501 F.2d 571 (2nd Cir. 1974), 1148, Sokoloff v. Saxbe

• Date: 25 July 1974
• Docket Number: 74-1313.,1148
• Citation: 501 F.2d 571
• Parties: Martin F. SOKOLOFF, Petitioner, v. William SAXBE, Attorney General of the United States and John R. Bartels, Jr., Administrator, Drug Enforcement Administration of the Department of Justice, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

Page 571

501 F.2d 571 (2nd Cir. 1974)

Martin F. SOKOLOFF, Petitioner,

v.

William SAXBE, Attorney General of the United States and John R. Bartels, Jr., Administrator, Drug Enforcement Administration of the Department of Justice, Respondents.

No. 1148, 74-1313.

United States Court of Appeals, Second Circuit.

July 25, 1974

Argued June 25, 1974.

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Raymond B. Grunewald, Brooklyn, N.Y. (Grunewald, Turk & Gillen, Brooklyn, N.Y., on the brief), for petitioner.

Allan P. Mackinnon, Atty., U.S. Dept. of Justice (Henry E. Petersen, Asst. Atty. Gen., Dept. of Justice; Robert J. Rosthal, Deputy Chief Counsel, Allyn Myles Carnam, Atty., Drug Enforcement Administration, on the brief), for respondents.

Before MOORE AND FEINBERG, Circuit Judges, and PALMIERI, District judge. a1

FEINBERG, Circuit Judge:

Martin F. Sokoloff, M.D., petitions for review of a decision of the Administrator, Drug Enforcement Administration, which revoked his certificate of registration to distribute certain drugs under the Controlled Substances Act (the Act). Dr. Sokoloff argues that the Administrator erred in basing his order on the doctor's conviction on three counts of illegal distribution of amphetamine sulfate tablets, which was entered after a plea of nolo contendere. Petitioner also objects to certain procedures followed by the Administrator. For the reasons stated below, we deny the petition for review.

I

Petitioner has been a practicing physician since 1957. In November 1972, he was indicted in the United States District Court for the Eastern District of New York on nine counts of distributing amphetamine sulfate and amphetamine hydrochloride tablets, Schedule II controlled substances under the Act. ¹ In

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February 1973, he was issued a certificate of registration to distribute Schedule, II, III, IV and V controlled substances by the Bureau of Narcotics and Dangerous Drugs (now known as the Drug Enforcement Administration). In June 1973, pursuant to a plea bargaining agreement, petitioner pled nolo contendere before Judge Harold R. Tyler, Jr., sitting by designation, to three counts of distributing amphetamine sulfate tablets. 21 U.S.C. §§ 841(a)(1), 842(a)(1), 829(a). A judgment of conviction was entered thereupon and petitioner was fined $250 on each count; he was also placed on unsupervised probation for two years. As a special condition, Dr. Sokoloff was forbidden to stock amphetamines in his office for that period although he was permitted to prescribe them for his patients. At the combined pleading-sentencing hearing, Judge Tyler warned petitioner that there was no guarantee that the plea of nolo contendere would protect him from disciplinary action by federal administrative agencies or state medical licensing boards. While declining to make any recommendations to such agencies, the judge stated that he assumed petitioner would continue to practice medicine and noted that, in his view, 'considerable positive effect' should be given to petitioner's background, particularly his military record as a physician. The judge concluded:

Doctor, you look like a decent fellow, except for his horrible affair. As long as you are prepared to accept it as a bitter lesson and I'm sure you'll not do this thing again, I'm confident you will continue your days as an effective practitioner and I wish you well in that regard.

In September 1973, the Administrator issued petitioner an order to show cause why his certificate of registration should not be revoked because of his conviction, pursuant to 21 U.S.C. § 824. That section provides in relevant part:

(a) A registration . . . to manufacture, distribute, or dispense a controlled substance may be suspended or revoked by the Attorney General upon a finding that the registrant--

(2) has been convicted of a felony under . . . any . . . law of the United States, or of any State, relating to any substance defined in this subchapter as a controlled substance; . . .

Thereafter, a contested hearing was held before Administrative Law Judge Thomas A. Ricci at which the key issue was whether a conviction after a plea of nolo contendere is a conviction within the meaning of section 824(a)(2). In December 1973, the administrative law judge, ruled that it was, holding that 'the nolo contendere plea in this case resulted in the substantial equivalent of a criminal conviction and that therefore the registrant's license may lawfully be revoked.' Nevertheless, he gave considerable weight to Judge Tyler's view that the special condition of probation forbidding petitioner to stock amphetamines was sufficient to ensure his compliance with the law and accepted petitioner's contention that to forbid him to prescribe Schedule II substances (which include such important pain-killing drugs as morphine, demerol and dilaudid) would mean 'effective curtailment of his capacity to practice the medical profession.' Accordingly, the administrative law judge recommended that petitioner's certificate of registration not be revoked. The administrative record was then certified to the Administrator for final decision, as required by 21 C.F.R. § 316.65(b).

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In February 1974, the Administrator released his decision revoking petitioner's certificate of registration for substances covered by Schedules II, III, IV and V. He agreed with the administrative law judge that petitioner's conviction after a plea of nolo contendere was a conviction within the meaning of section 824(a)(2). But he held that a conviction 'for three illegal sales of highly dangerous drugs' warranted revocation in order to curtail petitioner's capacity 'to continue breaking the law and in the process to destroy human lives.' He found that the special condition of probation was inadequate to ensure compliance with the law; there was no reason to believe that petitioner could be safely trusted with Schedule II drugs other than amphetamines, and administrative experience had demonstrated that the illegal sale of prescriptions was as dangerous as the illegal sale of the drugs themselves. The Administrator did suggest, however, that prompt consideration would be given to an application by petitioner for a new registration certificate limited to Schedules III, IV and V. Dr. Sokoloff subsequently made such an application; this was granted in April 1974 although a request for a new certificate covering Schedule II substances was denied.

II

Petitioner's first contention in this court is that a conviction after a plea of nolo contendere is not a conviction for purposes of revoking a certificate of registration under section 824(a)(2). He notes that a plea of nolo contendere, unlike a guilty plea, is an admission of guilt only with respect to the criminal case in which it is entered and cannot be used as an admission in a civil case for the same act. Yet here, petitioner argues, in a proceeding unquestionably civil in nature, the Administrator erroneously used the nolo contendere plea as an admission of guilt to a felony charge and the facts alleged in the indictment.

We cannot accept the argument. Section 824(a)(2) requires for revocation a finding that the registrant has been convicted of a drug-related felony. To establish this, the Administrator properly relied not upon any admission implied by the plea but upon the uncontested fact of petitioner's conviction. To be sure, there is some logic to petitioner's fallback position that a conviction entered upon a nolo plea assumes the characteristics of the plea itself. See Bruce v. Leo, 129 Colo. 129, 267 P.2d 1014, 1017 (1954). But the effect of a nolo plea is not governed entirely by logic; if it were, the plea might be abolished 'because indubitably the plea does admit the facts and is intended to do so.' Pfotzer v. Aqua Systems, Inc., 162 F.2d 779, 785 (2d Cir. 1947) (L. Hand, J.). 'The only relevant question is what are the limitations which the law assures the accused that he will be entitled to invoke, if he files the plea. That is a mere question of what the courts have decided-- one alternative is no more rational than the other . . ..' Id. Where, as here a statute (or judicial rule) attaches legal consequences to the fact of a conviction, the majority of courts have held that there is no valid distinction between a conviction upon a plea of nolo contendere and a conviction after a guilty plea or trial. Masters v. CIR, 243 F.2d 335, 338-339 (3d Cir. 1957) (appellant's conviction after nolo plea admissible in civil tax fraud suit to impeach his testimony); ² Maryland State Bar Ass'n v. Agnew, 318 A.2d 811 (Md.Ct.App.1974) (disbarment proceeding);

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In re Lewis, 389 Mich. 668, 209 N.W.2d 203, 208-209 (Sup.Ct.Mich. 1973) (same); Lee v. Wisconsin State Bd. of Dental Examiners, 29 Wis.2d 330, 139 N.W.2d 61 (1966) (revocation of license to practice dentistry); In re Eaton, 14 Ill.2d 338, 152 N.E.2d 850 (1958) (disbarment); Kravis v....