Klinestiver v. Drug Enforcement Administration, 78-2178

Decision Date22 June 1979
Docket NumberNo. 78-2178,78-2178
Citation606 F.2d 1128
CourtU.S. Court of Appeals — District of Columbia Circuit

Larry S. Gondelman, Washington, D.C., with whom Plato Cacheris, Washington, D.C., was on the brief for petitioner.

Allan P. Mackinnon, Atty., U. S. Dept. of Justice, Washington, D.C., with whom Stephen E. Stone, Atty., Drug Enforcement Administration, Washington, D.C., were on the brief for respondent.

Before WRIGHT, Chief Judge, and BAZELON and TAMM, Circuit Judges.

Opinion for the Court filed by BAZELON, Circuit Judge.

BAZELON, Circuit Judge:

Petitioner Klinestiver challenges the revocation of his Certificate of Registration on three grounds: 1) that the decision was improperly based exclusively on hearsay testimony; 2) that the findings of fact underlying the order were not supported by substantial evidence; and 3) that DEA violated 5 U.S.C. § 557(c) (1976) by failing to provide petitioner an opportunity to file exceptions to the Administrative Law Judge's recommended decision. We consider each of these arguments briefly in turn.

1. Petitioner concedes that, at least in the absence of agency regulations to the contrary, hearsay is both admissible and may, standing by itself, constitute substantial evidence in support of an administrative decision. Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Nonetheless, petitioner contends that the applicable DEA regulation, 21 C.F.R. § 1316.59(a) (1978) erects a higher standard for the admissibility of evidence in a DEA hearing, permitting the introduction only of evidence that would be admissible under "jury trial" rules.

We disagree with petitioner's reading of the regulation. Although the rule speaks of "competent" evidence, it does not further explicate the meaning of "competent." Competent evidence is a conclusory term, synonymous with "admissible." See McCormick on Evidence, § 52 (2d ed. 1972) at 116. "The word 'incompetent' as applied to evidence means no more than inadmissible, and thus cannot be said to state a ground of objection." To say that DEA is limited to "competent" evidence is to beg the very question at issue here, namely, what evidence is legally admissible in DEA proceedings.

The history of this regulation convinces us that DEA never intended to bind itself to a higher standard of admissibility than that prescribed by the Administrative Procedure Act, 5 U.S.C. § 556(d) (1976), which permits the introduction of "any oral or documentary evidence." Prior to 1971, the applicable regulations limited evidence to that which is "relevant, material, reliable and not unduly repetitious." 21 C.F.R. § 316.81(c) (1971). In 1972, this provision was revised as part of a more general revision of the procedural rules, substituting "competent" for "reliable." This change was not accompanied by any indication that the agency sought to tighten the stringency of its procedural rules. See 36 Fed.Reg. 978 (1971). Accordingly, we hold that nothing in 21 C.F.R. § 1316.59(a) requires DEA to limit admissible testimony to that which would be acceptable in a jury trial or under the Federal Rules of Evidence.

2. Petitioner's contention that the order is not supported by substantial evidence is similarly defeated by Richardson v. Perales. Petitioner contends that serious questions of the reliability of the hearsay testimony recounted by Agent Bingham required testing through cross-examination. Petitioner's Br. at 22-23. Yet nowhere does petitioner suggest that he attempted to call any of the key individuals Brandon, Hudson, Maia or Harrold, although the presiding officer has subpoena authority. See 21 C.R.F. § 1316.52(d) (1978). The teaching of Richardson is directly applicable here:

We conclude...

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5 cases
  • Johnson v. U.S.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 8, 1980
    ...a per se approach that brands evidence as insubstantial solely because it bears the hearsay label. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129 (D.C.Cir.1979). Instead, we evaluate the weight each item of hearsay should receive according to the item's truthfulness......
  • Lacson v. U.S. Dep't of Homeland Sec.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 30, 2013
    ...of the Army, 677 F.2d 131, 138–39 (D.C.Cir.1982); Johnson v. United States, 628 F.2d 187, 190–91 (D.C.Cir.1980); Klinestiver v. DEA, 606 F.2d 1128, 1129–30 (D.C.Cir.1979). ...
  • Mortg. Elec. Registration Sys., Inc. v. Frank J. Patock, Jr., Douglas Lynch, Clearview Fin., LLC
    • United States
    • U.S. District Court — Virgin Islands
    • May 20, 2009
    ...As such it cannot be considered competent evidence for purposes of the instant motion. See Klinestiver v. Drug Enforcement Administration, 606 F.2d 1128, 1129 (D.C.Cir.1979) (“Competent evidence is ... synonymous with ‘admissible.’ ”). Thus, MERS' argument that the motion to set aside shoul......
  • DePasquale v. Harrington
    • United States
    • Rhode Island Supreme Court
    • November 14, 1991
    ...from administrative proceedings. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Klinestiver v. Drug Enforcement Admin., 606 F.2d 1128 (D.C.Cir.1979); United States ex rel. Ott v. Shaughnessy, 116 F.Supp. 745 (S.D.N.Y.1953), aff'd on other grounds, 220 F.2d 537 (2......
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