[Federal Register Volume 69, Number 80 (Monday, April 26, 2004)]
[Notices]
[Pages 22566-22569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9333]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Merlin E. Shuck, D.V.M.; Revocation of Registration

    On January 15, 2003, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Merlin E. Shuck, D.V.M. (Respondent), proposing 
to revoke his DEA Certificate of Registration, AS9668596, pursuant to 
21 U.S.C. 824(a)(1) and 824(a)(4) and deny any pending applications for 
registration as a practitioner under 21 U.S.C. 823(f). The Order to 
Show Cause alleged that the Respondent's continued

[[Page 22567]]

registration would be inconsistent with the public interest as that 
term is used in 21 U.S.C. 823(f) and 824(a).
    By letter dated February 3, 2003, the Respondent requested a 
hearing on the matters raised in the Order to Show Cause. On March 14, 
2003, Administrative Law Judge Gail A. Randall (Judge Randall) issued 
an order requiring the Government to file its Pre-hearing Statement on 
or before March 21, 2003, and the Respondent was to file his Pre-
hearing Statement by April 4, 2003.
    On March 20, 2003, the Government timely filed its Pre-hearing 
Statement. However, the Respondent failed to file a Pre-hearing 
Statement by the date specified by Judge Randall's order. On April 16, 
2003, Judge Randall issued a Notice and Order, requiring the Respondent 
to file his Pre-hearing Statement by May 2, 2003, or in the 
alternative, the Respondent was to file a status report with Judge 
Randall indicating his intentions with respect to his request for 
hearing. Judge Randall further informed the Respondent that failure to 
respond to the April 16 order would be construed as a waiver of his 
right to a hearing, resulting in termination of proceedings.
    Despite the above notifications, the Respondent failed to file 
either a Pre-hearing Statement or Status Report. Accordingly, on May 9, 
2003, Judge Randall issued an Order Terminating Proceedings, noting 
that the Respondent's lack of response was considered a waiver of the 
right to hearing and an implied withdrawal of a request for hearing.
    DEA has not received a request for hearing or any other reply from 
the Respondent or anyone purporting to represent him in this matter. 
Therefore, the Acting Deputy Administrator finds as follow: (1) 
Respondent has requested a hearing, (2) the Respondent has been 
provided an opportunity to participate in such hearing by filing a Pre-
hearing Statement and a Status Report, and (3) Respondent has failed to 
provide any written submissions indicating his intentions with respect 
to his request for hearing despite several opportunities to submit the 
same.
    The Acting Deputy Administrator concludes that the Respondent is 
deemed to have waived his hearing right. After considering material 
from the investigative file in this matter, the Acting Deputy 
Administrator now enters her final order without a hearing pursuant to 
21 CFR 1301.43(d) and (e) and 1301.46.
    On October 6, 1997, an opinion of the Supreme Court of Tennessee at 
Knoxville was issued in conjunction with a criminal proceeding 
involving the Respondent. In the opinion, it was found that the 
Respondent had worked as a practicing veterinarian in Morristown, 
Tennessee for over thirty years and had been ``very active in civic and 
community affairs.'' The opinion further recounted that sometime in 
1992, the Respondent developed an unusually close and protective 
relationship with a woman whom he had previously hired to work in his 
veterinarian clinic as an assistant. It appears from the aforementioned 
opinion that the Respondent's complicated arrangement with his female 
employee was reflected in conduct that ranged from the benevolent 
(i.e., seeking to assist the employee to curb her dependence on 
alcohol) to the bizarre (repeatedly barging into the employee's 
apartment unannounced when the latter failed to show for work).
    The Respondent's obsessive conduct eventually resulted in his 
seeking out a ``hit man'' to murder the female employee, her husband, 
as well as a male acquaintance of the employee. To that end, on 
December 16, 1993, the Respondent made a partial payment of five 
hundred dollars to an individual to help carry out the murders. It was 
agreed between the two that the individual would bring the employee and 
her husband to the Respondent, and the Respondent would then kill them 
by insertion of an unknown drug. However, unbeknown to the Respondent, 
the ``hit man'' turned out to be an undercover law enforcement agent 
for the Tennessee Bureau of Investigation (TBI). The meeting between 
the Respondent and the undercover agent was videotaped by the TBI. 
However, before the Respondent could pull off this criminal caper, he 
was arrested as he left the hotel room where the meeting took place.
    On May 21, 1998, the Respondent entered guilty pleas to the 
offenses of solicitation to commit aggravated kidnapping (two counts) 
and solicitation to commit first degree murder (one count). The 
Respondent was subsequently sentenced to a period of incarceration 
totaling eight years; however, seven years of the sentence were 
suspended, and the Respondent was placed on supervised probation for 
seven years.
    As a result of the Respondent's criminal convictions, the State of 
Tennessee, Department of Health, Board of Veterinary Medical Examiners 
(Veterinary Board) entered an Order dated March 1, 1999, where it 
placed the Respondent's state veterinary license on five years 
probation, and ordered the Respondent to pay fine of $5,000 as well as 
perform community service. There is no information in the investigative 
file regarding any compliance by the Respondent with the probationary 
conditions placed on his professional license.
    On January 7, 2000, the Respondent submitted a renewal application 
for DEA registration as a hospital (animal shelter). The application 
was signed and dated by the Respondent. In response to the question 
3(d) of the application which asks whether the applicant ``ever had a 
state professional license or controlled substance registration 
revoked, suspended, denied, restricted, or placed on probation * * *, 
the Respondent provided a ``no'' response.''
    The investigative file also contains a second application for 
registration apparently submitted to DEA in or around March 2001 on 
behalf of the Respondent. It is unclear whether the second application 
sought to modify the renewal application, or sought registration at a 
new location. Nevertheless, the second application listed a proposed 
registered address different than that for the prior renewal 
application.
    With respect to the March 2001 application, while it appears that a 
similar ``no'' response was provided to a question regarding adverse 
action against a state professional license, the Acting Deputy 
Administrator finds that this registration application does not appear 
to be a fully executed document, as it does not contain the required 
signature of the applicant or the date in which it was completed. The 
Acting Deputy Administrator is familiar with at least one DEA authority 
which suggests that a registration application is executed when 
accompanied by the signature of the applicant. Hilltop Pharmacy, 53 FR 
35636 (1988). Therefore, having found that the March 2001 application 
was not properly executed, the Acting Deputy Administrator will not 
give consideration to the responses provided on the application.
    Further review of the investigative file reveals that on November 
2, 2000, an unidentified caller inquired with the Nashville DEA office 
about regulations concerning the administering and storing of 
controlled substances at a veterinary clinic in Morristown, Tennessee. 
The caller informed DEA personnel that bottles of sodium pentobarbital, 
a Schedule II controlled substance, were being stored at the clinic in 
a safe and a cabinet, and that opened bottles of the substance were 
being stored in an unlocked wooden cabinet. The caller voiced concerns 
that the opened bottles of sodium

[[Page 22568]]

pentobarbital were easily accessible to employees at the facility and 
subject to possible abuse. DEA also learned that the clinic in question 
was not registered with DEA to handle controlled substances and that 
the sodium pentobarbital was supplied to the facility by the 
Respondent.
    On that same date, a DEA Diversion Investigator telephoned the 
Respondent regarding the information provided by the unidentified 
caller. The Respondent admitted that he was familiar with the clinic, 
that he supervised employees at that facility in their administering of 
sodium pentobarbital, and that he supplied that facility with the drug. 
The Respondent further admitted that he was aware that sodium 
pentobarbital was being stored at the clinic and that the facility was 
not registered with DEA.
    On January 10, 2001, the DEA Nashville office issued a Letter of 
admonition to the Respondent, informing the Respondent that his 
distribution of sodium pentobarbital to the unregistered veterinary 
facility was in violation of 21 U.S.C. 828(a). In a response letter 
dated May 14, 2001, the Respondent stated in relevant part, that sodium 
pentobarbital was stored at the unregistered veterinary facility ``as a 
matter of expediency,'' but that the drug had been kept locked in a 
safe, under his control.
    Pursuant to 21 U.S.C. 823(f) and 824(a)(4), the Acting Deputy 
Administrator may revoke a DEA Certificate of Registration and deny any 
pending applications for renewal of such registration, if she 
determines that the continued registration would be inconsistent with 
the public interest. Section 823(f) requires that the following factors 
be considered in determining the public interest:
    (1) The recommendation of the appropriate state licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under federal or state laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable state, federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health or 
safety.
    These factors are to be considered in the disjunctive; the Acting 
Deputy Administrator may rely on any one or a combination of factors 
and may give each factor the weight she deems appropriate in 
determining whether a registration should be revoked or an application 
for registration denied. See Henry J. Schwartz, Jr., M.D., 54FR 16,422 
(1989).
    First, pursuant to 21 U.S.C. 824(a)(1), a registration may be 
revoked if the registrant has materially falsified an application for 
registration. DEA has previously held that in finding that there has 
been a material falsification of application, it must be determined 
that the applicant knew or should have known that the response given 
tot he liability question was false. See, James C. LaJavid, D.M.D., 64 
FR 55962, 55964 (1999); Martha Hernandez, M.D., 62 FR 61,145 (1997); 
Herbert J. Robinson, M.D., 59 FR 6304 (1994).
    As noted above, on March 1, 1999, the Veterinary Board entered an 
order placing the Respondent's state veterinary license on five years 
probation, and imposed additional conditions on that license including 
a fine of $5,000. Yet a review of the Respondent's DEA renewal 
application of January 7, 2000, reveals a ``no'' response to the 
liability question which asked whether the applicant has ever had a 
state professional license placed on probation. In light of this 
evidence, as well as the lack of evidence to the contrary, the Acting 
Deputy administrator is left to conclude that the Respondent knew or 
should have known that his ``no'' response to a liability question on a 
DEA registration application was false, and therefore, the Respondent 
materially falsified his application of registration. Accordingly, 
grounds exist to revoke the Respondent's registration pursuant to 21 
U.S.C. 824(a)(1).
    Next, the Acting Deputy administrator must consider whether 
Respondent's continued registration would be inconsistent with the 
public interest. As to factor one, the recommendation of the 
appropriate state licensing board or professional disciplinary 
authority, as noted above, the Veterinary Board imposed probationary 
conditions on the Respondent's state veterinary license as a result of 
his felony criminal convictions. The Acting Deputy administrator finds, 
that while the Respondent's licensure to practice veterinary medicine 
and handle controlled substances are not determinative in this 
proceeding, the imposition of probationary conditions on his 
professional license nevertheless weigh in favor of a finding that the 
Respondent's continued registration would be inconsistent with the 
public interest.
    Factors two and four, Respondent's experience in handling 
controlled substances and his compliance with applicable controlled 
substance laws, are also relevant in determining the public interest in 
this matter. The record in this proceeding reveals that the Respondent 
stored and dispensed sodium pentobarbital at a non-registered location 
in Morristown, Tennessee, i.e., the facility was not authorized to 
order and distribute controlled substances. In addition, the Respondent 
did not submit DEA 222 order forms when he distributed sodium 
pentobarbital to a veterinary facility, in violation of 21 U.S.C. 
828(a) and 21 C.F.R. 1305.03. Therefore, the Acting Deputy 
Administrator finds the Respondent's failure to adhere to controlled 
substance laws and regulations with respect to the distribution and 
storage of sodium pentobarbital relevant under factors two and four, 
and also weigh in favor of a finding that his registration would be 
inconsistent with the public interest.
    Factor three, the applicant's conviction record under federal or 
state laws relating to the manufacture, distribution, or dispensing of 
controlled substances, is not relevant for consideration here, since 
there is no evidence that the Respondent has ever been convicted of any 
crime related to controlled substances.
    With respect to factor five, other conduct that may threaten the 
public health and safety, the Acting Deputy Administrator finds this 
factor relevant to the Respondent's material falsification of a DEA 
renewal application, as well as his storage and distribution of 
controlled substances at an unregistered location. The record in this 
case further demonstrates that the Respondent executed guilty pleas to 
the offenses of solicitation to commit aggravated kidnapping and of 
solicitation to commit first degree murder.
    While the above criminal convictions relate to conduct that took 
place more than ten years ago, the egregious nature of the Respondent's 
criminal conduct negatively reflects upon his fitness to possess a DEA 
registration. Criminal conduct unrelated to controlled substances, in 
particular, matters surrounding a registrant's arrest and conviction, 
have been relevant in determining the public interest under factor 
five. Alexander Drug Company, Inc., FR 18299, 18304 (2001). The Acting 
Administrator also finds factor five relevant to the absence of 
evidence regarding any compliance by the Respondent with his criminal 
probation or with the probation imposed by the Veterinary Board.
    The Acting Deputy Administrator finds that the Respondent has 
demonstrated conduct which reflects poor judgment and questionable 
character. His solicitation for the crime

[[Page 22569]]

of murder and kidnapping, and his plan to use drugs to facilitate these 
crimes is abominable. The Respondent also demonstrated his 
unfamiliarity with, or refusal to abide by, controlled substance laws 
and regulations by distributing and storing controlled substances at an 
unregistered location. Finally, the Respondent falsified an application 
for DEA registration by his failure to disclose the imposition of 
probation on his Tennessee state veterinary license. These factors, 
along with the absence of evidence to the contrary, lead to the 
conclusion that the Respondent's continued registration would be 
inconsistent with the public interest.
    Accordingly, the Acting Deputy Administrator of the Drug 
Enforcement Administration, pursuant to the authority vested in her by 
21 U.S.C. 823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that 
DEA Certificate of Registration, AS9668596, previously issued to Merlin 
E. Shuck, D.V.M., be, and it hereby is, revoked. This order is 
effective May 26, 2004.

    Dated: March 29, 2004.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 04-9333 Filed 4-23-04; 8:45 am]
BILLING CODE 4410-09-M