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1Moreover, in its Prehearing Statement, the 

Government notified Respondent that it intended to 

litigate the question of whether Respondent had 

also materially falsified his March 10, 2005 

application for registration by failing to disclose 

that on August 18, 1999, he had entered into a 

Consent Order with the Louisiana State Board of 

Medical Examiners, which placed his medical 

license on probation for a five year period. ALJ Ex. 

4, at 3, 6–7. 

2The ALJ did not make any findings as to 

whether the Government’s attempts to serve 

Respondent were constitutionally adequate, the 

date when service was initially attempted, and/or 

whether Respondent had shown good cause for 

failing to timely file. 

subdivisions authorized to hold 

property. Certifications and evidence to 

this effect will be required of the 

purchaser prior to issuance of 

conveyance documents. 

A successful bid on a parcel 

constitutes an application for 

conveyance of those mineral interests 

offered under the authority of Section 

209(b) of the FLPMA. In addition to the 

full purchase price, a non-refundable fee 

of $50 will be required from the 

prospective purchaser for purchase of 

the mineral interests to be conveyed 

simultaneously with the sale of the 

land. 

The FLPMA and its implementing 

regulations (43 CFR subpart 2710) 

provide that competitive bidding will be 

the general method of selling public 

lands. The parcels will be sold through 

an on-line auction conducted by the 

GSA. The auction will begin on or about 

July 12, 2010, via the GSA auction Web 

site http://www.auctionrp.com. A copy 

of the maps and the Invitation for Bid 

(IFB) package will be available at the 

BLM Web site http://www.blm.gov/or/ 

districts/prineville/plans/fltfa.php. The 

IFB contains property information, 

bidding instructions, bidder 

qualifications, minimum bid values, bid 

forms, required bid deposits, and other 

sale terms. Copies of the IFB will also 

be available at the BLM Prineville 

District Office, 3050 NE Third Street, 

Prineville, Oregon. The bid closing date 

will be determined by bidding activity. 

If parcels are not sold using the on-line 

Web-based auction, a notice may be 

posted on the GSA Web site, http:// 

www.auctionrp.com, directing 

interested parties to an alternative 

bidding procedure. The parcels will not 

be sold until at least July 12, 2010. 

Comments, including names, street 

addresses, and other contact 

information of respondents will be 

available for public review during 

regular business hours at the address 

below. Before including your address, 

phone number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Comments will be reviewed by the 

BLM Prineville District Manager, who 

may sustain, vacate, or modify this 

realty action. In the absence of any 

objections, this realty action will 

become the final determination of the 

Department of the Interior. 

Deborah Henderson-Norton, 

District Manager. 

Authority: 43 CFR 2711.1–2. 

[FR Doc. 2010–11483 Filed 5–12–10; 8:45 am] 

BILLING CODE 4310–33–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 09–6] 

Alvin Darby, M.D.; Denial of 

Application 

On June 25, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Alvin Darby, M.D. 

(Respondent), of Gretna, Louisiana. The 

Show Cause Order proposed the denial 

of Respondent’s pending application for 

a DEA Certificate of Registration as a 

practitioner on multiple grounds. ALJ 

Ex. 1, at 1 (citing 21 U.S.C. 823(f) and 

824(a)(1) and (2)). 

First, the Government alleged that on 

April 1, 1998, Respondent had pled 

guilty in the Criminal Court for Orleans 

Parish, Louisiana to one felony count of 

possession of cocaine and one 

misdemeanor county of carrying a 

concealed weapon. Id. The Order 

further alleged that Respondent 

‘‘materially falsified’’ his application ‘‘by 

failing to disclose [his] * * * felony 

conviction related to controlled 

substances.’’ Id. at 2. 

Next, the Show Cause Order alleged 

that ‘‘[o]n three separate occasions 

between May 13, and June 24, 2003, 

[Respondent] issued prescriptions for 

hydrocodone ([a] schedule III controlled 

substance) [and] alprazolam ([a] 

schedule IV controlled substance),’’ to 

an undercover agent in exchange for 

cash, and that the prescriptions lacked 

a ‘‘legitimate medical purpose’’ and were 

issued outside of the ‘‘usual course of 

professional practice.’’ Id. at 1. Finally, 

the Show Cause Order alleged that 

Respondent ‘‘committed numerous 

recordkeeping violations under [his] 

previous * * * registration,’’ which he 

had surrendered for cause, including 

that: (1) He had ‘‘fail[ed] to take a[n] 

initial inventory of stocks of controlled 

substances,’’ (2) he had ‘‘fail[ed] to take 

and maintain a biennial inventory,’’ and 

(3) he had failed to ‘‘maintain records of 

controlled substances [which he] 

dispensed.’’ Id. at 2 (citing 21 CFR 

1304.11(b), 1304.11(c), 1304.22(c)).1

By letter of October 21, 2008, 

Respondent’s counsel requested a 

hearing on the allegations. ALJ Ex. 2, at 

2. According to Respondent, he did not 

receive the Show Cause Order ‘‘in a 

timely manner because the notice was 

delivered to an old address.’’ Id. 

Respondent further maintained that he 

‘‘was notified via facsimile on 

September 22, 2008 that he has an 

opportunity to show cause as to why’’ 

his application should not be denied 

and therefore ‘‘request[ed] the 

opportunity to be heard.’’ Id. The 

Government did not object to granting 

Respondent a hearing.2

The case was then assigned to an 

agency Administrative Law Judge (ALJ), 

who conducted a hearing on July 14 and 

15, 2009, in New Orleans, Louisiana. At 

the hearing, both parties called 

witnesses and introduced documentary 

evidence. After the hearing, both parties 

submitted briefs containing their 

proposed findings of facts, conclusions 

of law, and argument. 

On September 10, 2009, the ALJ 

issued his Recommended Decision 

(hereinafter, also ALJ). Therein, the ALJ 

found that ‘‘the credible evidence clearly 

establishes that Respondent prepared 

and submitted an application that 

falsely indicated that he had never been 

convicted of a crime in connection with 

a controlled substance and that he had 

never had a state professional license 

placed on probation.’’ ALJ at 23. The 

ALJ further found that the falsification 

was material as it ‘‘had the capacity to 

influence DEA’s decision on the 

application’’ and, second, that the 

Government ‘‘ha[d] clearly established a 

prima facie case for the denial of 

Respondent’s application based solely 

on the material falsifications contained 

in [Respondent’s] application.’’ Id. at 24. 

The ALJ then addressed the ‘‘the 

public interest’’ factors under 21 U.S.C. 

823(f). As for factor one (the 

recommendation of the state licensing 

board), the ALJ noted that the Board had 

restored Respondent’s medical license. 

ALJ at 26–27. However, he further noted 


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3As explained below, I agree with the ALJ that 

Respondent’s testimony that he did not submit the 

March 10, 2005 application is not credible. 

According to the affidavit of a Diversion 

Investigator, while the application was submitted 

via the internet on March 9, 2005, the transaction 

was not posted until the following day. GX 13, at 

2. 

4The fourth liability question was not applicable. 

that under Agency precedent, a State 

Board’s restoration of a medical license 

is not dispositive in the public interest 

inquiry because DEA has an 

independent responsibility ‘‘to 

determine whether a registration is in 

the public interest.’’ Id. at 27 (citing 

cases). The ALJ thus concluded that this 

factor weighed neither for, nor against, 

a determination that granting 

Respondent a certificate of registration 

would be in the public interest. Id. 

The ALJ next addressed factor three 

(the applicant’s conviction record under 

Federal and State laws related to the 

manufacture, distribution and 

dispensing of controlled substances) 

and whether Respondent’s ‘‘state felony’’ 

conviction for ‘‘criminal possession of 

crack cocaine’’ constituted a conviction 

under this factor. Id. at 27–28. While the 

ALJ concluded that Respondent’s 

conviction for cocaine possession was 

not relevant under this factor, id. at 28, 

he subsequently noted that it could be 

considered under factor five as such 

other conduct which may threaten 

public health and safety. Id. at 34–35. 

The ALJ then turned to factors two, 

four and five (Respondent’s experience 

in dispensing controlled substances, his 

compliance with applicable State, 

Federal or local laws relating to 

controlled substances, and such other 

conduct which may threaten the public 

health and safety). With respect to the 

allegation that Respondent had sold 

controlled substance prescriptions to an 

undercover Agent for cash, the ALJ 

concluded that the Government ‘‘failed 

to present evidence in sufficient[ly] 

credible detail to support [the] 

allegation by a preponderance of the 

evidence.’’ Id. at 30. More specifically, 

the ALJ noted that the Agent who had 

made the undercover visits did not 

testify in the proceeding and that the 

Investigator who testified regarding 

them ‘‘conceded’’ that the Agent’s vital 

signs were taken and that he had 

complained of a medical condition. Id. 

The ALJ also noted that while 

Respondent had diagnosed the Agent as 

having a ‘‘leg-length disparity,’’ there 

was ‘‘not even evidence from which it 

could be inferred that [the Agent] did 

not, in fact have’’ this condition. Id. 

However, the ALJ also found that 

Respondent had pre-signed controlled 

substance prescriptions and that such 

prescriptions were not ‘‘issued in the 

usual course of professional practice.’’ 

Id. Moreover, the ALJ concluded that 

when this practice was coupled with 

various circumstances surrounding 

Respondent’s practice (including the 

late night hours he maintained, the lack 

of specific appointment times, various 

instances of his patients negotiating 

drug deals in his parking lot, and the 

issuance of prescriptions to patients 

before Respondent even saw them) 

made it clear that ‘‘Respondent’s 

prescribing practices were not designed 

to issue prescriptions for legitimate 

medical purposes in the usual course of 

a professional practice.’’ Id. at 30–31. In 

this regard, the ALJ further noted that 

Respondent made the same diagnoses of 

a leg-length discrepancy in each of the 

52 patient files that the Government had 

seized and that ‘‘it is patently 

unreasonable to attribute [this 

diagnosis] to mere coincidence.’’ Id. at 

31. Finally, the ALJ noted that while 

during the execution of a search 

warrant, Respondent had various 

controlled substances on the premises, 

he did not have such required records 

as an initial inventory, the biennial 

inventory, and a dispensing log. Id. at 

32. 

The ALJ further noted that it was 

‘‘remarkable that these actions took 

place even after * * *. Respondent had 

been through the criminal justice system 

* * * and had his medical license 

placed on probation.’’ Id. at 33. 

Moreover, the ALJ found that 

Respondent had failed to accept 

responsibility for his actions and that he 

‘‘flatly denied preparing and submitting 

the application’’ which he materially 

falsified even though his assertion ‘‘was 

wholly inconsistent with the evidence 

developed at the hearing.’’ Id. at 35. 

The ALJ thus concluded that ‘‘the 

Government has established that the 

Respondent has committed acts that are 

inconsistent with the public interest’’ 

and that Respondent has not ‘‘accepted 

responsibility for his actions, expressed 

remorse for his conduct at any level, or 

presented evidence that could 

reasonably support a finding that the 

Deputy Administrator should again 

entrust him with a Certificate of 

Registration.’’ Id. at 36. The ALJ thus 

recommended that Respondent’s 

application be denied. Id. 

Neither party filed exceptions to the 

ALJ’s decision. Thereafter, the record 

was forwarded to me for final agency 

action. 

Having considered the record in its 

entirety, I adopt the ALJ’s findings of 

fact (including his credibility findings) 

except as expressly noted otherwise. I 

further adopt the ALJ’s legal conclusion 

that Respondent’s registration would be 

inconsistent with the public interest. 

Accordingly, I will adopt the ALJ’s 

recommendation and deny 

Respondent’s application. I make the 

following findings. 

Findings 

Respondent is a physician licensed by 

the Louisiana State Board of Medical 

Examiners who practices physical 

medicine. GX 3 at 1. Respondent also 

previously held a DEA Certificate of 

Registration, which authorized him to 

dispense controlled substances as a 

practitioner at the address of 555 

Holmes Boulevard, Gretna, Louisiana. 

GX 1. However, on June 2, 2004, 

following an investigation by DEA (the 

circumstances of which are set forth 

below), Respondent voluntarily 

surrendered his registration. Id.; GX 6. 

On March 9, 2005, Respondent 

applied for a new DEA registration 

using the Agency’s Web site.3 GXs 1 & 

8. While Respondent denied filing this 

application, Tr. 309, the Government 

produced evidence showing that the 

$390 application fee was charged to a 

credit card account held by him. GX 13, 

at 2 & 4. 

On the application, Respondent was 

required to answer four ‘‘liability’’ 

questions. The first question asked: ‘‘Has 

the applicant ever been convicted of a 

crime in connection with controlled 

substance(s) under state or federal law, 

or is any such action pending?’’ GX 1. 

Respondent answered: ‘‘no.’’ Id. 

The third question asked: ‘‘Has the 

applicant ever had a state professional 

license or controlled substance 

registration revoked, suspended, denied, 

restricted, or placed on probation, or is 

any such action pending?’’ Id. 

Respondent again answered: ‘‘no.’’ Id. 

The second question asked: ‘‘Has the 

applicant ever surrendered or had a 

federal controlled substance registration 

revoked, suspended, restricted or 

denied, or is any such action pending?’’ 

Id. at 2. Respondent answered: 

On June 02, 2004, my primary office in 

Louisiana was visited by the Mississippi 

Division of DEA Diversion Unit. Officers of 

this unit expressed concerns regarding lack 

of Mississippi State DEA Registration. 

Advised to surrender Louisiana DEA 

Registration to facilitate investigation of other 

matters regarding patient prescription writing 

[sic] habits. As of this application 

submission, am uncertain of status of the 

investigation. 

Id. at 2.4

Based on Respondent’s ‘‘yes’’ answer 

to the second question, his application 

was assigned to a DEA Diversion 


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5According to a DI, an affirmative response to 

these ‘‘liability’’ questions can trigger the referral of 

an application to a DEA Investigator, and the 

opening of an investigation. Tr. 184. Conversely, a 

negative answer to all ‘‘liability’’ questions results in 

an application being forwarded to a DEA 

registration technician for what is an essentially a 

pro forma examination with likely approval. Id. at 

184–85, 201–04. 

6 In the same proceeding, Respondent pled guilty 

to carrying a concealed weapon, a misdemeanor 

under Louisiana law. GX 3, at 2. 

7According to the DI, in his experience a cashbased medical practice and a cash-based patient 

base are unusual features of a medical practice and 

raise investigatory red flags. Tr. at 34–35. 8The DI testified that a 2003 query of DEA 

databases indicates that the Respondent was 

registered at locations in New Orleans, Louisiana 

and Biloxi, Mississippi and that the latter 

registration expired in July 2003. Tr. 24–25, 27–28. 

9According to the DI, undercover (uc) visits to 

the D’Iberville office were conducted in 2003 on 

May 14, May 28, June 24, July 22, and August 22; 

visits to the Diamondhead office were conducted on 

November 20 and December 18. Tr. at 50–51. The 

Government, however, only presented evidence 

about the first three uc visits. Tr. 55–89. 

10A Schedule IV controlled substance. ALJ Ex. 6, 

at 1. 

11A Schedule III controlled substance. ALJ Ex. 6, 

at 1. 

12The DI testified that times were not assigned for 

appointments at the Respondent’s D’Iberville office. 

Patients would sign in with a staff member and wait 

around the office, often in the parking lot, for 

Respondent to arrive. 

13According to the DI, this combination of drugs 

is highly sought after by drug abusers and is known 

on the street as the ‘‘holy trinity.’’ Tr. 84. While 

Soma (carisoprodol) is not controlled, it ‘‘enhances 

the euphoric effect of both the hydrocodone and 

* * * the Xanax.’’ Id. 

Investigator with the New Orleans Field 

Division Office.5 Tr. 189. However, 

because there was an open criminal 

investigation into his activities in 

Mississippi, no action was taken on the 

application until after the United States 

Attorney for the Southern District of 

Mississippi declined prosecution. Id. 

During the course of its investigation, 

DEA obtained a copy of a Consent Order 

which Respondent entered into with the 

Louisiana State Board of Medical 

Examiners (hereinafter, State Board or 

Board), which the latter approved on 

August 18, 1999. GX 3, at 11. Therein, 

Respondent admitted that on April 1, 

1998, he had pled guilty to the offense 

of ‘‘simple possession of cocaine,’’ a 

felony under Louisiana law.6 Id. at 2; see 

also GX 2(2), at 1; GX 2(3), at 1. 

Respondent was given a suspended 

sentence of two years in the custody of 

the Louisiana Department of Correction 

for this offense, two years of probation, 

fined $600, and ordered to undergo drug 

counseling and rehabilitation. GX 3, at 

2; GX 2(5). 

In the consent order, Respondent 

further admitted that he had used 

marijuana on a daily basis, and that he 

had ‘‘used cocaine in 1982, 1985, and 

1991,’’ and that during 1991, ‘‘he began 

using cocaine on a more regular and 

frequent basis [and] developed a 

dependency on crack cocaine and 

‘primo,’ a mixture of cocaine and 

marijuana smoked together.’’ GX 3, at 2. 

However, the State Board found that 

Respondent had submitted to inpatient 

treatment and ‘‘completed all four 

phases of residential treatment and 

made a commitment to long term 

recovery by establishing a relationship 

with the Physicians Health program.’’ Id. 

at 2. 

Based on the above, the State Board 

concluded that there was ‘‘just cause’’ to 

charge Respondent with various 

violations of the Louisiana Medical 

Practice Act. Id. at 3. However, the 

Board placed Respondent on probation 

for a period of five years subject to 

various conditions. On May 16, 2008, 

the Board terminated Respondent’s 

probation and fully reinstated his 

license. RX 1. 

At the hearing, the Government 

presented the testimony of a DEA 

Diversion Investigator (DI) from the 

Resident Office (RO) in Gulfport, 

Mississippi, who was involved in the 

criminal investigation of Respondent. 

Tr. 21–23. According to the DI, in 2003, 

his office received information from law 

enforcement agencies and ‘‘concerned 

citizens and parents’’ that Respondent 

was operating a medical practice in 

D’Iberville (a suburb of Biloxi, 

Mississippi) that catered to drug-seeking 

patients and which was servicing its 

clientele very late at night. Id. at 28–29. 

The Gulfport RO also received 

information that Respondent was 

charging $200.00 for a patient’s first 

visit, $100.00 for subsequent visits, and 

that the transactions were being 

conducted in cash.7 Id. at 33. DEA also 

learned that the Respondent had an 

office location in Gretna, Louisiana.8 Id. 

at 25, 33. 

Based on this information, DEA 

conducted an undercover operation 

which focused on Respondent’s practice 

in Mississippi. According to the DI, a 

Special Agent (who has since retired), 

using the name of Reggie Glorioso, made 

five undercover visits to Respondent’s 

D’Iberville office as well as two 

undercover visits to a location in nearby 

Diamondhead, Mississippi, where 

Respondent eventually moved his 

office.9 Id. at 50–51, 54, 124. The DI 

testified that his role was to assemble 

the surveillance team that would 

monitor and record the progress of the 

operation through audio transmitters 

that the Agent wore. Id. at 47. According 

to DI, he listened to the visits as they 

were being conducted. Id. at 44–48. 

The DI testified that the first visit was 

conducted on May 14, 2003, with the 

Agent arriving at Respondent’s 

D’Iberville office at about 5 p.m. Id. at 

57. Respondent finally arrived at 

approximately 9 p.m. Id. Respondent’s 

office staff weighed the Agent, took his 

pulse and blood pressure, and at 

approximately 10:40 p.m. led him to an 

examination room. Id. at 57–58, 63. At 

11:05 p.m., Respondent finally entered 

the exam room. Id. at 59. 

During his interaction with 

Respondent, the Agent told the 

Respondent that he had stiffness in his 

shoulders. Id. at 147. According to the 

DI, the Respondent had the Agent ‘‘place 

one leg on a telephone book’’ and then 

‘‘lifted’’ the Agent’s ‘‘right hand.’’ Id. at 

62. Based on this examination, 

Respondent told the Agent ‘‘that he had 

a pelvic problem in which one foot was 

3/4th of an inch lower than his right 

side, which caused stress to his entire 

body, [and] therefore caused him pain.’’ 

Id. At approximately 12:22 a.m., 

Respondent gave the Agent 

prescriptions for 25 dosage units of 

Xanax,10 50 dosage units of Vicodin,11

and 30 Soma (carisoprodol, a noncontrolled drug). Id. at 63–65. The 

Agent paid a member of the 

Respondent’s office staff $202.00 in cash 

and was given a follow-up appointment 

for May 28, 2003, but with no 

appointment time indicated. Id. at 66. 

The Government did not offer either 

the transcript or a recording of the visit 

(or any of the other visits for that 

matter). Moreover, it did not call the 

Agent to testify. 

At approximately 5 p.m. on May 28, 

2003, the Agent returned to 

Respondent’s D’Iberville office.12 Id. at 

72. The Agent signed in and was told by 

Andre, a member of the office staff that 

Respondent would not be in until later 

in the evening. Id. at 74. The Agent and 

Andre agreed that the former would call 

in and check with the latter to learn 

when Respondent was in the office. Id. 

At 9:37 p.m., the Agent called Andre 

and was told that Respondent was in. 

Id. The Agent returned to the office at 

9:45 p.m., where he waited until 1:05 

the following morning, when he was 

finally taken to an examination room. 

Id. at 67, 74. While in the examination 

room, the Agent was able to look 

through his patient file and noted that 

it contained pre-signed prescriptions for 

35 dosage units of Xanax, 65 dosage 

units of Vicodin, and 65 dosage units of 

Soma.13 Id. at 67–68. While the record is 

unclear as to what time Respondent 

entered the exam room, the visit ended 

at 2:15 a.m. and cost $100. Id. at 69, 75. 

The Agent received the aforementioned 

prescriptions as well as prescriptions for 


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14A Schedule III controlled substance. ALJ Ex. 6, 

at 1. 

15A Schedule III controlled substance which 

contains hydrocodone. ALJ Ex. 6, at 1. 

16A Schedule II controlled substance. ALJ Ex. 6, 

at 1. 

17On cross examination, the DI testified that at 

the fifth uc visit, the Agent brought the prescribed 

shoe into the Respondent’s office. Tr. 147–48. The 

cross examination also revealed that during the 

final uc visit, the Agent was given some exercises 

to do. Id. at 149, 152. Neither the Government nor 

the Respondent elicited any further details 

regarding the uc visits. 

18According to the DI, the investigators sought 

the warrant to search this office because it was 

where Respondent kept his patient files. Tr. 90. Tr. 

at 90. 

19A Schedule II controlled substance which 

contains oxycodone. ALJ Ex. 6, at 1. 

20A Schedule IV controlled substance. ALJ Ex. 6, 

at 1. 

21The Officers also seized a .45 caliber pistol 

from his bedroom, which apparently was located 

upstairs from the office. Tr. 90–103. According to 

the DI, Respondent was unable to produce any 

documentation for the firearm and offered no 

explanation regarding its presence on the premises. 

Id. at 98–99. Moreover, a serial number check with 

the Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF) did not return a record showing 

who owned the gun. Id. at 102. 

While the DI had previous experience in a local 

sheriff’s office, he was not familiar with Louisiana’s 

firearms laws and did not know whether 

Respondent’s possession of the gun violated either 

state or federal law. Id. at 103, 160–61. The ALJ 

further noted that later in the hearing, the 

Government introduced a document entitled 

‘‘Verification of First Offender Pardon’’ which was 

addressed to the Respondent and indicated that the 

pardon he was granted did not operate to restore 

any rights he might have regarding receiving, 

possessing or transporting a firearm. Govt. Ex. 11. 

In its brief, the Government argues that 

‘‘Respondent was found in violation of the First 

Offender Pardon when he was found in possession 

of a loaded pistol during [the] execution of [the] 

search warrant.’’ Gov. Br. at 17. The Government 

does not, however, cite to any judicial finding that 

Respondent was in violation of either the terms of 

his probation or of state law. Nor, as the ALJ noted, 

does the Government cite any legal authority to 

support its contention that Respondent was 

permanently barred from possessing a handgun. I 

further agree with the ALJ that ‘‘no valid legal 

conclusion can reasonably be drawn from the 

language of the letter or its issuance to the 

Respondent.’’ ALJ at 8 n.23. Finally, the issue is of 

tangential relevance. 

22The ALJ found that while the weapons may 

have been drawn by other agents during the initial 

entry to the premises, there is no credible evidence 

to support the Respondent’s claim that weapons 

were brandished during the DI’s interview of 

Respondent. ALJ at 20. 

23Actually, the form contains an explanation of 

the effects of the executed form, after the following 

statement: ‘‘After being fully advised of my rights, 

and understanding that I am not required to 

surrender my controlled substances privileges, I 

freely execute this document and choose to take the 

actions described herein.’’ GX 6, at 1. 

24The Government elicited testimony from the DI 

that during his investigation he consulted with a 

physician who is an expert in pain management. Tr. 

118–20. The Government, however, did not call the 

expert to testify nor introduce any documentary 

evidence setting forth his opinion as to the validity 

of Respondent’s prescribing practices. 

According to the DI, the expert told him that leglength discrepancy is a rare diagnosis, and that 

there were referrals to particular specialists and 

other treatment modalities that are customarily 

naprosyn (a non-controlled drug) and 

for a modified shoe. Id. at 82–83. 

According to the DI, notwithstanding 

the hour, ‘‘there were still individuals 

waiting in the parking lot to see’’ 

Respondent. Id. at 70. Moreover, the DI 

testified as to the Agent’s interaction 

with several of Respondent’s ‘‘patients’’ 

that took place in his office parking lot. 

Id. at 75–79. One of these individuals, 

T.B., told the Agent that he was ‘‘visiting 

more than one physician in order to 

obtain controlled substances.’’ Id. at 79. 

The Agent asked T.B. if he was 

interested in selling his Xanax; the latter 

indicated that he might be interested 

and the two exchanged phone numbers. 

Id. at 78–79. The Agent and T.B. also 

discussed the latter’s selling 

hydrocodone to the former and agreed 

on a price of $3 per dosage unit.14 Id. at 

79–80. 

The Agent also exchanged phone 

numbers with another individual at the 

scene, L.H., who told the former that he 

was seeing multiple physicians to 

obtain drugs. Id. at 80. In response to an 

inquiry by the Agent, L.H. agreed to sell 

him 100 Lortab 15 for $300 and some 

OxyContin 80 mg.16 for $25 a tablet. Id. 

at 81. 

On June 24, 2003, the Agent made his 

third visit to the D’Iberville office. Id. at 

85. According to the DI, the Agent 

arrived a little after 9 p.m. and paid 

$100 for the visit. Id. at 86–87. At 

approximately 10:43 p.m., while he was 

still waiting to be see Respondent, a 

staff member called for Reggie Glorioso 

(the Agent’s assumed name) and handed 

him an appointment card reflecting his 

next appointment date, a receipt for 

$100, and prescriptions for Vicodin, 

Soma, Naprosyn, and Xanax. Id. at 88. 

These prescriptions had been pre-signed 

by Respondent and were given to the 

Agent before his interaction with 

Respondent, which commenced at 10:57 

p.m. and ended five minutes later. Id. at 

85–89. 

Following the additional visits 17—the 

details of which were not elicited from 

the DI—the Investigators obtained a 

warrant to search Respondent’s Gretna, 

Louisiana office, which was executed on 

June 2, 2004.18 See GX 4 & 5. During the 

search, the Government seized various 

controlled substances including 22 

tablets of hydrocodone 5 mg., 45 tablets 

of Percocet 10/325 mg.,19 23 tablets of 

Lorcet 10/650 mg., 10 full vials and one 

partially full vial of diazepam 10 mg./ 

ml.,20 5 vials of diazepam 5 mg./ml., 

and 1 vial of Stadol 2 mg./ml.21 GX 5, 

at 3. 

Notwithstanding the presence of these 

drugs, Respondent did not have various 

records which he was required to 

maintain, including an initial and/or 

biennial inventories, and a dispensing 

log. Tr. 113–15, 123–24, 158; see also 21 

CFR 1304.11(b) & (c), id. 1304.22(c). At 

the scene, the Respondent admitted to 

the agents that he kept no such records. 

Tr. at 115. The DI also testified that 

while Respondent had issued 

prescriptions at his Mississippi office, 

his DEA registration for this office had 

expired in July 2003. Id. at 28; see also 

21 U.S.C. 822(e); 21 CFR 1301.12(a) & 

(b)(3). 

The DI further testified that although 

he was not part of the initial entry team 

that executed the warrant, he was on the 

scene after the premises were secured. 

Tr. 154. According to the DI, he, along 

with three or four agents and a 

representative of the State Board of 

Medical Licensure, met with 

Respondent and interviewed him while 

the search was conducted. Id. at 176. 

The ALJ specifically found credible the 

DI’s testimony that during the interview, 

the Respondent was seated in a chair, 

no threats or promises were made, and 

no weapons were brandished.22 ALJ at 

8; see also Tr. 130–32, 154–55. The ALJ 

also found credible the DI’s testimony 

that Respondent was informed that he 

was not under arrest, and that following 

some discussion about the status of the 

investigation, Respondent voluntarily 

surrendered his DEA registration and 

executed a DEA Form 104 (Voluntary 

Surrender of Controlled Substances 

Privileges). ALJ at 8. The ALJ further 

credited the DI’s testimony that before 

Respondent signed the surrender form, 

he read the Respondent his ‘‘surrender 

rights’’ 23 from the form and Respondent 

acknowledged that he understood the 

significance of signing the document. 

Id., see also Tr. at 132–38. 

During the interview, Respondent 

stated that he charged about $200.00 for 

an initial office visit, $100.00 for 

subsequent visits, and offered a 10–20% 

discount for patients who paid in cash. 

Tr. at 104, 175. Respondent also told the 

DI that the Internal Revenue Service had 

a judgment against him for between 

$180,000.00 and $190,000.00 and that 

he owed the entire amount. Id. at 105. 

Pursuant to the warrant, the 

Government seized fifty-two patient 

files from Respondent’s Gretna, 

Louisiana office. Id. at 116. According to 

the DI’s review of the patient files, 

Respondent had diagnosed each of the 

fifty two patients (including that of the 

Special Agent who used the name of 

Reggie Glorioso) as having a leg-length 

discrepancy.24 Id. at 116–17. Moreover, 


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utilized during a pain practice. Id. However, there 

is no evidence as to how statistically rare this 

diagnosis is. 

The ALJ thus considered this evidence only as 

background information showing the 

reasonableness of the DI’s continued investigation. 

The ALJ further noted that during its examination 

of the DI, the Government clarified that this was the 

sole purpose for which this portion of his testimony 

was being offered and that, in any event, the DI’s 

testimony regarding his conversations with the 

expert ‘‘w[as] vague in content and could not even 

be fixed with an approximate date and time.’’ Given 

the Government’s representation, I agree with the 

ALJ that testimony is entitled to no weight in 

determining the lawfulness of Respondent’s 

prescribing practices. ALJ at 10. 

25Tr. at 169–70. 

26Tr. at 38, 40, 121. 

27The Government further showed that on an 

application that Respondent submitted in June 

2000, he had also provided a ‘‘no’’ answer to the 

question ‘‘Has the applicant ever had a state 

professional license or controlled substance 

registration revoked, suspended, denied, restricted, 

or placed on probation?’’ GX 12; Tr. 344. 

each file contained evidence that 

Respondent had ‘‘prescribed narcotics’’ 

and ‘‘a modified shoe.’’ Id. at 117. While 

the ALJ noted that the Government 

‘‘introduced no expert testimony in this 

regard,’’ he found it ‘‘striking * * * that 

the same ailment and prescribed 

treatment that the Respondent assigned 

to SA Price would exist in all the files 

seized from his practice.’’ ALJ at 9. 

While this is true enough, there is no 

testimony to establish how statistically 

improbable the condition is in even a 

single patient. Nor is there any evidence 

showing the extent and duration of 

Respondent’s prescribing to the other 

fifty-one persons whose files were 

reviewed, nor evidence establishing that 

the prescriptions he issued to these 

persons lacked a legitimate medical 

purpose and were issued outside of the 

usual course of professional practice. 

The DI further testified that the 

patients came from all over the 

Southeastern United States and 

included persons from Alabama, 

Florida, and Louisiana. Tr. 121. 

According to the DI, he ran a criminal 

history check on each of the other 

patients and found that all of them had 

a history of illegal activity with regard 

to controlled substances, including such 

offenses as prescription fraud, offenses 

based on doctor shopping, as well as 

unlawful distribution apparently of both 

prescription and non-prescription 

controlled substances such as marijuana 

and cocaine. Id.25 However, as the ALJ 

noted, the Government did not offer any 

evidence specific to any of these 

persons such as their names, the exact 

nature or recency of the criminal 

activity, and most significantly, whether 

any of these persons had been convicted 

of criminal offenses.26 ALJ at 9 n.29. 

The ALJ further noted that while the 

Government initially indicated that it 

intended to call the retired Agent as a 

witness, it declined, without 

explanation, to do so at the hearing. ALJ 

at 9. The ALJ also noted that while the 

DI indicated that the audio recordings 

and transcripts of the undercover visits 

to the Respondent’s offices were still in 

existence, he did not bring these items 

to the hearing because he was not asked 

to do so. Id. at 9–10. 

The ALJ further found that the DI’s 

testimony concerning his recollection of 

the interaction that took place between 

SA Price and the Respondent was quite 

vague and that on several occasions he 

needed to review his case file and an 

unsigned copy of an affidavit he had 

prepared on previous occasion. Id. at 10. 

While the ALJ generally found the DI’s 

testimony to be credible, he noted that 

it ‘‘would have been more helpful if it 

had been preceded by a higher level of 

preparation.’’ Id. Most significantly, the 

ALJ found that the DI’s testimony 

regarding the interaction between the 

Respondent and the Special Agent 

during the undercover visits ‘‘was 

insufficiently precise to shed significant 

light on the Respondent’s prescribing 

practices as evidenced in those visits.’’ 

Id. 

Respondent’s Evidence 

In his testimony, Respondent 

repeatedly denied filing the March 10, 

2005 application, and insisted that 

‘‘there [wa]s no way I could have left all 

this incomplete.’’ Tr. 309, 313–14. He 

further asserted that he submitted an 

application in October or November 

2005 after Hurricane Katrina and that he 

told the Chicago DEA office everything 

about his 1998 guilty pleas and the 

probation of his state medical license. 

Id. at 313–15. 

As to Respondent’s assertion that he 

never filed the March 10, 2005 

application, the ALJ found that it ‘‘flies 

in the face of much of the credible 

evidence.’’ ALJ at 19. In particular, the 

ALJ found it difficult to believe that an 

‘‘unidentified individual would possess 

[the] level of personally identifiable 

information [necessary to transact the 

credit card transaction] and be willing 

to pay $390.00 to file an application for 

a DEA Registration in secret, and to the 

Respondent’s detriment.’’ Id. (see also 

id. at 20: ‘‘Perhaps the least credible in 

the litany of incredible assertions put 

forth by the Respondent is the testimony 

that he never filed the application for 

the [Certificate of Registration] 

containing his material falsifications, 

particularly in light of the fact that his 

credit card was utilized to pay the 

application fee.’’). 

Moreover, the nature of the 

information that was provided in 

response to question 2 on the 

application included highly specific 

information regarding the circumstances 

surrounding Respondent’s surrender of 

his previous registration. See GX 1, at 2. 

More specifically, the answer stated that 

‘‘[o]n June 2, 2004, my primary office in 

Louisiana was visited by’’ a ‘‘DEA 

Diversion Unit,’’ which advised him to 

surrender his Louisiana DEA 

registration. Id. This, of course, was the 

exact date that the warrant was executed 

and on which Respondent surrendered 

his registration. This begs the 

question—which Respondent did not 

answer—what other individual would 

have known this information and used 

it (as well as Respondent’s credit card) 

to file the application? I thus agree with 

the ALJ that Respondent completed the 

application and gave false testimony 

when he denied filing the March 10, 

2005 application. 

At the hearing, Respondent did not 

deny either that he had a felony 

conviction for possession of cocaine or 

that his medical license had previously 

been placed on probation. While 

Respondent apparently admitted that 

his answer to the first liability question 

(which asked if he had ‘‘ever been 

convicted of a crime in connection with 

controlled substances under state or 

federal law’’) was false, he nonetheless 

insisted that his answer to the third 

liability question (regarding his state 

license) was ‘‘correct.’’ Tr. 341. He 

further testified that in answering the 

latter question, he interpreted the 

question as if it asked only whether his 

state prescription writing authority had 

been placed on probation. Id. at 346–47. 

However, as found above, the question 

encompasses—in plain English— 

discipline imposed against an 

applicant’s professional license and not 

just his state controlled substance 

registration.27

Respondent also disputed that his 

patients came from other States, Tr. 406, 

and that he ran a cash-only practice. Id. 

at 401. As for why he saw patients so 

late at night as well as during the wee 

hours of the morning, Respondent 

testified that: 

[t]he only explanation I can give you * * * 

that makes sense in terms of * * * what I do 

as a physiatrist, my approach is fairly unique. 

We address the problems of, if you will, 

physical disfunction[sic] in a manner that 

typically required that type of extended, sit 

down, educational, this is what we’re doing, 

this is how we have to approach it, you 

know, interacting with the patient to get 

them to understand what was expected of 

them in order to accomplish the goal. 

Id. at 407. 


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28Cf. Martha Hernandez, M.D., 62 FR 61145, 

61146 (1997) (An applicant’s answers to the various 

liability questions are material because this Agency 

‘‘relies upon such answers to determine whether an 

investigation is needed prior to granting the 

application.’’). A DI explained that, as a procedural 

matter, when an applicant provides ‘‘no’’ answers to 

the liability questions, the application is forwarded 

without further investigation to a registration 

technician for approval. 

It is acknowledged that Respondent truthfully 

disclosed that he had previously surrendered his 

registration and thus, his application would have 

been subjected to an investigation in any case. 

However, as the Supreme Court has explained, 

whether a false statement is material depends upon 

an interpretation of the substantive law. As 

explained above, Respondent’s two false answers 

are clearly material to several of the factors which 

the Agency is charged with considering in making 

the public interest determination. 

29Not only did Congress direct the Agency to 

consider ‘‘[t]he recommendation of the appropriate 

State licensing board or professional disciplinary 

As for the DI’s assertion that each of 

the fifty-one persons whose patient file 

was seized had some criminal behavior 

or drug history, Respondent testified 

that he used a questionnaire which asks 

various questions to identify 

problematic patients such as whether 

the patient had or was using illicit 

drugs, whether the patient had a 

psychiatric history, and that he would 

also do ‘‘a general mental status 

assessment’’ of each patient. Id. at 412– 

13. He further maintained that he 

discharged problematic patients, 

including those who were seeking drugs 

for self-abuse or to sell. Id. at 413–14. 

Putting aside the credibility of 

Respondent’s testimony regarding his 

medical practices, it is notable that he 

failed to address several material issues 

that were proved by the Government. 

More specifically, he offered no 

testimony as to why he had pre-signed 

prescriptions, and why he failed to 

maintain inventories and a dispensing 

log. 

Discussion 

Section 303(f) of the Controlled 

Substances Act (CSA) 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, I am not required 

to make findings as to all of the factors. 

Volkman v. DEA, 567 F.3d 215, 222 (6th 

Cir. 2009); Hoxie v. DEA, 419 F.3d 477, 

482 (6th Cir. 2005). 

Under Section 304(a)(1), a registration 

may be revoked or suspended ‘‘upon a 

finding that the registrant * * * has 

materially falsified any application filed 

pursuant to or required by this 

subchapter.’’ 21 U.S.C. 824(a)(1). Under 

agency precedent, 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 The 

Lawsons, Inc., 72 FR 74334, 74337 

(2007); 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. 

See The Lawsons, 72 FR at 74337; 

Samuel S. Jackson, 72 FR 23848, 23852 

(2007). Moreover, just as materially 

falsifying an application provides a 

basis for revoking an existing 

registration without proof of any other 

misconduct, see 21 U.S.C. 824(a)(1), it 

also provides an independent and 

adequate ground for denying an 

application. The Lawsons, 72 FR at 

74338; cf. Bobby Watts, M.D., 58 FR 

46995 (1993). 

Here, the record establishes two 

separate grounds for denying 

Respondent’s application. First, 

Respondent materially falsified his 

March 2005 application for a 

registration. Second, Respondent has 

committed numerous acts which 

demonstrate that the issuance of a 

registration would be inconsistent with 

the public interest. Moreover, 

Respondent has failed to offer sufficient 

evidence to rebut the Government’s 

prima facie showing that his registration 

would be inconsistent with the public 

interest. 

The Material Falsification Allegation 

As found above, on March 9, 2005, 

Respondent, who had surrendered his 

DEA registration on June 2, 2004, 

applied for a new registration. While on 

the application Respondent 

acknowledged that he had previously 

surrendered his DEA registration, he 

provided a ‘‘no’’ answer to the questions 

of whether he had ‘‘ever been convicted 

of a crime in connection with controlled 

substances under state or federal law’’ 

and whether he had ‘‘ever had a state 

professional license or controlled 

substance registration’’ sanctioned. 

These statements were clearly false as 

Respondent had been convicted of 

possession of cocaine, a felony offense 

under the laws of Louisiana, and had 

also had his Louisiana Medical License 

placed on probation. 

Both of these falsifications were 

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. 

However, ‘‘the ultimate finding of 

materiality turns on an interpretation of 

substantive law.’’ Id. at 772 (int. 

quotations and other citation omitted). 

Moreover, ‘‘[i]t makes no difference 

that a specific falsification did not exert 

influence so long as it had the capacity 

to do so.’’ United States v. Alemany 

Rivera, 781 F.2d 229, 234 (1st Cir. 1985). 

See also United States v. Norris, 749 

F.2d 1116, 1121 (4th Cir. 1984) (‘‘There 

is no requirement that the false 

statement influence or effect the 

decision making process of a 

department of the United States 

Government.’’). 

DEA has previously held that ‘‘[t]he 

provision of truthful information on 

applications is absolutely essential to 

effectuating [the] statutory purpose’’ of 

determining whether the granting of an 

application is consistent with the public 

interest. See Peter H. Ahles, 71 FR 

50097, 50098 (2006).28 As a substantive 

matter, Congress has directed that the 

Agency consider five factors in 

determining whether the granting of an 

application is consistent with the public 

interest. See 21 U.S.C. 823(f). As noted 

above, the Agency is required to 

consider the status of the applicant’s 

state authority to dispense controlled 

substances,29 the applicant’s experience 


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authority,’’ a practitioner cannot be registered 

unless he ‘‘is authorized to dispense * * * under 

the laws of the State in which he practices.’’ 21 

U.S.C. 823(f). See also 21 U.S.C. 802(21) (defining 

‘‘practitioner’’ as ‘‘a physician * * * licensed, 

registered, or otherwise permitted, by the United 

States or the jurisdiction in which he practices 

* * * to dispense * * * a controlled substance in 

the course of professional practice’’). 

30To make clear, the Agency’s authority to deny 

an application is not limited to those convictions 

enumerated in 21 U.S.C. 823(f)(3), but also includes 

any conviction meeting the standards of 21 U.S.C. 

824(a)(2) such as a conviction for simple 

possession. 

31The circumstantial evidence which includes 

his seeing patients in the wee hours of the morning, 

where the patients were coming from, the 

interactions that the Agent had with other 

‘‘patients,’’ and the uniformity of his diagnoses, 

create a strong suspicion that Respondent was not 

engaged in legitimate medical practice but rather 

drug dealing. However, under the substantial 

evidence test, the evidence must ‘‘do more than 

create a suspicion of the existence of the fact to be 

established.’’ NLRB v. Columbian Enameling & 

Stamping Co., 306 U.S. 292, 300 (1939). Given the 

numerous evidentiary gaps in the record, I do not 

make any findings regarding the lawfulness of 

Respondent’s prescribing practices with respect to 

the other 51 patients whose files were seized. 

in dispensing * * * controlled 

substances,’’ his ‘‘conviction record 

* * * relating to the * * * dispensing 

of controlled substances,’’ his 

‘‘[c]ompliance with applicable State, 

Federal, or local laws relating to 

controlled substances,’’ and whether he 

has engaged in ‘‘such other conduct 

which may threaten public health and 

safety.’’ 21 U.S.C. 823(f). Moreover, 

under the latter factor, DEA has 

frequently denied applications and 

revoked the registrations of practitioners 

who have a history of abusing 

controlled substances. See, e.g., Kenneth 

Wayne Green, Jr., 59 FR 51453 (1994); 

David E. Trawick, 53 FR 5326, 5327 

(1988). 

Congress has also explicitly granted 

the Agency authority to revoke a 

registration where a registrant ‘‘has been 

convicted of a felony under [the CSA] or 

any other law of the United States, or of 

any State, relating to any substance 

defined in [the CSA] as a controlled 

substance.’’ 21 U.S.C. 824(a)(2). As 

noted above, it has long been settled 

that the Agency has authority to deny an 

application on any of the grounds set 

forth in 21 U.S.C. 824.30

Thus, even though Respondent 

disclosed that he had previously 

voluntarily surrendered his registration 

and been the subject of an investigation 

with respect to his prescribing practices, 

his failure to disclose the previous state 

discipline (which was based on his 

abuse of various controlled substances 

as well as his conviction for cocaine 

possession) and this conviction, still 

had the capacity to influence the 

Agency’s decision as to whether his 

application should be granted. It makes 

no difference that the Agency did not 

rely on the misrepresentations and grant 

his application. See United States v. 

Alemany Rivera, 781 F.2d at 234; United 

States v. Norris, 749 F.2d at 1121. 

Under DEA precedent, the 

Government is not required to show that 

the falsification was intentional but only 

that the applicant ‘‘knew or should have 

known that the response given to the 

liability question was false.’’ The 

Lawsons, 72 FR at 74339; Samuel 

Arnold, 63 FR 8687, 8688 (1998). 

Respondent obviously knew that he had 

‘‘been convicted of a crime in 

connection with controlled substances’’ 

under Louisiana law. Likewise, he knew 

that his state license had previously 

been placed on probation. And contrary 

to his protestation that he thought the 

question was only directed at the loss of 

his prescription-writing authority, the 

question clearly encompassed the 

probationary sanction imposed on his 

Louisiana medical license. 

Thus, Respondent cannot credibly 

claim that the falsifications were the 

result of mere negligence or 

misunderstanding. Indeed, that 

Respondent denied having even 

submitted the application—an assertion 

which is patently false given the 

detailed information that the 

application included and the fact that 

the fee was paid for with his credit 

card—suggests that the falsification was 

intentional. 

I thus hold that Respondent 

materially falsified his March 2005 

application by failing to disclose his 

conviction for cocaine possession and 

the State Board’s imposition of 

probation terms on his medical license. 

I further hold that Respondent—as 

evidenced by his having denied that he 

submitted the application—has failed to 

accept responsibility for his 

misconduct. See Samuel Jackson, 72 FR 

at 23853. Thus, Respondent’s material 

falsification provides reason alone to 

deny his application. 

In addition, the evidence showed that 

Respondent, when he was previously 

registered, committed multiple acts 

which are properly considered under 

factors two and four and which render 

his ‘‘registration inconsistent with the 

public interest.’’ 21 U.S.C. 823(f). As 

found above, Respondent issued 

multiple prescriptions for controlled 

substances including hydrocodone and 

Xanax to an undercover Agent who 

visited him at his office in D’Iberville, 

Mississippi. While there is insufficient 

evidence to establish that these 

prescriptions lacked a legitimate 

medical purpose and were issued 

outside of the course of professional 

practice, see 21 CFR 1306.04(a), the 

evidence did show that at the 

undercover Agent’s subsequent visits, 

Respondent had pre-signed 

prescriptions for both of the above 

controlled substances, and that during 

at least one of these visits, the Agent 

was given the prescriptions before he 

even saw Respondent. 

DEA has long interpreted the CSA as 

prohibiting the pre-signing of 

prescriptions. See Jayam Krishna-Iyer, 

71 FR 52148, 52159 & n.9 (2006) 

(collecting cases), vacated on other 

grounds, 249 Fed. Appx. 159 (11th Cir. 

2007). See also Walter S. Gresham, 57 

FR 44213, 44214 (1992); James Beale, 53 

FR 15149, 15150 (1988) (‘‘It is a 

violation of 21 CFR 1306.05(a) to presign prescriptions for controlled 

substances.’’). Respondent’s practice of 

pre-signing prescriptions is indicative of 

drug dealing as he clearly had not 

evaluated the undercover Agent prior to 

writing the prescriptions to determine 

whether they were medically necessary 

to treat his purported condition.31

The evidence also showed that during 

the search of Respondent’s Louisiana 

office, Investigators found various 

controlled substances including 

Percocet (a schedule II drug containing 

oxycodone), hydrocodone and Lorcet 

(both schedule III drugs containing 

hydrocodone), diazepam and Stadol 

(both schedule IV drugs). Respondent 

makes no claim that these drugs had 

been lawfully prescribed to him. 

Under the CSA, ‘‘every registrant 

* * * shall * * * as soon * * * as 

such registrant first engages in the 

manufacture, distribution, or dispensing 

of controlled substances, and every 

second year thereafter, make a complete 

and accurate record of all stocks thereof 

on hand.’’ 21 U.S.C. 827(a)(1); see also 

21 CFR 1304.11(b) & (c). Moreover, 

‘‘every registrant * * * manufacturing, 

distributing, or dispensing, a controlled 

substance or substances shall maintain, 

on a current basis, a complete and 

accurate record of each such substance 

manufactured, received, sold, delivered, 

or otherwise disposed of by him.’’ 21 

U.S.C. 827(a)(3); see also 21 CFR 

1304.22(c) (requirement for dispensing 

records). During the search, Respondent 

admitted to the Investigators that he did 

not have the required inventories and 

was not maintaining a dispensing log. I 

thus further hold that Respondent 

violated Federal law and DEA 

regulations by failing to maintain these 

records. 

Notably, Respondent offered no 

testimony addressing either his presigning of prescriptions or his failure to 

maintain required records. Respondent 


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32 It is acknowledged that Respondent holds a 

valid state license (factor one) and has not been 

convicted of an offense related to the dispensing of 

controlled substances (factor three). However, 

neither of these factors is dispositive. See Edmund 

Chein, 72 FR 6580, 6590 (2007), aff’d Chein v. DEA, 

533 F.3d 828 (DC Cir. 2008) (The authority to 

decide whether to grant an application for a DEA 

registration has been entrusted to the Attorney 

General and ‘‘has been delegated solely to the 

officials of this Agency.’’) See also id. at 6593 n.22 

(absence of criminal convictions not dispositive in 

public interest inquiry). 

I further note the DI’s testimony that Respondent 

violated Federal law because he wrote prescriptions 

at his Mississippi office and did not have a 

registration in this State. However, the Government 

put forward no evidence that identifies specific 

prescriptions that Respondent issued after the 

expiration of his Mississippi registration. Moreover, 

in its brief, the Government does not rely on this 

conduct. Thus, I do not consider the allegation. 

The Government also argues that Respondent’s 

conviction for possession of cocaine can be 

considered under factor three. However, the 

conviction was not for an offense related to the 

manufacture, distribution, or dispensing of 

controlled substances and is thus not properly 

considered under factor three. However, as the ALJ 

reasoned, consistent with Agency precedent, the 

conviction can be considered under factor five as 

such other conduct which may threaten public 

health and safety. See ALJ at 34–35. While there is 

evidence that Respondent underwent treatment, 

and the Government does not argue that 

Respondent has a continuing problem with drug 

abuse, when coupled with the other violations 

proved on this record, it buttresses the conclusion 

that Respondent is unwilling to conform to the law 

and that he cannot be entrusted with a new 

registration. 

has thus failed to offer any evidence to 

rebut the Government’s showing that he 

has committed acts which render 

granting him a registration inconsistent 

with the public interest.32 See Medicine 

Shoppe-Jonesborough, 73 FR 364, 387 

(2008) (‘‘Where the Government has 

made out its prima facie case, the 

burden shifts to the Respondent to show 

why [his] continued registration would 

nonetheless be consistent with the 

public interest.’’). Accordingly, these 

violations of the CSA and DEA 

regulations provide a further basis to 

deny Respondent’s application. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as by 28 CFR 

0.100(b) and 0.104, I hereby order that 

the application of Alvin Darby, M.D., for 

a DEA Certificate of Registration as a 

practitioner, be, and it hereby is, denied. 

This order is effective immediately. 

Dated: April 16, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–11431 Filed 5–12–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Office of Justice Programs 

[OJP (OJP) Docket No. 1519] 

Hearings of the Review Panel on 

Prison Rape 

AGENCY: Office of Justice Programs, 

Justice. 

ACTION: Notice of hearing. 

SUMMARY: The Office of Justice Programs 

(OJP) announces that the Review Panel 

on Prison Rape (Panel) will hold 

hearings in Washington, DC on June 3– 

4, 2010. The hearing times and location 

are noted below. The purpose of the 

hearings is to assist the Bureau of Justice 

Statistics (BJS) in identifying common 

characteristics of victims and 

perpetrators of sexual victimization in 

juvenile facilities, and the common 

characteristics of juvenile facilities with 

the highest and lowest incidence of 

rape, respectively, based on an 

anonymous survey by the BJS of youth 

in a representative sample of juvenile 

facilities. On January 7, 2010, the BJS 

issued the report Sexual Victimization 

in Juvenile Facilities Reported by Youth, 

2008–09. The report provides a listing of 

juvenile facilities grouped according to 

the prevalence of reported sexual 

victimization, and formed the basis of 

the Panel’s decision about which 

facilities would be the subject of 

testimony. 

DATES: The hearing schedule is as 

follows: 

1. Thursday, June 3, 2010, 10 a.m. to 

5:45 p.m.: Bureau of Justice Statistics; 

Fort Bellefontaine, Missouri, Campus— 

facility with a low prevalence of sexual 

victimization; Rhode Island Training 

School—facility with a low prevalence 

of sexual victimization; and Pendleton, 

Indiana, Juvenile Correctional Facility— 

facility with a high prevalence of sexual 

victimization. 

2. Friday, June 4, 2010, 8:30 a.m. to 

1 p.m.: Woodland Hills, Tennessee, 

Youth Development Center—facility 

with a high prevalence of sexual 

victimization; and Corsicana, Texas, 

Residential Treatment Facility—facility 

with a high prevalence of sexual 

victimization. 

ADDRESSES: The hearings will take place 

at the Office of Justice Programs 

Building, Main Conference Room, Third 

Floor, U.S. Department of Justice, 810 

7th Street, NW., Washington, DC 20531. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Zubowicz, Designated 

Federal Official, OJP, 

Christopher.Zubowicz@usdoj.gov, (202) 

307–0690 [Note: This is not a toll-free 

number.] 

SUPPLEMENTARY INFORMATION: The Panel, 

which was established pursuant to the 

Prison Rape Elimination Act of 2003, 

Public Law 108–79, 117 Stat. 972 

(codified as amended at 42 U.S.C. 

15601–15609 (2006)), will hold its next 

hearings to carry out the review 

functions specified at 42 U.S.C. 

15603(b)(3)(A). Testimony from the 

hearings will assist the Panel in carrying 

out its statutory obligations. The witness 

list is subject to amendment; please 

refer to the Review Panel on Prison 

Rape Web site at http:// 

www.ojp.usdoj.gov/reviewpanel/ 

reviewpanel.htm for any updates 

regarding the hearing schedule. Space is 

limited at the hearing location. Special 

needs requests should be made to 

Christopher Zubowicz, Designated 

Federal Official, OJP, 

Christopher.Zubowicz@usdoj.gov or 

(202) 307–0690, at least one week before 

the hearings. 

Michael Alston, 

Office of Justice Programs. 

[FR Doc. 2010–11369 Filed 5–12–10; 8:45 am] 

BILLING CODE 4410–18–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to the National 

Cooperative Research and Production 

Act of 1993—LiMo Foundation 

Notice is hereby given that, on March 

12, 2010, pursuant to Section 6(a) of the 

National Cooperative Research and 

Production Act of 1993, 15 U.S.C. 8 

4301 et sect. (‘‘the Act’’), LiMo 

Foundation (‘‘LiMo’’) filed written 

notifications simultaneously with the 

Attorney General and the Federal Trade 

Commission disclosing changes in its 

membership. The notifications were 

filed for the purpose of extending the 

Act’s provisions limiting the recovery of 

antitrust plaintiffs to actual damages 

under specified circumstances. 

Specifically, Else Limited, Ra’anana, 

ISRAEL; Teleca Germany GmbH, 

Neuremberg, GERMANY; Mobi TV, and 

Emeryville, CA, have been added as 

parties to this venture. 

No other changes have been made in 

either the membership or planned 

activity of this group research project. 

Membership in this group research 

project remains open, and LiMo intends 

to file additional written notifications 

disclosing all changes in membership. 

On March 1, 2007, LiMo filed its 

original notification pursuant to Section 


sroberts on DSKD5P82C1PROD with NOTICES