[Federal Register Volume 60, Number 50 (Wednesday, March 15, 1995)]
[Notices]
[Pages 14004-14005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6297]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 93-52]
Robert A. Leslie, M.D.; Denial of Application
On May 13, 1993, the Deputy Assistant Administrator (then-
Director), Office of Diversion Control, Drug Enforcement Administration
(DEA), issued an Order to Show Cause to Robert A. Leslie, M.D., of Los
Angeles, California, proposing to deny his application for registration
as a practitioner. The Order to Show Cause alleged that the
Respondent's registration would be inconsistent with the public
interest as that term is used in 21 U.S.C. 823(f).
Respondent, acting pro se, requested a hearing on the issues raised
by the Order to Show Cause, and the matter was placed on the docket of
Administrative Law Judge Mary Ellen Bittner. Following prehearing
procedures, a hearing was held in Los Angeles, California, on December
8 and 9, 1993. On July 27, 1994, in her opinion and recommended ruling,
findings of fact, conclusions of law and decision, the administrative
law judge recommended that Respondent's application for DEA
registration be denied. In a footnote of her recommended decision, the
administrative law judge referenced specific documents that were
submitted by Respondent after the administrative hearing. The
administrative law judge recommended that the Deputy Administrator not
consider these submissions, since most of the documents pertained to
matters previously litigated and conclusively decided in a previous
criminal action, and therefore, consideration of them was barred by the
doctrine of res judicata. No exceptions were filed by either party.
On August 16, 1994, Respondent filed a Petition for Reconsideration
of the administrative law judge's decision recommending denial of his
application for DEA registration. On August 17, 1994, the
administrative law judge denied this petition as lacking in merit.
On August 30, 1994, the administrative law judge transmitted the
record to the Deputy Administrator. The Deputy Administrator has
carefully considered the entire record in this matter and pursuant to
21 CFR 1316.67, hereby issues his final order in this matter based upon
findings of fact and conclusions of law as hereinafter set forth. The
Deputy Administrator concurs with Judge Bittner's recommendation not to
consider specific post hearing submissions of the Respondent.
Accordingly, these submissions were not considered in rendering this
decision.
The administrative law judge found that Respondent graduated from
medical school in 1955, became licensed as a physician in 1958, and
practiced medicine in Los Angeles during the period at issue in this
case. On April 1, 1986, a complaint was filed in the Municipal Court of
Long Beach, California, charging Respondent with seventeen misdemeanor
counts, sixteen of which related to the unlawful handling of controlled
substances. Following a jury trial, on October 9, 1986, Respondent was
found guilty on eight counts of unlawfully prescribing, administering,
furnishing or dispensing controlled substances between July 1985 and
January 1986. Respondent's convictions were affirmed on appeal by the
Appellate Department of the Superior Court, State of California, in a
Memorandum Judgement issued on May 18, 1988.
Based on his criminal convictions, on August 17, 1988, the
California Board of [[Page 14005]] Medical Quality Assurance (BMQA)
filed an accusation against Respondent seeking to suspend his medical
license. Following an administrative hearing, on July 24, 1989, the
state administrative law judge recommended that Respondent's medical
license be revoked, but that the revocation be stayed for five years,
that Respondent be placed on probation subject to certain conditions,
and that he be suspended from the practice of medicine for 90 days.
After the BMQA adopted the decision of the state administrative law
judge, Respondent sued BMQA, but was unsuccessful both in the lower
court and on appeal. The court subsequently fined Respondent $10,000,
and found that his appeal was frivolous.
On June 21, 1989, DEA issued an Order to Show Cause, seeking to
revoke Respondent's prior DEA Certificate of Registration, AL0033186.
Respondent requested a hearing, but later submitted a written statement
of his position in lieu of participating in a hearing. Based on
Respondent's statement and the Government's investigative file,
effective August 17, 1990, the then-Acting Administrator revoked
Respondent's DEA registration, based upon the finding that his
continued registration would be inconsistent with the public interest.
See Robert A. Leslie, M.D., 55 FR 29278 (1990). Respondent subsequently
filed a new application for DEA registration on February 6, 1992, which
is the subject of this proceeding.
Respondent testified at the administrative hearing to matters
surrounding his criminal conviction. Respondent argued that his
prescribing to undercover operatives was justified based upon their
physical conditions and complaints of pain, and that he was entrapped;
during the criminal trial, the operatives perjured themselves regarding
events that took place during their visits with Respondent; his direct
appeal of his criminal convictions was denied, and his subsequent
filing of ten petitions for habeas corpus in state and federal courts
were unsuccessful; and, he sued his attorney for malpractice based upon
the latter's failure to provide adequate legal representation.
Respondent also contended that the 1990 final order of the then-
Acting Administrator relied on false statements supplied by BMQA that
were not part of the original court record. Respondent testified that
he filed a petition for reconsideration of that final order, however,
since the Federal Register notice of the final order was not timely
sent to him, the period for filing a motion for reconsideration elapsed
before he became aware of the revocation. The administrative law judge
found this argument without merit based on the provisions of 21 U.S.C.
877, regarding judicial review, and the fact that there is no provision
in the Code of Federal Regulations for filing requests for
reconsideration.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny any
application for registration, if he determines that the continued
registration would be inconsistent with the public interest. In
determining the public interest, the following factors are considered:
(1) The recommendation of the appropriate State licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing controlled substances.
(3) The applicant's conviction record under Federal or State laws
relating to the distribution, or dispensing of controlled substances.
(4) Compliance with applicable State, Federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health and
safety.
It is well established that these factors are to be considered in
the disjunctive, i.e., the Deputy Administrator may properly rely on
any one or a combination of the factors and give each factor the weight
he deems appropriate. See Henry J. Schwarz, Jr., M.D., Docket No. 88-
42, 54 FR 16422 (1989). In considering whether grounds exist to deny
Respondent's application for DEA registration, the administrative law
judge found all of the above factors relevant.
The administrative law judge found that Respondent's testimony,
documentary evidence and pleadings in this proceeding contended that
his criminal conviction was invalid. The administrative law judge
concluded however, that the conviction is res judicata, and that
Respondent should not be allowed to relitigate the matter.
The administrative law judge found that during the administrative
hearing, although Respondent was free to offer new evidence that he
would never again engage in the type of conduct that resulted in his
conviction, he failed to do so. The administrative law judge also found
that while Respondent offered evidence and expended time arguing the
invalidity of his criminal convictions, he offered no evidence of
remorse for his prior conduct, that he has taken rehabilitative steps,
or that he recognizes the severity of his actions. The administrative
law judge concluded that Respondent is either unwilling or unable to
discharge the responsibilities inherent in a DEA registration, and
therefore, recommended that his application for DEA registration be
denied.
The Deputy Administrator having considered the entire record adopts
the administrative law judge's findings of fact, conclusions of law,
and recommended ruling in its entirety. Accordingly, the Deputy
Administrator of the Drug Enforcement Administration, pursuant to the
authority vested in him by 21 U.S.C. 823 and 824 and 28 CFR 0.100(b)
and 0.104, hereby orders that the application for registration,
executed by Robert A. Leslie, M.D., be, and it hereby is, denied. This
order is effective March 15, 1995.
Dated: March 8, 1995.
Stephen H. Greene,
Deputy Administrator.
[FR Doc. 95-6297 Filed 3-14-95; 8:45 am]
BILLING CODE 4410-09-M
