Hoxie v. Drug Enforcement Admin., No. 04-4122.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtRogers
Citation419 F.3d 477
Decision Date16 August 2005
Docket NumberNo. 04-4122.
PartiesDavid A. HOXIE, M.D., Petitioner, v. DRUG ENFORCEMENT ADMINISTRATION, Department of Justice, Respondent.

Page 477

419 F.3d 477
David A. HOXIE, M.D., Petitioner,
v.
DRUG ENFORCEMENT ADMINISTRATION, Department of Justice, Respondent.
No. 04-4122.
United States Court of Appeals, Sixth Circuit.
Submitted: July 26, 2005.
Decided and Filed: August 16, 2005.

Page 478

ON BRIEF: Kevin R. Conners, Vorys, Sater, Seymour & Pease LLP, Columbus, Ohio, for Petitioner. Teresa A. Wallbaum, United States Department of Justice, Washington, D.C., for Respondent.

Before: ROGERS and SUTTON, Circuit Judges; FORESTER, District Judge.*

OPINION

ROGERS, Circuit Judge.


David A. Hoxie, M.D. petitions this court for review of the DEA Deputy Administrator's

Page 479

decision to revoke Dr. Hoxie's certificate of registration to prescribe controlled substances. The Deputy Administrator's determination that Dr. Hoxie materially falsified his applications for a certificate of registration is supported by substantial evidence, based on an arrest record indicating that Dr. Hoxie pled nolo contendere to possession of a controlled substance. Further, the Deputy Administrator's determination that Dr. Hoxie committed acts that rendered his continued registration inconsistent with the public interest was also supported by substantial evidence. Dr. Hoxie failed to comply with California controlled substance law, as evidenced by several arrests for controlled substance violations, misled DEA investigators by denying his prior criminal history, failed to testify at the hearing on his registration, and offered no evidence to explain or rebut the DEA's contentions regarding his registration. Based on the DEA's factual conclusions, the revocation of Dr. Hoxie's certificate of registration based on his actions was not arbitrary, capricious or an abuse of discretion. Therefore, Dr. Hoxie's petition for review is denied.

I.

Dr. Hoxie is a physician practicing at the Waverly Health Clinic near Columbus, Ohio. He holds medical licenses in Virginia and Ohio, and received a DEA certificate of registration in 1995. A physician must possess a DEA certificate of registration to dispense prescription drugs that appear on the DEA's controlled substances schedules. 21 U.S.C. § 823(f) (2000). Dr. Hoxie renewed his certificate of registration in 1998 and in 2001. On the initial registration application and on two renewal applications, Dr. Hoxie answered "no" to the question, "Has the applicant ever been convicted of a crime in connection with controlled substances under state or federal law?" In 2001, the DEA and the Ohio medical board began to investigate whether this was a false statement.

DEA diversion investigators Dwight Cokeley and Dawn Mitchell looked into Dr. Hoxie's background. Their investigation revealed arrest records indicating that Dr. Hoxie had been arrested seven times between 1973 and 1985 in and around Los Angeles, California. The arrest records show that Dr. Hoxie was arrested on a number of misdemeanor charges, including: (1) possession of marijuana on December 15, 1973; (2) possession of a controlled substance on September 19, 1978; (3) driving under the influence of drugs on July 6, 1980; (4) driving under the influence of alcohol and drugs on July 11, 1981; (5) possession of PCP, being under the influence of PCP, and a vehicle code infraction on August 7, 1983; (6) being under the influence of PCP on January 26, 1984; and (7) driving with a suspended license on September 25, 1984. There is no indication of the disposition of these charges, with the exception of the 1983 arrest. An arrest disposition report indicates that Dr. Hoxie entered a plea of "nolo" to two charges, "11550 (b) H & S," an apparent reference to § 11550(b) of the California Health and Safety Code, which prohibits being under the influence of a controlled substance, and "23152(a) VC Traffic Off," what appears to be a traffic offense. This disposition was confirmed by a document from the California probation department requesting notification should Dr. Hoxie be arrested at any time prior to November of 1985.

In March of 2002, Ms. Mitchell and investigator Randy Beck of the Ohio medical board came to Dr. Hoxie's office and interviewed him regarding his certificate of registration applications. During the interview, Dr. Hoxie made a series of denials.

Page 480

He denied ever being arrested, ever being arrested for controlled substance violations, ever having been convicted of a crime, ever having been on probation, and ever entering into a plea bargain. During the same interview, according to Ms. Mitchell and Mr. Beck, when asked why it took so long to complete his education, Dr. Hoxie stated that he had been in jail many times. On August 21, 2002, the DEA issued Dr. Hoxie an order to show cause, proposing that the DEA revoke his certificate of registration because: (1) he materially falsified his applications, and (2) he had committed acts which rendered his continued registration inconsistent with the public interest. In a letter to the DEA dated September 15, 2002, Dr. Hoxie reiterated his denials of past legal trouble. Dr. Hoxie requested an administrative hearing on the order to show cause, and the hearing was held in August of 2003.

At the hearing, the DEA presented three witnesses. Mr. Cokeley testified that he had searched law enforcement databases using Dr. Hoxie's name, date of birth and social security number. The search yielded the arrest reports described above, which were introduced into evidence over Dr. Hoxie's objection that the arrest reports were inadmissible hearsay. Regarding the August 1983 arrest, Mr. Cokeley testified that the custodian of records of the California Department of Justice had clarified the arrest report. According to Mr. Cokeley's conversation with the California official, Dr. Hoxie entered a plea of nolo contendere to a misdemeanor controlled substance violation and a misdemeanor violation of the vehicle code, and received a suspended 90-day jail sentence and three years' probation. Mr. Peck and Ms. Mitchell both testified to the denials that Dr. Hoxie made during their interview. Both further testified that a criminal background check of Dr. Hoxie revealed arrests and convictions in California. Neither Mr. Beck nor Ms. Mitchell was specific as to the charges Dr. Hoxie was convicted of in California.

Dr. Hoxie cross-examined the DEA's three witnesses but presented no evidence in his defense. On cross-examination, Mr. Cokeley admitted that he had no knowledge of how the arrest records were maintained, that the records were not court disposition records, and that he had not contacted the police departments involved in Dr. Hoxie's arrests. Ms. Mitchell testified on cross-examination that she had not located any court record that serves as a record of conviction of Dr. Hoxie for a controlled substance act violation.

Based on the information adduced at the hearing, the ALJ determined that the DEA established by a preponderance of the evidence that Dr. Hoxie had been convicted of a controlled substance violation in November of 1983. The ALJ concluded that the August 1983 arrest report and related documents were sufficient to establish that Dr. Hoxie pled nolo contendere to a controlled substance violation. The ALJ further noted that Dr. Hoxie made no attempt to...

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124 practice notes
  • Decisions and Orders:
    • United States
    • Federal Register October 03, 2011
    • October 3, 2011
    ...the CSA's purpose of protecting the public interest.'' Joseph Gaudio, M.D., 74 FR 10,083, 10,094 (DEA 2009). \103\ See also Hoxie v. DEA, 419 F.3d 477, 484 (6th Cir. (decision to revoke registration ``consistent with the DEA's view of the importance of physician candor and cooperation.'') A......
  • Registration revocations, restrictions, denials, reinstatements: Chein, Edmund, MD,
    • United States
    • Federal Register February 12, 2007
    • February 12, 2007
    ...be] denied.'' Id. Moreover, case law establishes that I am ``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 (D.C. Cir. 2005). Factor One--The Recommendation of the State Licensing As exp......
  • United States v. Sabean, No. 17-1484
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 16, 2018
    ...that are deemed controlled substances to register with the Attorney General. See 21 U.S.C. § 822(a)(2) ; Hoxie v. Drug Enf't Admin., 419 F.3d 477, 481 (6th Cir. 2005). It is undisputed that the defendant was so registered.6 Among other things, Dr. Hatfield testified that, in accordance with......
  • In re Polyurethane Foam Antitrust Litig., Case No. 1:10 MD 2196.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • February 9, 2015
    ...against them[.]” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). See also Hoxie v. Drug Enforcement Admin., 419 F.3d 477, 483 (6th Cir.2005). The same negative inference can, in certain circumstances, be offered against an invoking witness's current or former ......
  • Request a trial to view additional results
18 cases
  • United States v. Sabean, No. 17-1484
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 16, 2018
    ...that are deemed controlled substances to register with the Attorney General. See 21 U.S.C. § 822(a)(2) ; Hoxie v. Drug Enf't Admin., 419 F.3d 477, 481 (6th Cir. 2005). It is undisputed that the defendant was so registered.6 Among other things, Dr. Hatfield testified that, in accordance with......
  • In re Polyurethane Foam Antitrust Litig., Case No. 1:10 MD 2196.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • February 9, 2015
    ...against them[.]” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). See also Hoxie v. Drug Enforcement Admin., 419 F.3d 477, 483 (6th Cir.2005). The same negative inference can, in certain circumstances, be offered against an invoking witness's current or former ......
  • United States v. Rahman, Civil Action No. 18-10530
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • April 20, 2020
    ...and that drawing such an inference violates neither the Fifth Amendment nor Due Process." See Hoxie v. Drug Enforcement Admin., 419 F.3d 477, 483 (6th Cir. 2005) (citing Baxter v. Palmigiano, 425 U.S. 308, 318-19 (1976)). See also United States v. Lileikis, 929 F. Supp. 31, 37 (D. Mass. 199......
  • United States v. Rahman, Civil Action No. 18-10530
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • March 27, 2020
    ...and that drawing such an inference violates neither the Fifth Amendment nor Due Process." See Hoxie v. Drug Enforcement Admin., 419 F.3d 477, 483 (6th Cir. 2005) (citing Baxter v. Palmigiano, 425 U.S. 308, 318-19 (1976)). See also United States v. Lileikis, 929 F. Supp. 31, 37 (D. Mass. 199......
  • Request a trial to view additional results
106 provisions
  • Decisions and Orders:
    • United States
    • Federal Register October 03, 2011
    • October 3, 2011
    ...the CSA's purpose of protecting the public interest.'' Joseph Gaudio, M.D., 74 FR 10,083, 10,094 (DEA 2009). \103\ See also Hoxie v. DEA, 419 F.3d 477, 484 (6th Cir. (decision to revoke registration ``consistent with the DEA's view of the importance of physician candor and cooperation.'') A......
  • Registration revocations, restrictions, denials, reinstatements: Chein, Edmund, MD,
    • United States
    • Federal Register February 12, 2007
    • February 12, 2007
    ...be] denied.'' Id. Moreover, case law establishes that I am ``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 (D.C. Cir. 2005). Factor One--The Recommendation of the State Licensing As exp......
  • Decisions and Orders:
    • United States
    • Federal Register October 28, 2011
    • October 28, 2011
    ...``since it is assumed in such circumstances [one] would be more likely than not to dispute an untrue accusation.'' Hoxie v. DEA, 419 F.3d 477, 483 (6th Cir. (citing United States v. Hale, 422 U.S. 171, 176 (1975)). Although Respondent's decision not to testify could arguably support an adve......
  • Decisions And Orders:
    • United States
    • Federal Register April 07, 2011
    • April 7, 2011
    ...that findings under a single factor are sufficient to support the revocation of a registration. 74 FR at 462 (citing Hoxie v. DEA, 419 F.3d 477, 482 (6th Cir. 2005); Morall v. DEA, 412 F.3d 165, 173-174 (DC Cir. 2005). As I further explained, ``this is not a contest in which score is kept; ......
  • Request a trial to view additional results

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