[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]
BILLING CODE 4410-09-M