[Federal Register Volume 72, Number 83 (Tuesday, May 1, 2007)]
[Notices]
[Pages 23848-23854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8261]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 4-41]


Samuel S. Jackson, D.D.S.; Grant of Application

Procedural History

    On April 21, 2004, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Samuel S. Jackson, D.D.S. (Respondent) of Nashville, 
Tennessee. The Show Cause Order proposed to deny Respondent's pending 
application for a certificate of registration as a practitioner on 
three grounds: (1) That Respondent had materially falsified his 
application, see 21 U.S.C. 824(a)(1); (2) that Respondent had been 
convicted of a controlled substances related felony, see id. Sec.  
824(a)(2); and (3) that Respondent's registration would be inconsistent 
with the public interest. See id. 824(a)(4); see also Show Cause Order 
at 1.
    The Show Cause Order alleged that Respondent had entered into a 
conspiracy with a drug trafficker, who was then wanted on federal 
charges, and a confidential informant, whom Respondent also believed to 
be a fugitive, to help them avoid apprehension. Show Cause Order at 2. 
More specifically, the Show Cause order alleged that Respondent had 
agreed to perform cosmetic dental work on these individuals and to 
arrange for plastic surgery on them for the purpose of altering their 
appearance so that they could evade arrest. Id. The Show Cause Order 
alleged that Respondent further admitted to authorities that he knew 
that the fugitive was a ``big time hoodlum'' and that Respondent had 
``intentionally sought to participate in activity which placed the 
public at risk for further distribution of illegal controlled 
substances.'' Id.
    The Show Cause Order alleged that Respondent subsequently pled 
guilty in the United States District Court for the Middle District of 
Tennessee on one count of conspiracy, a crime under 18 U.S.C. 371, and 
was sentenced to a term of imprisonment for 30 months. See id. The Show 
Cause Order also alleged that on October 1, 2002, Respondent's then-
existing DEA registration was revoked by order of the then Deputy 
Administrator. Id. at 1.
    The Show Cause Order alleged that on October 20, 2003, Respondent 
applied for a new DEA registration. Id. The Show Cause Order alleged 
that in completing the application, Respondent stated that he had 
``voluntarily surrendered [his] DEA <greek-i> to prescribe 
medications,'' when, in fact, his registration had been revoked, and 
that this constituted a material falsification of his application. Id. 
at 1-2. The Show Cause Order further alleged that, in completing his 
application, Respondent had also answered ``No'' to the question 
whether he had ever been convicted of a drug-related felony. Id. at 2. 
The Show Cause Order thus concluded that Respondent's material 
falsification of his application and his conviction rendered his 
registration inconsistent with the public interest. Id.
    Respondent, through his counsel, timely requested a hearing. The 
case was assigned to Administrative Law Judge (ALJ) Gail Randall, who 
conducted a hearing in Nashville on May 3 and 4, 2005. At the hearing, 
both parties called witnesses to testify and introduced documentary 
evidence. Following the hearing, the Government submitted a brief 
containing its proposed findings of fact, conclusions of law, and 
argument.
    On May 26, 2006, the ALJ issued her recommended findings of fact, 
conclusions of law, and decision. In that decision, the ALJ concluded 
that Respondent did not intentionally falsify his application. ALJ at 
28. The ALJ further found that while Respondent ``was less than 
completely candid and forthcoming'' in his testimony regarding

[[Page 23849]]

his criminal conduct, there were several mitigating factors including 
Respondent's having cooperated with law enforcement officials and his 
having ``accepted full responsibility for his past conduct.'' Id. at 
30. The ALJ thus concluded that the denial of Respondent's application 
``would be too severe a sanction,'' and that while Respondent should be 
reprimanded for providing ``less than truthful and complete 
information,'' his application should be granted. Id. at 30-31.
    The Government filed exceptions to the ALJ's recommended decision. 
Specifically, the Government contended that Respondent had not credibly 
testified ``as to the essential elements of [his] felony conviction,'' 
and that he had given falsified answers on his application. Gov. 
Exceptions at 11-12. The Government further maintained that granting 
Respondent's application would not be consistent with DEA precedents 
which require that an applicant (or registrant) truthfully testify and 
accept full responsibility for his misconduct. Respondent did not file 
exceptions.
    Having considered the record as a whole, I hereby issue this 
decision and final order. I adopt the ALJ's findings of fact except as 
expressly noted herein. I hold that the Government has not proved by 
substantial evidence that Respondent materially falsified his 
application. I further hold that the Government has not proved by 
substantial evidence that Respondent has failed to accept 
responsibility for his criminal conduct. I thus conclude that 
Respondent's registration would not be inconsistent with the public 
interest and order that his application be granted.

Findings

    Respondent is a 1997 graduate of the Meharry Medical College School 
of Dentistry. Tr. 148. Respondent currently holds a license from the 
State of Tennessee to practice dentistry. Resp. Exh. 1. Respondent 
previously held a DEA Certificate of Registration as a practitioner. On 
October 1, 2002, my predecessor ordered that Respondent's DEA 
registration be revoked (effective November 22, 2002) on the ground 
that Respondent had entered into an agreed order with the Tennessee 
Department of Health which resulted in the revocation of his state 
license and therefore was not entitled to maintain a DEA registration. 
Samuel Silas Jackson, 67 FR 65145 (2002).\1\
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    \1\ While the final order relied solely on this ground, the 
order further noted the findings of the state board that Respondent 
had entered into a conspiracy with a known drug trafficker and 
fugitive as well as a confidential informant whom Respondent 
believed to also be a drug trafficker and fugitive for the purpose 
of assisting these persons to avoid apprehension. Gov. Exh. 2B, at 
2. Specifically, the Tennessee board found that Respondent agreed to 
perform dental work on them and to arrange for them to obtain 
plastic surgery in California and have a safe place to hide while 
recovering from the surgery for the purpose of altering their 
appearance and enabling them to evade apprehension. Id. The 
Tennessee board also found that even after the authorities arrested 
the fugitive, Respondent nonetheless agreed to provide the services 
to the confidential informant for a price of $ 150,000. Id. at 3. 
Furthermore, according to the findings of the Tennessee board, 
Respondent met with the confidential informant and received a piece 
of luggage which he believed contained $150,000 in cash. Id.
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    As explained below, the impetus for these actions was Respondent's 
entering into a conspiracy under which Respondent agreed to help Paul 
Woods, an indicted drug trafficker who was then at large, as well as a 
confidential informant (CI) whom Respondent also believed was wanted by 
the authorities, to avoid apprehension. According to the record, in 
1997 a Nashville-based DEA task force began an investigation into the 
criminal activities of Woods and his organization. Tr. 73. The 
investigation established that Woods and his organization were involved 
in the distribution of multi-kilo amounts of cocaine in the Nashville 
area. Id. at 74. The investigation ultimately resulted in the 
indictments of over thirty persons including Woods, on charges of 
cocaine distribution, firearms violations, money laundering and 
conspiracy. Id.
    Woods was charged in July 1999, in the initial wave of indictments. 
Id. The authorities were, however, unable to arrest Woods who had fled. 
Id. at 83. The authorities then approached an individual who was a 
lower-tier distributor and a secondary target of the investigation; 
this person agreed to work as an informant and to assist the 
authorities in locating Woods. Id. at 84.
    To gain the confidence of Woods, the authorities portrayed the 
informant as a fugitive. Id. Among other things, the informant 
specifically agreed to record his telephone calls with Woods and to 
provide a copy of the tape to the authorities. Id. at 81. During one of 
these phone calls, which occurred in December 1999, Respondent came to 
the attention of the authorities when Woods and the informant began 
discussing a scheme to alter their appearance by having dental work and 
plastic surgery done. Id. at 81-82.
    At the time of the investigation, Respondent was dating a woman 
whose niece was Woods' live-in girlfriend and the mother of one of 
Woods' children. Id. at 134-35. Respondent's girlfriend asked him to 
assist Woods to help him ``avoid apprehension.'' Id. at 150. Respondent 
testified that he was not coerced into helping Woods and that he 
understood that it was a crime to do so. Id.
    Respondent agreed to perform cosmetic dental work on both Woods and 
the informant to alter their appearance and to help them avoid 
detection. Id. at 86-87. Respondent also agreed to arrange for Woods 
and the informant to obtain plastic surgery in California and to find a 
secure location at which Woods and the informant could safely recover 
from the surgery. Id.; see also Gov. Exh. 11b at 4. Furthermore, the 
transcript of a December 15, 1999, three-way phone call between 
Respondent, Woods, and the informant, establishes that Respondent knew 
that Woods and the informant were fugitives. Gov. Exh. 11b at 6-7; Tr. 
at 113-15. Finally, according to an affidavit summarizing one of the 
recorded conversations between Woods and the informant, the price was 
to have been $180,000 each. Gov. Exh. 4, at 7.
    The ALJ further found that Respondent was aware that Woods and the 
informant were drug traffickers at the time he agreed to assist them. 
See ALJ at 5 (FOF 16); id. 6 (FOF 21). Moreover, the ALJ also found not 
credible Respondent's testimony that he was unaware that Woods and the 
Respondent were drug traffickers during this period. Id. at 9 (FOF 37). 
In making these findings, the ALJ relied on what she termed ``the 
extensive media coverage of these events,'' and the testimony of a Task 
Force Officer interpreting the street slang of a single transcript of a 
telephone conversation between Respondent, Woods and the informant. Id. 
I conclude, however, that this evidence does no more than create a 
suspicion that Respondent knew that Woods and the informant were 
engaged in drug trafficking at the time he agreed to assist them and 
that the Government has not proved this fact by substantial evidence. 
See NLRB v. Columbia Enameling & Stamping Co., Inc., 306 U.S. 292, 300 
(1939) (``Substantial evidence is more than a scintilla, and must do 
more than create a suspicion of the existence of the fact to be 
established.'')
    As for the media coverage of the events, the Lead Task Force 
Officer testified that the Task Force's inability to arrest Woods 
following his indictment ``was covered on the three local stations as 
well as in * * * the paper.'' Tr. 134. That was the extent of the 
evidence; the Government did not produce any evidence to show how many 
days the story was covered by TV stations and the paper. Moreover, the

[[Page 23850]]

Government did not even show that Respondent was in the Nashville area 
on the days that the media covered the story, let alone that he reads 
the paper or watches the news on TV. In short, the media coverage is 
too thin a reed to support the inference that Respondent knew that 
Woods and the informant were drug dealers.
    Nor does Respondent's participation in the December 15, 1999 phone 
conversation provide substantial evidence that he knew Woods and the 
informant were drug dealers. At the hearing, the Lead Task Force 
Officer testified as to his interpretation of the street slang used in 
the December 15, 1999 conversation between Respondent, Woods and the 
informant. Specifically, the Task Force Officer testified that Woods' 
comments that the informant was ``like cool as [expletive \2\] on the 
street,'' and ``holds a lot of weight,'' establish that the informant 
was involved in drug dealing. Tr. 113-14.
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    \2\ The expletive is more commonly used to refer to a sex act.
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    The Government did not prove, however, that Respondent interpreted 
the language as a reference to drug dealing as opposed to other forms 
of criminal activity. Indeed, it bears noting that the Government 
introduced only this single phone call to support the contention and 
even the Task Force Officer apparently did not draw the inference that 
Respondent knew that Woods and the informant were drug dealers. See id. 
at 134 (testimony of Task Force Officer; ``we don't know whether or not 
[Respondent] knew [that Woods] was under indictment for drug 
dealing''). Moreover, the Government did not otherwise establish that 
Respondent was familiar with and understood drug slang. Again, the 
phone call evidence creates no more than a suspicion that Respondent 
knew that Woods and the informant were engaged in drug trafficking. See 
Columbia Enameling, 306 U.S. at 300.
    Finally, the substantial evidence test requires that the Agency `` 
`tak[e] into account contradictory evidence or evidence from which 
conflicting inferences could be drawn.' '' Morall v. DEA, 412 F.3d 165, 
177 (DC Cir. 2005) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 
474, 487 (1951)) (int. quotations and other citation omitted). 
Significantly, the Lead Task Force officer testified that ``we don't 
know whether or not [Respondent] knew [that Woods] was under indictment 
for drug dealing. We do know that he knew that Mr. Woods was a bad guy, 
a thug.'' Id. at 134. The same officer subsequently testified that 
Respondent ``was totally truthful'' during an interview which occurred 
on the day of his arrest. Id. at 141. Of consequence, during that 
interview, Respondent admitted only to knowing that ``Woods was a `big 
time hoodlum' and that he was in big trouble.'' Gov. Exh. 6, at 3. 
Respondent did not admit to knowing that Woods and the informant were 
drug traffickers, a position he has consistently maintained.\3\ See Id. 
The ALJ's decision ``entirely ignored [this] relevant evidence,'' 
Morall, 366 U.S. at 178, which was part of the Government's case.
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    \3\ The Government also points to the Agreed Order of Revocation 
as establishing that Respondent knew that Woods and the informant 
were drug traffickers at the time he agreed to assist them. See Gov. 
Exceptions at 5. The ALJ did not rely on this exhibit in making her 
finding. Respondent was already imprisoned at the time he entered 
into the Order and did so under the advice of counsel. Tr. 155. 
Moreover, the information filed by the U.S. Attorney made no such 
allegation. See Gov. Exh. 4 at 1-2. Considering all the evidence on 
the issue, I consider the Task Force Officer's testimony that 
Respondent ``was totally truthful'' regarding his involvement with 
Woods and the informant to be the most persuasive.
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    On January 13, 2000, Woods was arrested by U.S. Marshals. Gov. Exh. 
4 at 7. Thereafter, on January 17, 2000, the informant called 
Respondent to determine whether he was still willing to assist the 
informant in evading capture. Tr. 86. Respondent agreed to do so. Id. 
During the conversation, Respondent and the informant again discussed 
the price for the services and agreed on $150,000. Gov. Exh. 4, at 8.
    On January 18, 2000, the informant called Respondent and told him 
that ``he needed to get his money together.'' Id. The informant advised 
Respondent that he would call him later to make arrangements to pay 
him. Id. Several hours later, the informant called Respondent back and 
the two agreed to meet in a store parking lot. Id.
    Later that day, Respondent arrived at the parking lot and entered 
the informant's car. Id. The informant and Respondent drove to a 
different part of the parking lot where the informant gave Respondent a 
bag containing $52,000 in cash.\4\ Id. Task Force officers surrounded 
Respondent; Respondent threw the bag away claiming that he did not own 
it. Id. Respondent was then arrested and taken to the Nashville DEA 
office. Id.
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    \4\ The authorities provided only $52,000 in cash because they 
did not have the full amount.
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    That evening, Respondent agreed to an interview. The interview was 
conducted by an Assistant United States Attorney and several law 
officers. Gov. Exh. 6. During the interview, Respondent fully discussed 
the circumstances surrounding his involvement with Woods. During the 
interview, Respondent described Woods as a ``big time hoodlum'' and 
that he was in trouble. Id. at 3. Respondent further stated that his 
girlfriend had told him that her niece's boyfriend ``was in trouble and 
that people were after him.'' Id. Respondent also stated that while 
``he knew Woods was in trouble [he] did not know for sure what kind of 
trouble.'' Id. Respondent further stated to the investigators that 
while the informant was to pay him $150,000, ``he was not going to make 
anything off this deal but hoped to get some dental referrals.'' Id. at 
4. According to the interview report, Respondent contacted an 
acquaintance in California to find a plastic surgeon; the acquaintance 
subsequently called Respondent back and told him the cost for the 
surgery and after-care would be $150,000. Id. Later, Respondent 
acknowledged that ``he was going to do a full mouth reconstruction'' on 
the informant ``which meant probably 10 to 20 crowns at $650'' each. 
Id. at 5. Respondent also stated that ``he was `greedy and stupid.' '' 
Id.
    At the hearing, the lead Task Force Officer testified that 
Respondent ``was totally truthful'' with the interviewers and that the 
information he provided was consistent with other information obtained 
in the investigation. Tr. 141. Respondent also agreed to cooperate with 
the investigation by making phone calls to another suspect and wearing 
a wire. Id. at.136-37, 152. Finally, the lead Task Force Officer 
testified that there was no indication that Respondent was involved in 
the buying and selling/distribution of cocaine and had no prior 
criminal record. Id. at 130.
    The United States Attorney subsequently charged Respondent with one 
count of conspiring to violate 18 U.S.C. 3, the ``accessory after the 
fact'' statute. Gov. Exh. 4; see 18 U.S.C. 371. The accessory after the 
fact statute makes it a criminal offense to knowingly provide 
assistance to an ``offender in order to hinder or prevent his 
apprehension, trial or punishment.'' 18 U.S.C. 3. The information 
specifically alleged that Respondent had ``agreed to provide or arrange 
for plastic surgery and dental work for * * * Woods and others after * 
* * Woods' indictment on federal drug, money laundering, and firearms 
felonies.'' Gov. Exh. 4, at 1-2.
    On July 20, 2001, Respondent pled guilty and was sentenced to a 
term of thirty months imprisonment and a term of three years of 
supervised release. Gov. Exh. 3. Respondent received sentence reduction 
points for his cooperation with law enforcement officials and for 
accepting responsibility for his conduct. Tr. 137. Respondent

[[Page 23851]]

subsequently served approximately twenty-two months at the Federal 
Correctional Institute, Forest City, Arkansas, before being transferred 
to a halfway house. Id. at 158, 160. According to Respondent's 
unchallenged testimony, prison officials allowed him to attend 
continuing education classes at the University of Tennessee, College of 
Dentistry, in Memphis. Id. at 158-59.
    Following his release from prison, Respondent applied for 
reinstatement of his state dental license. Id. at 161. Respondent 
appeared before the Tennessee Board of Dentistry, which voted 
unanimously to reinstate his license. Id. at 161-65.
    After the Tennessee Board's decision, Respondent contacted the DEA 
office in Atlanta, Georgia, to determine the status of his 
registration. Id. at 200. During this conversation, Respondent was told 
that his DEA number had been revoked and that he needed to apply for a 
new registration. Id.
    Thereafter, on October 3, 2003, Respondent re-applied for a DEA 
registration. Gov. Exh. 5, at 2. On the application, Respondent was 
asked whether he had ``ever been convicted of a crime in connection 
with controlled substances under state or federal law?'' Id. at 1. 
Respondent answered: ``No.'' Id. The application also asked whether 
Respondent had ``ever surrendered or had a federal controlled substance 
registration revoked, suspended, restricted or denied?'' Id. Respondent 
answered: ``Yes.'' Finally, Respondent answered ``yes'' to the question 
of whether he had ``ever surrendered or had a state professional 
license or controlled substance registration revoked, suspended, 
denied, restricted, or placed on probation?'' Id.
    The application also requires that an applicant give an explanation 
for a ``yes'' answer to these questions. In this block, Respondent 
wrote:

    I voluntarily surrendered my license to practice dentistry in 
the State of Tennessee as a result of my conviction for accessory 
after the fact. I also voluntarily surrendered my DEA <greek-i> to 
prescribe medications. The board of * * * Tennessee voted 
unanimously to reinstate my license to practice dentistry in the 
State of Tennessee on 9/19/03.

    Id. at 2.

Respondent's Testimony Regarding the Operative Events

    Respondent testified regarding his criminal conduct. When asked by 
his counsel whether he had committed a crime, Respondent answered: 
``Absolutely.'' Tr. 150. Respondent further testified that he ``agreed 
to help arrange for him [Woods] to avoid apprehension, and as much as I 
want to blame other people for that, I can't. The onus is firmly and 
squarely on my shoulders, and I take full responsibility for that.'' 
Id. Respondent also further stated that his girlfriend did not coerce 
him into committing the act, and acknowledged that he understood he was 
committing a crime when he did it. Id.
    Respondent also testified that his conduct in agreeing to help 
Woods ``was the absolute worst thing--the only thing I could have done 
worse was actually murder someone. * * * [I]t's just a terrible, 
terrible thing.'' Id. at 184. Later, when asked whether he was ``wrong 
in [his] actions?,'' Respondent stated: ``I was absolutely wrong. I 
made a terrible, terrible mistake. I've paid dearly for that, and I 
make no excuses. * * *'' Id. at 188. Finally, when asked by the ALJ why 
he agreed to assist the informant after Woods was arrested, Respondent 
answered: ``Stupid. Absolutely stupid.'' Id. at 223.
    Respondent further testified that at the time he committed the act, 
he was aware that Woods was a criminal, a ``hoodlum,'' and a 
``hustler.'' Id. at 151-52. Respondent maintained, however, that he was 
unaware of Wood's money laundering activities and what firearms 
offenses he committed. Id. at 151. Furthermore, Respondent denied that 
he was aware that Woods and the confidential informant were cocaine 
dealers at the time he committed his crime. Id. at 190; see also id. at 
195. Respondent further maintained that while he was familiar with the 
term ``hustler,'' the term ``doesn't necessarily mean a person who 
sells drugs,'' but rather, means ``any person that's doing something 
illegal.'' Id. at 210.
    During its cross-examination, the Government asked Respondent about 
his motive. Specifically, the Government asked Respondent whether 
``making a lot of money off of this was'' his motive. Id. at 208. 
Respondent initially answered that ``[i]t wasn't a moneymaking scheme 
for me at all,'' and that he agreed to help because his girlfriend 
asked him ``to help her niece's boyfriend, and it just kind of 
snowballed after that.'' Id. at 209. Respondent further maintained that 
the $150,000 cash payment (for the informant) was to be shipped to the 
person in California who arranged for the plastic surgery. Id.
    When pressed by the Government as to whether he was to receive any 
money out of this, Respondent testified that his California contact was 
``going to do something nice for'' him. Id. Respondent maintained, 
however, that there was no agreement under which he would receive a 
particular percentage of the payment. Id. at 210.
    Respondent also testified regarding his application. Specifically, 
Respondent testified that he believed that he had voluntarily 
surrendered his DEA registration because ``at no time did we put up any 
resistance to the process.'' Id. at 180. Respondent further testified 
that he thought a voluntary surrender and a revocation ``were one [and] 
the same.'' Id. at 181. On cross-examination, however, Respondent 
admitted that he had not signed any form in which he had agreed to 
surrender his DEA registration. Id. at 207. Respondent further 
testified that he had ``no'' intent to mislead DEA regarding the status 
of his previous registration when he made the statement that he had 
voluntarily surrendered his DEA number. Id. at 181.
    The ALJ specifically found that ``Respondent credibly testified 
that at the time he completed his application, he believed he had 
voluntarily surrendered his previous * * * registration and that he was 
responding truthfully.'' ALJ Dec. at 15 (FOF 64). I adopt this finding. 
See Universal Camera, 340 U.S. at 496.
    Regarding the application's criminal history question, Respondent 
testified that he answered ``no'' because he did not think that he had 
committed a drug-related felony. Id. at 182. Respondent further 
testified that he was not ``involved'' in selling drugs, that the 
prosecutor had not charged him with that, and that the extent of his 
role was in helping Woods ``evade capture.'' \5\ Id. at 184. Respondent 
further stated that he was ``absolutely not'' trying to conceal 
anything or misrepresent anything from DEA. Id.
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    \5\ On cross-examination, Respondent further explained that he 
answered ``no'' because he believed ``that I was charged with one 
count of accessory after the fact, conspiracy to harbor a fugitive. 
There was no mention of anything as it relates to my involvement 
with the drug conspiracy. I had absolutely no involvement with the 
drug conspiracy.'' Id. at 196-97. Later, Respondent testified: The 
question was, [h]as the applicant even been convicted of a crime in 
connection with a controlled substance? * * * I didn't feel like I 
was convicted of that crime. I wasn't charged with that crime. I 
wasn't charged with a drug crime or a drug-related crime. I wasn't 
involved in any of that activity at any time. I've never been 
accused of that, ever. Id. at 213-14.
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    The ALJ specifically credited Respondent's testimony on both 
issues. See ALJ at 15-16 (FOF 67). In light of the fact that Respondent 
fully disclosed his ``conviction for accessory after the fact,'' Gov. 
Ex. 5, at 2, I find no basis to reject the ALJ's findings.
    I further note that there is no evidence that Respondent has ever 
illegally used

[[Page 23852]]

controlled substances. Relatedly, there is no evidence that Respondent 
ever used his previous DEA registration to prescribe a controlled 
substance for an unlawful purpose.

Discussion

    Section 303(f) of the Controlled Substances Act 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.'' 21 U.S.C. 823(f). In making 
the public interest determination, the CSA requires the 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 * * * 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.

Id.

    ``These factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I ``may rely on any one or 
a combination of factors, and may give each factor the weight [I] deem[ 
] appropriate in determining whether * * * an application for 
registration [should be] denied.'' Id. Moreover, case law establishes 
that I am ``not required to make findings as to all of the factors.'' 
Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); see also Morall, 412 
F.3d at 173-74.
    Furthermore, DEA precedent establishes that the various grounds for 
revocation or suspension of an existing registration that Congress 
enumerated in section 304(a), 21 U.S.C. 824(a), are also properly 
considered in deciding whether to grant or deny an application under 
section 303. See Anthony D. Funches, 64 FR 14267, 14268 (1999); Alan R. 
Schankman, 63 FR 45260 (1998); Kuen H. Chen, 58 FR 65401, 65402 (1993). 
Thus, the allegation that Respondent materially falsified his 
application is properly considered in this proceeding.
    For reasons explained below, I conclude that the Government has not 
proved that Respondent materially falsified his application. 
Furthermore, while I am deeply troubled by Respondent's criminal 
conduct, I am satisfied that he has accepted responsibility for it and 
reject the Government's assertion to the contrary.

The Material Falsification Allegations

    The Government maintains that Respondent materially falsified his 
application in two respects. First, by answering ``no'' to the 
application's question as to whether Respondent had ``ever been 
convicted of a crime in connection with controlled substances,'' and 
second, by stating that he had ``voluntarily surrendered'' his DEA 
number. Gov. Exceptions at 7-9. As explained above, the ALJ found that 
Respondent did not intentionally falsify his application in either 
instance.
    DEA precedents make clear that culpability short of intentional 
falsification is actionable in these proceedings. See, e.g., Samuel 
Arnold, 63 FR 8687, 8688 (1998) (``[I]n finding that there has been a 
material falsification for purposes of 21 U.S.C. 824(a)(1), it must be 
determined that the applicant knew or should have known that the 
response given to the liability question was false.''). But even if 
Respondent should have known that his statements were false, the 
Government must still show that each statement was material. 
Accordingly, while I hold that Respondent's conviction is a ``a crime 
in connection with controlled substances'' and that Respondent should 
have provided a ``yes'' answer on the application, the Government has 
not established the materiality of the statement because it ignores 
relevant evidence.
    As an initial matter, I conclude that the liability question is not 
limited to a conviction in which one is directly involved in drug 
dealing. The ``in connection with * * * controlled substances'' 
language is broad in its scope; its intent is to provide the Agency 
with the information necessary to determine whether an applicant/
registrant has committed a felony that may preclude his registration 
under the CSA. See 21 U.S.C. 824(a)(2).
    The text of section 404(a)(2) makes plain that it is not limited to 
a felony which directly involves drug dealing. As the provision states, 
a registration may be revoked based on a ``convict[ion] of a felony 
under this subchapter [the CSA] or subchapter II of this chapter [the 
Controlled Substances Import and Export Act] or any other law of the 
United States, or of any State, relating to any substance defined in 
this subchapter as a controlled substance.'' Id. 824(a)(2) (emphasis 
added). While it is true that Respondent was not convicted of a felony 
under the CSA or the Import/Export Act, his conviction for the felony 
offense of conspiring to be an accessory after the fact is a conviction 
under ``any other law of the United States.'' Id. And his conviction is 
related to a controlled substance because his criminal conduct involved 
providing assistance to a person engaged in the unlawful distribution 
of cocaine which, if successful, would have allowed the drug dealer to 
evade apprehension and continue his illegal activity. Cf. Smith v. 
United States, 508 U.S. 223, 237 (1993) (quoting Webster's New 
International Dictionary 2102 (2d ed. 1939) (``[t]he phrase `in 
relation to' is expansive'' and ``means `with reference to' or `as 
regards') (other citation omitted). Respondent's crime was therefore 
also--in the words of the application--``in connection with * * * 
controlled substances.''
    Respondent was thus required to provide a ``yes'' answer to the 
liability question. This conclusion does not, however, close the 
inquiry because it must also be determined whether Respondent's answer 
was material.
    ``The most common formulation'' of the concept of materiality is 
that ``a concealment or misrepresentation is material if it `has a 
natural tendency to influence, or was capable of influencing, the 
decision of' the decisionmaking body to which it was addressed.'' 
Kungys v. United States, 485 U.S. 759, 770 (1988) (quoting Weinstock v. 
United States, 231 F.2d 699, 701 (DC Cir. 1956)) (other citation 
omitted); see also United States v. Wells, 519 U.S. 482, 489 (1997) 
(quoting Kungys, 485 U.S. at 770). The evidence must be ``clear, 
unequivocal, and convincing.'' Kungys, 485 U.S. at 772.
    Taken in isolation, Respondent's answer is material because this 
Agency ``relies upon such answers to determine whether an investigation 
is needed prior to granting the application.'' Martha Hernandez, 62 FR 
61145, 61146 (1997). In almost every case, it is clear that a false 
answer to the question of whether one has ``been convicted of a crime 
in connection with controlled substances,'' Gov. Exh. 5., has ``the 
natural tendency to influence'' the reviewing official to grant the 
application because most applicants do not provide any further 
explanation.
    This, however, is not such a case. Here, Respondent disclosed his 
criminal ``conviction for accessory after the fact'' on the application 
and this description is an accurate representation of the crime he was 
charged with and pled guilty to. Id. at 2. The Government offered no 
evidence to show how Respondent's ``no'' answer would--in light of his 
additional disclosure--nonetheless have ``the natural tendency to 
influence'' agency personnel to grant

[[Page 23853]]

his application without further investigation. The Government has thus 
failed to prove that Respondent materially falsified his application in 
answering the criminal conviction question.
    The Government also alleges that Respondent materially falsified 
his application by stating that ``I also voluntarily surrendered my DEA 
<greek-i> to prescribe medications.'' Id. Here, however, Respondent had 
previously answered ``yes'' to the question whether he had ``ever 
surrendered or had a federal controlled substances registration 
revoked, suspended, restricted or denied?'' Id. at 1. Again, the 
information Respondent provided raised a red flag for agency personnel 
involved in reviewing his application.
    The Government argues, however, that Respondent's statement was a 
material falsification because Respondent's DEA ``number actually was 
revoked pursuant to a final order.'' Gov. Exceptions at 9. The 
Government further points to the ALJ's finding that `` `Respondent's 
mere failure to request a hearing or to contest the revocation 
proceedings is insufficient for a finding of a voluntary surrender of 
his DEA' '' registration. Id. (quoting ALJ at 25).
    It is true that Respondent's registration was revoked pursuant to a 
final order and was not voluntarily surrendered. But neither the CSA 
nor DEA's regulations define the respective terms and no agency 
precedent explains that there are consequential differences between 
them.
    Most significantly, even if the statement would--if viewed in 
isolation--be capable of influencing the decision by inducing a more 
favorable view of Respondent's application--the fact remains that the 
statement immediately followed Respondent's factually accurate 
representation that he had surrendered his state license ``as a result 
of [his] conviction for accessory after the fact.'' Gov. Ex. 5, at 2. 
In short, viewed in context, Respondent's statements clearly placed 
agency personnel on notice that his application should not be summarily 
approved, but rather, subjected to an investigation. I thus hold that 
even though Respondent's statement was false, it was not capable of 
influencing the decision and is thus not material. I therefore conclude 
that the Government's allegations that Respondent materially falsified 
his application are without merit and turn to the public interest 
factors.

The Public Interest Factors

    As explained above, in Section 303(f), Congress directed that I 
consider five factors in determining whether granting Respondent's 
registration would be ``inconsistent with the public interest.'' 21 
U.S.C. 823(f). While I consider Respondent's criminal conduct to be 
outrageous, having considered all of the factors and our precedents, I 
conclude that he is entitled to be registered.

Factor One--The State Board's Recommendation

    As the ALJ found, following his release from prison, the Tennessee 
Board of Dentistry reinstated Respondent's license without conditions. 
While this factor is not dispositive, see John H. Kennedy, 71 FR 35705, 
35708 (2006), in this case it does support the granting of his 
application.

Factors Two and Three--The Applicant's Experience in Dispensing 
Controlled Substances and the Applicant's Conviction Record Relating to 
the Distribution or Dispensing of Controlled Substances

    Significantly, there is no evidence in the record that Respondent 
ever used his previous DEA registration to illegally dispense a 
controlled substance. Furthermore, there is no evidence in the record 
that Respondent ever used his registration to divert controlled 
substances for personal use. Relatedly, Respondent has never been 
convicted of a crime directly involving the distribution or dispensing 
of controlled substances. Thus, both factors support the granting of 
Respondent's application.

Factors Four and Five--Respondent's Record of Compliance With 
Applicable Laws Relating to Controlled Substances and Such Other 
Conduct Which May Threaten Public Health and Safety

    As explained above, Respondent committed a federal criminal offense 
in violation of 18 U.S.C. 3 and 371, when he entered into a conspiracy 
with Woods and an informant in which he agreed to assist them in 
altering their appearance and thereby help them avoid apprehension. 
Furthermore, even after Woods was apprehended, Respondent agreed to 
assist the informant. These are truly outrageous acts of criminality.
    Proceedings under sections 303 and 304 of the CSA are, however, 
non-punitive. See Leo R. Miller, 53 FR 21931, 21932 (1988). The purpose 
of this proceeding is not to impose punishment in addition to the 
sentence handed down by the federal district court. As previously 
recognized, this proceeding ``is a remedial measure, based upon the 
public interest and the necessity to protect the public from those 
individuals who have misused controlled substances or their DEA 
Certificate of Registration, and who have not presented sufficient 
mitigating evidence to assure the Administrator that they can be 
trusted with the responsibility carried by such a registration.'' \6\ 
Id.; see also Robert M. Golden, 61 FR 24808, 24812 (1996).
---------------------------------------------------------------------------

    \6\ This is not to say that the revocation of a registration is 
limited to those situations where a registrant has either engaged in 
personal abuse of a controlled substance or illegally dispensed a 
controlled substance. Both sections 303(f) and 304(a) make clear 
that Respondent's criminal conduct is properly considered in this 
proceeding. See 21 U.S.C. 823(f)(4) & (5), id. 824(a)(2).
---------------------------------------------------------------------------

    As egregious as his conduct is, Respondent committed his crimes 
more than seven years ago. In the interim, Respondent has served his 
sentence and there is no evidence that he has violated the terms of his 
period of supervised release. Respondent pled guilty to the offense, 
was found by the federal district court to have accepted 
responsibility, and cooperated with the Task Force in its 
investigation.
    Moreover, in this proceeding, Respondent stated that he had 
``absolutely'' committed a crime, that he could not ``blame other 
people for'' his decision to help Woods avoid capture, and that he took 
``full responsibility for that.'' Tr. 150. Of note, Respondent also 
testified that his conduct ``was the absolute worst thing--the only 
thing I could have done worse was actually murder someone.'' Id. at 
184. Respondent added that ``I was absolutely wrong,'' and that ``I 
made a terrible, terrible mistake.'' Id. at 188. Finally, Respondent 
described his actions in agreeing to assist the informant after Woods' 
arrest as ``[s]tupid[,] [a]bsolutely stupid.'' Id. at 223. That it was.
    The Government nonetheless contends that Respondent has not 
sufficiently accepted responsibility. In the Government's view, 
Respondent ``has not been candid about the facts surrounding his 
conviction,'' Gov. Exceptions at 6, because he has maintained in this 
proceeding that he did not know that Woods and the informant were drug 
traffickers. The Government also maintains that Respondent was not 
candid about his motive.
    The Government's first contention is disposed of by my finding that 
the Government's evidence only creates a suspicion that Respondent knew 
that Woods and the informant were engaged in drug trafficking. Having 
failed to adduce substantial evidence proving this as a fact, the 
Government is precluded from arguing that Respondent

[[Page 23854]]

has not been candid about his knowledge of Woods' and the informant's 
criminal activities.
    The Government further argues that Respondent lacked candor because 
he ``asserted at the hearing that he had no pecuniary motive.'' Id. at 
7. Ultimately, however, Respondent did admit that he had a pecuniary 
motive. Tr. 210. True enough, to obtain this admission, the Government 
was forced to engage in the legal equivalent of pulling teeth. But the 
Government offered no evidence to establish the amount that Respondent 
was to receive.
    While I find Respondent's testimony on this point disturbing, the 
record does not contain sufficient evidence to support a finding that 
Respondent lacked candor and has not accepted responsibility for his 
criminal conduct. I thus conclude that factors four and five do not 
support a finding that Respondent's registration would be inconsistent 
with the public interest. And having considered all of the factors, I 
further conclude that Respondent is entitled to be registered.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 28 
CFR 0.100(b) and 0.104, I order that the application of Samuel S. 
Jackson, D.D.S., for a DEA Certificate of Registration as a 
practitioner be, and it hereby is, granted. This order is effective 
immediately.

    Dated: April 24, 2007.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E7-8261 Filed 4-30-07; 8:45 am]
BILLING CODE 4410-09-P