Noell v. Bensinger, No. 77-2014

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, GODBOLD and TJOFLAT; WISDOM
Citation586 F.2d 554
PartiesJohn S. NOELL, M. D., Petitioner, v. Peter B. BENSINGER, Administrator, Drug Enforcement Administration, Respondent.
Docket NumberNo. 77-2014
Decision Date20 December 1978

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.

Page 555

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

Page 556

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

Page 557

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....

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20 practice notes
  • United States v. Joseph, No. 09–11984.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 21, 2013
    ...prescribed controlled substances for no legitimate medical purpose outside the course of his professional practice.” Noell v. Bensinger, 586 F.2d 554, 557 (5th Cir.1978). Although expert testimony is often helpful to the jury, “a jury can find that a doctor prescribed controlled substances ......
  • Myers v. Secretary of Health and Human Services, No. 89-5337
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 11, 1990
    ...or trial. See Pearce v. United States Department of Justice, Drug Enforcement Admin., 867 F.2d 253 (6th Cir.1988); Noell v. Bensinger, 586 F.2d 554 (5th Cir.1978); Qureshi v. Immigration and Naturalization Service, 519 F.2d 1174 (5th Cir.1975); Sokoloff v. Saxbe, 501 F.2d 571, 574-75 (2d Ci......
  • Arneson v. Fox
    • United States
    • California Court of Appeals
    • February 13, 1980
    ...registrant (licensee) had been convicted of a felony. (Sokoloff v. Saxbe (2d Cir. 1974) 501 F.2d 571; Noell v. Bensinger (5th Cir. 1978) 586 F.2d 554.) Where the conviction based upon the nolo plea is used in another proceeding, in apparent compliance with rule 11(e)(6), Federal Rules of Cr......
  • Eisenberg v. Com., Dept. of Public Welfare
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 16, 1986
    ...sections have been amended without substantial change and can be found at 55 Pa.Code § 1101.77(a)(6)-(7). 8 See also Noell v. Bensinger, 586 F.2d 554 (5th Cir.1978); Qureshi v. Immigration and Naturalization Service, 519 F.2d 1174 (5th Cir.1975); Ruis-Rubio v. Immigration and Naturalization......
  • Request a trial to view additional results
18 cases
  • United States v. Joseph, No. 09–11984.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 21, 2013
    ...prescribed controlled substances for no legitimate medical purpose outside the course of his professional practice.” Noell v. Bensinger, 586 F.2d 554, 557 (5th Cir.1978). Although expert testimony is often helpful to the jury, “a jury can find that a doctor prescribed controlled substances ......
  • Myers v. Secretary of Health and Human Services, No. 89-5337
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 11, 1990
    ...or trial. See Pearce v. United States Department of Justice, Drug Enforcement Admin., 867 F.2d 253 (6th Cir.1988); Noell v. Bensinger, 586 F.2d 554 (5th Cir.1978); Qureshi v. Immigration and Naturalization Service, 519 F.2d 1174 (5th Cir.1975); Sokoloff v. Saxbe, 501 F.2d 571, 574-75 (2d Ci......
  • Arneson v. Fox
    • United States
    • California Court of Appeals
    • February 13, 1980
    ...registrant (licensee) had been convicted of a felony. (Sokoloff v. Saxbe (2d Cir. 1974) 501 F.2d 571; Noell v. Bensinger (5th Cir. 1978) 586 F.2d 554.) Where the conviction based upon the nolo plea is used in another proceeding, in apparent compliance with rule 11(e)(6), Federal Rules of Cr......
  • Eisenberg v. Com., Dept. of Public Welfare
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 16, 1986
    ...sections have been amended without substantial change and can be found at 55 Pa.Code § 1101.77(a)(6)-(7). 8 See also Noell v. Bensinger, 586 F.2d 554 (5th Cir.1978); Qureshi v. Immigration and Naturalization Service, 519 F.2d 1174 (5th Cir.1975); Ruis-Rubio v. Immigration and Naturalization......
  • Request a trial to view additional results

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