[Federal Register Volume 67, Number 53 (Tuesday, March 19, 2002)]
[Notices]
[Pages 12579-12580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-6571]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


David W. Linder; Denial of Application

    On or about June 27, 2001, the Deputy Assistant Administration, 
Office of Diversion Control, Drug Enforcement Administration (DEA), 
issued an Order to Show Cause (OTSC) by certified mail to David Linder 
(Linder), residing in Bullhead City, Arizona, notifying him of an 
opportunity to show cause as to why the DEA should not deny his 
application, dated May 14, 2000, for a DEA Certificate of Registration 
as a distributor of the List I chemical gamma-butrolactone (GBL), 
pursuant to 21 U.S.C. 823(h), as being inconsistent with the public 
interest. The order also notified Linder that, should no request for 
hearing be filed within 30 days, the right to a hearing would be 
waived.
    The OTSC was returned, marked ``Unclaimed.'' The OTSC was re-mailed 
to Linder via first class mail. This letter was also returned to DEA, 
marked ``Return to Sender--Attempted--Not Known--No Forwarding 
Address.'' Since that time, no further response has been received from 
the applicant nor any person purporting to represent the applicant. 
Therefore, the Administrator of the DEA, finding that (1) thirty days 
having passed since the attempted delivery of the Order to Show Cause 
at the applicant's last known address, and (2) no request for a hearing 
having been received, concludes that Linder is deemed to have waived 
his right to a hearing. After considering relevant material from the 
investigative file in this matter, the Administrator now enters his 
final order without a hearing pursuant to 21 CFR 1301.43(d) and (e) and 
1301.46.
    The Administrator finds as follows. List I chemicals are chemicals 
that may be used in the manufacture of a controlled substance in 
violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 
1310.02(a). The List I chemical GBL has industrial uses as a solvent. 
GBL is also a precursor chemical and is readily synthesized into the 
Schedule I controlled substance GBH. Schedule I controlled substances 
have no accepted medical use, and are highly subject to abuse. 21 
U.S.C. 812(b)(1).
    The Administrator finds that during the June 29, 2000, pre-
registration inspection, Linder stated to DEA investigators that he 
intended to distribute GBL to computer companies for use as an organic 
cleaner. Linder further stated he was engaged in pond construction. 
Linder failed to indicate that he had any knowledge of or experience in 
the manufacturing, handling, or distributing of listing chemicals. 
Linder also stated he desired the DEA registration in part because he 
wished to recover a quantity of GBL previously seized from him by the 
State of Arizona.
    During a follow-up interview on August 3, 2000, Linder was unable 
to provide DEA investigators with a list of prospective customers, or 
any method of identifying potential customers. He also stated he was 
not sure what percentage of his business would involve GBL. Linder 
stated he used GBL to clean computer parts and in making artificial 
ponds.
    Also at the August 3, 2000, interview, Linder stated he does not 
advertise and does not operate any Web sites. On August 31, 2000, a DEA 
investigator spoke with a Las Vegas, Nevada, Narcotics Detective, who 
stated Linder was arrested in Las Vegas for possession of 350 gallons 
of GBL and GHB. The Detective also stated Linder sells nationwide on 
the internet, and that Linder is linked to the overdose death of a girl 
in Long Beach, California. The Detective further stated that, at the 
arrest of a suspected GBH trafficker, some of Linder's chemicals were 
found in the arrestee's residence. DEA investigators subsequently 
learned that Linder does in fact maintain a web site, called ``AE--
Alternative Entropy'' wherein he inter alia advertises as ``novelty 
items'' and ``for research purposes only'' various allegedly 
psychedelic and hallucinogenic substances.
    The DEA investigative file further reveals that on May 16, 1975, 
Linder was convicted by a Federal Court of Distribution of a Controlled 
Substance and Sale of Dangerous Drugs, as the result of the illegal 
sale to an undercover DEA agent of approximately one ounce of MDMA and 
in excess of one pound of hashish. Linder was sentenced to six years 
imprisonment for his conviction.
    In addition, on March 23, 2000, Linder was arrested by the Bullhead 
City, Arizona, Police Department on three State felony drug charges, 
including Dangerous Drug Manufacturing, a Dangerous Drug violation, and 
a Drug Paraphernalia violation. When questioned concerning

[[Page 12580]]

this arrest, Linder states to DEA investigators that the listed 
chemical product seized from him by State law enforcement officers was 
for use in ``artificial rock making.''
    Linder was previously arrested on or about October 28, 1999, in 
Laughlin, Nevada, for distribution of GHB and other charges. GBL and 
other chemicals were seized at that time of this arrest and during the 
subsequent search of a storage shed. Linder was also involved in the 
distribution of GHB kits (containing the ingredients for GHB and 
instructions for preparation) and other allegedly psychedelic 
substances.
    During a June 29, 2000, conversation with a DEA investigator 
concerning his pending application, Linder stated concerning his 1975 
felony drug conviction that he had ``learned his lesson'' and that he 
``has never done anything illegal since that time.'' The DEA 
investigation reveals, however, that Linder's law enforcement record 
includes, in addition to the 1975 Federal drug felony conviction, seven 
arrests and two convictions for various offenses, spanning the time 
period from 1994 up to the March 23, 2000, Bullhead City Police 
Department arrest for three State felony drug charges.
    Pursuant to 21 U.S.C. 823(h), the Administrator may deny an 
application for a DEA Certificate of Registration if he determines that 
granting the registration would be inconsistent with the public 
interest. Section 823(h) requires the following factors be considered:
    (1) Maintenance by the applicant of effective controls against 
diversion of listed chemicals into other than legitimate channels;
     (2) Compliance by the applicant with applicable Federal, State, 
and local law;
    (3) Any prior conviction record of the applicant under Federal or 
State laws relating to controlled substances or to chemicals controlled 
under Federal or State law;
    (4) Any past experience of the applicant in the manufacture and 
distribution of chemicals; and
    (5) Such other factors as are relevant to and consistent with the 
public health and safety.
    Like the public interest analysis for practitioners and pharmacies 
pursuant to subsection (f) of section 823, these factors are to be 
considered in the disjunctive; the Administrator may rely on any one or 
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 be denied. See e.g. Energy Outlet, 64 
FR 14269 (1999). See also Henry J. Schwartz, Jr., M.D., 54 FR 16422 
(1989).
    The Administrator finds factors two, three, four, and five relevant 
to this application.
    Regarding factor two, compliance by the applicant with applicable 
Federal, State, and local law, the Administrator finds substantial 
evidence in the DEA investigative file that Linder has violated 
applicable Federal and State law. First, Linder was convicted on May 
16, 1975, of Distribution of a Controlled Substance and Sale of a 
Dangerous Drug, and sentenced to six years imprisonment. In addition, 
the DEA investigative file contains substantial evidence that Linder 
violated Nevada State law by manufacturing GBL, resulting in his 
related arrest on or about October 28, 1999. The DEA investigative file 
also contains substantial evidence that Linder violated Arizona State 
law in that he operated a clandestine laboratory for manufacturing GBL 
at his residence and also possessed a quantity of GBL that was seized 
by law enforcement officials, resulting in Linder's March 23, 2000, 
arrest by the Bullhead City, Arizona, Police Department for Dangerous 
Drug Manufacturing, a Dangerous Drug Violation, and a Drug 
paraphernalia Violation.
    Regarding factor three, any prior conviction record of the 
applicant under Federal or State laws relating to controlled substances 
or to chemicals controlled under Federal or State law, the 
Administrator finds Linder was convicted May 16, 1975, in a Federal 
Court for Distribution of a Controlled Substance and Sale of a 
Dangerous Drug, and sentenced to six years imprisonment.
    Regarding factor four, the applicant's past experience in the 
distribution of chemicals, the DEA investigation revealed substantial 
evidence that Linder violated Nevada and Arizona State law related to 
his handling of listed chemicals, as set forth in factor two, above.
    Regarding factor five, other factors relevant to and consistent 
with the public safety, the Administrator finds that during a June 29, 
2000, conversation with a DEA investigator concerning his pending 
application, Linder stated concerning his 1975 felony drug conviction 
that he had ``learned his lesson'' and that he ``has never done 
anything illegal since that time.'' The DEA investigation reveals, 
however, that Linder's record includes in addition to the 1975 Federal 
drug felony conviction, seven arrests and two convictions for various 
offenses, spanning the time period from 1994 up to the March 23, 2000, 
Bullhead City, Arizona, Police Department arrest for three State felony 
drug charges. The Administrator finds this lack of candor, taken 
together with Linder's Federal controlled substance-related criminal 
conviction and his apparent disregard of Arizona and Nevada State laws 
regarding the handling of listed chemicals, makes questionable Linder's 
commitment to the DEA regulatory requirements designed to protect the 
public from the diversion of controlled substances and listed 
chemicals. Aseel Incorporated, Wholesale Division, 66 FR 35459 (2001); 
Terrence E. Murphy, 61 FR 2841 (1996).
    In addition, despite repeated requests from DEA investigators, 
Linder was unable or unwilling to supply a proposed customer list for 
distribution of GBL, and thus failed to provide any evidence purporting 
to show a legitimate market for his distribution of this product.
    Therefore, for the above-stated reasons, the Administrator 
concludes that it would be inconsistent with the public interest to 
grant the application of Linder.
    Accordingly, the Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 28 CFR 0.100(b) and 0.104, hereby orders that the application 
for a DEA Certificate of Registration submitted by David W. Linder be 
denied. This order is effective April 18, 2002.

    Dated: March 11, 2002.
Asa Hutchinson,
Administrator.
[FR Doc. 02-6571 Filed 3-18-02; 8:45 am]
BILLING CODE 4410-09-M