[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Notices]
[Pages 60873-60889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25224]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-69]
Jeffery M. Freesemann, M.D.; Decision and Order
On January 24, 2011, Administrative Law Judge (ALJ) John J.
Mulrooney, II, issued the attached recommended decision. The Respondent
did not file exceptions to the decision.
Having considered the ALJ's decision and the record in light of the
parties' post-hearing briefs, I have decided to adopt the ALJ's
rulings, findings of fact, and conclusions of law.\1\ Accordingly, I
also adopt the ALJ's recommended Order.
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\1\ The ALJ made extensive findings under the public interest
factors. See ALJ Slip Op. at 32-40. While the Government cited both
21 U.S.C. 824(a)(2) & (4) as the legal authority for the proposed
revocation, the factual basis--as alleged--was limited to
Respondent's convictions (and the circumstances surrounding them)
for a felony offense that falls within 21 U.S.C. 824(a)(2). See ALJ
Ex. 1; see also ALJ Slip op. at 32. Moreover, there was no
application pending at the time of the proceeding and Respondent's
conviction was no longer subject to appeal.
Because a conviction for a felony offense that falls within
section 824(a)(2) provides an independent and adequate ground for
revoking a registration, and there was no pending appeal of the
conviction or pending application for a new registration, the ALJ
was not required to make findings under the public interest factors.
While such a conviction satisfies the Government's prima facie
burden, it is not a per se bar to registration. Cf. The Lawsons, 72
FR334, 74338 (2007). Accordingly, in a case brought under section
824(a)(2), the ALJ is still required (as he did here) to make
findings as to whether the registrant has accepted responsibility
for his misconduct and demonstrated that he will not engage in
future misconduct. Cf. Ronald Lynch, M.D., 75 FR 78745, 78749
(2010).
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Order
Pursuant to the authority vested in me by 21 U.S.C. 824(a)(2) &
(4), as well 28 CFR 0.100(b), I order that DEA Certificate of
Registration, BF4089125, issued to Jeffery M.Freesemann, M.D., be, and
it hereby is, revoked. This Order is effective October 31, 2011.
Dated: September 19, 2011.
Michele M. Leonhart,
Administrator.
Christine M. Menendez, Esq., for the Government.
Dennis R. Thelen, Esq., for the Respondent.
[[Page 60874]]
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision
of the Administrative Law Judge
John J. Mulrooney, II, Administrative Law Judge. The Deputy
Assistant Administrator, Drug Enforcement Administration (DEA or
Government), issued an Order to Show Cause (OSC), dated August 13,
2010, seeking revocation of the Respondent's Certificate of
Registration (COR), Number BF4089125, as a practitioner, pursuant to 21
U.S.C. 824(a)(2) and (a)(4) (2006), and denial of any pending
applications for renewal or modification of such registration, pursuant
to 21 U.S.C. 823(f), alleging that the Respondent has been convicted of
three felonies involving controlled substances, and that his continued
registration is otherwise inconsistent with the public interest, as
that term is used in 21 U.S.C. 823(f). On August 25, 2010, the
Respondent timely requested a hearing, which was conducted in Los
Angeles, California, on December 14 through December 15, 2010.
The issue ultimately to be adjudicated by the DEA Deputy
Administrator, with the assistance of this recommended decision, is
whether the record as a whole establishes by substantial evidence that
the Respondent's registration with the DEA should be revoked as
inconsistent with the public interest as that term is used in 21 U.S.C.
823(f) and 824(a)(4). The Respondent's DEA COR is set to expire by its
terms on September 30, 2012.
After carefully considering the testimony elicited at the hearing,
the admitted exhibits, the arguments of counsel, and the record as a
whole, I have set forth my recommended findings of fact and conclusions
below.
The Evidence
The OSC issued by the Government alleges that revocation of the
Respondent's COR is appropriate because of the Respondent's May 8, 2009
conviction for three felony counts of transportation of controlled
substances, i.e. methamphetamine, ecstasy, and cocaine, in violation of
California state law.\1\ OSC at 1.
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\1\ The same day, the Respondent also pleaded no contest to a
misdemeanor charge of carrying a loaded firearm. Gov't Ex. 11; see
Cal. Penal Code 12031(a) (West 2008).
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The parties, through their respective counsel, have entered into
stipulations regarding the following matters:
Stipulation A: Respondent is a licensed physician in the state of
California pursuant to license number G 83122. Respondent's license
status is current. ALJ Ex. 9 at 1.
Stipulation B: On May 8, 2009, Respondent pleaded no contest to,
and was convicted on, three criminal felony counts of transportation of
controlled substances by the Superior Court of California, County of
Kern. The controlled substances were methamphetamine, ecstasy, and
cocaine. The Respondent also pleaded no contest to, and was convicted
on, one misdemeanor count of carrying a loaded firearm. ALJ Ex. 9 at 1.
Stipulation C: Prior to the night the Respondent was arrested, he
had no adverse interaction with law enforcement authorities. Tr. vol.
1, 129, Dec. 14, 2010.
Stipulation D: That neither party would interpose any objection to
the admission of any of the proposed exhibits noticed prior to the
hearing. Tr. 7-10.
Stipulation E: A blue pouch depicted on page 3 of Government
Exhibit 5 did not contain the firearm seized from the Respondent's
motor home on the night he was stopped and detained by the police. Tr.
354-55.
Among the exhibits admitted into evidence through stipulation was a
state criminal court transcript, dated May 8, 2009, wherein the
Respondent entered pleas of no contest to three felony drug
transportation counts and one loaded firearm misdemeanor in
satisfaction of the indictment pending against him. Resp't Ex. 3 at 4-
7; Gov't Ex. 11 at 4-7; Gov't Ex. 10 at 1-3. Specifically, the
Respondent pleaded no contest to transporting methamphetamine in
violation of Cal. Health & Safety Code Sec. 11379 (West 2008),
transporting Ecstasy or MDMA in violation of Cal. Health & Safety Code
Sec. 11379 (West 2008), transporting cocaine in violation of Cal.
Health & Safety Code Sec. 11352 (West 2008), and possession of a
loaded firearm in a vehicle in violation of Cal. Penal Code Sec.
12031(a) (West 2008). Resp't Ex. 3 at 6-7; Gov't Ex. 11 at 6-7; Gov't
Ex. 10 at 1-3.
Also included among the Government's exhibits admitted into
evidence is the October 20, 2010 Decision and Order (Order) of the
Medical Board of California (Medical Board) following a state
administrative hearing that took place on August 23, 2010.\2\ Gov't Ex.
15-16. In its Order, the Medical Board, adopting the recommended
decision issued by the state Administrative Law Judge, found that the
Respondent was stopped by police with his wife, Mrs. Shelly Freesemann,
on August 28, 2008 en route in a motor home to the ``Burning Man
Festival'' in Nevada. Gov't Ex. 15 at 3. The Order indicated that at
his hearing before the Medical Board, the Respondent testified that his
wife, by his account, unbeknownst to him, packed the cocaine, ecstasy,
and methamphetamine found by the police in the vehicle for use at the
festival at which they had intended to meet friends. Id. However, while
the Respondent, at his state Medical Board hearing, denied knowingly
transporting controlled substances, the Medical Board found that under
its precedent, he is nevertheless guilty of willfully transporting
those drugs because he pleaded nolo contendere and was convicted
pursuant to his plea. Id. at 2. At his Medical Board hearing, the
Respondent testified that although his wife was by far the more
culpable actor, he chose to bear the burden of incarceration so that
his wife could complete a drug rehabilitation program and care for
their children. Gov't Ex. 15 at 3. The Respondent apparently explained
to the Medical Board that he chose this course because he had ``the
greater strength to endure incarceration,'' and declared that
``children outweigh cash and income on my scale any day.'' Id. The
Medical Board expressed some level of concern regarding the
Respondent's credibility, but ultimately concluded that there was
insufficient indicia of deceit to support a finding that he was
``dishonest in his testimony.'' Id. at 4. The Medical Board noted the
Respondent's seemingly inconsistent positions of blaming his wife while
simultaneously acknowledging that he is ``responsible for his crime.''
Id.
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\2\ Although both parties noticed the Medical Board Order, in
the interest of avoiding unnecessary duplication, it was admitted as
a Government exhibit. Tr. 9-10.
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The Medical Board ultimately determined that although ``[c]ause
exists to revoke or suspend'' the Respondent's state medical
privileges, a stayed revocation accompanied by a seven-year term of
probation with limitations, reporting conditions, and ethics training
would ``provide adequate protection of the public health, safety and
welfare.'' Id.
At the DEA hearing conducted in this matter, the Government
presented the testimony of five police officers from Bakersfield,
California who worked on the investigation that culminated in the
Respondent's convictions as set forth in Stipulation B, and also called
the Respondent as a witness. The first officer who testified was
Detective (Det.) David Boyd, the lead case detective for the
investigation. Tr. 29. Det. Boyd, a twenty-two-year veteran of the
Bakersfield Police Department (Bakersfield PD), nine of which was
[[Page 60875]]
spent as a detective,\3\ testified that he first encountered the
Respondent during the course of a narcotics investigation primarily
targeted at an individual named Stephen Galvan (Galvan).\4\ Tr. 28. A
cell phone wiretap that had been judicially authorized during the
investigation revealed voice and text traffic between Galvan's cell
phone and phones connected to the Respondent and his wife, Shelly
Freesemann. Tr. 29-30, 50.
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\3\ Tr. 23.
\4\ Boyd testified that Galvan was identified to the Bakersfield
PD by a paid informant. Tr. 39-40.
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On August 24, 2008, the investigating officers monitored some phone
traffic between Galvan and a female who was later identified as
Galvan's sister, Tessa. Tr. 38-39, 41-43. During the call, Galvan was
attempting to procure a ``zip,'' which, based on Det. Boyd's training
and experience, he identified as referring to an ounce of illicit
drugs. Tr. 43-47. Galvan told his sister that he was willing to pay
$1,200.00 to $1,300.00, but needed it by the following day. Tr. 45.
At about 2 p.m. the following day (August 25th), the officers
intercepted a text message from Galvan's cell phone to Shelly
Freesemann \5\ that read: ``Hey, back in town, can take care of that 4
U ASAP.'' Tr. 47-48. After a five-hour period without a response from
Shelly Freesemann, Galvan's phone issued another text message to her
phone with the message: ``???'' Tr. 49. Galvan's second text received a
reply from a cell phone registered to Mrs. Freesemann within three
minutes that read: ``Sorry * * * Jeff will call you later.'' Tr. 50.
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\5\ Although Det. Boyd initially testified that he believed that
the Freesemanns were identified as acquaintances of Galvan earlier
in the investigation through prior surveillance, Tr. 51, he later
clarified that he only became aware of the Freesemanns through this
investigation and their telephonic contact with Galvan. Tr. 124-26.
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Galvan called Shelly Freesemann's phone and had a conversation with
a female voice the officers believed to be hers. Tr. 51. In the
conversation, Mrs. Freesemann told Galvan that the following day she
and her husband would be retrieving a motor home and departing the area
around 7:30 p.m. Tr. 52. Galvan told her that around noon he would pick
up ``paperwork'' (a term that Det. Boyd testified is commonly used in
narcotics transactions to refer to cash). Id.
At 8:06 a.m. the next morning (August 26th), a text message
emanated from Mrs. Freesemann's phone to Galvan's cell phone that
advised: ``Me, not Shelley, 29th and Fth.\6\ Call my work
[the Respondent's work telephone number]. Jeff.'' Tr. 54. Sometime
after the text message instructing him to do so, Galvan did call the
Respondent at the number provided in the text and spoke to him. Tr. 55.
During their conversation the two men discussed the Respondent's plans
to leave town that evening and that Galvan needed to meet with the
Respondent to get money from him.\7\ Tr. 55. After some discussion
related to the logistics of their meeting, the pair agreed to meet at
the Valley Gun Store (Valley Gun) located in Bakersfield. Tr. 55-56.
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\6\ Det. Boyd testified that there is such an intersection in
Bakersfield. Tr. 53-54.
\7\ According to Det. Boyd, Galvan used the terms ``money'' and
``paperwork'' interchangeably during this phone call. Tr. 55.
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Det. Boyd testified that he and his team were able to confirm that
Galvan and the Respondent did indeed meet that day at noon at the
Valley Gun. Tr. 56. Surveillance units posted near the Respondent's
car, Galvan's car, and Valley Gun tracked the two men driving to their
rendezvous point at Valley Gun, observed them enter the store
separately within two to three minutes of one another, and watched them
depart separately after spending about five minutes in the store. Tr.
56-58. The Respondent drove from his office to Valley Gun, even though
the two locations were diagonally across from each other on the same
intersection of Bakersfield. Tr. 58-62. After the meeting, officers
followed the Respondent in his car to a Barnes & Noble bookstore. Tr.
62.
Det. Boyd testified that Galvan placed numerous phone calls after
his meeting with the Respondent. Tr. 63. The officers monitored phone
calls from Galvan to his sister and to his father. Id. The object of
the phone calls to both parties was to arrange to purchase
methamphetamine. Id. Galvan also telephoned Phil Nunez (Nunez), an
individual the officers had earlier identified as one of Galvan's
sources of methamphetamine.\8\ Tr. 63-64. At about 7:00 p.m., after
Galvan and Nunez agreed to a meeting, the former placed another call to
the Freesemanns. Tr. 65-66. When Mrs. Freesemann picked up the phone,
Galvan asked to speak to the Respondent and informed him that he should
expect him at the Freesemann residence in approximately twenty to
thirty minutes. Id. The officers monitored several additional phone
calls between Galvan and Nunez related to the logistics of locating
each other for their meeting and frustration with cell phone service
problems. Tr. 67. Galvan and Nunez met in a public parking lot, after
which Galvan drove directly to the Freesemann residence which was being
staked out by another police officer, Sergeant \9\ (Sgt.) Chris
Johnson, at Det. Boyd's direction. Tr. 67-68.
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\8\ Nunez is also identified as a co-defendant on the felony
complaint and information associated with the Respondent's criminal
case. Gov't Exs. 7 at 1; Gov't Ex. 9 at 1.
\9\ At the time of the Respondent's arrest, Sgt. Johnson was a
detective. Tr. 198.
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Sgt. Johnson, who is also a member of the Bakersfield PD narcotics
unit, also testified for the Government. Sgt. Johnson testified that he
participated in and provided support to Det. Boyd during his narcotics
investigation of Galvan, and that during the evening hours of August
26, 2008, he was conducting a surveillance of the Respondent's home.
Tr. 201. Johnson testified that he arrived at the stakeout around 7:30
pm, remained there for approximately five hours, and could see the
Freesemann home and a motor home parked at the curb. Tr. 201-03. Sgt.
Johnson's visual observations, made from three houses away, had the
benefit of street lighting, porch lights, and motor home lights after
the sun set. Tr. 202-03. He testified that the Freesemanns were loading
the motor home when he observed Galvan drive up in a truck and park
across the street. Tr. 203. Galvan greeted the Respondent in the front
yard and followed him into the motor home carrying an oblong-sized
object about the size of a grapefruit. Tr. 204. After a brief period of
time, Galvan exited the motor home, encountered Mrs. Freesemann, hugged
her goodbye, shook the Respondent's hand, and drove away, but without
the oblong, grapefruit-sized object. Tr. 204-05. Sgt. Johnson further
testified that Galvan's entire visit lasted approximately five minutes.
Tr. 204, 211. He also testified that he saw Mrs. Freesemann leave the
motor home and enter the residence carrying an object that was similar
in size and shape to the grapefruit-sized item brought to the scene by
Galvan. Tr. 205-06. Sgt. Johnson testified that he watched the
Respondent and his wife continue to load the motor home for about
another hour and watched as the motor home and the Freesemanns drove
off. Tr. 207, 211.
Bakersfield PD Police Officer (PO) Kevin O. Hock also testified for
the Government. PO Hock testified that he has worked for Bakersfield PD
for the past fifteen years. Tr. 156. PO Hock testified he is assigned
to the Special Enforcement Unit (SEU) at Bakersfield PD, and that in
addition to working on gang crime cases and gang intelligence, SEU also
provides uniformed and ``black and white'' patrol car assistance to
investigations as needed. Tr. 156-57. PO Hock testified that on August
26,
[[Page 60876]]
2008, he was working a uniformed assignment in a marked patrol car and
was directed by Sgt. Tunnicliffe, a Bakersfield PD narcotics division
supervisor, to conduct a vehicle stop on a white motor home that the
narcotics unit was actively surveilling.\10\ Tr. 159-60. When PO Hock
caught up to the white motor home, he noticed that it had no license
plate light \11\ and initiated a vehicle stop. Tr. 162 PO Hock
testified that he encountered the Respondent driving the vehicle,
procured his California driver's license from him, and asked (as is his
custom with all vehicle stops) whether there were any illegal
substances inside the vehicle. Tr. 163-64. The Respondent responded in
the negative and consented to a search of the motor home.\12\ Tr. 165.
Hock testified that Mrs. Freesemann and a female, named Michelle
Hori,\13\ were also in the motor home when it was pulled over. Tr. 163.
PO Hock testified that he ordered all the occupants of the vehicle to
step out and radioed a K-9 officer, Det. Cox, to respond to the scene,
which he did within five minutes. Tr. 165-66. PO Hock testified that
Det. Cox searched the entire vehicle and told him that his narcotics
dog, ``Gracie,'' alerted to three different areas within the motor
home. Tr. 167. In one of the alert areas between the front seats, Hock
opened a bag that contained a pink pouch. Tr. 167-68, 171-74; Gov't Ex.
5 at 7-11, 16, 48-50. The pink pouch contained what PO Hock believed to
be MDMA tablets and powder cocaine. Tr. 170. Hock testified that the
motor home was driven to the Bakersfield PD station and searched more
thoroughly there under the authority of the search warrant procured by
Det. Hale. Tr. 174-75.
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\10\ Det. Boyd testified that it was he who made the decision to
have the motor home stopped and conveyed that decision to his
supervisor, Sgt. Tunnicliffe. Tr. 68-69.
\11\ A violation of Cal. Veh. Code Sec. 24601 (West 2008).
\12\ PO Hock testified that the Respondent was cooperative
throughout the entire evolution on the side of the road. Tr. 178.
\13\ Det. Boyd testified that police intercepted a phone
conversation wherein Ms. Hori indicated that she was intending to
transport six ecstasy capsules to a Tacoma, Washington surgeon by
the name of Dr. Wendell Smith. Tr. 134-35, 145. According to Det.
Boyd, Ms. Hori ultimately entered a guilty plea to some unspecified
criminal charge and received a sentence of probation. Tr. 132.
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The testimony of the responding K-9 officer, Bakersfield Det. David
Cox, corroborated the testimony of PO Hock. Det. Cox testified that on
the night of the Respondent's arrest, he was assigned as a K-9 officer
in the narcotics unit and was Gracie's handler. Tr. 182. Det. Cox
testified that he responded on August 26, 2008 to PO Hock's request to
sweep the Respondent's motor home with Gracie after he stopped it.\14\
Tr. 185-87. As testified to by PO Hock, Cox recalled that Gracie had
alerted to three different areas of the motor home. The first alert was
on the area between the two front passenger seats, another was on a
drawer or compartment above the motor home bed, and a third was on an
area with approximately two to four bags located on the interior floor
of the motor home near some bicycles. Tr. 188-93. Det. Cox then
testified that he related the areas of K-9 alert to PO Hock for action,
but that his part of that vehicle search evolution substantially ended
at that point. Tr. 192. He testified that he did not personally see any
controlled substances seized from the motor home, nor did he even see
the aforementioned pink pouch containing methamphetamine and BZP
tablets and powder methamphetamine, nor did he see a yellow pelican
case that, per Det. Boyd's testimony, the laboratory results, and the
return to search warrant, contained copious amounts of illicit
substances. Tr. 195.
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\14\ Det. Cox also testified that earlier in the day he assisted
in conducting surveillance on Galvan and the Freesemanns. Tr. 185,
193-94.
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Det. Boyd, testified that sometime after the commencement of the
search on the motor home, he directed another officer, Det. Michael
Hale, to prepare an affidavit and seek a warrant to search the stopped
motor home and the Respondent's residence. Tr. 72-73. The Government
also presented Det. Hale's testimony at the hearing. Hale, a fourteen-
year veteran Bakersfield police officer, testified that on the night of
the motor home stop he was assigned to the Narcotics Unit at the
Bakersfield PD and had been involved in the Galvan investigation. Tr.
217-18. He testified that he was the affiant on the supporting
affidavit (PC Affidavit) which was utilized to secure a state-court-
issued search warrant that was executed on the stopped motor home and
on the Respondent's residence in the early hours of the next
morning.\15\ Tr. 218-21; Gov't Ex. 3; Gov't Ex. 4.
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\15\ The search warrant and the PC Affidavit were received into
evidence at the hearing by mutual stipulation of the parties. Tr. 7-
10; Stipulation D; see Gov't Ex. 3.
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The PC Affidavit tracked the bones of the investigation
consistently with the testimony of Det. Boyd. The PC Affidavit informs
how the Bakersfield PD was led to the Respondent and his wife through
its monitoring of Galvan, who was suspected of being a drug dealer.
Gov't Ex. 3. The document explains that the state-court-authorized cell
phone intercept (cell phone tap) resulted in the intercept of telephone
calls and text messages from Galvan's cell phone to the Respondent and
his wife. Id. at 8. The PC Affidavit sets forth the August 25th cell
call from Galvan to the Respondent's wife wherein she explained to
Galvan that she was leaving the next night and that a third party had
inquired as to whether she wanted to bring ``that.'' Id. at 9. In his
PC Affidavit, Det. Hale explained that, based on his training and years
of experience involving narcotics investigations, it is his opinion
that the word ``that'' is an expression commonly used in connection
with narcotics. Id. at 11. Before the call ended, the Respondent's wife
explained that she would be leaving the next night at 7:30 p.m. after
picking up a motor home. Id.
The PC Affidavit progresses through August 26th, as Bakersfield PD
officers intercepted a text message to Galvan's cell phone that stated
``Meet me at noon instead of shelly at 29th and Fth. if diff. plans
call my work 340-2323 jeff [sic].'' Id. at 9. The PC Affidavit
continues that later in the day, the cell phone tap revealed that
Galvan called the number provided by ``jeff'' in the text message. Id.
The phone was answered by an individual who identified himself as
``Jeff.'' Id. Galvan explained to Jeff that he wanted to take care of
``all that'' today, but then indicated that they needed to meet first
so he could collect money from Jeff. Id. After Galvan asserted that he
needed a couple of hours, they agreed to meet at noon at Valley Gun
where they had met previously. Id.
The PC Affidavit also narrates the surveillance conducted at Valley
Gun wherein detectives observed the Respondent pull up in a car
registered to himself and his wife at about noon and enter the store.
Id. The document explains how, after a few minutes, Galvan arrived at
Valley Gun and joined the Respondent inside. Id. After what Hale's
affidavit characterizes as ``a short period,'' the two men concluded
their meeting inside the store and the Respondent drove off. Id.
The PC Affidavit relates that shortly after Galvan's noon meeting
at Valley Gun, detectives intercepted numerous calls between Galvan and
his sister, Tessa, wherein the two unsuccessfully attempted to close a
drug deal to secure a ``whole one,'' which, in Det. Hale's experience,
refers to an ounce of suspected narcotics. Id. at 10-11. At 6:15 p.m.,
finding himself unable to successfully broker for illegal drugs with
his sister, the cell phone tap revealed that Galvan turned to his
father, explaining that he needed to provide crystal methamphetamine to
a friend who was set to leave town at 7:30
[[Page 60877]]
(the same time the Respondent's wife had previously related to Galvan
as her planned departure time). Id. at 9-10.
According to the PC Affidavit, approximately fifteen minutes after
placing the call to his father, Galvan called Nunez, and the two agreed
to meet. Id. at 10. During that cell phone conversation, the latter
asked the former if his sister had called for ``it'' and was informed
that their efforts to reach agreement had been fruitless. Id. Following
numerous calls placed to find each other, Galvan met Nunez in a
restaurant parking lot and, in the opinion of the police, conducted an
illegal narcotics transaction. Id. Upon leaving the parking lot, Galvan
called the Respondent's wife and asked to speak with ``Jeff.'' Galvan
informed Jeff that he was on his way. Id.
The PC Affidavit further states that at the Respondent's home,
another Bakersfield PD detective was observing the Respondent and his
wife load items into a motor home that was parked there when Galvan
drove up. Id. at 11. The PC Affidavit elucidates how Galvan handed a
light-colored, oblong package about the size of a grapefruit to the
Respondent before the two entered the motor home, and how, after a
while, the Respondent's wife carried the package into their attached
garage. Id. According to the PC Affidavit, Galvan departed after
shaking the Respondent's hand and hugging Mrs. Freesemann. Id. The
Respondent and his wife departed at 8:05 p.m. in the motor home which,
as had been sworn to by Det. Hale, was stopped thirty minutes later and
searched. Id. at 12.
Det. Hock, the officer who pulled over the motor home, testified
that after he identified what he suspected to be illicitly-possessed
controlled substances, he notified Sgt. Tunnicliffe, who then directed
that the Respondent, his wife, and Ms. Hori be transported to the
Bakersfield PD.\16\ Tr. 171. Another officer drove the motor home back
to the Bakersfield PD station where it was searched. Tr. 172. While
Det. Hock testified that he participated in the roadside search of the
motor home with other officers, as well as the search of the motor home
back at the police department pursuant to the search warrant, he
testified at the hearing that the only controlled substances he
specifically remembered seeing during the roadside search were
contained in the pink pouch. Tr. 174.
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\16\ Det. Boyd testified that the occupants of the motor home
were not booked for an arrest that night but were ``detained and
then later released pending further investigation.'' Tr. 108. He
testified that this was done to facilitate the continuing
investigation of Galvan without having to disclose the existence of
the cell phone tap. Tr. 131.
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The search warrant return prepared in connection with the search of
the motor home listed the seizure of seventy-seven items. Gov't Ex. 4.
Among the seized items were many individually packaged containers with
pills, powders, liquids, and substances that, when tested, were
confirmed to be scheduled controlled substances, including
methylenedioxymethamphetamine (MDMA or ecstasy), methamphetamine,
cocaine, and psilocybin mushrooms (psilocybin or mushrooms). Gov't Exs.
4, 8; Tr. 99. More specifically, the controlled substances secreted in
the motor home and seized were 277 pills that included various
quantities of Adipex-P,\17\ methamphetamine,\18\ BZP,\19\ zolpidem,\20\
Lunesta,\21\ ketamine,\22\ and ecstasy; \23\ 25.9 grams of powdery or
rocky substances that included ketamine, cocaine,\24\ and
methamphetamine; liquid in multiple bottles constituting gamma-
butyrolactone (GBL); \25\ 2.4 grams of marijuana; \26\ and 0.8 grams of
psilocybin mushrooms.\27\ Gov't Ex. 4. While most of the drugs that
were tested yielded positive results for the same illicit nature for
which they were suspected, a cross-reference of the return to search
warrant with the laboratory analysis results reveals some anomalies.
For instance, a portion of the suspected MDMA tablets tested positive
for methamphetamine and benzylpiperazine (BZP). Compare Gov't Ex. 4 at
4 (see item 61), with Gov't Ex. 8 at 5 (see item 18).
Also, some of the suspected cocaine HCl tested positive for
methamphetamine. Compare Gov't Ex. 4 at 4 (see item 62), with
Gov't Ex. 8 at 7 (see item 25).
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\17\ A Schedule IV controlled substance listed under
phentermine. 21 CFR 1308.14(e)(9) (2010).
\18\ A Schedule II controlled substance. Id. Sec.
1308.12(d)(2).
\19\ A Schedule I controlled substance. Id. Sec. 1308.11(f)(2).
\20\ A Schedule IV controlled substance. Id. Sec.
1308.14(c)(51).
\21\ A Schedule IV controlled substance listed under zopiclone.
Id. Sec. 1308.14(c)(52).
\22\ A Schedule III controlled substance. Id. Sec.
1308.13(c)(7).
\23\ A Schedule I controlled substance. Id. Sec.
1308.11(d)(11).
\24\ A Schedule II controlled substance. Id. Sec.
1308.12(b)(4).
\25\ A List I chemical. Id. Sec. 1310.02(a)(24). Analogues of
controlled substances, like GBL to gamma-hydroxybutyric acid (GHB),
a Schedule I controlled substance, id. Sec. 1308.11(e)(1), can be
treated under federal law as a Schedule I controlled substance if
intended for human consumption. 21 U.S.C. 813 (2006).
\26\ A Schedule I controlled substance. Id. Sec.
1308.11(d)(22).
\27\ A Schedule I controlled substance. Id. Sec.
1308.11(d)(28). While 13.5 pills of Xanax, a Schedule IV controlled
substance listed under alprazolam at id. Sec. 1308.14(c)(1), were
also seized from the motor home, they were within a vial labeled as
a prescription to the Respondent. Gov't Ex. 4 at 4. The Government
makes no allegation that the Xanax was invalidly prescribed, abused,
or diverted. Other uncontrolled substances seized, prescription or
otherwise, are not considered in this decision under the public
interest factors.
---------------------------------------------------------------------------
As discussed earlier in this recommended decision, a separate
return was prepared in connection with the items seized from the
Respondent's home. Among the controlled substances seized at the
residence were 258.5 tablets of suspected ecstasy, 5.3 grams of
suspected cocaine, and an unspecified quantity of suspected ``liquid
ecstasy.'' Id. A loaded handgun was seized from the motor home, and a
loaded handgun and extra ammunition were seized from the Respondent's
residence.\28\ Id. at 4, 6.
---------------------------------------------------------------------------
\28\ Hypodermic needles and a pill cutter were also seized from
the Freesemann residence. Gov't Ex. 6 at 18-19; Tr. 115. On the
present record, these items have not been sufficiently linked to
illegal activity to adversely factor against the Respondent. There
is nothing in the present record to discount the Respondent's
testimony that the hypodermic needles were present in the residence
for the treatment of his ailing mother, who has since passed away.
Tr. 270, 279-81.
---------------------------------------------------------------------------
Det. Boyd testified that the narcotics seized from the motor home
and the residence were packaged in small dosage amounts in numerous
containers. According to Det. Boyd, based on his training, this manner
of packaging is consistent with the manner in which individuals
commonly package illicit drugs for sale.\29\ Tr. 76-77, 117.
---------------------------------------------------------------------------
\29\ Det. Boyd also testified that he is aware of other indicia
of controlled substance dealing, such as particular currency
denominations, scales, packaging materials, and sometimes even ``pay
and owe sheets'' that actually record drug transactions, none of
which were located on the Freesemanns or in their rented motor home
on the night they were arrested. Tr. 78-80, 133.
---------------------------------------------------------------------------
Notwithstanding the fact that the Respondent did not contest the
illicit nature of the seized contraband, Det. Boyd also provided a
narration of sorts regarding numerous photographs of the items seized
from the motor home that had been stipulated into evidence.\30\ While
the detective was able to identify a quantity of marijuana,\31\ and
devices he styled as ``marijuana pipes,'' \32\ much of his testimony
regarding the photographs constituted little more than arguably
unhelpful guesses and multiple choice options of illicit drug
possibilities. For example, in describing
[[Page 60878]]
one photograph \33\ he stated that it showed ``a glass vial with a
black lid, with a white powdery substance in it [and explained that]
[f]rom the photograph, [he] would believe it to be either cocaine[ ]
HC[l] or methamphetamine.'' Tr. 82 (emphasis supplied). Another
photograph \34\ was described as depicting ``three oblong pills, white
in color with what looks like blue spectacles in it,'' and when asked
whether he ``believe[s] [it] to be an illicit controlled substance,''
responded that he ``believe[s] it was possible it would be some type of
pharmaceutical.'' Tr. 82 (emphasis supplied). Still another photo \35\
was described as including a container holding ``a white powdery
substance in it which [he] would believe to be either cocaine[] HC[l]
or methamphetamine.'' Tr. 82-83 (emphasis supplied). Other photographs
were described as containing ``orangish-red pills which [he]
believe[s], through [his] training and experience, to be that of
ecstasy or MDMA [and other material] that [he] believe[s] to contain
either methamphetamine or cocaine,'' \36\ and ``[s]everal gel caps or
capsules with a brown material [and states that he is] not sure what
they are.'' \37\ The record contains multiple examples of this
approach, but the following excerpt addressing two photographs \38\ is
representative:
---------------------------------------------------------------------------
\30\ Four photographs depict the sum total of the contraband
seized from the motor home. Gov't Ex. 5 at 55-58; Tr. 93-94.
\31\ Tr. 80; Gov't Ex. 5 at 18. Interestingly, Det. Boyd
testified that the suspected marijuana seized in this case was not
sent out for confirmatory testing. Tr. 100.
\32\ Tr. 80-81, 91; Gov't Ex. 5 at 19, 52.
\33\ Gov't Ex. 5 at 20.
\34\ Gov't Ex. 5 at 22.
\35\ Gov't Ex. 5 at 24.
\36\ Tr. 83; see Gov't Ex. 5 at 28.
\37\ Tr. 84; see Gov't Ex. 5 at 29.
\38\ Gov't Ex. 5 at 30-31.
[The first photo] [w]ould be those three cylinders, open to show
the contents, two of them having white powdery substances, which I
believe to be either cocaine or methamphetamine, and the other is
either, I can't remember which photograph it is that depicts it.
It's either depicting the small amount of psilocybin that was seized
or marijuana. * * * [The second photo is of] two sets of blue pills,
different in size. One individual blue pill and then two yellow
pills that appear to be prescription-style medication. The blue
oblongy-looking one appears to be a prescription[-]style medication.
The blue pills down here appear to me to be similar to ecstasy[/
---------------------------------------------------------------------------
]MDMA.
Tr. 84-85. Although later in his testimony, Det. Boyd indicated
that confirmatory testing on the seized materials yielded results
consistent with his expectations that the seized items were the
controlled substances he anticipated they would be,\39\ this did not
prove to be entirely true. For example, the laboratory analysis report
relative to the material seized in the motor home, which was admitted
into evidence at the hearing, indicated that the seized substance that
the Bakersfield PD assigned as ``agency 10'' was not cocaine
hydrochloride as had been believed by Det. Boyd (and submitted by the
Government within its Proposed Finding of Fact 85), but ketamine.\40\
Gov't Ex. 8 at 9; Gov't Ex. 5 at 20; Tr. 81-82; Gov't Br. at 13.
---------------------------------------------------------------------------
\39\ Tr. 101-02.
\40\ Although Det. Boyd testified that the laboratory analysis
report provided by the Government set forth the results of materials
seized from the motor home as well as the residence, a comparison of
the itemized materials by the agency numbers assigned in the lab
report (which correspond to item numbers in the search warrant
return) indicates that only the motor home contraband results may be
detailed in the report submitted in evidence. Compare Gov't Ex. 8,
with Gov't Ex. 4. It is possible that because the crime lab's own
item numbering, the system of which appears to be assigned by test
batches, begin at ``06'' that the first five item numbers
corresponded to tests of substances found in the residence. When
pressed on the issue at the hearing, Boyd indicated that he was
``not 100 percent'' sure that the lab report contained results from
both searches. Tr. 104. Although afforded the opportunity to clarify
any ambiguity regarding the report during the proceedings, neither
the witness nor the Government took any steps to do so. Tr. 104-06.
When pressed on whether the suspected contraband seized from the
residence tested positive for controlled substances, Hale could only
represent that he ``would assume they were.'' Tr. 235. Interestingly
the Respondent's guilty pleas (and corresponding stipulation) relate
only to the illicit substances he was transporting (in the motor
home), not the items seized at his residence. Stipulation B; Gov't
Exs.9-11. In any event, inasmuch as the Respondent has not contested
that illicit controlled substances were seized from both locations,
and in light of Mrs. Freesemann's testimony that their master
bedroom closet did, in fact, contain illegal drugs, Tr. 459, the
potential discrepancy is of little moment in these proceedings.
Significantly, this portion of Mrs. Freesemann's testimony was
included in that segment that was subject to a Government objection
at the hearing, which was renewed (for emphasis?) in its closing
brief. Gov't Br. at 21 n.2.
---------------------------------------------------------------------------
More helpfully, Det. Boyd described numerous containers of over-
the-counter pill bottles where material that resembled illicit drugs
were placed below several doses of the pills that the vials were
intended for. Tr. 86-91; see Gov't Ex. 5 at 32-35, 38-39, 41, 43-50,
52. Boyd testified that based on his training and experience, he has
observed the utilization of this technique to give the appearance of a
benign over-the-counter medication or supplement to inspecting eyes
that are not inclined to dig deeper, and that it is a common method
used to secrete illegal drugs. Tr. 86. Pills that he considered suspect
were also identified in two Starbucks tin mint containers. Tr. 88; see
Gov't Ex. 5 at 36-37.
Sgt. Johnson testified that he participated in the execution of the
search warrant on the Respondent's residence, assisted with other
officers, to the extent that he helped secure the residence and the
people inside of it. Tr. 209-10. He testified that he did not, however,
take photographs, and because he did not conduct the actual search of
the inside of the residence, he does not have any personal knowledge of
the controlled substances found in the home. Tr. 210.
Det. Hale, the affiant on the PC Affidavit testified in greater
detail about the search conducted in the house. According to Hale,
after the children and their babysitter were located and isolated, the
Respondent's home was searched. Tr. 221-23. A description litany
reminiscent of Det. Boyd's account of the photographs and his opinion
of the illicit substances seized from the motor home was elicited from
Hale regarding the items seized from the Freesemann residence, with
similar efficacy. Id.; Gov't Ex. 6. A safe, that Hale recalled as being
unsecured, yielded a black plastic case that contained individually
packaged amounts of what Hale suspected to be ecstasy and cocaine.\41\
Tr. 223-27.
---------------------------------------------------------------------------
\41\ Also seized in the search was a loaded firearm in the
closet of the home's master bedroom and samples of medications
commonly-known to be used to treat erectile dysfunction (ED) that
were seized from the trunk of a vehicle parked in the home's garage.
Tr. 231, 237-38. No illegality has been alleged or established
regarding the ED medications or the gun found in the Respondent's
bedroom. The Respondent testified that the weapon is registered to
his father, Tr. 230-31, and Det. Hale did not recall whether the
weapon was returned to the Respondent. The testimony about these
seized items was admitted in the interest of completing the
narrative connected to the search, but this evidence does not impact
on the determination of whether maintaining the Respondent's COR is
in the public interest.
---------------------------------------------------------------------------
Det. Boyd testified that a firearm was seized from the Respondent's
residence during the search. Tr. 96. According to Boyd, although the
firearm was registered and there was no illegality that stemmed from
the weapon's discovery at the Freesemann residence, it is standard
police procedure to seize identified firearms during searches related
to narcotics. Id.
After personally observing the police witnesses testimony and
demeanor, I find the testimony of each of these witnesses to be
sufficiently plausible, detailed, internally consistent, and externally
consistent with other witnesses, evidence and each other, to be deemed
credible.\42\
---------------------------------------------------------------------------
\42\ While some minor inconsistencies are noticed between Det.
Hale's testimony and other witness testimony or documentary
evidence, such as whether the standing safe inside the Freesemann's
bedroom closet was unlocked or required him to obtain the
combination from the Freesemanns, Tr. 242-43, 274, or whether the
gun was registered to the Respondent or his late father, the nature
of these inconsistencies are sufficiently tangential and
inconsequential that they do not materially affect the credibility
to be attached to the testimony.
---------------------------------------------------------------------------
Although the Respondent noticed himself as a witness, the
Government
[[Page 60879]]
elected to call him to testify as part of its case-in-chief. Tr. 244.
The Respondent testified that he has been a physician for the last
seventeen years and is presently licensed in California. Tr. 246-47.
The Respondent described his rural roots, and how, after an initial,
unsuccessful college experience, and following stints working as an
oil-field roustabout and an apprentice electrician,\43\ he returned to
academia, completed his undergraduate degree at the University of
California at Berkely, graduated from Georgetown Medical School, and
completed his internship and residency at the Oregon Health Sciences
University. Tr. 246, 282-84.
---------------------------------------------------------------------------
\43\ The Respondent testified that he attained journeyman
electrician status before returning to college. Tr. 284.
---------------------------------------------------------------------------
According to the Respondent, in 1996 (the same year he was admitted
to practice medicine in California) he was hired by a Bakersfield
physician. Tr. 248. The Respondent explained that he and several other
doctors entered a joint venture to purchase his employer's practice,
where he was engaged in the practice of internal medicine until the
time of his current difficulties. Tr. 248, 252, 256. He described
himself as having been ``a high profile physician in [his] community of
Bakersfield,'' having held the position of hospital chief of staff
until the adverse press generated by his legal difficulties made the
continuation of his medical practice untenable and resulted in the sale
of his portion of his practice back to his partners. Tr. 257. He
testified that he has never been sued for medical malpractice and prior
to the transgressions that are the subject of these proceedings, he had
never been subject to disciplinary action by the Medical Board. Tr.
282-83.
The Respondent also described a high level of prestigious activity
and achievements that he attained in the medical profession, including
appointments as a local delegate to the California Medical Association
for ten years, board member and former president of his county medical
association, and board member at San Joaquin Hospital, as well as
appointments demonstrating increasing levels of responsibility at Mercy
Hospital, to include service on the credentialing board, medicine
chairman, vice chief of staff, and ultimately chief of staff. Tr. 288-
89.
The Respondent's testimony presented an interesting window into the
extent of his perceived need for the COR that is the subject of these
proceedings. The Respondent explained that the primary focus of his
internal medicine practice was elder care, and although he has
maintained a COR to prescribe (not dispense) controlled substances, he
actually prescribes controlled substances to his patients on a
``[v]ery, very low'' basis. Tr. 251. In a bizarre exchange, the
Respondent, a physician with seventeen years of internal medicine
practice and former hospital chief of staff, revealed that he believed
that he needed a DEA controlled substance COR to prescribe all
medications, not just scheduled controlled substances.\44\ Tr. 249-52.
The Respondent indicated that it his (incorrect) ``understanding [that]
you need a [COR] even to prescribe antihypertensive medications or
cholesterol or diabetes medications.'' Tr. 250.
---------------------------------------------------------------------------
\44\ The Respondent also indicated that he believed that he
needed to maintain his COR for other reasons, such as being able to
prescribe some controlled substances on a brief basis, and because
some potential employers have an interest in minimizing referrals to
specialists. Tr. 255.
---------------------------------------------------------------------------
The Respondent denied ever doing illegal drugs at any point in his
life through high school to the present day.\45\ Tr. 284-85, 289.\46\
According to his testimony, between building a practice and raising
young children, the ten years following his arrival in California were
busy ones for him and his wife. Tr. 286-88. The Respondent testified
that the reintroduction of a former high-school friend of his wife into
her life was the catalyst for powerful life changes for the
Freesemanns. Tr. 289-91. He testified that Mrs. Freesemann's new-old
friend began inviting the couple out to Los Angeles for nights of
dancing, dinner, and shows. Tr. 289. Overnight trips to the city
followed, as did, at least by the Respondent's estimation, a variety of
relationship rekindling. Tr. 291, 294. Coincidentally at this time, the
Respondent was more available to spend time with his wife, including
time in Los Angeles for overnight trips away from the children, whereas
during the preceding decade the Respondent worked too frequently and
Mrs. Freesemann was so busy taking care of their children that the
Freesemanns ``didn't have much of a relationship.'' Tr. 289-91. During
this period in which the Respondent testified that ``[he] found that
[they] were getting closer as a couple during that time [like when
they] first started dating,'' Tr. 291, the Respondent testified that he
and Mrs. Freesemann began meeting more people through successive chain
introductions, much like a ``Brownian Motion,'' \47\ until they had a
regular group in which to socialize, Tr. 289-92.
---------------------------------------------------------------------------
\45\ Some conflicting evidence in this regard was produced
through the testimony of Det. Boyd when the Government recalled him
as a witness. Det. Boyd had previously elicited a statement from
Michelle Hori to the effect that she observed the use of ecstasy
sometime in 2005. Tr. 360. Boyd testified that Hori had related this
information about the Respondent during a conversation with him
after receiving Miranda warnings and that although the results of
the interview may have been contained in a report, no statement
signed by Ms. Hori was ever prepared. Tr. 146, 361. Even if it were
conceded, arguendo, that Ms. Hori provided this information to Det.
Boyd, the vague nature of the statement, the relative remoteness in
time of the alleged drug use, and the broad time spam alleged
(sometime in 2005), coupled with the inability to cross examine Ms.
Hori, sufficiently undermine this evidence below a point where it
can be, should be, and is useful for any fact relevant to these
proceedings. Accordingly, this evidence has been afforded no weight
in this recommended decision.
\46\ The Respondent also testified that as a condition of his
probation imposed by the Medical Board, he is drug tested a minimum
of four times per month. Tr. 314.
\47\ The Respondent explained a Brownian Motion to be ``the
random movement of molecules that's spread out in gas, that causes
all the other molecules around it to interact.'' Tr. 292.
---------------------------------------------------------------------------
By the Respondent's account, it was during this period of dancing,
clubbing, and reconnecting that Galvan entered the picture. Tr. 258-59,
295. Apparently the favor of an introduction to Galvan was effected in
December of 2007 by another physician's wife, who introduced him as a
club promoter at ``The Replay'' in Bakersfield who could provide VIP
table access and bottle service, as well as parking. Tr. 258. Galvan
was someone with whom the Respondent admitted to moderate, intermittent
contact,\48\ but who would periodically visit at his home with Mrs.
Freeemann while the Respondent was elsewhere. Tr. 297-99.
---------------------------------------------------------------------------
\48\ The Respondent admitted to approximately fourteen social
interactions with Galvan at clubs or in the Freesemann home over a
nine-month period. Tr. 297.
---------------------------------------------------------------------------
The Respondent further testified regarding his wife's behavior and
the likelihood she was abusing illicit controlled substances during the
period of their shared social boom. The Respondent admitted being
suspicious that Mrs. Freesemann was using drugs, in particular because
of her behavioral changes. Tr. 293-94. For instance, the Respondent
noted ``infrequent episodes'' where people would go to the bathroom,
including his wife, and they would come back more excited, their pupils
would be more dilated which he could discern despite the low light
level, or exhibited other suspicious behaviors. Id. The Respondent
suspected enough of his wife to confront her on multiple occasions
about illicit drug use, but he testified that she would either deny it
or claim it was a ``one-time thing.'' Tr. 276-77. However, the
Respondent also testified that his wife's drug use caused certain
changes in her
[[Page 60880]]
that he found more ``attractive,'' such as how she was more prone to
stay up late and match his high energy level despite her former routine
9 p.m. bedtime, and she had more enthusiasm.\49\ Tr. 294.
---------------------------------------------------------------------------
\49\ The Respondent also testified that Mrs. Freesemann would be
``overly excited at times, overly sad at times, and overly hyper at
times,'' precipitating conversations over her suspected drug abuse.
Tr. 272.
---------------------------------------------------------------------------
The Respondent testified that he loaned Galvan $1,000.00 in March
of 2008 (five months prior to the night he was detained by the police)
at the behest of Mrs. Freesemann. Tr. 303. It was the Respondent's
understanding that he was loaning Galvan money at that time because the
latter needed funds to pay his rent, and the Respondent expressed
surprise that the borrower actually returned the money several weeks
thereafter. Tr. 303-04, 327. The Respondent indicated that no interest
was paid by Galvan for the loaned money. Tr. 327.
The Respondent acknowledged that he provided Galvan with another
$1,000.00 on August 26, 2008 at Valley Gun. Tr. 260. However, (unlike
the previous money which he understood to be a loan) he testified that
he had no idea why Galvan was the beneficiary of this largess. Tr. 261,
323. Although the Respondent maintained that he accepted his spouse's
tasking to present Galvan (whom he alternately described as ``a surly-
looking guy,'' a ``scary-looking character, and a ``shady character'')
\50\ with $1,000.00 at a prearranged location away from his office
without so much as asking her why he was doing it or for what purpose
the money was being tendered, he conceded that at the time, he ``had
[his] suspicions.'' Tr. 262, 324. When pressed about the nature of his
``suspicions,'' the Respondent stated that he ``suspected that, given
[Galvan's] appearance, given [his] wife's behavior, given other things,
that possibly there could be controlled substances involved.'' Tr. 271.
---------------------------------------------------------------------------
\50\ Tr. 261-62, 264-65.
---------------------------------------------------------------------------
The Respondent's dual acknowledgements that he believed that his
wife was likely abusing controlled substances and that Galvan was an
unsavory character render his position that he assumed that he was
presenting Galvan with a rent-money loan on the day that the
Freesemanns were headed on vacation singularly implausible. Factoring
in the Respondent's impressive educational pedigree and his impressive
professional accomplishments and qualifications, his assertion that
``[a]ll I can claim is to be the stupidest doctor at the time'' \51\ is
unpersuasive.
---------------------------------------------------------------------------
\51\ Tr. 332.
---------------------------------------------------------------------------
The reasons for which Valley Gun was chosen as a meeting location,
according to the Respondent's testimony, despite its walkability across
the street from the Respondent's practice, was because Galvan looked
``surly * * * [with a] shaved head [and] tended to dress a little bit
more game-looking [and] had big arms with tattoos[,] [so] he's kind of
a scary-looking character [so the Respondent] didn't want him walking
in the front office of [his] very conservative regular medical
practice;'' Galvan and the Respondent met at Valley Gun the last time
the Respondent gave him cash; and lastly because it was close. Tr. 263-
64. The Respondent also testified that they chose to meet at Valley Gun
rather than at the bookstore, where he drove to afterwards, because
driving to the bookstore was an impromptu afterthought following his
conversation setting up a meeting with Galvan. Tr. 335. If the
Respondent was, as he claims, gullibly providing money to a friend of
his wife for unknown, but presumably benign reasons, and was intending
to shop at a bookstore, it would be more likely that their meeting, if
it could not take place at the Respondent's office, would be at the
bookstore. The meeting at nearby gun shop with both men (neither of
whom had business to conduct at Valley Gun) arriving and departing
within minutes of each other, but not together, possesses a clandestine
quality that undermines the Respondent's assertion that the encounter
and transaction was designed (by the Respondent) for a legitimate
purpose.
Consistent with the conversations overheard by the police on the
cell phone tap, the Respondent testified that on the day he was
detained by police, he and Mrs. Freesemann were headed out of town in
their rented motor home to the Burning Man Festival in Nevada, a
twelve-hour drive. Tr. 305-06. He testified that the Burning Man
Festival is an art festival that occurs annually in a desert near Reno,
Nevada that attracts crowds of 45,000 people who make camp. Tr. 299.
The Respondent represented that sharing and trading is a significant
feature of the festival, and that he intended to make and share
grilled-cheese sandwiches there. Tr. 300. He testified that he took a
loaded firearm with him in case he encountered snakes. Tr. 310, 341-43.
Suffice it to say that the Respondent's account of why he brought a
loaded handgun to the 45,000-person strong Burning Man Festival is not
among the more plausible aspects of his testimony. Regarding the
illegal drugs found in the motor home, the Respondent testified that he
had no actual knowledge of anything illegal in vehicle. Tr. 272.
However, he also testified that he should have known there were
controlled substances on board, and that any reasonable person would
have known, in light of Galvan's appearance earlier in the evening,
that there were drugs in the motor home. Tr. 337.
The Respondent similarly denied any knowledge of the illicit
substances found in the closet of his bedroom. Tr. 273. While the drugs
were found in a black Pelican case similar to valises owned by the
Respondent, the case which contained the drugs was located within a
home safe that is always locked, the combination for which was known
only to Mrs. Freesemann (although the Respondent testified that he knew
where in the house to find the combination code). Tr. 273-74.
The Respondent testified that he accepted the plea bargain offered
by the prosecution in his criminal case to spare his wife the
experience of incarceration and to ensure that she could remain at home
to mind their children. Tr. 311. He imputed political motives to the
criminal prosecutor. Tr. 336. He likewise assigned the responsibility
for the decision to accept the plea bargain and enter the plea to
advice he received from his criminal defense attorney. Tr. 338. The
Respondent stated that he entered the no-contest plea to attain the
benefit of the plea bargain. Tr. 338.
The Respondent also took pains during his testimony to point out
that after conducting its own evaluation, the probation authorities
established that he was not a drug-treatment candidate and determined
that substance-abuse classes were not needed. Tr. 312. He further
stated that the drug testing mandated by the Medical Board has been
conducted thus far without adverse incident. Tr. 312, 314.
During his testimony, the Respondent acknowledged that he and his
wife have discussed the night they were taken into custody and the
events that led up to that unfortunate event. Tr. 328. The Respondent
indicated that his wife has since informed him that the $1,000.00 that
he provided to Galvan at noon on the date in question was for the
purpose of purchasing mushrooms (psilocybin). Tr. 328-29, 345.
Illogically, he also testified that when Galvan appeared at his motor
home and residence on the evening of the day he was paid, he did so
without delivering any mushrooms, and was warmly received by himself
and Mrs. Freesemann. Tr. 329.
The Respondent presented both documentary and testimonial evidence
on his own behalf. Included in his
[[Page 60881]]
documentary presentation, the Respondent introduced a certified letter
of standing dated February 17, 2010 regarding his California medical
license. Resp't Ex. 2. The letter of standing unhelpfully declares that
the Respondent's state medical license is current and no disciplinary
action has been taken against it. Id. However, this obviously dated
information is squarely contradicted by the decision of the California
Medical Board, effective November 19, 2010, revoking the Respondent's
license, staying the revocation, and placing the Respondent on
probation for seven years under certain specified terms and conditions.
Gov't Ex. 15 at 6; Gov't Ex. 16; Resp't Ex. 25 at 1, 7.
The Respondent provided numerous letters of support, the
overwhelming majority of which were obviously prepared for and tendered
to the prosecutor in the state criminal matter in an effort to inspire
leniency on the Respondent's behalf regarding the disposition of that
case. Resp't Exs. 4-24; Tr. 344-45.\52\ One letter, written by Tony M.
Deeths, M.D., attests to the Respondent's professional success, high
caliber of medical skill, intelligence, and contribution to the
community during the twelve years Dr. Deeths has known the Respondent.
Resp't Ex. 4. Dr. Deeths opines that the community would suffer if
deprived of the Respondent's ability to continue to practice medicine.
Id. Interestingly, in his letter, Dr. Deeths admits that he is
unfamiliar with the Respondent's ``legal problems,'' but postulates
(contrary to the Respondent's position that he has no substance abuse
or dependence issues) that the Respondent's substance abuse issues were
born from the high stress that comes with practicing medicine. Id. The
weight that can be attached to this letter is significantly undermined
by the fact that the Respondent rejects the underlying premise that he
deserves clemency based on a substance abuse issue.\53\ Hence the
letter does not provide strong evidence opposing the revocation sought
by the Government.
---------------------------------------------------------------------------
\52\ An inspection of Respondent's exhibits four through twenty-
four, including the dates of the letters and the addressees, makes
it evident that every letter was prepared as a character reference
on the Respondent's behalf for consideration by the criminal court
or the Kern County District Attorney's Office.
\53\ The state charged the Respondent with various counts of
possessing and transporting controlled substances, conspiracy
related to same, conspiracy to sell controlled substances, and
carrying a loaded firearm in a motor vehicle. Gov't Ex. 9 at 2, 4,
7-13; Gov't Ex. 11 at 4. None of the charges or allegations against
the Respondent relate to substance abuse.
---------------------------------------------------------------------------
V. Amirpour, M.D. authored a pithy letter indicating he has
practiced medicine for twenty-four years and has known the Respondent
for at least twelve of those years. Resp't Ex. 6. Dr. Amirpour's stated
opinion is that the Respondent has helped the community including San
Joaquin Hospital, that he trusts him as a physician, that the
Respondent ``did a great job treating people,'' and Dr. Amirpour hopes
that the Respondent's service to the community will be considered by
the criminal court in his sentencing.\54\ Id. Like the other letters,
Dr. Amirpour professes no knowledge about the misconduct that was at
the root of the Respondent's criminal conviction and forms the basis of
these proceedings. Although Dr. Amirpour touts the level of the
Respondent's practice, there is no indication that he has formed an
opinion regarding the Respondent's prescribing practices or that he has
a basis to have such an opinion (such as shared patients). The letter
does not provide a great deal of insight into any matter that could be
helpful toward reaching a disposition of the present case.
---------------------------------------------------------------------------
\54\ Although Dr. Amirpour's letter states that it is his ``hope
that [the Respondent's] service to the community will be
forgotten,'' Resp't Ex. 6, it is reasonable, from the context of the
balance of the letter, that the word ``not'' was inadvertently
omitted from the sentence.
---------------------------------------------------------------------------
A hand-written letter signed by Shawn C. Shambaugh, M.D. is also
included in the record. Resp't Ex. 8. In his letter, Dr. Shambaugh
relates that he has known the Respondent during this last decade in a
variety of professional medical capacities, including the treating of
common patients. Resp't Ex. 8 at 1. Dr. Shambaugh states that he has
found the Respondent to be ``continuously devoted to improve the
quality of care the physicians and staff delivered to patients'' and
that he ``consistently exceeded the community standards in the level of
quality care he delivered to his patients,'' earning frequent patient
praise regarding ``his commitment to their overall health and well[-
]being.'' Id. at 1-2. The strength of Dr. Shambaugh's letter is
enhanced by the circumstances under which he interacted with the
Respondent. He worked with the Respondent on several medical staff
committees while Shambaugh was hospital chief of staff and the two
physicians apparently shared in the care of common patients. Id. at 1.
While there are no specific references to Dr. Shambaugh's knowledge or
awareness of the Respondent's prescribing practices, this letter is
generally supportive of the Respondent's competence as a physician.
A criminal clemency letter by Ricardo R. Vega, M.D. is also
included in the record. Dr. Vega indicates that he and the Respondent
have shared patients and that, in his view, the Respondent is a
``superior physician'' whose ``competence, compassion and ethics as a
physician are exemplary.'' Resp't Ex. 15. Dr. Vega characterizes the
Respondent's ``patient care to be both thorough and above the standard
of care.'' Id. Although the letter does not specifically refer to the
Respondent's prescribing practices, Dr. Vega's experience acting as a
pulmonary consultant to the Respondent's patients does provide a basis
for his favorable professional opinion of the Respondent's medical
acumen. Interestingly, as discussed in her testimony infra at 37, Mrs.
Freesemann testified that it was Dr. Vega's wife, Michele Vega, who
introduced the Freesemanns to Galvan. Tr. vol. 2, 447, Dec. 15, 2010.
Michele Vega was also present during the daytime visit to Mrs.
Freesemann at her home when Galvan's cousin raised the issue of
Galvin's drug-brokerage services. Tr. 448-49.
Lawrence N. Cosner, Jr., M.D. who previously worked with the
Respondent on the board of the Kern County Medical Society, also
supplied a letter for the Respondent for use during his criminal
sentencing. Resp't Ex. 11. Of note, Dr. Cosner considers the Respondent
``honorable, sincere and worthy of trust and respect,'' while admitting
he ``know[s] nothing of [the Respondent's] current troubles, and wrote
the letter ``solely because [he] consider[s] [the Respondent] a friend
and colleague, and because he said he needed help.'' Id. The letter
does not address the Respondent's prescribing practices and does not
provide a basis to evaluate the author's level of knowledge about the
Respondent's medical skills or his handling of controlled substances,
but is supportive of the Respondent as being honorable, sincere, and
worthy of respect.
Tonny Tanus, M.D. also provided a criminal clemency letter on the
Respondent's behalf at the Respondent's request. Resp't Ex. 13. Dr.
Tanus states that he has known the Respondent for over a decade in
settings ranging from professional to social. Id. Dr. Tanus writes that
in situations where both his and the Respondent's family were present,
the Respondent never behaved improperly. Id. Dr. Tanus expresses that
he ``was shocked to learn about the charges, because [he has] never
seen [the Respondent] being under the influence.'' Id. The letter is
somewhat undermined by lack of any stated foundation for a basis to
evaluate the
[[Page 60882]]
Respondent's professional work as a physician, and more fundamentally,
by its underlying subtle assumption, consistently denied by the
Respondent, that substance abuse was at the root of his misconduct and
resultant criminal case.\55\
---------------------------------------------------------------------------
\55\ See supra note 53.
---------------------------------------------------------------------------
James B. Grimes, M.D. authored a letter, stating that he knows the
Respondent on a personal and professional basis. Resp't Ex. 14. He
writes that the Respondent ``is a very good person, who apparently made
a mistake,'' and who ``has suffered greatly due to negative publicity
and loss of his medical practice.'' Id. Dr. Grimes advocates taking
into consideration the ``tremendous amount of good'' that the
Respondent has provided to the community and because the community ``is
far better off having [the Respondent] remain among us.'' Id. Although
Dr. Grimes opines that he ``would feel very confident having [the
Respondent] as [his] personal physician,'' id., the letter does not
state that he and the Respondent have had patients in common or that he
has any particular basis for his professional opinion. Still, the
letter stands as a letter of support from a fellow member of the
medical community, albeit offered for support to mitigate a criminal
sanction at a different forum.
A letter, provided by area podiatrist Mark F. Miller, DPM, asserts
that the author knows the Respondent and his wife for over a decade
professionally and personally. Resp't Ex. 17. The letter, under the
subject heading of ``character reference,'' does not provide a
professional opinion regarding the Respondent's medical ability or
prescribing practices, but offers support as a friend would offer
regarding the Respondent's criminal case. Id. Accordingly, little
weight can be afforded this letter under the public interest factors in
consideration of whether the Respondent should retain his DEA COR to
handle controlled substances.
The Respondent also provided two letters written by area dentists
who supported him in his criminal case. One succinct note, provided by
Peter Bae, D.D.S., characterizes the Respondent as a ``community leader
in [m]edicine,'' ``very kind,'' and ``act[s] with utmost
professionalism.'' Resp't Ex. 12. The Respondent knows Dr. Bae as a
patient and as members together in a country club, and Dr. Bae
``hope[s] and feel[s] confident that whatever decision is handed down
during [the criminal] sentencing [that the Respondent] will emerge from
this ordeal to be a better citizen and physician in our community.''
Id.
A second dentist, Thomas A. Gordon, D.D.S., also provided a letter
to the Respondent to assist him in attaining leniency in the criminal
case. Resp't Ex. 7. Dr. Gordon relates that he and his wife encountered
the Respondent and Mrs. Freesemann while the four volunteered together
at ``Couples Against Cancer.'' Id. While Dr. Gordon declares knowing
the Respondent for over a decade, he readily acknowledges that he has
no knowledge of the Respondent's personal life. Id. In his carefully-
worded letter, Dr. Gordon guardedly asserts that he ``never heard a
negative comment regarding [the Respondent's] professional life and in
fact, believed [sic] him to be an accomplished and dedicated physician
and contributor to the Bakersfield community.'' Id. Since Dr. Gordon's
written assessment of the Respondent's professional conduct stems only
from an absence of negative comments, not shared patients, experience,
or any other rational professional basis, and he eschews any knowledge
about the Respondent's personal life, the letter sheds no light on the
Respondent's prescribing practices and scarce little light on any other
issue that must be decided in connection with a disposition in this
case. The letters from the two dentists are supportive letters from
other medical professionals who know the Respondent either personally
or by reputation and generally wished him some level of leniency in the
disposition of his criminal matter. However, they are of little value
under the public interest factors that must be balanced in making a
final determination regarding the status of the Respondent's COR.
Numerous letters penned by personal friends and acquaintances
prepared in connection with the criminal case were also offered by the
Respondent and received into the record. One such letter is from
personal family friend and aspiring film producer, John Burgess. Resp't
Ex. 18. While Mr. Burgess fully details the nature, length, and extent
of his personal relationship with the Respondent for the criminal
court, the letter, in its best light, is an affirmation of how good a
friend the Respondent has been to Mr. Burgess. Mr. Burgess made a point
to communicate his view to the criminal prosecutor that the Respondent
and his wife are ``not criminals,'' that they ``contribute much to
society and regularly give back to their community,'' and that the
Respondent has ``a passion for healing and helping others.'' Id. In his
letter, Burgess refers to the Respondent's ``arrest and prosecution''
as ``misunderstandings.'' Id. Unfortunately, the strength and length of
the Respondent's friendship with Mr. Burgess is not dispositive of any
issue that must be decided in this recommended decision.
Another personal and family friend, Daniel J. Pardoe, also provided
a letter for the Respondent to be used in connection with the criminal
case. Resp't Ex. 19. Like Mr. Burgess's letter, Mr. Pardoe's letter
sets forth the nature and length of his friendship with the Respondent
in considerable detail, and those personal friendship-related details
are the only elements of the submission that appear to be based on the
author's personal knowledge. Id. There is very little in this obviously
well-intentioned criminal clemency letter that can be used to reach a
disposition of the present case.
A letter written by Kevin Fiori, another personal friend and
patient of the Respondent who knew him for over a decade, which is also
similar to the letters written by Mr. Burgess and Mr. Pardoe, bears
testament to the type of person the Respondent is, yet candidly admits
all he knows about the Respondent's criminal case is what he read
through online news articles. Resp't Ex. 20. It therefore lacks
foundation and relevance to the public interest factors that must be
considered in this case.
Similarly, David Harb, another personal friend of the Respondent,
authored a letter in which he relates his experience with testicular
cancer and the commendable emotional support that the Respondent
provided him. Resp't Ex. 21. Again, this letter speaks well of the
Respondent's attributes as a friend, but lacks any indication of the
Respondent's prospective ability and responsibility to handle
controlled substances under a DEA registration in compliance with
federal and state law. Accordingly, it is of limited value in
evaluating the issues in this case.
A letter drafted by Jessica Wood, another personal friend of the
Respondent's family, discusses various members of the Respondent's
family, extols the virtues of the family members as friends, but adds
very little to the analysis here. Resp't Ex. 23.
The same observations can be made of a letter provided by long-time
Freesemann family friend Toni Swanson. Resp't Ex. 24. Like other
letters in the record, Ms. Swanson uses a considerable portion of her
letter to plead with the district attorney to be merciful, and
implicitly requests the district attorney not seek incarceration of the
Respondent. Id. 1-4. It is
[[Page 60883]]
similarly unhelpful to these proceedings.
The Respondent also provided two letters that reflected non-medical
business relationships. One of these is signed by Derek Holdsworth,
president of KSA Group Architects, the firm which designed the
Highgrove Medical Group's building. Resp't Ex. 5. Mr. Holdsworth's
letter indicates that his contact with the Respondent ran the course of
a two-year building period where the two collaborated on issues related
to the design and construction of the Respondent's building. Id.
Although Mr. Holdsworth states that he ``found [the Respondent] to be
the ultimate professional, fair, [and] very knowledgeable about the
medical field,'' id., there is nothing in the letter or the record that
would supply a basis for Holdworth's opinion regarding the breadth of
the Respondent's medical knowledge. Mr. Holdsworth did indicate that he
thought the Respondent ``was very concerned about the impact of the
proposed new building on his patients, the community and specifically
downtown Bakersfield.'' Id. Boiled down to its essence, the letter
provides commentary by a local architect on his experience with the
Respondent during a mutually-beneficial business transaction. Hence,
this letter is not particularly helpful to the Respondent's case.
Another non-medical business relationship letter was penned by
George R. Smith, Jr., president of a general contracting company.
Resp't Ex. 9. Similar to the letter by Mr. Holdsworth, the letter
describes how Respondent and Smith became acquainted through a business
arrangement in which the Respondent's medical practice built the
Highgrove Medical Clinic. Id. In the letter, Mr. Smith compliments the
Respondent's business acumen and ethics, but also attests to his
personal experience as a patient of the Respondent. Id. According to
Smith's letter, the Respondent spent some period of time as his general
care practitioner while Mr. Smith endured some ``serious health
problems'' and was helpful in assisting him to procure medical
services. Id. Smith's letter includes his opinion that the Respondent's
``medical knowledge and compassion saved [his] life,'' and that the
Respondent's ``problems'' are ``out of character for him.'' Id. While
the opinions borne from Mr. Smith's business experience with the
Respondent do not assist any in evaluating the issues in this case, and
while this letter lacks observations and judgment relating to the
Respondent's prescribing practices or responsibility handling
controlled substances, it does generally provide support as to the
Respondent's bedside manner as a health care practitioner.
Letters written by Army Feth, Lara Riccomini, and Jill White are
primarily focused on supporting the Respondent's wife at her sentencing
hearing and are of negligible value in reaching a disposition in the
present case. Resp't Exs. 10, 16, 22.
In summary, the letters provided by the Respondent were all
addressed to the district attorney who prosecuted his criminal case and
all sought some form of favorable consideration related to the exercise
of criminal prosecutorial discretion. The letters were all from 2009,
and while some contained some limited reference to issues that arguably
relate to varying extents to the issues in this administrative case,
not one letter addresses the issue of whether the Respondent can or
should be entrusted with a DEA COR. To the extent that any of the
numerous doctors, dentists, business acquaintances, and one patient who
authored letters of support had an opinion or a basis for an opinion
related to whether the Respondent should continue to have authority to
handle controlled substances, none of the submitted letters provided
that input. The letters submitted by the Respondent, while deemed
credible, are of little practical value in reaching a determination
regarding whether revocation of his COR is in the public interest.
Although aspects of his defense were presented through the
testimony elicited at the time he was called as witness by the
Government, the Respondent's testimonial case also included the
testimony of his wife, Mrs. Shelly Freesemann, who supplied details as
to the duration and strength of their marriage, relationship, and
family life. Tr. 424-25. She testified that she has a bachelor's degree
in biological sciences from the University of California at Berkeley,
is taking some nursing classes at Taft College, and has applied for
admission to the nursing program at California State University at
Bakersfield. Tr. 426. Mrs. Freesemann testified that she worked in
various occupations during the Respondent's medical training until
1996, and that since about 2000 she has been working as a yoga
instructor. Tr. 427-31.
Regarding her history of drug abuse, Mrs. Freesemann testified that
she smoked marijuana in high school a couple times per week one summer
with friends. Tr. 431-32. She thereafter refrained from illegal drugs
through her college years and courtship-turned-marriage to the
Respondent until the summer of 2006 when she became reacquainted with a
high-school classmate, Karen West (Karen). Tr. 432-33, 436-37. The
Respondent, according to Mrs. Freesemann, has no interest in using
illegal drugs and rarely drinks alcohol. Tr. 435.
After a few lunch dates with re-discovered friend Karen, the two
former schoolmates began stepping out at night. Tr. 437. While the
Respondent was on a business trip, Mrs. Freesemann accepted an ecstasy
pill from Karen and ``just loved it'' because it gave her a ``thrill,
like wow.'' Tr. 437-38. Mrs. Freesemann testified that thereafter she
was enraptured in a ``whole other underworld'' in which she would be
invited to many parties, be introduced to lots of different people,
attend events, and in her excitement, became perpetually preoccupied
with planning the next overnight weekend to Los Angeles and meeting new
people, including celebrities. Tr. 439-40. Through Karen, Mrs.
Freesemann became part of a clique whose activities consisted of yoga,
personal training, working out, and frequenting the night life while
recreationally abusing controlled substances. Tr. 441-42.
Mrs. Freesemann testified to using ecstasy, cocaine,
methamphetamine, and marijuana. Tr. 442. She also testified to
experimenting with drugs to regulate the effects of her drugs of
choice: Cocaine and ecstasy. She would employ marijuana to ``bring
[her] down a little bit'' to counteract the hyperactivity caused by
ecstasy. Tr. 450. She also used crystal meth (methamphetamine)
regularly toward the end of her party sessions to ``wake [her] up if
[she] had been partying too long and [she] needed to straighten up.''
Tr. 466. Mrs. Freesemann further testified that because she knew the
Respondent would not approve of her drug use, if he was around she
would conceal her activities by using in a bathroom or some other room
out of his sight. Tr. 442-43. Other than the newfound excitement and
attention borne of her drug abuse, Mrs. Freesemann testified that she
liked the change in lifestyle; she enjoyed the power to resist fatigue,
partying all night rather than retiring to bed early, as had been her
custom. To enable access to her new habit, Mrs. Freesemann arranged
overnight babysitters or had her mother, mother-in-law, or sister-in-
law watch her children. Tr. 443-44.
The Respondent's wife testified that she and her new group of
revelers procured illicit drugs by pooling their money and purchasing
them from a drug dealer known to Karen. Tr. 451. However, in December
2007 another
[[Page 60884]]
friend, Michele Vega (Michele),\56\ introduced Mrs. Freesemann to
Galvan at The Replay nightclub in Bakersfield as a friend, promoter of
the club, and one who did side jobs for Michele. Tr. 444-48. It was
about six weeks after this fateful introduction, during a visit to the
Freesemann home by Michele, Galvan, and his cousin, that Mrs.
Freesemann learned that Galvan would be a willing provider of illegal
drugs. Tr. 448-49. Thereafter, Mrs. Freesemann began purchasing drugs
from Galvan, primarily ecstasy and cocaine. Tr. 450. What made Galvan
an attractive seller was that she could get a lot more product for her
money than her sources in Los Angeles. Id. Galvan also included what
seemed to Mrs. Freesemann as freebies; for instance, she would furnish
him some monetary amount and ask for whatever the equivalent would be
in cocaine, and in turn he provided her cocaine, and some
methamphetamine would tend to just ``show up'' with the order as a
bonus. Tr. 466. Mrs. Freesemann testified that whether she was
purchasing drugs from Galvan or other sources, she knew she could only
get certain substances in certain places, so she would accumulate them
and squirrel them away with a ``pack rat'' mentality, concealing them
from the Respondent, keeping some and sharing some with friends. Tr.
443, 471.
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\56\ Michele Vega's husband, Dr. Ricardo R. Vega, authored a
criminal clemency letter on the Respondent's behalf for use while
his criminal case was pending. See supra p. 29.
---------------------------------------------------------------------------
Mrs. Freesemann also testified regarding the controlled substances
found in the motor home. In her testimony she claimed responsibility
for packing the vehicle with the drugs, and testified that the
Respondent had no knowledge of them.\57\ Tr. 458. Regarding their
destination on the night they were detained, the Burning Man Festival,
Mrs. Freesemann acknowledged that in addition to the artistic
attributes of the festival that were expounded upon by her husband, it
is a festival with ``a lot of drugs.'' Tr. 468.
---------------------------------------------------------------------------
\57\ Mrs. Freesemann also testified to owning the pink pouch and
yellow Pelican case found within the motor home. Tr. 456.
---------------------------------------------------------------------------
Mrs. Freesemann admitted that she could never personally use all of
the drugs found in the van over the course of the weeklong Burning Man
Festival. Tr. 471. As discussed, supra, she indicated that the
Respondent had no interest in using drugs. Tr. 435. When asked what her
plan for the large quantity of contraband was, the Respondent's wife
testified that it was:
To party and do what I could do and then take it back home, and
keep it a secret and just--it was beyond my control at that point,
having just more than I could deal with, but not knowing quite what
to do with it.
Tr. 472.
Regarding the $1,000.00 that the Respondent paid to Galvan, Mrs.
Freesemann testified that it was dispensed to purchase a quantity of
mushrooms (psilocybin) to take with her to the Burning Man event
because ``it'd be fun to do mushrooms at Burning Man'' and it would be
``[j]ust a different drug to try.'' Tr. 476-77. This version of events
is difficult to reconcile with both Mrs. Freesemann's acknowledgement
that the stash of illicit drugs already secreted in the motor home
(with additional reserves remaining behind in her bedroom closet) was
more than she (the only drug-using Freesemann) could inflict upon
herself during the planned week-long sojourn,\58\ and the fact that a
quantity of psilocybin was located and seized in the motor home. Gov't
Ex. 4 at 2. In short, Mrs. Freesemann had plenty of drugs to use at the
festival and even had mushrooms.
---------------------------------------------------------------------------
\58\ Tr. 471.
---------------------------------------------------------------------------
The details of the money transaction between the Respondent and
Galvan are similarly lacking in plausibility. According to Mrs.
Freesemann's account, her yoga classes were only taught in the
morning,\59\ yet she had her husband (who was working during the day)
deliver $1,000.00 to Galvan for mushrooms because she was picking up a
motor home for a trip that was to commence in the evening. This
occurred during a time in her life where she testified that she
suddenly found herself with more time on her hands than she was used to
because her children were getting older. Tr. 437, 440. Notwithstanding
the flurry of text messaging that preceded the transaction and the
special arrangements that the Respondent made with Galvan to get him
his ``paperwork'' at noon on the date of the Freesemanns' departure, it
is Mrs. Freesemann's position that the surveillance officers were
incorrect in their observation that Galvan came to her home equipped
with a grapefruit-sized package on the evening of the day he got his
money and left without that package. Tr. 474-76. By her account, she
had her husband pay Galvan $1,000.00, and when the latter visited the
couple immediately prior their departure, he delivered nothing but a
handshake to the Respondent and a hug to Mrs. Freesemann--no mushrooms.
Tr. 476. This occurred, under Mrs. Freesemann's version, without any
manner of objection or even inquiry on her part concerning the missing
drugs. Tr. 475-76.
---------------------------------------------------------------------------
\59\ Tr. 473.
---------------------------------------------------------------------------
It is far more plausible that one or both of the Freesemanns
possessed safety concerns associated with meeting Galvan (who Mrs.
Freesemann acknowledges is a drug dealer) \60\ and determined that the
Respondent was better suited for the potentially dangerous task at a
public place away from his medical practice. Considerations associated
with safety are almost certainly the more reasonable explanation
concerning the Respondent's decision to bring a handgun with him to the
Burning Man Festival than his almost laughable contention that the
intended purpose of the weapon was to protect himself from the sort of
snakes that slither upon the desert floor. It is likewise more
consistent with the evidence presented from both sides that Galvan
received his money from the Respondent and delivered illicit drugs in a
grapefruit-sized package to the Freesemanns just in time for their
departure. Any argument that the Respondent harbored any doubt that he
was engaged in an illegal transaction involving Galvan is effectively
undermined by Galvan's reference to the money he was to get as
``paperwork'' in his phone call with the Respondent. Likewise, the
arrangements the two men (involved in a developing relationship) made
to see each other at the Respondent's home that night provided insight
into the true nature of the transaction. Money tendered for legal
purposes can be referred to by its true name, not a euphemism designed
to evade detection, and a meeting so temporally close to a cash
exchange under the circumstances presented here was most assuredly
arranged and conducted to provide the merchandise purchased; in this
case, more of the illicit drugs that the Respondent well knew his wife
had become dependent on.
---------------------------------------------------------------------------
\60\ Tr. 470.
---------------------------------------------------------------------------
The Respondent's depiction of himself as an unwitting dupe to his
wife's drug-dependent cleverness is likewise unpersuasive. He testified
that he had already deemed Galvan to be a shady character and was
sufficiently concerned about his physical appearance that he was
unwilling to have him materialize near his medical practice. This is
particularly remarkable in the context that a medical practice (which
in this case was located away from the Respondent's home) is generally
a location where it is commonplace for new, never-before-seen patients
to appear for their first appointments on a regular basis without
[[Page 60885]]
any manner of visual vetting process. If the Respondent were to be
believed in this regard, Galvan's appearance, whatever it was, was
deemed by the Respondent to be sufficiently unnerving that he could not
countenance the patients and employees of his practice being exposed to
it. It was likely not Galvan's appearance that caused discomfiture, but
the reality of who he was and the drug-related money transaction that
was planned to occur. The evidence supports the conclusion that the
Respondent, an experienced physician who testified to his own
recognition of his spouse's drug use and distrust of Galvan, knew well
that he was purchasing illicit drugs for his wife for $1,000.00 and
shook Galvan's hand outside his home at the consummation of the deal
prior to his wife's embrace. Each party associated with the transaction
received the benefit that each had knowingly bargained for.
The manner in which the seized contraband was packaged also spoke
volumes about the intent of its possessors. Det. Boyd testified that
the drugs were packaged in multiple small-dose containers, many of
which had benign outward labels, and some of which had several dosage
units of the material described on the packages on top of the illicit
substances within. According to Boyd, based on his training and
experience, this manner of packaging is consistent with the manner used
by those intending to sell drugs. Tr. 76-77, 117. The packaging
observed in this case less resembled the work of an out-of-control drug
addict than it did an individual (or individuals) who were transporting
large doses of controlled substances in a manner designed for easy
distribution and evasion of discovery.
While there were doubtless credible portions of the testimony
offered by the Freesemanns, such as their education, background, and
the lifestyle changes brought about by Mrs. Freesemann's drug use,
those portions of their testimony related to the acquisition and
intended purposes of the traded currency and seized illegal drugs are
simply not credible.
Other evidence required for a disposition of this issue is set
forth in the analysis portion of this decision.
The Analysis
The Deputy Administrator \61\ is authorized to revoke a COR when
convinced that the registrant has been convicted of a felony under the
CSA or any state law relating to a controlled substance. 21 U.S.C.
824(a)(2) (2006). It is undisputed in this case that the Respondent has
been convicted of California state felonies relating to controlled
substances. Stipulation B.
---------------------------------------------------------------------------
\61\ This authority has been delegated pursuant to 28 CFR
0.100(b) and 0.104.
---------------------------------------------------------------------------
Pursuant to 21 U.S.C. 824(a)(4) (2006), the Deputy Administrator is
permitted to revoke a COR if persuaded that the registrant ``has
committed such acts as would render * * * registration under section
823 * * * inconsistent with the public interest * * * .'' The following
factors have been provided by Congress in determining ``the public
interest'':
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable State, Federal or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
21 U.S.C. 823(f).
``[T]hese factors are considered in the disjunctive.'' Robert A.
Leslie, M.D., 68 FR 15227, 15230 (2003). Any one or a combination of
factors may be relied upon, and when exercising authority as an
impartial adjudicator, the Deputy Administrator may properly give each
factor whatever weight she deems appropriate in determining whether an
application for a registration should be denied. Morall v. DEA, 412
F.3d 165, 173-74 (DC Cir. 2005); JLB, Inc., d/b/a Boyd Drugs, 53 FR
43945, 43947 (1988); David E. Trawick, D.D.S., 53 FR 5326, 5327 (1988);
see also David H. Gillis, M.D., 58 FR 37507, 37508 (1993); Joy's Ideas,
70 FR 33195, 33197 (2005); Henry J. Schwarz, Jr., M.D., 54 FR 16422,
16424 (1989). Moreover, the Deputy Administrator is ``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 v. DEA, 412 F.3d 165, 173-74
(DC Cir. 2005). The Deputy Administrator is not required to discuss
consideration of each factor in equal detail, or even every factor in
any given level of detail. Trawick v. DEA, 861 F.2d 72, 76 (4th Cir.
1988) (the Administrator's obligation to explain the decision rationale
may be satisfied even if only minimal consideration is given to the
relevant factors and remand is required only when it is unclear whether
the relevant factors were considered at all). The balancing of the
public interest factors ``is not a contest in which score is kept; the
Agency is not required to mechanically count up the factors and
determine how many favor the Government and how many favor the
registrant. Rather, it is an inquiry which focuses on protecting the
public interest * * * .'' Jayam Krishna-Iyer, M.D., 74 FR 459, 462
(2009).
In an action to revoke a registrant's DEA COR, the DEA has the
burden of proving that the requirements for revocation are satisfied.
21 CFR 1301.44(e). Once DEA has made its prima facie case for
revocation of the registrant's DEA Certificate of Registration, the
burden of production then shifts to the Respondent to show that, given
the totality of the facts and circumstances in the record, revoking the
registrant's registration would not be appropriate. Morall, 412 F.3d at
174; Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. U.S.
Dept. of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); Thomas E.
Johnston, 45 FR 72311, 72312 (1980). Further, ``to rebut the
Government's prima facie case, [the Respondent] is required not only to
accept responsibility for [the established] misconduct, but also to
demonstrate what corrective measures [have been] undertaken to prevent
the reoccurrence of similar acts.'' Jeri Hassman, M.D., 75 FR 8194,
8236 (2010).
Where the Government has sustained its burden and established that
a registrant has committed acts inconsistent with the public interest,
that registrant must present sufficient mitigating evidence to assure
the Deputy Administrator that he or she can be entrusted with the
responsibility commensurate with such a registration. Steven M.
Abbadessa, D.O., 74 FR 10077, 10078, 10081 (2009); Medicine Shoppe-
Jonesborough, 73 FR 364, 387 (2008); Samuel S. Jackson, D.D.S., 72 FR
23848, 23853 (2007). Normal hardships to the practitioner, and even the
surrounding community, that are attendant upon the lack of registration
are not a relevant consideration. Abbadessa, 74 FR at 10078; see also
Gregory D. Owens, D.D.S., 74 FR 36751, 36757 (2009).
The Agency's conclusion that past performance is the best predictor
of future performance has been sustained on review in the courts, Alra
Labs. v. DEA, 54 F.3d 450, 452 (7th Cir. 1995), as has the Agency's
consistent policy of strongly weighing whether a registrant who has
committed acts inconsistent with the public interest has accepted
responsibility and demonstrated that he or she will not engage in
future misconduct. Hoxie, 419 F.3d at 483; Ronald Lynch, M.D., 75 FR
78745, 78749 (2010) (Respondent's attempts to minimize misconduct held
to
[[Page 60886]]
undermine acceptance of responsibility); George Mathew, M.D., 75 FR
66138, 66140, 66145, 66148 (2010); George C. Aycock, M.D., 74 FR 17529,
17543 (2009); Abbadessa, 74 FR at 10078; Krishna-Iyer, 74 FR at 463;
Medicine Shoppe, 73 FR at 387.
While the burden of proof at this administrative hearing is a
preponderance-of-the-evidence standard, see Steadman v. SEC, 450 U.S.
91, 100-01 (1981), the Deputy Administrator's factual findings will be
sustained on review to the extent they are supported by ``substantial
evidence.'' Hoxie, 419 F.3d at 481. While ``the possibility of drawing
two inconsistent conclusions from the evidence'' does not limit the
Deputy Administrator's ability to find facts on either side of the
contested issues in the case, Shatz, 873 F.2d at 1092; Trawick, 861
F.2d at 77, all ``important aspect[s] of the problem,'' such as a
respondent's defense or explanation that runs counter to the
Government's evidence, must be considered. Wedgewood Vill. Pharmacy v.
DEA, 509 F.3d 541, 549 (DC Cir. 2007); Humphreys, 96 F.3d at 663. The
ultimate disposition of the case must be in accordance with the weight
of the evidence, not simply supported by enough evidence to justify, if
the trial were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn from it is one of fact for the jury.
Steadman, 450 U.S. at 99 (internal quotation marks omitted).
Regarding the exercise of discretionary authority, the courts have
recognized that gross deviations from past agency precedent must be
adequately supported, Morall, 412 F.3d at 183, but mere unevenness in
application does not, standing alone, render a particular discretionary
action unwarranted. Chein v. DEA, 533 F.3d 828, 835 (DC Cir. 2008)
(citing Butz v. Glover Livestock Comm. Co., Inc., 411 U.S. 182, 188
(1973)), cert. denied, ---- U.S. ----, 129 S. Ct. 1033, 1033 (2009). It
is well-settled that since the Administrative Law Judge has had the
opportunity to observe the demeanor and conduct of hearing witnesses,
the factual findings set forth in this recommended decision are
entitled to significant deference, Universal Camera Corp. v. NLRB, 340
U.S. 474, 496 (1951), and that this recommended decision constitutes an
important part of the record that must be considered in the Deputy
Administrator's decision, Morall, 412 F.3d at 179. However, any
recommendations set forth herein regarding the exercise of discretion
are by no means binding on the Deputy Administrator and do not limit
the exercise of that discretion. 5 U.S.C. 557(b); River Forest
Pharmacy, Inc. v. DEA, 501 F.2d 1202, 1206 (7th Cir. 1974); Attorney
General's Manual on the Administrative Procedure Act 8 (1947).
Factor 1: The Recommendation of the Appropriate State Licensing Board
or Professional Disciplinary Authority
Action taken by a state medical board is an important, though not
dispositive, factor in determining whether the continuation of a DEA
COR is consistent with the public interest. Patrick W. Stodola, M.D.,
74 FR 20727, 20730 (2009); Jayam Krishna-Iyer, 74 FR at 461. The
considerations employed by, and the public responsibilities of, a state
medical board in determining whether a practitioner may continue to
practice within its borders are not coextensive with those attendant
upon the determination that must be made by DEA relative to continuing
a registrant's authority to handle controlled substances. It is well-
established Agency precedent that a ``state license is a necessary, but
not a sufficient condition for registration.'' Leslie, 68 FR at 15230;
John H. Kennedy, M.D., 71 FR 35705, 35708 (2006). Even the
reinstatement of a state medical license does not affect the DEA's
independent responsibility to determine whether a registration is in
the public interest. Mortimer B. Levin, D.O., 55 FR 8209, 8210 (1990).
The ultimate responsibility to determine whether a registration is
consistent with the public interest has been delegated exclusively to
the DEA, not to entities within state government. Edmund Chein, M.D.,
72 FR 6580, 6590 (2007), aff'd, Chein v. DEA, 533 F.3d 828 (DC Cir.
2008), cert. denied, ---- U.S. ----, 129 S. Ct. 1033, 1033 (2009).
Congress vested authority to enforce the Controlled Substances Act
(CSA) in the Attorney General and not state officials. Stodola, 74 FR
at 20375.
Here the California Medical Board determined that the Respondent's
misconduct authorized an outright revocation of his state medical
privileges. Gov't Ex. 15 at 6. However, the Medical Board ultimately
determined that it could discharge its responsibility to protect the
``public health, safety and welfare'' \62\ by staying its revocation
and imposing a probationary period with limitations, conditions,
reporting requirements and ethics training. Gov't Ex. 15 at 6-11.
---------------------------------------------------------------------------
\62\ Gov't Ex. 15 at 5.
---------------------------------------------------------------------------
While the action of a state medical board must be considered under
Factor 1, a state's action pertaining to the Respondent's medical
license or ability to handle controlled substances, falling short of an
executed revocation, is not dispositive in DEA's determination
regarding the appropriateness of a sanction. See George Mathew, M.D.,
75 F.R. 66138, 66145 (2010) (Administrator declines to adopt as
dispositive under Factor 1 the state medical board's sanction of
suspending respondent's medical license, then staying the suspension,
in case where respondent was prescribing controlled substances without
physically examining patients or maintaining medical records). There is
no evidence that the Respondent has been non-compliant with the terms
imposed by the state medical board, but the relatively brief period of
time that has passed since the issuance of the Medical Board's Order
does not allow for a meaningful extrapolation regarding the
Respondent's level of compliance with the probationary terms over the
next seven years.
Thus, consideration of the evidence under this factor presents
something of a mixed bag. That the California Medical Board determined
that the Respondent's misdeeds justified the imposition of revocation,
its most severe penalty, tends to militate in favor of the revocation
sought by the Government. Contrariwise, the Board's decision that the
public would be adequately protected by allowing the Respondent to
practice medicine with supervision and conditions is arguably
supportive of the Respondent's position that an outright, un-stayed
revocation is not warranted under the circumstances. Consideration of
the Medical Board's actions in this case does not militate for or
against revocation.
Factor 3: The Applicant's Conviction Record Under Federal or State Laws
Relating to the Manufacture, Distribution, or Dispensing of Controlled
Substances
As discussed in considerable detail elsewhere in this decision, the
record reflects that the Respondent was convicted \63\ under California
state law on three counts for the felony transportation of ecstasy,
methamphetamine, and cocaine. Gov't Ex. 11 at 6-7; Gov't Ex. 10 at 2.
The Government, without analysis on the point, urges that in view of
the Respondent's convictions, ``factor three weighs in favor of finding
that Respondent's continued registration
[[Page 60887]]
would be inconsistent with the public interest.'' Gov't Br. at 20.
---------------------------------------------------------------------------
\63\ Pursuant to the terms of a plea agreement, the Respondent
pleaded no contest to three counts of transportation of controlled
substances and a state misdemeanor offense for carrying a loaded
firearm. Gov't Ex. 10 at 2-3. Consistent with the plea agreement
provisions, other counts, including numerous conspiracy and
possession with intent to sell and/or transport various controlled
substances were dismissed in exchange for his no contest pleas. Id.
---------------------------------------------------------------------------
While the Respondent's state criminal convictions are undoubtedly
related to controlled substances, Agency precedent is less clear on
whether such a conviction relates to the ``manufacture, distribution,
or dispensing'' of controlled substances under the third public
interest factor. In Stanley Alan Azen, M.D., 61 FR 57893, 57895 (1996),
aff'd, Azen v. DEA, 76 F.3d 384 (9th Cir. 1996), a state felony
conviction for possession of cocaine was held to be relevant to Factor
3. Likewise, in Jeffrey Martin Ford, D.D.S., 68 FR 10750, 10753 (2003),
a cocaine possession felony conviction was held to implicate this
factor. In Super-Rite Drugs, 56 FR 46014, 46015 (1991), the Agency
determined that a cocaine possession conviction did not implicate
Factor 3 based on the reasoning that ``[a]lthough [the respondent]
entered a guilty plea to a drug-related felony, his actions did not
relate to the manufacture, distribution, or dispensing of controlled
substances.'' Id. (emphasis supplied). Ironically, although Super-Rite
Drugs is the more dated precedent, it is the most persuasive and should
be followed. The analysis in Azen centered on the subsequent state
court reversal of the conviction, and in Ford, the decision analysis
actually omitted the phrase ``relating to the manufacture,
distribution, or dispensing'' when addressing the issue. A contrary
interpretation would eviscerate the difference between public interest
Factors 3 and 4 and ignore the specific language inserted by Congress.
Guidance can be found in the accepted maxims of statutory
interpretation that ``a statute of specific intention takes precedence
over one of general intention,'' United States v. Dozier, 555 F.3d
1136, 1140 n.7 (10th Cir. 2009) (citing NISH v. Rumsfeld, 348 F.3d
1263, 1272 (10th Cir. 2003)), and that ``words should ordinarily be
given their ordinary meaning,'' Moskal v. United States, 498 U.S. 103,
108 (1990), and that ``where language is clear and unambiguous, it must
be followed, except in the most extraordinary situation where the
language leads to an absurd result contrary to clear legislative
intent.'' United States v. Plots, 347 F.3d 873, 876 (10th Cir. 2003)
(citing United States. v. Tagore, 158 F.3d 1124, 1128 (10th Cir.
1998)); see Griffin v. Oceanic Contractors, 458 U.S. 564, 572 (1982);
Comm'r v. Brown, 380 U.S. 563, 571 (1965). The ordinary meaning of the
clear, unambiguous, specifically limiting words ``relating to the
manufacture, distribution, or dispensing of controlled substances'' set
forth in 21 U.S.C. 823(f) compels the result that a conviction that is
related to illegal drugs generally (transportation here), but not to
manufacturing, distributing, or dispensing specifically, is not
relevant to public interest Factor 3.
Accordingly, consideration of this factor does not support the
Government's petition for revocation of the Respondent's COR.
Factor 2: The Respondent's Experience in Dispensing Controlled
Substances
Regarding Factor 2, in cases where the quality of a registrant's
prescribing practices are at issue, the qualitative manner and the
quantitative volume in which that registrant has engaged in the
dispensing of controlled substances, and how long he has been in the
business of doing so, are significant factors to be evaluated in
reaching a determination as to whether he should be entrusted with a
DEA certificate. In some cases, viewing a registrant's proven acts of
misconduct (such as a criminal conviction related to controlled
substances) against a backdrop of how he has performed activity within
the scope of the certificate can provide a contextual lens to assist in
a fair adjudication of whether continued registration is in the public
interest. However, the Agency has taken the reasonable position that
although evidence that a practitioner may have conducted a significant
level of sustained activity within the scope of the registration for a
sustained period is a relevant and correct consideration, this factor
can be outweighed by acts held to be inconsistent with the public
interest. Jayam Krishna-Iyer, 74 FR at 463.
In this case, the Government has neither alleged nor produced
evidence in support of prescribing malfeasance. Although the record in
this case is not analytically focused on the Respondent's prescribing
and dispensing practices, the nature and history of the Respondent's
past prescribing practices are a proper area for consideration in
reaching a determination regarding the issue of whether he can be
entrusted with the responsibilities attendant upon a registrant. In
these proceedings, the Respondent has offered evidence in the form of
letters from colleagues, business associates, former patients, and
personal family friends. Unfortunately, the letters were all focused on
persuading the state prosecutor in his criminal case to exercise
leniency, and none of the letters' authors engage in any discussion
related to the Respondent's prescribing practices and dispensing
conduct. The Respondent did not produce a single letter wherein the
writer provided an opinion regarding the Respondent's past history of
handling, or suitability to continue to handle, controlled substances.
That being said, however, taken as a whole, the criminal clemency
letters generally attest that the Respondent, consistent with his
impressive credentials and prestigious professional achievements,
possesses some level of acuity for practicing medicine, and is well-
respected and/or liked by friends, business acquaintances, patients,
and peers in the community.
There is no indication in the record that the acts that formed the
basis of the Respondent's convictions were contemporaneously known to
the Respondent's patients or the hospital staff where he was practicing
medicine. Before his current transgressions, the Respondent had engaged
in fourteen or so years of presumably uneventful practice that was
apparently unmarred by proven allegations of controlled substance
mishandling or prescribing misconduct. Although the authors of the
letters have not been subject to cross examination, the evidence was
received without Government objection and, for the limited purposes for
which it can be utilized here, stands unrefuted. While true that on
this record consideration of this factor is not supportive of the
Government's petition to revoke the Respondent's COR, neither has the
Respondent provided evidence from which his prescribing and dispensing
practices can be characterized. In short, consideration of this factor
militates neither for nor against revocation.
Factors 4 and 5: Compliance With Applicable State, Federal or Local
Laws Relating to Controlled Substances; and Such Other Conduct Which
May Threaten the Public Health and Safety
Regarding Factor 4, to effectuate the dual goals of conquering drug
abuse and controlling both legitimate and illegitimate traffic in
controlled substances, ``Congress devised a closed regulatory system
making it unlawful to manufacture, distribute, dispense, or possess any
controlled substance except in a manner authorized by the CSA.''
Gonzales v. Raich, 545 U.S. 1, 13 (2005). Every DEA registrant serves
as a guardian with specific obligations aimed at protecting against
improper diversion. It would be difficult to imagine a more deliberate,
flagrant disregard of the Respondent's obligations as a registrant than
his decision to participate in the possession and transportation of
illegal drugs at the
[[Page 60888]]
request of his wife (who he suspected to be drug-addicted) in amounts
too great for her to consume herself and so copious and packaged in a
manner as to make it not unlikely that they were intended for
distribution to others willing, happy, and/or desperate to abuse them.
Perversely contrary to his registrant-borne obligations to minimize the
risks of controlled substance diversion, the evidence demonstrates that
the Respondent was acting as a conduit for his wife's abuse and even
possibly for illegal street drug distribution at a highly-populated
arts festival conducted in the desert. Contrary to the posture assumed
by the Respondent during these proceedings and at his state medical
board hearing, the evidence of record here makes it clear that he was
not a well-meaning, if misguided spouse ``taking the rap'' for a
culpable wife, but an active planner and willing participant in an
evolution to transport illegal drugs--at a minimum--for his wife's use.
From the Respondent's own testimony, it is clear that on the date he
was apprehended, he recognized that his wife had a drug addiction
problem, he (correctly) suspected that the man he was tasked with
paying $1,000.00 to was a drug dealer, he admitted that a reasonable
person would have known as much, he sent and received phone calls and
text messages to arrange a clandestine meeting with the drug dealer,
and he received a large quantity of illegal drugs that were packaged
for sale. The level of participation demonstrated by this Respondent--a
supposed registrant-guardian of the closed regulatory system--is so
abjectly repugnant to the integrity of the system and the Respondent's
obligations under the law that consideration of this factor alone
militates powerfully in favor of revocation.
Under Factor 5, the Deputy Administrator is authorized to consider
``other conduct which may threaten the public health and safety.'' 21
U.S.C. 823(f)(5). It is settled Agency precedent that, ``offenses or
wrongful acts committed by a registrant outside of his professional
practice, but which relate to controlled substances may constitute
sufficient grounds for the revocation of a registrant's DEA Certificate
of Registration.'' David E. Trawick, D.D.S., 53 FR 5326, 5327 (1988);
see Jose Antonio Pla-Cisneros, M.D., 52 FR 42154, 42154 (1987); Walker
L. Whaley, M.D., 51 FR 15556, 15557 (1986). It is beyond doubt that
Mrs. Freesemann was correct that the massive volume of controlled
substances seized from the Respondent's motor home was too great for
her to consume during the couple's planned vacation. The drugs were
absolutely headed for Mrs. Freesemann's use, and judging by the
testimony of the trained and experienced police officers who seized
them, were packaged as if prepared for sale to the public. Whether the
Respondent was transporting this abundant cache of contraband for the
exclusive use of his drug-abusing spouse or whether the drugs were
headed for distribution to festival attendees, the public health and
safety was a guaranteed intended casualty. But for the intervention of
the Bakersfield PD, the drugs the Respondent was ferrying would have
been pumped into Mrs. Freesemann's likely drug-dependent body or out on
the street through the Burning Man Festival, putting members of the
public in all age groups in danger. The Respondent's simultaneous
possession of a handgun with a readily available clip full of
ammunition reinforces his own understanding of the dangers attendant
upon dealing with the likes of his wife's supplier and facilitating the
interstate transportation of illegal drugs for whatever purpose.
Consideration of the Respondent's conduct under this factor alone would
be sufficient to justify the revocation of his COR.
Consideration of Factors 4 and 5 militate powerfully and
conclusively in favor of the revocation of the Respondent's COR.
Recommendation
Based on the foregoing, the evidence supports a finding that the
Government has established that the Respondent has been convicted of a
felony relating to controlled substances and has also committed acts
that are inconsistent with the public interest. A balancing of the
statutory public interest factors supports a revocation of the
Respondent's Certificate of Registration. In tacit acknowledgement of
this reality, the Respondent, through counsel, seeks amelioration in
terms of the recommended sanction. In his Proposed Findings of Facts
and Conclusions of Law (Respondent's Brief), the Respondent petitions
for a stayed suspension that mirrors the order issued by the California
Medical Board in terms and duration. Resp't Br. at 6.
In cases, such as the present case, where the Government has made
out a prima facie case that the Respondent has committed acts that
render his continued registration inconsistent with the public
interest, Agency precedent has firmly placed acknowledgement of guilt
and acceptance of responsibility as conditions precedent to merit the
continued status as a registrant and avoid revocation. Hoxie v. DEA,
419 F.3d 477, 483 (6th Cir. 2005); Ronald Lynch, M.D., 75 FR 78745,
78749 (Respondent's attempts to minimize misconduct held to undermine
acceptance of responsibility); George Mathew, M.D., 75 FR 66138, 66140,
66145, 66148 (2010); George C. Aycock, M.D., 74 FR 17529, 17543 (2009);
Steven M. Abbadessa, D.O., 74 FR 10077, 10078 (2009); Jayam Krishna-
Iyer, M.D., 74 FR 459, 463 (2009); Medicine Shoppe-Jonesborough, 73 FR
364, 387 (2008). Here, while the Respondent has acknowledged his
conviction and that he was caught transporting a large shipment of
illicit drugs, he has truly acknowledged very little. He accepted a no-
contest guilty plea on the criminal matter, but the essence of his
testimony at his DEA hearing, like his testimony at his hearing before
the California Medical Board, was to assign responsibility for his
convictions on the overzealous prosecutor, his defense attorney, and a
desire to accept a disproportionate helping of culpability to shield
his wife (whom he essentially demonizes as the truly culpable party).
He did not acknowledge that he knew he was paying money for drugs, that
he received drugs, or that he was a principal player in choreographing
the entire event. In truth, the Respondent has not accepted
responsibility for his actions, expressed remorse for anything other
than the consequences of those actions at any level, or presented
evidence that could reasonably support a finding that the Deputy
Administrator should continue to entrust him with a Certificate of
Registration. See Mathew, 75 FR at 66140, 66165 (failure of registrant
to accept responsibility for established misconduct held fatal to his
attempt to rebut the Government's establishment of a prima facie case
for COR revocation); George Jeri Hassman, M.D., 75 FR 8194, 8236 (2010)
(requiring the Respondent to accept responsibility for his misconduct
related to controlled substances and to demonstrate the corrective
measures that he has taken to prevent similar future misconduct in
order to rebut the Government's prima facie case). Rather than accept
responsibility, the Respondent instead puts the principal blame for his
current difficulties on his wife, while conveniently dismissing the
uncontroverted evidence of his own pervasive entanglement (text
messages, phone calls, meetings, etc.) in a scheme to move and
distribute copious amounts of dangerous and highly controlled drugs. An
illicit drug transaction like the one in which involved the
[[Page 60889]]
Respondent as the primary drug and money courier strikes at the heart
of the CSA, the very statute that privileged the Respondent to handle
controlled substances in his medical practice. The deleterious
potential effect that these drugs can have on the human body, the peril
in which they put human life when indiscriminately ingested by willing
abusers, and the sheer volume by which the Respondent was caught
delivering them cannot be overstated. The reckless danger that the
Respondent's course of action posed to the public health and safety of
his wife, at a minimum, and possibly even the surrounding area and
community where the Burning Man Festival was to take place, would not
be counterbalanced even if the Respondent had deemed to submit evidence
of many years of admirably-conducted medical practice. The
offensiveness of his actions, including the duty imposed by his
Hippocratic oath to abstain from doing harm, as well as his lack of
candor at his hearing in minimizing the extent to which he helped
orchestrate this scheme, all militate strongly in favor of revocation.
Even if the Respondent's position regarding the operative facts
were embraced, it would not change the outcome of this recommended
decision. The Respondent acknowledged during his testimony that he
(correctly) suspected that his wife was abusing illicit drugs based on
a readily-available set of objective facts that he was even able to
catalogue upon request during his testimony. He acknowledged that he
was paying a $1,000.00 to a man who made him uneasy at the request of
his (likely drug-abusing) spouse. The Respondent even conceded that any
reasonable person would have realized that there were illicit drugs in
the motor home he was driving that evening,\64\ and that ``[a]ll [he]
can claim is to be the stupidest doctor at the time'' \65\ is (even if
credited) wholly unpersuasive, and ``manifests a degree of
irresponsibility that is incompatible with what DEA expects of a
registrant.'' Cf. Lynch, 75 FR at 78753 (registrant's position that it
was acceptable for him to prescribe controlled substances in the face
of known and obvious diversion risks on the theory that he is not a
lawyer or police agent characterized as ``manifest[ing] a degree of
irresponsibility that is incompatible with what DEA expects of a
registrant''). Reduced to its essence, the Respondent seeks relief from
his actions and convictions by a claim that he stubbornly refused to
acknowledge what his trained eyes and ears informed him of: that he was
giving money to a drug dealer and receiving illicit drugs for his wife
that were packaged as if for sale and driving those drugs to an art
festival in the Nevada desert. The Respondent's odd theory that turning
a blind eye to circumstances that required him to refrain from actions
that were repugnant to his responsibilities as a registrant, and
whistling past the graveyard of what was obviously a drug transaction
where he was playing an integral role, is not a persuasive argument in
favor of continuing to entrust him with the responsibilities of a DEA
registrant. Cf. Holloway Distrib., 72 FR 42118, 42124 (2007) (in the
context of a List I distributer, a policy of ``see no evil, hear no
evil'' is fundamentally inconsistent with the obligations of a DEA
registrant). In short, his efforts to convince DEA that he is ``the
stupidest doctor,'' \66\ even if successful, would hardly have inspired
sufficient confidence in his ability to continue to execute the
responsibilities attendant upon a registrant to fairly merit his
continued exercise of that privilege.
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\64\ Tr. 337.
\65\ Tr. 332.
\66\ Tr. 332.
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Accordingly, the Respondent's Certificate of Registration should be
Revoked and any pending applications for renewal should be Denied.
Dated: January 24, 2011.
John J. Mulrooney, II,
U.S. Administrative Law Judge.
[FR Doc. 2011-25224 Filed 9-29-11; 8:45 am]
BILLING CODE 4410-09-P