Noell v. Bensinger

• Citation: 586 F.2d 554
• Decision Date: 20 December 1978
• Docket Number: No. 77-2014,77-2014
• Parties: John S. NOELL, M. D., Petitioner, v. Peter B. BENSINGER, Administrator, Drug Enforcement Administration, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 554

586 F.2d 554

56 A.L.R.Fed. 899

John S. NOELL, M. D., Petitioner, v. Peter B. BENSINGER, Administrator, Drug Enforcement

Administration, Respondent.

No. 77-2014.

United States Court of Appeals, Fifth Circuit.

Dec. 20, 1978.

Milton E. Brener, New Orleans, La., for petitioner.

Allan P. MacKinnon, Atty., Narcotic & Dangerous Drug Section, Criminal Div., U.S. Dept. of Justice, Stephen E. Stone, Robert J. Rosthal, Act. Chief Counsel, Benjamin R. Civiletti, Asst. Atty. Gen., Drug Enforcement, for respondent.

Petition for Review of an Order of the Drug Enforcement Administration.

Before WISDOM, GODBOLD and TJOFLAT, Circuit Judges.

WISDOM, Circuit Judge:

Dr. John S. Noell petitions for review of a Drug Enforcement Administration ("DEA") order revoking his certificate of registration to distribute certain drugs regulated by the Controlled Substances Act. He urges that the Administrator erred in revoking his registration on the basis of a conviction for unlawful distribution of controlled drugs entered on charges to which he pleaded nolo contendere. He also raises issues concerning the sufficiency of the evidence and the propriety of applying the revocation sanction in his case. We deny the petition.

I.

In January 1976 Dr. Noell was convicted in the District Court for the Eastern District of Louisiana of unlawfully distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). ¹ He had pleaded nolo contendere to sixteen counts of unlawful distribution, and the district court entered a finding of guilty on all counts. Dr. Noell received a sentence of five years supervised probation, ninety days confinement, and a $15,000 fine.

The Drug Enforcement Administration then initiated proceedings to determine whether to revoke Dr. Noell's registration. A show cause order was issued and a hearing was held on the matter. The administrative law judge concluded that Dr. Noell's registration should be revoked. His findings, conclusions, and recommendations were accepted by the Administrator and an order revoking Dr. Noell's certificate of registration was entered.

II.

The DEA's action was triggered by the petitioner's 1976 conviction of violating 21 U.S.C. § 841(a)(1). Authority for revoking the certificate of registration is found in section 304(a)(2) of the Controlled Substances Act, 21 U.S.C. § 824(a)(2), which 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; . . . .

Dr. Noell does not dispute the Administrator's finding that he has been convicted of a felony relating to the distribution of controlled substances. He contends, rather, that a conviction entered upon a plea of nolo contendere is not a conviction within the meaning of section 304(a)(2). Because a nolo plea is generally given no effect outside of the proceedings in which it is entered, the petitioner argues, a conviction based on such a plea can have no collateral effect.

We have rejected a similar argument raised in connection with a provision of the immigration laws permitting the Immigration & Naturalization Service to declare deportable aliens who have been convicted of felonies. In Qureshi v. Immigration & Naturalization Service, 5 Cir. 1975, 519 F.2d 1174, we acknowledged the rule in this circuit that a conviction based on a nolo contendere plea may not be used as evidence of guilt or for impeachment purposes. We said, however, that the rule was a rule of evidence only and that it had no bearing on the meaning of the statutory provision permitting the Service to deport an alien who has been convicted of a felony. The issue before us now is, as it was in Qureshi, "not one of evidence but of what Congress meant when it said 'convicted' ". Id. at 1175. Is a conviction based on a plea of nolo contendere a sufficient basis for revocation of a Drug Enforcement Administration certificate of registration which is required as a prerequisite to a physician's prescribing or dispensing controlled substances?

That question has been answered in the affirmative by the Court of Appeals for the Second Circuit in Sokoloff v. Saxbe, 2 Cir. 1974, 501 F.2d 571. Indeed, in Qureshi we relied on Sokoloff in holding that a felony conviction based on a nolo plea suffices for a declaration of deportable status. Although the Sokoloff court relied to some extent on authorities holding that a conviction based on a nolo plea may be used for impeachment purposes, a view contrary to our rule, See, e. g., Piassick v. United States, 5 Cir. 1958, 253 F.2d 658, it also relied on the plain language of the statute, which permits revocation upon the finding that the registrant has been convicted. "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". Sokoloff at 574.

Had Congress meant that the Administrator may revoke a registration only upon a finding that the registrant had been convicted in a contested proceeding or upon a plea of guilty it would have been a simple matter to have inserted a qualifying phrase. This it did not do. We hold that Dr. Noell's conviction was a conviction within the meaning of the statute.

III.

The petitioner challenges the Administrator's action on several other grounds. He contends, first, that the the administrative law judge's finding that he prescribed controlled substances for two undercover federal agents for other than legitimate medical purposes is not supported by substantial evidence. The evidence showed, and the law judge found, that on a number of occasions during 1975 Dr. Noell prescribed large amounts of amphetamines for the two agents, ostensibly to help them ward off drowsiness. One of the agents, the law judge found, requested and was prescribed a sedative to counteract the effects of the amphetamine when he needed to sleep. These findings are not challenged. Dr. Noell urges, however, that the conclusion which the law judge drew from this evidence has no support in the record. The only expert who testified at the hearing, Dr. Griffiths, did not feel that Dr. Noell's general manner of treating the two agents was contrary to sound medical judgment. The petitioner contends that the law judge could not substitute his judgment for that of Dr. Griffiths, because he is not himself an expert.

This argument, however, ignores the point that under the statute the ultimate factual issue in the revocation proceeding did not call for expert testimony as a matter of necessity. The ultimate issue was not whether Dr. Noell's activities comported with accepted standards of medical practice but whether he knowingly prescribed controlled substances for no legitimate medical purpose outside the course of his professional practice. 21 C.F.R. § 306.04(a). Although professional opinion as to the propriety of a course of practice may be strong evidence as to whether the practitioner subject to the revocation proceedings prescribed in the course of his practice for legitimate medical purposes, expert testimony is not essential to the Government's case. See United States v. Larson, 9 Cir. 1974, 507 F.2d 385; United States v. Bartee, 10 Cir. 1973, 479 F.2d 484.

Because of his expertise in matters relating to the misuse of controlled substances, the Administrator of the Drug Enforcement Administration would have been free to reject expert opinion testimony and to use his own experiences to draw reasonable conclusions from the facts in evidence. See United States v. Bartee, 10 Cir. 1973, 479 F.2d 484, 488-89; 2 K. Davis, Administrative Law Treatise § 14.13 (1st ed. 1958); Cf. Spitzer v. Commissioner of Internal Revenue, 8 Cir. 1946, 153 F.2d 967 (upholding Tax Court finding on valuation issue). Such a case is not before us, however. The administrative law judge did not reject Dr. Griffiths' testimony. Rather, he noted in his opinion that Dr. Griffiths merely testified about the propriety of Dr. Noell's general course of practice in prescribing amphetamines to counteract fatigue. Dr. Griffiths was not asked about the petitioner's specific practices with respect to the two federal agents. The law judge could have accepted Dr. Griffiths' testimony that prescribing amphetamines for fatigue does not violate standards of good practice and yet have determined that Dr. Noell prescribed for illegitimate purposes and not for the purpose of remedying any drowsiness from which the agents might have suffered.

Turning to the record in the revocation proceedings, we find that substantial evidence supports the Administrator's conclusion that Dr. Noell knowingly prescribed amphetamines for no legitimate medical purpose. Ogan, one of the federal agents, first came to Dr. Noell in January 1975. The record shows that he represented that he was a college student who was having trouble keeping awake during his morning classes due to his habit of studying until late in the evenings. Dr. Noell testified that on February 10 he prescribed one hundred Plegine, an amphetamine, for Ogan, but warned him not to take more than three a day. Yet, the evidence shows, the petitioner increased Ogan's prescriptions. The law judge found that Ogan returned to Noell's office five times in the next ten weeks, and that on each occasion Dr. Noell prescribed one hundred Dexedrine, a more potent amphetamine than Plegine. When Ogan made his fifth visit, on May 21, the doctor's records should have revealed that Ogan had used or otherwise disposed of four hundred Dexedrine since his March 3 visit, or an average of five a day. Nevertheless, Dr....