[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Notices]
[Pages 14004-14005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6297]



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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-52]


Robert A. Leslie, M.D.; Denial of Application

    On May 13, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration 
(DEA), issued an Order to Show Cause to Robert A. Leslie, M.D., of Los 
Angeles, California, proposing to deny his application for registration 
as a practitioner. The Order to Show Cause alleged that the 
Respondent's registration would be inconsistent with the public 
interest as that term is used in 21 U.S.C. 823(f).
    Respondent, acting pro se, requested a hearing on the issues raised 
by the Order to Show Cause, and the matter was placed on the docket of 
Administrative Law Judge Mary Ellen Bittner. Following prehearing 
procedures, a hearing was held in Los Angeles, California, on December 
8 and 9, 1993. On July 27, 1994, in her opinion and recommended ruling, 
findings of fact, conclusions of law and decision, the administrative 
law judge recommended that Respondent's application for DEA 
registration be denied. In a footnote of her recommended decision, the 
administrative law judge referenced specific documents that were 
submitted by Respondent after the administrative hearing. The 
administrative law judge recommended that the Deputy Administrator not 
consider these submissions, since most of the documents pertained to 
matters previously litigated and conclusively decided in a previous 
criminal action, and therefore, consideration of them was barred by the 
doctrine of res judicata. No exceptions were filed by either party.
    On August 16, 1994, Respondent filed a Petition for Reconsideration 
of the administrative law judge's decision recommending denial of his 
application for DEA registration. On August 17, 1994, the 
administrative law judge denied this petition as lacking in merit.
    On August 30, 1994, the administrative law judge transmitted the 
record to the Deputy Administrator. The Deputy Administrator has 
carefully considered the entire record in this matter and pursuant to 
21 CFR 1316.67, hereby issues his final order in this matter based upon 
findings of fact and conclusions of law as hereinafter set forth. The 
Deputy Administrator concurs with Judge Bittner's recommendation not to 
consider specific post hearing submissions of the Respondent. 
Accordingly, these submissions were not considered in rendering this 
decision.
    The administrative law judge found that Respondent graduated from 
medical school in 1955, became licensed as a physician in 1958, and 
practiced medicine in Los Angeles during the period at issue in this 
case. On April 1, 1986, a complaint was filed in the Municipal Court of 
Long Beach, California, charging Respondent with seventeen misdemeanor 
counts, sixteen of which related to the unlawful handling of controlled 
substances. Following a jury trial, on October 9, 1986, Respondent was 
found guilty on eight counts of unlawfully prescribing, administering, 
furnishing or dispensing controlled substances between July 1985 and 
January 1986. Respondent's convictions were affirmed on appeal by the 
Appellate Department of the Superior Court, State of California, in a 
Memorandum Judgement issued on May 18, 1988.
    Based on his criminal convictions, on August 17, 1988, the 
California Board of [[Page 14005]] Medical Quality Assurance (BMQA) 
filed an accusation against Respondent seeking to suspend his medical 
license. Following an administrative hearing, on July 24, 1989, the 
state administrative law judge recommended that Respondent's medical 
license be revoked, but that the revocation be stayed for five years, 
that Respondent be placed on probation subject to certain conditions, 
and that he be suspended from the practice of medicine for 90 days. 
After the BMQA adopted the decision of the state administrative law 
judge, Respondent sued BMQA, but was unsuccessful both in the lower 
court and on appeal. The court subsequently fined Respondent $10,000, 
and found that his appeal was frivolous.
    On June 21, 1989, DEA issued an Order to Show Cause, seeking to 
revoke Respondent's prior DEA Certificate of Registration, AL0033186. 
Respondent requested a hearing, but later submitted a written statement 
of his position in lieu of participating in a hearing. Based on 
Respondent's statement and the Government's investigative file, 
effective August 17, 1990, the then-Acting Administrator revoked 
Respondent's DEA registration, based upon the finding that his 
continued registration would be inconsistent with the public interest. 
See Robert A. Leslie, M.D., 55 FR 29278 (1990). Respondent subsequently 
filed a new application for DEA registration on February 6, 1992, which 
is the subject of this proceeding.
    Respondent testified at the administrative hearing to matters 
surrounding his criminal conviction. Respondent argued that his 
prescribing to undercover operatives was justified based upon their 
physical conditions and complaints of pain, and that he was entrapped; 
during the criminal trial, the operatives perjured themselves regarding 
events that took place during their visits with Respondent; his direct 
appeal of his criminal convictions was denied, and his subsequent 
filing of ten petitions for habeas corpus in state and federal courts 
were unsuccessful; and, he sued his attorney for malpractice based upon 
the latter's failure to provide adequate legal representation.
    Respondent also contended that the 1990 final order of the then-
Acting Administrator relied on false statements supplied by BMQA that 
were not part of the original court record. Respondent testified that 
he filed a petition for reconsideration of that final order, however, 
since the Federal Register notice of the final order was not timely 
sent to him, the period for filing a motion for reconsideration elapsed 
before he became aware of the revocation. The administrative law judge 
found this argument without merit based on the provisions of 21 U.S.C. 
877, regarding judicial review, and the fact that there is no provision 
in the Code of Federal Regulations for filing requests for 
reconsideration.
    Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny any 
application for registration, if he determines that the continued 
registration would be inconsistent with the public interest. In 
determining the public interest, the following factors are considered:
    (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 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.
    It is well established that these factors are to be considered in 
the disjunctive, i.e., the Deputy Administrator may properly rely on 
any one or a combination of the factors and give each factor the weight 
he deems appropriate. See Henry J. Schwarz, Jr., M.D., Docket No. 88-
42, 54 FR 16422 (1989). In considering whether grounds exist to deny 
Respondent's application for DEA registration, the administrative law 
judge found all of the above factors relevant.
    The administrative law judge found that Respondent's testimony, 
documentary evidence and pleadings in this proceeding contended that 
his criminal conviction was invalid. The administrative law judge 
concluded however, that the conviction is res judicata, and that 
Respondent should not be allowed to relitigate the matter.
    The administrative law judge found that during the administrative 
hearing, although Respondent was free to offer new evidence that he 
would never again engage in the type of conduct that resulted in his 
conviction, he failed to do so. The administrative law judge also found 
that while Respondent offered evidence and expended time arguing the 
invalidity of his criminal convictions, he offered no evidence of 
remorse for his prior conduct, that he has taken rehabilitative steps, 
or that he recognizes the severity of his actions. The administrative 
law judge concluded that Respondent is either unwilling or unable to 
discharge the responsibilities inherent in a DEA registration, and 
therefore, recommended that his application for DEA registration be 
denied.
    The Deputy Administrator having considered the entire record adopts 
the administrative law judge's findings of fact, conclusions of law, 
and recommended ruling in its entirety. Accordingly, the Deputy 
Administrator of the Drug Enforcement Administration, pursuant to the 
authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b) 
and 0.104, hereby orders that the application for registration, 
executed by Robert A. Leslie, M.D., be, and it hereby is, denied. This 
order is effective March 15, 1995.

    Dated: March 8, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-6297 Filed 3-14-95; 8:45 am]
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