No. BO3613331.
    3. On June 13, 2017, Judgment was entered against Respondent in 
the United States District Court for the Eastern District of New 
York after Respondent pleaded guilty to one count of ``Conspiracy to 
Distribute Oxycodone, a Class C Felony,'' in violation of 21 U.S.C. 
841(a), (b)(1)(C), and 846. United States v. Stephen Owusu, No. 
2:11-CR-0709-001 (LDW) (E.D.N.Y. June 13, 2017).
    4. Based on Respondent's conviction, the New York State Office 
of the Medicaid Inspector General excluded Respondent from 
participation in the New York Medicaid program. The exclusion was 
effective August 30, 2017.
    5. Based on Respondent's conviction, the U.S. Department of 
Health and Human Services, Office of Inspector General (HHS/OIG), 
mandatorily excluded Respondent from participation in Medicare, 
Medicaid, and all federal health care programs pursuant to 42 U.S.C. 
1320a-7(a). The exclusion was effective on October 19, 2017, and 
runs for a period of five years.
    6. Reinstatement of eligibility to participate in Medicare, 
Medicaid, and all federal health care programs after exclusion by 
HHS/OIG is not automatic.
    7. Respondent is currently excluded from participation in 
Medicare, Medicaid, and all federal health care programs.

C. Government's Case-in-Chief

    The Government's case-in-chief consisted of the testimony of a 
single witness, a DEA Diversion Group Supervisor (hereinafter, the GS). 
The GS testified that her duty station is the New York Field Division, 
located in New York City, where she has served in her capacity as a 
group supervisor for approximately one year. Tr. 21-22. Before the GS 
was promoted to group supervisor, she worked as a Diversion 
Investigator for approximately 24 Years. Tr. 22. In her position as a 
group supervisor, the GS is required to undergo periodic training as a 
part of her duties. Tr. 23. Further, she has been involved in over 200 
DEA investigations throughout her career. Id.
    Respondent came to the attention of the GS when she was assigned 
his application for DEA registration. Tr. 24. The GS also testified 
that she interviewed Respondent on two occasions. Id. Through the 
testimony of the GS, the Government laid the foundation for the 
introduction of multiple exhibits in support of its allegations.\7\
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    \7\ Specifically, the testimony from the GS laid the foundation 
for Government Exhibits 1, 4, 5, 6, 7, 8, and 9. Tr. 24-26, 28-29, 
31-33, 34-35, 36-39, 40-41, 42-43.
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    The parties agree, and the evidence demonstrates, that, on June 13, 
2017, Respondent pleaded guilty to one count of Conspiracy to 
Distribute Oxycodone, a Class C Felony, in violation of 21 U.S.C. 
841(a), (b)(1)(C), and 846. Gov. Ex. 5, 6.\8\ The Department of Health 
and Human Services, Office of Inspector General sent Respondent a 
letter, informing him that he had been excluded from Medicare, 
Medicaid, and all federal health care programs for a period beginning 
on October 19, 2017, and lasting a minimum of five years. Gov. Ex. 8; 
Tr. 40. The GS also testified that the New York State Office of the 
Medicaid Inspector General had sent Respondent a letter informing him 
that he had been excluded from the state's Medicaid program. Gov. Ex. 
7; Tr. 36-37.
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    \8\ Respondent also stipulated to this conviction. See Stip. 3, 
infra.
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    Respondent's exclusion from Medicare, Medicaid, and all federal 
health care programs, along with Respondent's conviction of Conspiracy 
to Distribute Oxycodone, are the bases of the Government's present case 
opposing Respondent's application for a new COR. The GS testified that, 
on February 16, 2021, she ran a new search on a web page of the U.S. 
Department of Health and Human Services, Office of Inspector General, 
and confirmed through that search that Respondent was still excluded 
from all federal health care programs. Tr. 43.
    The GS came across as an objective investigator, with no 
discernable motive to mislead, fabricate, or exaggerate. The testimony 
of this witness was primarily focused on the uncontroversial \9\ 
introduction of documentary evidence and her contact with this case, 
and was sufficiently detailed, plausible, and internally consistent to 
be afforded full credibility.
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    \9\ Respondent did not object to the admission of any exhibit 
offered by the Government. Tr. 26, 30, 33, 35, 39, 42, 43-44.
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D. Respondent's Case

    Respondent, proceeding pro se, presented his own testimony and 
offered four exhibits in support of his case. According to Respondent, 
he received a Bachelor's degree from the University of New York and 
thereafter studied genetic engineering in a Ph.D. program. Tr. 51. He 
departed that program with a Master's Degree and entered Temple 
University Medical School, where he studied Podiatric Medicine. Id. 
Respondent graduated from Temple University in 1992 and completed his 
residence at a Veterans' Affairs hospital in Brooklyn, New York. Tr. 
52. He obtained medical licenses in both New York and Pennsylvania and

[[Page 3345]]

began practicing medicine in New York in 1994. Tr. 53; 57.
    Respondent has worked both as a solo practitioner and a clinic 
physician, specializing in wound care at two different clinics. Tr. 54; 
57-59. In one of those clinics, Respondent served as the director, 
specializing in baric neuropathy, supervising three to four nurses and 
nurse practitioners, and seeing 50 patients a day. Tr. 54-56. For 
nearly ten years, starting in 1998, he also worked in a dialysis clinic 
specializing in treating patients in ``end-stage renal dialysis'' who 
suffered lower extremity problems. Tr. 61-63.
    Respondent testified that, prior to 2011, he never had any 
disciplinary problems in either New York or Pennsylvania and had no 
arrests or convictions. Tr. 60; 64; 87.
    Respondent admitted that he pleaded guilty to one count of 
Conspiracy to Distribute Oxycodone on June 13, 2017, in violation of 21 
U.S.C. 841(a), (b)(1)(C), and 846. Stip. 3; United States v. Stephen 
Owusu, No. 2:11-CR-0709-001 (LDW) (E.D.N.Y. June 13, 2017). But 
Respondent's description of the events behind that conviction evolved 
over the course of these proceedings. In his second Prehearing 
Statement,\10\ Respondent referenced ``2 falsified prescriptions in 
[his] name to which [he] was called to cooperate with the police for 
prosecution [and] lost prescription pads that a pharmacist attested to 
but which [his] lawyers would not allow court trial.'' ALJ Ex. 12 at 3; 
see also Tr. 131-32 (affirming statement as accurate). In his 
Supplemental Prehearing Statement, Respondent stated that he ``never 
conspired to sell or distribute oxycodone and [he] will never conspire 
to sell or distribute oxycodone or any controlled substance(s).'' ALJ 
Ex. 14 at 5.
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    \10\ Given Respondent's failure to summarize his testimony in 
his initial Prehearing Statement, this tribunal directed that he 
file a revised Prehearing Statement, which he did on January 10, 
2021. ALJ Ex. 12.
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    During the hearing, Respondent testified that he had prescribed 
oxycodone for one patient (who had been referred to him by another, 
trusted patient) on the patient's third visit. Tr. 67-70. Specifically, 
he prescribed the oxycodone because the patient had brought oxycodone 
in with him, told the Respondent he had taken it from his brother, and 
it was the only medication that reduced his pain. Tr. 69-70. Respondent 
refilled the oxycodone prescription approximately once a month or once 
every two months for two years. Tr. 74. The same patient brought in a 
couple of friends on the same construction site where he worked and 
Respondent likewise prescribed those patients oxycodone. Tr. 75. 
Respondent explained that he prescribed oxycodone because he was ``very 
na[iuml]ve'' and sometimes ``too helpful'' or ``too kind.'' Tr. 64 and 
76.
    He also testified that two prescription pads were lost from his 
office and ``a lot of guys'' had come to the pharmacy and written 
prescriptions from his pad. Tr. 76. According to Respondent, someone 
from the pharmacy would have testified for him. Tr. 76; Tr. 108. 
Respondent's lawyers, however, declined to investigate his defense and 
DEA produced only 20 of the 200 it alleged were illegal. Tr. 108-109; 
see also Tr. 126 (he stated that DEA never showed him the other 180 
prescriptions).
    On cross-examination, Respondent admitted that, on one occasion, he 
delivered multiple oxycodone prescriptions to a patient in a parking 
lot at 8:30 p.m. or 9:00 p.m. Tr. 113-115. He did so ``from the 
kindness of [his] heart'' because the patient was taking his son to a 
football practice or game and could not make it to the medical office 
in time. Tr. 109-110. At the time, Respondent did not realize it was a 
``setup,'' and that it was ``staged.'' Id.; see also Tr. 113 (``I would 
call it staged. Why? Because I had no idea what was going on.''). The 
patient was, in fact, an informant or, as Respondent testified: ``the 
very person who they accused [Respondent] [of] conspiring to distribute 
oxycodone with was somebody . . . [Respondent] didn't know was already 
a criminal [and] who had already been incriminated. And then the Court 
used him . . . as an informant, sent him to [Respondent], [he] asked 
[Respondent] for the medication, and this is how it began.'' Tr. 65 
(cleaned up).
    Respondent insisted that he charged the patient $70, even though 
the patient paid him $300 for the prescriptions, and testified that 
``why [the patient] gave [him] $300, [he doesn't] know.'' Tr. 115. When 
interviewed by DEA agents, he admitted that he made approximately 
$30,000 over the course of two years for these patients. Tr. 111-112. 
He viewed the cash payment in the parking lot as ``almost like a 
technicality'' because the patient would have paid him the same amount 
had he come into the office. Tr. 126.
    When asked whether he had examined his patients before prescribing, 
Respondent provided an evasive answer:

    Q: Dr. Owusu, isn't it true that you issued multiple 
prescriptions for oxycodone without examining the patients?
    A: I examined them, Your Honor. Counsellor, I examined them.
    Q: All of them?
    A: Well, the--the initial--the initial patients, all of them 
were examined.

Tr. 117.

    Respondent emphasized that he was hesitant to explain his prior 
convictions because he did not ``want it to be misconstrued as a lack 
of penitence and a lack of repentance.'' Tr. 50; see also Tr. 133. 
Ultimately, however, Respondent testified repeatedly that--despite his 
guilty plea--he did not, in fact, conspire to distribute oxycodone. 
See, e.g., Tr. 64 (``I was not a co-conspirator, and I did not conspire 
at all.''); id. (``this so-called conspiracy case''); Tr. 65. (``the 
record will show I never had--never was involved in any--any infraction 
of the law. Never, never.''); Tr. 66 (``I was never, myself, never, and 
I would say--I would say until my dying day, never conspired to 
distribute drugs. Never. And I never will, Your Honor.''); Tr. 78 
(attorney believed he was innocent); Tr. 80 (``But all those 
conspiratorial charges that they added on, no.''); Tr. 116 (``I was 
innocent, okay?''); Tr. 125 (affirming statement made in his Prehearing 
Statement that he had accepted responsibility ``despite the fact I 
never conspired to sell or distribute oxycodone''); Tr. 134 (at plea 
hearing, under oath, he admitted that he had pleaded guilty even though 
many of his statements were ``not only just not true . . . I just 
didn't feel like a lot of them were right.'').
    Rather, Respondent claimed that he was forced, and indeed tricked, 
into pleading guilty by his lawyers. See, e.g., Tr. 78 (``I thought I 
was going for [the lawyer] to take me to a DEA office. I went to him 
that day with the understanding that we were going to the DEA office to 
help me get my DEA license back. And I went to the courtroom, and that 
was the day he made me plead guilty.''); Tr. 79-80 (``I had to say yes 
because my lawyer told me to just say yes--yes, yes, and I . . . went 
all along like that''); Tr. 76 (attorney forced him to plead guilty 
because he feared a racially unjust trial); Tr. 116 (attorney forced 
him to plead guilty because of ``the circumstances, the location of the 
Court, the selection of the jury''). At one point, however, Respondent 
also acknowledged that his attorney told him to plead guilty because of 
the incriminating video recording. Tr. 112.
    Respondent admitted that he was guilty, but just for the ``two 
prescriptions I wrote . . . . [T]hat's what . . . my guilt is about.'' 
Tr. 80. He acknowledged that he had appeared

[[Page 3346]]

before a federal district court judge for his plea hearing, signed his 
plea agreement, pleaded guilty under oath, was sentenced based on the 
facts he admitted, and told the district court judge that his guilty 
plea was voluntary. Tr. 130-134. Respondent was sentenced to three 
years' probation (Tr. 81), which he completed early without any 
infractions (Tr. 97-98; Resp't Ex. 3).
    Indeed, Respondent often cast himself as the victim--repeatedly 
stating that he ``suffered'' because of the conviction. For example, 
after recounting the facts behind his conviction, Respondent stated: 
``They were the things I have suffered in the past, okay? Some of the 
things I look back on, and I--I've suffered for the last ten years 
because.'' Tr. 132; see also Tr. 161 (``I have suffered a lot, and I 
have learned a lot.''). In other instances, Respondent described 
himself as a victim (Tr. 64) who had been ``punished enough'' (Tr. 
105). Indeed, Respondent's primary argument for obtaining his 
registration was ``it's been enough time for punishment. It's been 
enough time that I have . . . paid the penalty.'' Tr. 163. [Respondent 
also stated, ``So, I am trustworthy. I've never been in a situation 
where my credibility ever, ever was in question until this situation . 
. . . I can promise you, I can, you know, that definitely I have learnt 
my lesson and very, very, well. And this will never again be repeated, 
never. Tr. 106]
    According to Respondent, he has not earned his living from the 
practice of medicine since his arrest, since it is impossible to 
practice without a DEA registration. Tr. 61; Tr. 82-83. He admitted, 
however, that it was possible to practice without a DEA registration, 
although such practice would be limited. Tr. 119-121.
    As for remedial measures, Respondent testified that he had taken 
four classes regarding opioid addiction--one in September 2011, one in 
2019, one in July 2020, and one in February 2021. Tr. 83-86.\11\ Three 
of those classes were mandated by the New York licensing board; the 
2019 training was a day of specialized training at a general medical 
conference. Tr. 84-85. Respondent still has a current medical license 
in New York, valid until September 30, 2023. Tr. 86-91; Resp't Ex. 1.
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    \11\ In his revised Prehearing Statement, Respondent described 
his training as: ``One whole day OPIOID CRISIS class I attended 
around Fall 2011; several other continuing medical educational 
SEMINARS attended in the years; A requisite pre-certifying OPIOID 
crisis, addiction and treatment course for all NY State 
Practitioners taken in 2018.'' ALJ Ex. 12 at 4. Although there is 
some discrepancy between this description and Respondent's testimony 
at trial, I do not question that Respondent has taken multiple 
courses over the years, especially as many of those courses were 
mandatory for his continued licensure.
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    Finally, Respondent submitted a letter from Dr. B.-A. (doctor of 
Public Administration) regarding Respondent's current work at his 
clinic supporting his character. Resp't Ex. 2; Tr. 96; 123.\12\
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    \12\ This tribunal sustained the Government's objection 
regarding Respondent's Exhibit 4, which was a ``Certificate of 
Relief from Disabilities'' from the New York Department of 
Corrections and Supervision. Tr. 104. That document was excluded for 
two reasons. First, this tribunal could not ascertain its 
authenticity given numerous inconsistencies, including a docket 
number that did not match the docket number on Respondent's federal 
conviction. Tr. 99-104. Second, it was not relevant because it did 
not specifically relate to Respondent's medical license. Tr.100. [I 
agree with the ALJ and find that this document is not legally 
relevant to the current matter.]
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    As noted in more detail in the Analysis section, infra, 
Respondent's testimony did not present as credible on the key issue of 
his culpability because he contradicted his representations under oath 
in the federal prosecution, his description of events was not 
plausible, and he minimized his own responsibility.

E. Government's Rebuttal Case

    The Government offered one rebuttal witness--a Special Agent of the 
Drug Enforcement Administration (hereinafter, the SA). The SA testified 
that he is assigned to the Long Island District Office in Central 
Islip, New York. Tr. 138. The Special Agent also testified that he has 
been a Special Agent with DEA since 1996, and that his job duties 
include conducting investigations, some of which are undercover. Tr. 
139. In approximately 2011, The Special Agent became familiar with 
Respondent during an investigation involving oxycodone distribution. 
Tr. 139-140. During that investigation, Respondent was identified and 
arrested. Tr. 140.
    An individual named B. C.--a patient of Dr. Owusu's--cooperated 
with the Government in this 2011 investigation. Id. B.C. specifically 
provided the SA and other agents at DEA with information regarding his 
illegal purchase of prescription narcotics from Respondent. Id. At the 
direction of DEA, B.C. met with Respondent while wearing a concealed 
video recording device. Tr. 140-141. The SA, along with several other 
DEA agents, observed the meeting between Respondent and B.C. Tr. 142. 
The SA also later retrieved the video recording device from B.C. and 
observed the video recording of the meeting. Tr. 143. Respondent and 
B.C. met in the Mercy Hospital parking lot in Rockville Center, New 
York. Tr. 141. During the meeting, B.C. purchased prescriptions for 
narcotics from Respondent. Id. Initially, when asked how many 
prescriptions B.C. had purchased during the meeting, the SA testified 
that he did not remember. Id.
    The SA, relying upon a post-arrest report, testified that 
Respondent had issued numerous prescriptions during the recorded 
transaction with B.C., but that the report did not specify how 
many.\13\ Tr. 147-48. The SA also testified that Respondent had 
admitted that he had met several times with B.C. over a several-year 
period, and that he had sold B.C. oxycodone pills for $300 cash per 
prescription. Tr. 144-45. The SA testified that, after being read his 
Miranda warning in the SA's presence, Respondent stated that he had 
made approximately $40,000 from selling illegal prescriptions to B.C. 
Tr. 145, 153.
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    \13\ This post-arrest report is also known as a DEA-6, which is 
a report of investigation. Tr. 143. The SA testified that this 
specific DEA-6 was titled, ``Post Arrest Statements of Dr. Stephen 
Owusu on July 19, 2011, at 175 Pine Lawn Road, Melville, New York.'' 
Id. At the time the report was made, this was the address of the 
Long Island DEA office. Id.
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    The SA testified that, after his arrest, Respondent stated that he 
did conduct a physical examination of B.C. before selling the 
prescription narcotics, but that, once confronted with the video of the 
transaction, Respondent admitted that was a lie--that, in fact, no 
examination was conducted--and apologized for lying. Id. The SA, when 
asked to summarize the content of the video, stated that he had not 
reviewed the video recently, but that he thought it showed B.C. getting 
into Respondent's vehicle for a short period of time, paying for the 
prescriptions for narcotics, and then exiting the vehicle. Tr. 146. 
Later, when asked about the video recording, The SA testified that he 
was mistaken, and then corrected himself and stated that, in fact, B.C. 
and Respondent stayed in their respective cars throughout the 
transaction, and that B.C. did not enter Respondent's vehicle. Tr. 154.
    On cross-examination, the SA testified that he recalled seeing the 
meeting between Respondent and B.C. Tr. 149. He also testified that he 
was not sure if he ever had to move his vehicle to get a better view of 
the transaction, and he could not remember if his view was obstructed 
at any time. Id. The SA did, however, recall that there were multiple 
DEA agents conducting surveillance in the area in order to observe the 
transaction, and he stated that he was in constant radio communication 
with those agents. Id. He also testified that at least one of

[[Page 3347]]

those agents would have had a good view of the transaction at any given 
time. Id. The SA also could not recall how much money B.C. had given 
Respondent during the transaction, but testified that any money B.C. 
had given Respondent would have been provided by DEA. Tr. 149-150. The 
SA further testified that the interrogation of Respondent took place in 
Melville, New York, where the Long Island DEA field office was located 
at the time. Tr. 151.
    The SA came across as an objective investigator, with no 
discernible motive to mislead, fabricate, or exaggerate. Though at 
times, the SA did struggle to remember certain details, he readily 
admitted what he did not remember, and when his recollection was 
refreshed, his testimony was sufficiently detailed, plausible, and 
internally consistent to be afforded full credibility.

II. Discussion

    The Government opposes Respondent's COR application under the dual 
bases that he has been convicted of a controlled-substance-related 
felony and that he has been excluded from participating in a specified 
federal health care program. ALJ Ex. 1.*\C\[In its OSC, the Government 
relies upon grounds Congress provided to support revocation/suspension, 
not denial of an application. Prior Agency decisions have addressed 
whether it is appropriate to consider a provision of 21 U.S.C. 824(a) 
when determining whether or not to grant a practitioner registration 
application. For over forty-five years, Agency decisions have concluded 
that it is. Robert Wayne Locklear, M.D., 86 FR at 33744-45 (collecting 
cases); see also, William Ralph Kincaid. In Robert Wayne Locklear, 
M.D., the former Acting Administrator stated his agreement with the 
results of these past decisions and reaffirmed that a provision of 
section 824 may be the basis for the denial of a practitioner 
registration application. 86 FR at 33745. He also clarified that 
allegations related to section 823 remain relevant to the adjudication 
of a practitioner registration application when a provision of section 
824 is involved. Id.
---------------------------------------------------------------------------

    *\C\ I have substituted the RD's language assessing the 
application of the revocation grounds to my assessment of an 
application under 21 U.S.C. 823(f) in accordance with recent 
decisions.
---------------------------------------------------------------------------

    Accordingly, when considering an application for a registration, I 
will consider any actionable allegations related to the grounds for 
denial of an application under 823 and will also consider any 
allegations that the applicant meets one of the five grounds for 
revocation or suspension of a registration under section 824. Id. See 
also Dinorah Drug Store, Inc., 61 FR 15972, 15973-74 (1996).

A. 21 U.S.C. 823(f): The Five Public Interest Factors

    Pursuant to section 303(f) of the CSA, ``[t]he Attorney General 
shall register practitioners . . . to dispense . . . controlled 
substances . . . if the applicant is authorized to dispense . . . 
controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Section 303(f) further provides that an 
application for a practitioner's registration may be denied upon a 
determination that ``the issuance of such registration . . . would be 
inconsistent with the public interest.'' Id. In making the public 
interest determination, the CSA requires consideration of the following 
factors:

    (1) The recommendation of the appropriate State licensing board 
or professional disciplinary authority.
    (2) The applicant's experience in dispensing, 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).

    In this case, it is undisputed that Respondent holds a valid state 
medical license and is authorized to dispense controlled substances in 
the State of New York where he practices.
    Because the Government has not alleged that Respondent's 
registration is inconsistent with the public interest under section 
823, and although I have considered 823, I will not analyze 
Respondent's application under the public interest factors. Therefore, 
in accordance with prior agency decisions, I will move to assess 
whether the Government has proven by substantial evidence that a ground 
for revocation exists under 21 U.S.C. 824(a).]
    Regarding the two revocation/suspension grounds the Government 
specifically relied on in this case, the CSA, in pertinent part, states 
the following:

    A registration pursuant to section 824 of this title to . . . 
dispense a controlled substance . . . may be suspended or revoked by 
the Attorney General upon a finding that the registrant:
    (2) has been convicted of a felony under this subchapter or 
subchapter II or any other law of the United States, or of any 
State, relating to any substance defined in this subchapter as a 
controlled substance . . . [or]
    (5) has been excluded (or directed to be excluded) from 
participation in a program pursuant to section 1320a-7(a) of Title 
42.

21 U.S.C. 824(a)(2) and (5). Each ground is herein addressed in 
seriatim.

B. Exclusion From Participation in a Federal Health Care Program

    The Government seeks denial of Respondent's COR application under 
21 U.S.C. 824(a)(5) because he has been excluded from participation in 
a federal health care program (Mandatory Medicare Exclusion or MME). 
[The Agency has] discretion to deny a respondent's application for a 
COR if Respondent ``has been excluded (or directed to be excluded) from 
participation in a program pursuant to [42 U.S.C. 1320a-7(a)].'' 21 
U.S.C. 824(a)(5) (2012). See supra II. Section 1320a-7 comprises the 
exclusion of individuals or entities by the Secretary of the U.S. 
Department of Health and Human Services (HHS) from participating in 
federal health care programs. 42 U.S.C. 1320a-7 (2012). A federal 
health care program is (1) a plan or program providing health benefits 
and which is funded in some way by the U.S. government; \14\ or (2) a 
state health care program or plan receiving certain approval or funding 
from the U.S. government.\15\ DEA decisions clearly establish that 
Medicare and Medicaid programs are among those federal health care 
programs in which exclusion from one of them can constitute a basis for 
denial of a COR application. See, e.g., Daniel Ortiz-Vargas, M.D., 69 
FR 62095, 62095-96 (2004); Joseph M. Piacentile, M.D., 62 FR 35527, 
35527-28 (1997); Anibal P. Herrera, M.D., 61 FR 65075, 65077 (1996); 
Suresh Gandotra, M.D., 58 FR 64781, 64782 (1993); George D. Osafo, 
M.D., 58 FR 37508, 37509 (1993).
---------------------------------------------------------------------------

    \14\ 42 U.S.C. 1320a-7b(f).
    \15\ 42 U.S.C. 1320a-7(h).
---------------------------------------------------------------------------

    Specifically, subsection (a) of Sec.  1320a-7, the part of the 
statute referenced by 21 U.S.C. 824(a)(5), dictates when HHS is 
required to exclude individuals or entities.\16\ Id. Sec.  1320a-7(a) 
(``The Secretary shall exclude the following individuals and entities 
from participation in any [f]ederal health care program . . . .'') 
(emphasis added). There are four instances requiring mandatory 
exclusion: (1) conviction of a criminal offense ``related to the 
delivery of an item or services under [42 U.S.C. 1395 et seq.] or under 
any [s]tate health care

[[Page 3348]]

program''; (2) conviction, ``under [f]ederal or [s]tate law,'' related 
to patient ``neglect or abuse'' connected ``with the delivery of a 
health care item or service[;] (3) [f]elony conviction related to 
health care fraud''; and ``(4) [f]elony conviction related to . . . the 
unlawful manufacture, distribution, prescription, or dispensing of a 
controlled substance.'' Id. The unambiguous words of the CSA in 21 
U.S.C. 824(a)(5) provide that a practitioner's registration ``may be 
suspended or revoked'' if the practitioner ``has been excluded'' from 
participating in a program pursuant to 42 U.S.C. 1320a-7(a). 21 U.S.C. 
824(a)(5). DEA has strictly interpreted this provision and acknowledged 
that the Administrator has discretionary power to suspend or revoke a 
registration only when the practitioner has been mandatorily excluded 
from a federal health care program under subsection (a) of 42 U.S.C. 
1320a-7. See, e.g., Terese, Inc., d/b/a Peach Orchard Drugs, 76 FR 
46843, 46847 (2011); Herrera, 61 FR at 65077; Gandotra, 58 FR at 64782; 
Nelson Ramirez-Gonzalez, M.D., 58 FR 52787, 52788 (1993). As specified 
by the CSA, the misconduct mandating exclusion does not need to relate 
to controlled substances in order to provide the Administrator with the 
power to suspend or revoke (or in this case deny an application for) a 
COR. Jeffrey Stein, M.D., 84 FR 46968, 46973 (2019); Ortiz-Vargas, 69 
FR at 62095-96; Melvin N. Seglin, M.D., 63 FR 70431, 70433 (1998); 
Osafo, 58 FR at 37509. [Omitted for brevity.]
---------------------------------------------------------------------------

    \16\ In contrast to subsection (a), subsection (b) of 42 U.S.C. 
1320a-7 provides sixteen discretionary grounds of exclusion from 
health care programs. 42 U.S.C. 1320a-7(b) (2012).
---------------------------------------------------------------------------

    When DEA alleges that a practitioner has been mandatorily excluded 
from a federal health care program under 42 U.S.C. 1320a-7a, and thus 
seeks to impose a COR sanction, the Government bears the burden to 
prove that such an exclusion occurred. Jin, 77 FR at 35023; see also, 
21 CFR 1301.44(d) (2018) (``At [a] hearing for the denial of a [COR], 
the [Government] shall have the burden of proving that the requirements 
for such registration . . . are not satisfied.''). However, even a 
mandatory exclusion does not curtail the authority of DEA to 
independently weigh the evidence presented and exercise discretion. 
Stein, 84 FR at 46970 [omitted parenthetical.] Accordingly, DEA is not 
required to deny Respondent's COR application merely because he is 
subject to a mandatory exclusion. Id.
    *\D\ In the instant case, it is undisputed that Respondent was 
excluded from participation in federal health care programs under the 
mandatory authority of 42 U.S.C. 1320a-7a. Stip. 4; Gov't Ex. 5. 
Consequently, under Sec.  824(a)(5), it is within the discretion of the 
Agency to determine, based on the entire record, whether Respondent's 
exclusion from federal health care programs renders granting his 
application for a COR inappropriate. See Narcisco A. Reyes, M.D., 83 FR 
61678, 61681 (2018) (holding that where the Government has demonstrated 
the requisite mandatory federal health care program exclusion(s) it has 
satisfied its prima facie case, shifting the burden to the 
respondent[]). Inasmuch as the parties have stipulated to Respondent's 
exclusion and the record contains evidence establishing as much, the 
Government has met its burden in this regard. Stip. 4, 5, 7; See 21 CFR 
1301.44(d) (2018).
---------------------------------------------------------------------------

    *\D\ Per the usual format of Agency decisions, I have removed 
the discussion of the legal standard for a respondent's acceptance 
of responsibility from the prima facie analysis to the Sanction 
section below. Further, in the Sanction section below, I have 
combined the ALJ's analysis of Respondent's acceptance of 
responsibility pertaining to the mandatory exclusion allegation with 
the ALJ's analysis of Respondent's acceptance of responsibility 
pertaining to the controlled substance felony conviction allegation. 
I have also combined the former two analysis sections with the brief 
summary regarding the Respondent's acceptance of responsibility that 
the ALJ had originally included in the Sanction section. I have not 
made substantive changes except where noted in brackets. See infra.
---------------------------------------------------------------------------

    *\E\ Accordingly, in review of the evidence of record, including 
the stipulations of the parties, OSC Allegation 3 is sustained.
---------------------------------------------------------------------------

    *\E\ Analysis of Respondent's acceptance of responsibility moved 
to Sanction section. See supra n.*D.
---------------------------------------------------------------------------

C. Controlled-Substance-Related Felony Conviction

    The Government also alleges that Respondent's application should be 
denied because he has been convicted of a felony related to controlled 
substances, pursuant to 21 U.S.C. 824(a)(2). Under that provision, the 
Attorney General may suspend or revoke a registration issued under 21 
U.S.C. 823 ``upon a finding that the registrant . . . has been 
convicted of a felony under this subchapter or subchapter II or any 
other law of the United States, or of any State, relating to any 
substance defined in this subchapter as a controlled substance or a 
list I chemical.'' 21 U.S.C. 824(a)(2)(emphasis added).
    *\F\ The fact of Respondent's conviction in this case has been 
conclusively established. Stip 3. There is no question that Respondent 
pleaded guilty to one count of ``Conspiracy to Distribute Oxycodone, a 
Class C Felony,'' in violation of 21 U.S.C. 841(a), (b)(1)(C) and 
846,\17\ which is a felony related to a controlled substance. It is 
thus beyond argument that the Government met is prima facie burden of 
proving that Respondent has been convicted of a felony related to 
controlled substances.
---------------------------------------------------------------------------

    *\F\ Discussion of the legal standard for a respondent's 
acceptance of responsibility moved to Sanction section. See supra 
n.*D.
    \17\ United States v. Stephen Owusu, No. 2:11-CR-0709-001 (LDW) 
(E.D.N.Y. June 13, 2017).
---------------------------------------------------------------------------

    *\G\ Accordingly, in review of the evidence of record, including 
the stipulations of the parties, OSC Allegation 2 is sustained.
---------------------------------------------------------------------------

    *\G\ Analysis of Respondent's acceptance of responsibility moved 
to Sanction section. See supra n.*D.
---------------------------------------------------------------------------

III. Sanction

    Inasmuch as Congress has determined that a mandatory health care 
program exclusion constitutes an adequate basis for sanction, once the 
Government has demonstrated that a respondent has been so excluded, the 
burden shifts to the respondent to show that registration should be 
granted as a matter of discretion. See Jin, 77 FR at 35023. This burden 
may be carried by establishing an unequivocal acceptance of 
responsibility for the misconduct that formed the basis of the 
exclusion and by adequately demonstrating remedial measures to ensure 
against repetition. Id.; Stein, 84 FR at 46972-73 (respondent's 
assertion that his misdeeds had no effect on his patients held to 
indicate a minimization of his acceptance of responsibility rendering 
it less than unequivocal). This acceptance of responsibility must be 
unequivocal; a registrant's dishonesty under oath undermines the 
registrant's acceptance of responsibility and shows that the registrant 
``cannot be entrusted with a registration.'' Rose Mary Jacinta Lewis, 
M.D., 72 FR 4035, 4042 (2007). Mere stipulation to facts without 
admitting to misconduct does not amount to an acceptance of 
responsibility. Ajay S. Ahuja, M.D., 84 FR 5479, 5498 n.32 (2019). 
Moreover, a respondent's own statements minimizing his or her 
misconduct weigh against any acceptance of responsibility. Arvinder 
Singh, M.D., 81 FR 8247, 8249-51 (2016).
    In Jin, the Agency relied, in part upon Melvin N. Seglin, M.D., 63 
FR 70431 (1998), a case in which the Agency found that the respondent 
``accepted responsibility for his misconduct which was not likely to 
recur.'' Id. at 35026. In evaluating the reasonableness of sanctions 
generally, the Agency has also required an evaluation of the 
egregiousness of the proven misconduct as well as an analysis of 
considerations

[[Page 3349]]

of specific and general deterrence,\18\ and these factors have been 
specifically applied by the Agency in the MME context. Arvinder Singh, 
M.D., 81 FR 8247, 8248 (2016). The egregiousness of the conduct is also 
considered in the MME context, even when a controlled-substance-related 
crime does not form the basis of the exclusion. Stein, 84 FR at 46973.
---------------------------------------------------------------------------

    \18\ David A. Ruben, 78 FR 38363, 38364, 38385 (2013).
---------------------------------------------------------------------------

    Further, the Agency has stated that ``ordinarily[,] a respondent 
who has been convicted of a felony subject to Sec.  824(a)(2) is 
entitled to present a case as to why his registration should not be 
revoked (or his application denied)'' because conviction of a felony 
under the CSA is not a per se bar to registration. William J. O'Brien, 
III, D.O., 82 FR 46527, 46529 (2017). As is the case with other DEA 
administrative enforcement cases seeking a sanction, once the 
Government has met its prima facie case, under Sec.  824(a)(2) by 
merely establishing the existence of the requisite conviction,\19\ a 
respondent can avoid sanction only to the extent he/she/it is able to 
demonstrate an unequivocal acceptance of responsibility and remedial 
steps that are tailored to preventing recurrence. Singh, 81 FR at 8250 
(``[The respondent] was required to acknowledge the full scope of his 
criminal behavior and the risk of diversion it created . . . .''); 
Hassman, 75 FR at 8236; Ronald Lynch, M.D., 75 FR 78745, 78753 (2010) 
(holding that the respondent's attempts to minimize misconduct 
undermined purported acceptance of responsibility); see also Michael A. 
White, M.D., 79 FR 62957, 62967 (2014); Steven M. Abbadessa, M.D., 74 
FR 10077, 10081 (2009).
---------------------------------------------------------------------------

    \19\ Dan Hale, D.O., 69 FR 69402, 69406 (2004) (``. . . facts 
established by criminal convictions are res judicata and cannot be 
re-litigated in a DEA administrative forum.''); Raymond A. Carlson, 
M.D., 53 FR 7425, 7426 (1988) (``the conviction alone provides 
sufficient statutory authority to support the revocation of 
Respondent's DEA Certificate of Registration.'').
---------------------------------------------------------------------------

    There can be no debate that the Government has met its prima facie 
burden of proving that the requirements for a sanction pursuant to 21 
U.S.C. 824(a)(2) and (5) are satisfied. It is well established that, in 
cases involving Medicare exclusion and prior convictions, a respondent 
must show that he unequivocally accepts responsibility for his past 
misconduct if he wishes this tribunal to exercise its discretionary 
authority to grant a COR. See, e.g., Stein, 84 FR at 46972. 
Accordingly, unequivocal acceptance of responsibility for both bases of 
established misconduct stands as a condition precedent for Respondent 
to prevail.
    The purpose of this process is to determine whether the applicant 
can and should be entrusted with responsibly discharging the life and 
death duties of a DEA registrant. For this purpose, acceptance of 
responsibility is critical. The Agency's interpretation of its 
statutory mandate on the exercise of its discretionary function under 
the CSA has been sustained on review. Jones Total Health Care, L.L.C. 
v. DEA, 881 F.3d 823, 830-31 (11th Cir. 2018); MacKay v. DEA, 664 F.3d 
808, 822 (10th Cir. 2011); see also, Hoxie v. DEA, 419 F.3d 477, 483 
(6th Cir. 2005) (holding that admitting fault and candor with 
investigators are both important factors in determining whether a 
physician is fit to hold a COR). Agency prior decisions are clear that 
a Respondent must ``unequivocally admit fault'' as opposed to 
demonstrate a ``generalized acceptance of responsibility.'' The 
Medicine Shoppe, 79 FR 59504, 59510 (2014); see also, Lon F. Alexander, 
M.D., 82 FR 49704, 49728 (2017). To satisfy this burden, Respondent 
must ``show true remorse'' or an ``acknowledgement of wrongdoing.'' 
Robert A. Leslie, 68 FR 15227, 15228 (2003). The Agency has made it 
clear that unequivocal acceptance of responsibility is paramount for 
avoiding sanction. Robert L. Dougherty, M.D., 76 FR 16823, 16834 (2011) 
(citing Jayam Krishna-Iyer, 74 FR 459, 464 (2009)). However, no legal 
authority holds that such acceptance, standing alone, guarantees a 
favorable result for every applicant or registrant.

A. Acceptance of Responsibility

    To avoid sanction, it is incumbent upon Respondent to demonstrate 
acceptance of responsibility for his actions and remedial measures 
taken, and Respondent fails to persuade the tribunal that granting his 
application for a COR would be consistent with the public interest. To 
begin, Respondent's testimony was not candid. Candor to the court is of 
paramount importance. The issue of trust is necessarily a fact-
dependent determination based on the circumstances presented by the 
individual respondent; therefore, the Agency looks at factors, such as 
the acceptance of responsibility and the credibility of that acceptance 
as it relates to the probability of repeat violations. A registrant's 
candor during the investigation and hearing is an important factor in 
determining acceptance of responsibility and the appropriate sanction; 
as is whether the registrant's acceptance of responsibility is 
unequivocal. Heavenly Care Pharmacy, 85 FR 53402, 53420 (2020); see 
also Fred Samimi, M.D., 79 FR 18698, 18713 (2014); Robert F. Hunt, 
D.O., 75 FR 49995, 50004 (2010).
    Moreover, throughout his testimony, Respondent had ample 
opportunity to take full and unequivocal responsibility for his 
misconduct. Yet repeatedly, when pressed on the details of his 
conviction, Respondent failed to do so, often deflecting blame to his 
lawyers, who, he says, forced him to accept a plea deal. Tr. 76-80; 
116; ALJ Ex. 14 at 2 (referring to ``unscrupulous lawyers whose 
solutions were worse than the problem''). This refusal to accept blame 
is compounded by the inescapable conclusion that Respondent's testimony 
was not credible on the key facts surrounding his federal conviction 
for conspiracy to distribute oxycodone. For example, when asked about 
the surrender of his previous DEA registration, Respondent made a point 
to ``clarify'' by stating, ``I pleaded guilty . . . that I wrote those 
medications. I wrote them without . . . an attending. But all those 
conspiratorial charges that they added on, no. . . . [I]n the . . . two 
pads I wrote--the two prescriptions I wrote, I pleaded guilty for that. 
. . . [T]hat's what . . . my guilt is about.'' Tr. 80. This is far from 
true. As outlined by the stipulations in these proceedings, Respondent 
pleaded guilty in federal court to Conspiracy to Distribute Oxycodone. 
Stip. 3. Although part of the indictment against him included 
allegations that Respondent had left prescription pads unattended, and 
those pads ended up the source of falsified prescriptions, Respondent's 
guilt is about much more than that. Respondent was arrested after an 
undercover operation, detailed by the testimony of the SA. Tr. 138-155. 
This transaction amounted to an illegal sale of narcotics and had 
nothing to do with Respondent's lost prescription pads. Respondent's 
attempt, therefore, to direct focus in these proceedings to the lost 
pads, rather than the sale of oxycodone prescriptions in a parking lot, 
amounts to a failure to accept responsibility for the entirety of his 
criminal conduct. As if that were not a poor enough reflection of his 
credibility, Respondent repeatedly and explicitly insisted that he 
never conspired to distribute oxycodone--the very conduct to which he 
pleaded guilty before a federal judge. Tr. 64-66; 78; 116; 125; ALJ 14 
at 5.
    Respondent's failure to acknowledge the full scope of his criminal 
liability presents a more significant problem--although Respondent 
admitted that he had appeared before a federal district

[[Page 3350]]

court judge for his plea hearing, signed his plea agreement, pleaded 
guilty under oath, was sentenced based on the facts he admitted, and 
told the district court judge that his guilty plea was voluntary (Tr. 
130-134), Respondent also disavowed those proceedings. For example, 
Respondent took the implausible position that, on the day he pleaded 
guilty, he showed up to his lawyer's office thinking the two of them 
were going to speak to the prosecutor in his case about getting his DEA 
license back. Tr. 78-79.
    Indeed, Respondent testified in this hearing that his attorney told 
him to just ``follow his orders'' and ``made [him] plead guilty.'' Tr. 
79. Even more disturbing, Respondent testified that he had to say yes 
because ``my lawyer told me to just say yes--yes, yes, and I--and I 
went all along like that.'' Tr. 80. Later, in these proceedings, 
Respondent admitted that his statements under oath at his plea hearing, 
before a federal district court judge, were ``not only just not true . 
. . I just didn't feel like a lot of them were right.'' Tr. 134.
    Respondent's claims that he was forced or tricked into pleading 
guilty are simply not believable. Respondent's late-night delivery of 
multiple oxycodone prescriptions in a parking lot in exchange for $300 
in cash was captured on video-tape. Tr. 113-115. As even Respondent 
admitted, his attorney told him he would have to plead guilty because 
of that incriminating recording. Tr. 112. Even when faced with this 
fact, Respondent again diverted blame to his lawyers, stating that they 
discouraged him from going to trial because the federal court in which 
he would be tried was a ``white Court'' and that Respondent's race 
would be a disadvantage at trial. Id. See also Tr. 131-32; ALJ Ex. 12 
at 3.
    Ultimately, this tribunal cannot ignore that Respondent has changed 
his version of events--under oath--in two different judicial 
proceedings. By pleading guilty, Respondent obtained a benefit of 
acceptance of responsibility and, ultimately, a sentence of probation 
despite facing a Guideline Sentence of 57 to 71 months. Tr. 130; Govt 
Ex. 5. Before this tribunal, when faced with the consequences of that 
plea, Respondent repeatedly proclaimed his innocence of the conspiracy 
to distribute oxycodone, minimizing his involvement to two 
prescriptions. Tr. 64-66, 80, 125; ALJ Ex. 14. It is hard to see how 
Respondent's testimony in this tribunal, when held up against his plea 
agreement, amounts to anything more than Respondent's attempt to have 
his proverbial cake and eat it too. His guilty plea in federal court 
saved him from significant prison time. But now, when faced with the 
consequences of that plea, he has changed the story in an effort to 
obtain a DEA registration. Either he was dishonest in federal court, or 
he was dishonest in these proceedings. Either way, Respondent was 
dishonest and has failed to accept full responsibility for his actions.
    Other implausible aspects of Respondent's testimony certainly do 
not assist his request for a COR as they demonstrate a lack of candor. 
For example, Respondent's first instinct when speaking with DEA was to 
lie about whether he had performed an evaluation of the patient in the 
car--retracting that statement only when confronted with the existence 
of a video-recording and apologizing to DEA for his lie. Tr. 145. 
Significantly, Respondent's lie demonstrated clear consciousness of 
guilt--he stated he had examined his patient because he knew delivering 
prescriptions at night in a parking lot was wrong. Similarly 
unbelievable is Respondent's statement that he only charged his patient 
$70 for the parking lot prescriptions and had no idea why he was given 
$300 in cash. Tr. 115. This statement is inconsistent with the post-
arrest statement, in which he admitted that he charged his patients 
$300 for the prescriptions. Tr. 142. Nor is it plausible that a 
pharmacy representative would have testified that multiple people 
filled out Respondent's prescription pads in front of pharmacy staff 
(Tr. 76, 108)--activity that would certainly have imperiled the 
pharmacy's DEA registration.\20\
---------------------------------------------------------------------------

    \20\ These examples of inconsistencies are merely the most 
egregious. There were others. For example, Respondent insisted he 
earned only $30,000 from the patients to whom he prescribed 
Oxycodone (Tr. 111), whereas the SA testified that Respondent told 
DEA he had made $40,000 from these patients (Tr. 142). [I agree with 
the ALJ that this statement was not as egregious as the other 
inconsistencies, because after SA's testimony, Respondent appeared 
to admit that he had memory problems; however, I do note that the 
inconsistency further served to downplay the egregiousness of his 
crime. Tr. 155.]
---------------------------------------------------------------------------

    All these inconsistencies are accompanied by a final troubling 
truth about Respondent's testimony: In the end, he saw himself as a 
victim. Respondent consistently referred to the undercover operation 
resulting in his arrest as ``staged'' or a ``set-up.'' Tr. 109-110, 
113-115. Additionally, Respondent repeatedly contended that he had 
``suffered a lot'' (Tr. 161) and had been ``punished enough.'' Tr. 105, 
163; ALJ Ex. 12 at 3 (``I will acknowledge that the length of my 
punishment has been excessive and therefore demands a judicial 
reprieve.''); ALJ Ex. 14 at 4-5 (describing the ``windfall 
repercussions from this catastrophe. . . .''). In his Supplemental 
Prehearing Statement, he even asked, ``How much more damage/harm do you 
suppose is enough to satisfy/pacify the arm of the law?'' ALJ Ex 14 at 
3. And when Respondent claimed that he had accepted responsibility for 
his misconduct, he did so only with a caveat that his lawyers forced 
him to plead guilty. Tr. 161-62 (claiming that he accepts 
responsibility even though that some things in the Government's 
criminal case against him ``were not true''). This conditional 
acceptance of responsibility is a far cry from unequivocal acceptance 
required to be entrusted with a DEA registration. See Rose Mary Jacinta 
Lewis, 72 FR at 4042 (affirming an immediate suspension when the 
respondent lied under oath to downplay her misconduct); see also Singh, 
81 FR at 8249-51 (denying an application for a COR when the respondent 
repeatedly disputed the extent of his misconduct). Nor did Respondent's 
testimony at any point express true remorse for his wrongful conduct. 
See Michael S. Moore, M.D., 76 FR 45867, 45868 (2011) (requiring a 
registrant to show ``true remorse'' for wrongful conduct in order to 
find an acceptance of responsibility).
    Having concluded that Respondent has failed to prove an unequivocal 
acceptance of responsibility, I need not address remedial measures. 
Ajay S. Ahuja, M.D., 84 FR 5479, 5498 n.33 (2019); Daniel A. Glick, 
D.D.S., 80 FR 74800, 74801, 74810 (2015). Nevertheless, even if 
remedial measures were considered, they would not change the result.
    The burden is on the respondent to present sufficient evidence of 
his remedial measures. See Scott D. Fedosky, M.D., 76 FR 71375, 71378 
(2011) (declining to give weight to remedial measures where the 
respondent testified about them but did not present any corroborating 
evidence to support his claim). And even if a respondent does introduce 
specific evidence of remedial measures, registration will not be 
granted unless such measures demonstrate that he or she can be 
entrusted with a COR. Jeri Hassman. M.D., 75 FR 8194, 8237 (2010) 
(denying a COR where the Agency found that the respondent had learned 
nothing from the remedial steps she had taken).
    Respondent claims that, prior to his arrest, he had ``no idea'' of 
the severity of the opioid epidemic. Tr. 83. He testified that he 
attended a mandatory class on opioids, which every prescriber must 
take. Tr. 84. Respondent also testified that he would take another 
class on February 28, 2021, but he did not provide any level of detail 
as to the

[[Page 3351]]

curriculum of the class. Id. According to Respondent, these classes are 
required of prescribers every year, and the upcoming February 28 class 
will be his fourth class. Id. Respondent also testified that he had 
attended a conference in July 2019 on the topic of General Medicine, 
and that the last class in the conference focused on the opioid 
pandemic. Tr. 85-86.
    To begin, it is of course troubling that a medical professional 
with a COR would not appreciate the severity of the opioid drug crisis 
in this country. See Hassman, 75 FR at 8237. And while Respondent 
testified as to several classes he has taken on the subject, most of 
those were mandatory. Furthermore, Respondent's testimony does not 
provide a level of detail sufficient for this tribunal to evaluate the 
classes and whether they constitute remedial measures. On its face, a 
mandatory class that all prescribers are required to take does not 
present as remedial in nature. Nor does mere compliance with mandatory 
requirements inspire confidence that Respondent has learned from his 
past misconduct and can now be entrusted with a COR. See id. Simply 
put, Respondent has not made an adequate showing of remedial measures 
[such that I could entrust him with a registration.]
    Overall, as Respondent faces the hurdle of demonstrating an 
adequate acceptance of responsibility, his testimony was just not 
credible. Certainly, it would strain all bounds of reasonable 
jurisprudence to find that Respondent has accepted responsibility for 
his actions, despite his trivialization of his misconduct, his 
disavowal of his statements under oath in his plea hearing in federal 
district court, his implausible testimony, and his own view of himself 
as a victim.\21\ Here, it bears repeating that Respondent did not 
accept responsibility unequivocally. In fact, it is hard to imagine a 
purported acceptance more equivocal than the one he offered. 
Respondent's own testimony is riddled with inconsistencies, statements 
that are inconsistent with admissions he made under oath in a federal 
criminal proceeding, implausible statements, and numerous examples of 
Respondent portraying himself as the victim. Indeed, there was no real 
expression of remorse, but a view that he had been unfairly targeted 
and ``set up'' by DEA and accusations of impropriety in the criminal 
proceedings. See, e.g., Tr. 109-10 (describing parking lot transaction 
as a ``setup''); Tr. 126 (suggesting DEA improperly withheld 180 of the 
200 prescriptions written on his allegedly stolen prescription pads). 
Respondent's lack of any meaningful acceptance of responsibility 
presents an insurmountable barrier to his application for a COR.
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    \21\ Respondent did, at times, testify as to his love of the 
medical profession and desire to help people. Tr. 62-63, 65. In 
addition, Respondent's Exhibit 2 is a letter from Dr. B.-A., the CEO 
of the American Medical Center, which is a clinic that Respondent 
has volunteered at. Resp't Ex. 2. The letter espouses the virtues of 
Respondent, and details the difficulties of finding medical 
professionals to work for clinics in impoverished areas, such as the 
one where Respondent volunteers. [Omitted. The letter can be of 
limited weight in this proceeding, however, because I have limited 
ability to assess the actual credibility of the reference given its 
written form. See Michael S. Moore, M.D., 76 FR 45867, 45873 (2011) 
(evaluating the weight to be attached to letters provided by the 
respondent's hospital administrators and peers in light of the fact 
that the authors were not subjected to the rigors of cross 
examination). Further, it offers little value in assessing the 
Respondent's suitability to discharge the duties of a DEA 
registrant. Finally, absent Respondent's unequivocal acceptance of 
responsibility, what little value the letter might have offered me 
in evaluating my ability to trust Respondent is nullified by the 
fact that he himself has not shown me that he can be so entrusted. 
See William Ralph Kincaid, 86 FR 40636, 40641 (2021).] Respondent's 
past service--even his volunteer service--is simply not enough to 
outweigh his lack of acceptance of responsibility in these 
proceedings. The letter has no other relevance, as the Agency has 
consistently held that community impact is not a relevant 
consideration under the public interest factors. Linda Sue Cheek, 
M.D., 76 FR at 66972; see also Gregory D. Owens, D.D.S., 74 FR 
36751, 36757 (2009). Here, the evidence of community impact offered 
by Respondent does nothing to explain the issues of credibility his 
testimony presents.
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    In any event, given the limited scope of Respondent's remedial 
measures, those measures do not change the outcome. His limited efforts 
do not establish a plan of remedial measures that assure the tribunal 
that he will not repeat the established transgressions. See Hassman, 75 
FR at 8236. This case must be decided not merely upon what he says, but 
what he says and does. C.f. Alra Laboratories v. DEA, 54 F.3d 450, 452 
(7th Cir. 1995) (sustaining the Agency's conclusion that past 
performance is the best predictor of future performance).
    Although he testified that he has taken several classes on the 
opioid epidemic, Respondent provided no information about these 
classes. Nor does completion of one mandatory class per year tend to 
show that Respondent has taken sufficient remedial measures to address 
his past misconduct--or to even appreciate the egregiousness of this 
conduct. While Respondent claimed that he was na[iuml]ve (Tr. 55, 76), 
and did not appreciate the full extent of the pandemic, he failed to 
articulate what specific steps he would take to ensure that his 
misconduct resulting in diversion would not be repeated.
    Accordingly, I find that, in the face of the Government's prima 
facie case, Respondent has failed to unequivocally accept 
responsibility for his past misconduct; therefore, he cannot be trusted 
with a DEA COR. See Singh, 81 FR at 8250.

B. Specific and General Deterrence

    In determining whether and to what extent imposing a sanction is 
appropriate, consideration must be given to the Agency's interest in 
both specific and general deterrence as well as the egregiousness of 
the offenses established by the Government's evidence. David A. Ruben, 
78 FR 38363, 38384, 38385 (2013). The Agency has previously found 
[based on specific circumstances] that criminal convictions and 
sanctions by state licensing authorities can sufficiently deter 
physicians from engaging in misconduct, making the denial of an 
application for, or revocation of, a COR unnecessary to achieve the 
goal of general deterrence. Kansky J. Delisma, M.D., 85 FR 23845, 23854 
(2020). Likewise, such punitive measures can suffice to deter the 
registrant or applicant from future misconduct, making revocation or 
denial of an application unnecessary to achieve specific deterrence. 
Id.
    With respect to specific deterrence, Respondent failed in these 
proceedings to portray a registrant who is remorseful, and who has 
worked hard to change for the better. Rather, Respondent came across as 
a person who says the right thing in order to get what he wants, and, 
when pressed, does not own up to his mistakes. Without a better 
indication of remorse, the tribunal can only conclude that granting 
Respondent a COR would put the public at risk of Respondent's previous 
diversionary behavior. Moreover, with respect to general deterrence, 
the Agency bears the responsibility to deter conduct similar to 
Respondent's past misconduct. Ruben, 78 FR at 38385. Granting a COR to 
an applicant who has neither unequivocally taken responsibility for his 
misconduct, nor demonstrated sufficient remedial measures to ensure 
such conduct will not happen again, would send a message to all that, 
so long as one completes a mandatory class or two per year, there will 
be few consequences to diverting controlled substances.

C. Egregiousness

    Finally, this tribunal finds that Dr. Owusu's behavior was 
egregious. Dr. Owusu conducted a transaction that differs in no 
material respect from a drug deal. He sold multiple

[[Page 3352]]

prescriptions for powerful controlled substances at night, in a parking 
lot, in a manner designed to avoid detection. Both then and now, 
Respondent has responded with calculated, inconsistent statements 
designed to escape culpability. In Gonzales v. Oregon, 546 U.S. 243, 
270 (2006), the Supreme Court made clear that DEA has authority under 
the Controlled Substances Act to bar illicit drug dealing and 
trafficking as traditionally understood. Respondent, in this case, 
engaged in conduct that constitutes drug trafficking as traditionally 
understood, and, accordingly, the appropriate sanction is denial of his 
application for a DEA registration.
    Accordingly, it is herein respectfully recommended that 
Respondent's application for a DEA registration be denied.

Dated: April 9, 2021.

Teresa A. Wallbaum,

Administrative Law Judge.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 823(f), I hereby deny the pending application for a Certificate 
of Registration, Control Number W19061136C, submitted by Stephen E. 
Owusu, D.P.M., as well as any other pending application of Stephen E. 
Owusu, D.P.M., for additional registration in New York. This Order is 
effective February 22, 2022.

Anne Milgram,
Administrator.
[FR Doc. 2022-01108 Filed 1-20-22; 8:45 am]
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