[Federal Register Volume 61, Number 102 (Friday, May 24, 1996)]
[Notices]
[Pages 26208-26211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13051]
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DEPARTMENT OF JUSTICE
[Docket No. 94-36]
Jeffrey Patrick Gunderson, M.D.; Revocation of Registration
On March 11, 1994, the Deputy Assistant Administrator (then
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to Jeffrey Patrick Gunderson,
M.D., (Respondent) of Brunswick, Georgia, notifying him of an
opportunity to show cause as to why DEA should not revoke his
Certificate of Registration, BG1368516, under 21 U.S.C. 824(a), and
deny any pending applications for registration as a practitioner under
21 U.S.C. 823(f), for the following reasons:
(1) On August 3, 1992, the Respondent was arrested in St. Paul,
Minnesota, for felony possession of LSD, a Schedule I controlled
substance, and, at the time of his arrest, he had in his possession
LSD, marijuana, and Didrex;
(2) On September 9, 1992, the Respondent pled guilty in state court
to a felony charge of possession of a controlled substance, and was
convicted of this offense in November of 1992;
(3) In April of 1993, the Respondent was observed inhaling cocaine
several hours prior to reporting for duty as an emergency room
physician;
(4) On several occasions during 1993, the Respondent discussed
plans to purchase and distribute cocaine with confidential informants;
and
(5) During recent undercover operations, the Respondent was in
possession of cocaine and LSD.
On April 15, 1994, the Respondent, through counsel, filed a timely
request for a hearing, and following prehearing procedures, a hearing
was held in Atlanta, Georgia, on October 26, 1994, before
Administrative Law Judge Mary Ellen Bittner. At the hearing, both
parties called witnesses to testify and introduced documentary
evidence, and after the hearing, counsel for both sides submitted
proposed findings of fact, conclusions of law and argument. On October
31, 1995, Judge Bittner issued her Opinion and Recommended Ruling,
recommending that the Respondent's DEA Certificate of Registration be
revoked and any pending applications for registration be denied. On
December 1, 1995, Judge Bittner transmitted the record of these
proceedings to the Deputy Administrator, after noting that neither
party had filed timely exceptions to her decision. However, on December
20, 1995, Judge Bittner transmitted the Respondent's request for
consideration of exceptions filed on December 18, 1995. A copy of Judge
[[Page 26209]]
Bittner's letter and the Respondent's exceptions were transmitted to
Government counsel, who did not respond.
The Deputy Administrator has considered the record in its entirety,
including the Respondent's exceptions, and pursuant to 21 CFR 1316.67,
hereby issues his final order based upon findings of fact and
conclusions of law as hereinafter set forth. The Deputy Administrator
adopts, in full, the Findings of Fact Conclusions of Law, and
Recommended Ruling of the Administrative Law Judge his adoption is in
no matter diminished by any recitation of facts, issues and conclusions
herein, or of any failure to mention a matter of fact or law.
The Deputy Administrator finds that, pursuant to stipulations made
by the parties before Judge Bittner, the following facts are not in
dispute: (1) Lysergic acid diethylamide (LSD) is a Schedule I
hallucinogenic substance pursuant to 21 CFR 1308.11; (2) Marijuana is a
Schedule I hallucinogenic substance pursuant to 21 CFR 1308.11; and (3)
Didrex is the trade name for a stimulant containing benzphetamine
hydrochloride, a Schedule III substance pursuant to 21 CFR 1308.13.
The Deputy Administrator also finds that the Respondent is
primarily an emergency room physician, and that at the time of the
events at issue, he lives and worked on St. Simons Island, Georgia. He
is licensed to practice his specialty in the State of Georgia. The
Respondent is registered with DEA as a practitioner, and he has been
assigned DEA registration number BG1368516.
It is undisputed that the Respondent was arrested early in the
morning on August 18, 1992, in St. Paul, Minnesota. The relevant
portions of the arrest report state that: (1) The arresting officer
followed the Respondent because he made a turn over the center median
after driving out of a Denny's Restaurant parking lot; (2) the
arresting officer noted that when the Respondent got out of his car,
his eyes were red and his speech was slurred; (3) arresting officer
asked the Respondent to sit in the patrol car because the Respondent
had stated he was lost, could not find his hotel, and did not have his
driver's license; (4) when the arresting officer asked the Respondent
what was in his pockets, the Respondent pulled out, among other things,
a bag containing marijuana and a piece of tin foil containing a white
sheet of paper with 43 ``hits'' of LSD; and (5) when the arresting
office asked what the sheet of paper was, the Respondent replied,
``something I'm not supposed to have,'' and that ``it's some kind of
psychedelic drug.'' The Respondent was arrested and charged with felony
possession of a controlled substance.
Also, at the time of his arrest, the Respondent had in his
possession a prescription bottle containing Didrex with a label noting
that the prescription had been written by the Respondent for a third
party, LW. The Respondent later explained that LW was his girlfriend,
that he had used her suitcase for his trip to St. Paul, and that the
prescription bottle was in her suitcase when he borrowed it.
Before Judge Bittner, the Respondent, testified that at the time of
his arrest, he was in Minnesota for a reunion of his college football
team, that he had been to a party and then to a restaurant, and that he
was on his way back to his hotel to get his luggage and to leave for
the airport. The Respondent stated that he had found the LSD and the
marijuana while cleaning out the rental car prior to turning it in at
the airport, that he had put it in his pocket, and that he was arrested
with the substances in his pocket. He also testified that the
prescription bottle had fallen out of his girlfriend's suitcase, that
he had found the bottle while cleaning out the truck of the car, and
that he had put it in his pocket.
On September 9, 1992, the Respondent pled guilty to possession of
LSD in state court. On November 17, 1992, pursuant to a state statute
permitting a stay of adjudication, the Respondent was sentenced to five
years' probation, fined more than $4,200.00, and ordered (1) to verify
completion of chemical treatment; (2) to abstain from (the consumption
of) non-prescription drugs; and (3) to follow all recommendations of
the Georgia Professional Licensing Board.
The Respondent testified before Judge Bittner that, after his
arrest in Minnesota, he had returned to Georgia and had reported for
work. After about a week at work, he told his supervisor and other
supervisory hospital staff about his arrest, and he agreed with them
that he should voluntarily submit to a screening procedure. The
Respondent stated that he went to Willingway Hospital (Willingway) for
an evaluation, and that the was advised on the first day of the
evaluation that he had a drinking problem and should enter the
hospital's twenty-eight day treatment program. The Respondent entered
the program and was discharged on October 18, 1992. However, the
Respondent testified that after a lengthy delay, Willingway Hospital
submitted an inaccurate evaluation report to the Georgia Board of
Medical Examiners (Board) in December of 1992.
By letter dated July 15, 1993, the Georgia Department of Law
advised the Respondent that the Georgia Attorney General took the
position that state statutes required the suspension of his medical
license for at least three months because of his entry of a guilty plea
for possession of LSD in Minnesota. Further, the letter noted that the
Impaired Physician's Committee recommended that the Respondent's
license be placed on probation with the usual terms and conditions for
an impaired physician. As an alternative, the letter provided that, if
the Respondent voluntarily submitted to an evaluation at Anchor
Hospital (Anchor), and if Anchor concluded that the Respondent was not
impaired, then the Board would not require a probationary period.
According to a discharge summary, the Respondent was evaluated at
Anchor from August 30, 1993, until September 2, 1993. The summary
concluded that ``no definitive diagnosis of alcohol or substance
dependence can be made.''
After notice and a hearing, the Board issued a final decision on
July 11, 1994, finding that the Respondent had entered a plea to a
felony charge of possession of LSD and was sentenced in Minnesota. The
hearing officer noted that pursuant to Minnesota law pertinent to the
Board's proceedings, ``conviction'' includes entering a ``plea of
guilty * * * regardless of whether the adjudication of guilt or
sentence is withheld or not entered thereon * * *.'' Thus, the
Respondent's entry of a guilty plea provided grounds for the Board's
sanction. Consequently, the Board suspended the Respondent's license to
practice medicine in Georgia for three months and then placed his
license on probation for four years following the suspension. Also, as
part of the terms of the probation, the Respondent (1) was to be
subject to random drug screening at the request of the Board, and (2)
was to abide by all State and Federal laws relating to drugs. The
Respondent testified before Judge Bittner that he was still fulfilling
these probationary requirements.
A DEA task force officer (Officer) testified before Judge Bittner,
stating that in the Spring of 1993, the Brunswick, Georgia, Police
Department initiated an investigation of the Respondent, and that she
participated in an undercover capacity. She testified that she had been
assigned to the task force for approximately three and a half years.
Specifically, the Officer testified that on April 21, 1993, she
accompanied
[[Page 26210]]
a confidential informant (CI) to a tavern on St. Simon's Island to meet
the Respondent, and that several hours later the CI, the Respondent,
and the Officer went to the Respondent's residence. The Officer
testified that, while there, she observed the Respondent use cocaine
approximately two or three times, and she observed him search for some
LSD, which he told her he had placed on his kitchen counter. The
Officer testified that she saw the Respondent take ``the cocaine out of
a plastic bag, pour it into his hand and snort it out of his hand * *
*'' She stated she knew the substance was cocaine ''just from the
appearance of it, through my experience; the way it was consumed. Also
the fact that (the Respondent) did kiss me on the lips and it number
out my face.'' Regarding the LSD, the Officer testified that on April
29, 1993, the CI telephone the Respondent, and in that taped
conversation, the Respondent stated that he had found the LSD.
The Officer further testified that on July 21, 1993, the CI,
wearing a recording device, went to another residence owned by the
Respondent, under the surveillance of the Officer and other law
enforcement personnel. According to the transcript of this transaction
with the Respondent, the CI asked the Respondent if he would be
interested in some ``kilos'' for ``17 a key,'' and the Respondent
replied that he did not have that much money, and that his friends in
the police department had warned him ``to be real careful'' because the
police were watching him. The CI said that his source wanted a down
payment of $4,000.00, to which the Respondent answered, ``Damn! I wish!
I could (sic) I need to make some money, somewhere,'' and that he would
think about it. The Respondent also said, ``I know four people that
have been busted. I don't know who's turning everybody in but somebody
is * * *. I don't do it around nobody anymore.'' The Respondent also
informed the CI that he would be in Savannah, Georgia, the next weekend
because his son was playing in a baseball game, and he suggested
getting together with the CI on Friday night to ``party up there.''
However, before Judge Bittner, the Respondent testified that he did not
agree to be involved ``in a kilogram deal * * * of controlled
substances with the CI.''
The Officer further testified that on July 23, 1993, the Respondent
met with the CI and another informant (Informant), at the Radisson
Hotel in Savannah. The transcript of the tape recording made during
that meeting revealed that, among other things, the Informant said he
had recently ``got a pretty big * * * shipment from Columbia,'' and
that the Respondent replied ``we may be able to do something,'' but
that he would have to talk to a ``friend,'' and ``I'd like to make some
money myself.'' Later, the Respondent expressed concern, stating ``I
just can's deal with it with my job and stuff. You know I don't have
time to do too much * * *. But, uh, I certainly would like to * * *.''
The Respondent also stated that, ``I'm certainly, uh, not opposed to
making some money.'' The respondent also stated that he had connections
in Minnesota through his high school and college friends, and he asked
the Informant if he would ``be around tonight'' for a drink.
Finally, the Officer testified that in August of 1993, the CI
visited the Respondent, and in the course of that conversation, he
asked the Respondent if he was going to buy cocaine from the Informant.
The Officer testified that the Respondent replied that ``his connection
was retired, that he thought he could get cocaine distributed through,
and he was no longer in the drug business. And so he had no way of
getting rid of the cocaine.'' Significantly, Judge Bittner wrote that
``[the] Officer appeared candid and to exhibit good recall[,] and I
therefore credit her testimony.''
The Respondent testified before Judge Bittner, stating that he
first met the Officer on April 23, 1993, that he had not seen the CI
for almost a year, and that he had invited the CI to his home in the
hope of getting him to repay a loan. The Respondent denied using
cocaine that evening.
The Respondent also testified that, when he knew the CI before,
``he never talked about drugs * * *'' but ``all of a sudden every time
[the CI] called me * * * He was just, I mean, continually talking about
drugs and * * I didn't know if he had just changed or what was going
on.'' The Respondent also testified concerning the July 23, 1993
conversation, stating that he thought the CI was going to repay a loan,
but that, when the Respondent went to the CI's room, he ``realized the
position [he] was in--I mean, standing here with some Columbian [the
Informant] and I didn't know if he had a gun or what else, he was
talking about selling me drugs--all I wanted to do was to get out of
the room.'' However, the Respondent testified that later that evening,
he went in a cab to a bar with the Informant, and that after the
Informant became inebriated, the Respondent left him in the bar. Later
the same evening, the Respondent invited the Informant up to his room.
The Respondent testified that, while the Informant was in his room, he
was trying to ``grab'' his girlfriend, and then the Respondent
testified that ``I told him specifically, word for word, I said, I
don't know what [the CI] told you why I'm here. I said, I'm here to see
my son play baseball and to get the $400.00 from [the CI] and then I
threw [the Informant] out of my room.''
Finally, the Respondent testified that in August of 1993, he called
a local police officer and told him that the CI had continued to call
him and talk about drugs. Also in the record is an affidavit from a
sergeant of the Brunswick Police Department, which corroborated the
Respondent's testimony concerning his call to the police. The
Respondent also testified that from August 18, 1992, until the date of
the hearing, he had not purchased, sold, or used any controlled
substances.
However, the Deputy Administrator notes Judge Bittner's statement
that:
At the outset, I note that I did not find (the) Respondent to be
a credible witness. He did not appear forthright or candid, portions
of his testimony are contradicted by the documentary evidence (,)
and he appeared primarily concerned with tailoring his testimony to
suit his defense. As noted above, I found [the] Officer ( ) to be a
credible witness. Consequently, where (the) Respondent's testimony
conflicts with that of (the) Officer ( ), I credit the latter.
The Respondent also offered into evidence letters from colleagues,
attesting to his professional credentials, and his exemplary abilities
as an emergency room physician. Other physicians who had monitored his
practice also wrote, stating that he was complying with his conditions
of probation. One of these letters was from the medical director of the
Respondent's physicians' group, who wrote that ``at no time do I feel
that (the Respondent) has ever been in an impaired position.'' He also
noted that the Respondent had negative drug test results on November 6,
1993, November 19, 1993, January 7, 1994, and February 21, 1994.
Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Deputy
Administrator may revoke a DEA Certificate of Registration and deny any
pending application for registration as a practitioner, if he
determines that the continued registration would be inconsistent with
the public interest. Further 21 U.S.C. 824(a)(2) provides that
conviction of a felony relating to any controlled substance is also
grounds for revoking a DEA registration.
First, as to the Respondent's ``conviction'', the Respondent argued
that he should not be considered ``convicted'' because, pursuant to his
plea bargain, and under Minnesota law, if he successfully completes his
[[Page 26211]]
probation, the case will be dismissed. However, the Deputy
Administrator agrees with Judge Bittner, who wrote, ``that provision of
State law does not determine what is a ``conviction'' within the
meaning of the Controlled Substances Act. This agency has previously
held that a guilty plea is a conviction for purpose of these
proceedings. Eric A. Baum, M.D., 53 Fed. Reg. 47272 (DEA 1988). I
therefore find that (the) Respondent's conviction constitutes grounds
for revoking his DEA registration pursuant to 21 U.S.C. 824(a)(2).''
Judge Bittner also found that the Respondent's continued
registration was contrary to the public interest. In determining the
public interest, Section 823(f) provides that the following factors be
considered:
(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 or
safety. These factors are to be considered in the disjunctive; the
Deputy Administrator may rely on any one or a combination of factors
and may give each factor the weight he deems appropriate in determining
whether a registration should be revoked or an application for
registration denied. See Henry J. Schwarz, Jr., M.D., 54 FR 16422
(1989).
In this case, the Deputy Administrator finds relevant factors one,
four, and five in determining whether continuing the Respondent's
registration would be inconsistent with the public interest. As to
factor one, ``recommendation of the appropriate State licensing
board,'' the record contains no direct recommendation from the Board to
the DEA on this matter. However, it is significant that, after
notification of the Respondent's entry of a guilty plea to possession
of LSD in Minnesota, the Board suspended the Respondent's medical
license for three months and placed it on probation for an additional
four years.
As the factor four, the Respondent's ``(c)ompliance with applicable
State, Federal, or local laws relating to controlled substances,'' and
factor five, ``(s)uch other conduct which may threaten the public
health or safety,'' the Deputy Administrator agrees with Judge
Bittner's finding, given her credibility assessment of the Respondent
and the Officer, that the Government has shown, by a preponderance of
the evidence, that the Respondent consumed cocaine and searched for LSD
in the presence of the officer on April 21, 1993. Although the
Respondent argued that he would not engage in such conduct, given that
he was providing random urine samples for drug screening, the Deputy
Administrator finds his argument unpersuasive. The record shows that
the first negative drug screening result was reported on November 6,
1993, and that the Board did not even issue its decision ordering
random screening until July 11, 1994. Thus, there was no evidence of
record showing that the Respondent was required to participate, or was
voluntarily participating in, random drug testing on April 21, 1993.
Next, the Respondent testified that he was an unwilling participant
in the CI's plan to distribute cocaine. However, the Deputy
Administrator finds that the record supports an opposite conclusion.
The transcripts of the Respondent's conversation with the CI and the
Informant indicate the Respondent's actual desire to participate in the
plan. The Respondent's reply to the CI's information concerning the 17
kilogram of cocaine transaction was ``I wish! * * * I need some money *
* *'' Such a response showed his willingness to participate, if he had
had the resources for the downpayment needed to obtain the controlled
substance. Further, the Respondent's conversation with the Informant
indicated that he did not participate in this proposed transaction
because of a lack of means to distribute the controlled substance. The
Deputy Administrator agrees with Judge Bittner's conclusion, that
``(t)hese statements are not those of someone who is uncertain as to
why he is a party to a drug-related conversation.''
As to rehabilitation, the Deputy Administrator acknowledges the
Respondent's evidence of his professional competency as an emergency
room physician. Also, the Deputy Administrator notes that the
Respondent argued that rehabilitative evidence exists, such as (1) a
lack of positive urinalysis results, (2) the fact that he had never
been in trouble before his illegal conduct in Minnesota, (3) the lack
of substantiation of the allegations of drug or alcohol abuse, and (4)
the Respondent's report of the CI's conduct to the local police.
However, the Deputy Administrator also notes Judge Bittner's
credibility finding, after observing the Respondent testify before her.
Also, although the more recent drug testing evidence may show that the
Respondent, while on probation and subject to random drug screening
tests, has abstained from personal consumption of illegally obtained
controlled substances, the Deputy Administrator is still concerned
about the Respondent's willingness to participate in conversations
concerning illegal drug transactions to others. Further, the Respondent
showed no remorse concerning his prior documented misconduct. Rather,
in his testimony before Judge Bittner, the Respondent continued to deny
any intentional wrongdoing. In previous cases, when a Respondent failed
to admit to the full extent of his involvement in documented misconduct
involving controlled substances, the Deputy Administrator has then
doubted such a Respondent's commitment to compliance with the
Controlled Substances Act in future practice. See, e.g., Prince George
Daniels, D.D.S., 60 FR 62,884 (1995). Given the totality of the
circumstances in this case, the Deputy Administrator agrees with Judge
Bittner's conclusion that he ``Respondent is not in a position to
accept the responsibilities inherent in a DEA registration, and that
his continued registration would be inconsistent with the public
interest.''
The Respondent filed exceptions to Judge Bittner's opinion, taking
exception with her finding concerning a felony ``conviction'' in
Minnesota. The Deputy Administrator notes the Respondent's concern and
made findings accordingly in this order. The remaining exceptions are
of record and require no further comment.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823, and 28 C.F.R. 0.100(b) and 0.104, hereby orders that DEA
Certificate of Registration BG1368516, previously issued to the
Respondent, be, and it hereby is, revoked, and that any pending
applications to renew the same are hereby denied. This order is
effective June 24, 1996.
Dated: May 17, 1996.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 96-13051 Filed 5-23-96; 8:45 am]
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