US v. Stidham, No. 95-0438-CB-C.

• Court: U.S. District Court — Southern District of Alabama
• Writing for the Court: BUTLER
• Citation: 938 F. Supp. 808
• Docket Number: No. 95-0438-CB-C.
• Decision Date: 16 August 1996
• Parties: UNITED STATES of America, v. Roland O. STIDHAM, Defendant.

938 F. Supp. 808

UNITED STATES of America,
v.
Roland O. STIDHAM, Defendant.

No. 95-0438-CB-C.

United States District Court, S.D. Alabama, Southern Division.

August 16, 1996.

938 F. Supp. 809

Eugene A. Seidel, Mobile, AL, for U.S.

Roland O. Stidham, Mobile, AL, pro se.

OPINION AND ORDER

BUTLER, Chief Judge.

This matter is before the Court on a motion for partial summary judgment filed by plaintiff in this action, the United States of America (doc. 52). Defendant, who is proceeding pro se has filed several pleadings within the time period for response which might be considered as responses to the government's motion. After reviewing all relevant pleadings and other evidence on file in light of the applicable law, the Court finds that the government's motion is due to be granted.

Findings of Fact

Martin C. Riley and Linda Traub, Diversion Investigators with the Drug Enforcement Administration ("DEA"), were at all relevant times assigned to the Mobile Resident Office and were authorized to enforce the Controlled Substances Act of 1970 and the Chemical Diversion and Trafficking Act of 1988. Their responsibilities included regulatory investigations of legitimate drug handlers to ensure compliance with the Controlled Substance Act, the Narcotic Addict Treatment Act and implementing regulations, including audits and investigations to detect criminal diversion by registrants, which included regulation of methadone clinics.¹

On or about November 1989, the Mobile Resident Office received a New Application for Registration under Narcotic Treatment Act of 1974, DEA Form 363, for maintenance and detoxification, document number D275043019. The name of the program applying was Gulf Coast Drug Control Center ("the clinic"), 1159 Spring Hill Ave, Mobile, Alabama 3604, and the application was signed by Edmond Henson, M.D., with telephone number XXX-XXX-XXXX. Pursuant to the application, Agent Riley called the telephone number to begin the pre-registration. The telephone was answered by a person who identified himself as R.O. Stidham, the defendant in this case. Stidham informed Agent Riley that he was the program sponsor and was financing the program and providing the building. He also told Riley that Dr. Henson wanted Stidham to take care of the registration process and security system.

Prior to August 1990, Agent Riley made at least two on-site visits to the 1159 Spring Hill address, and on both occasions he was met by Mr. Stidham, who was the clinic's primary contact person. Prior to August 1990, Riley may also have talked to Dr. Henson by telephone one or two times. During this time, Mr. Stidham told Riley that he and Dr. Henson were the business owners and that Dr. Ronald Walker, a practicing psychiatrist was the program's coordinator.

On August 2, 1990, Diversion Investigator Wayne Michaels from the New Orleans Field Division, and Riley met with Dr. Henson and Mr. Stidham to conduct a pre-registration inspection of the site. Mr. Stidham showed Investigators Michaels and Riley the building and identified the alarm system and devices, which upon inspection were found to be inadequate. The program also failed to have written procedures and policies for the intake of patients or for the dispensing of methadone. Before terminating the inspection, Agent Riley advised Dr. Henson of the security and record keeping requirements under Title 21, Code of Federal Regulations, sections 1301 and 1304. Dr. Henson told Riley he understood the responsibilities and that he was employing Benjamin Bowles as the program's director. Henson said Bowles was a registered nurse who was employed by Gateway Treatment Program and NTP (Narcotics Treatment Program) located in Mobile.

On December 10, 1990, Investigators Michaels and Riley conducted a second on-site pre-registration inspection at the Gulf Coast

938 F. Supp. 810

Drug Control Center facility. They met with Dr. Henson and Benjamin Bowles. Dr. Henson provided them with copies of the facility's policy and procedures manual, client's manual, and clients consent form. Agents Riley and Michaels again explained the record keeping requirements to Dr. Henson. Dr. Henson advised Riley that for emergency purposes he was giving Dr. Walker and Mr. Bowles Power of Attorney to sign the order forms, DEA Form 222, for the methadone. Pursuant to the inspection they again checked the security and alarm system, which appeared to meet the DEA requirements. Mr. Stidham was at the site during the second pre-registration inspection. On December 11, 1990, the Mobile Resident Office approved Gulf Coast Drug Control's application

After the program became registered, Mr. Stidham made numerous telephone calls to Agent Riley regarding the clinic. Mr. Stidham's questions and conversations often concerned patient care which is regulated by the U.S. Food and Drug Administration. Mr. Stidham wanted to do blood testing to check for methadone and other drugs instead of doing urinalysis. Riley was under the impression that Mr. Stidham was concerned about laboratory costs for the urine tests. In one specific conversation, Mr. Stidham said he wanted to sell methadone to individuals as an alternative to their buying illicit drugs like marijuana and cocaine on the street. He said he felt that it would reduce the danger of contaminated drugs and crime. Riley told Mr. Stidham that the clinic could only provide methadone for the treatment of opiate addiction, and that if he or anyone else at the clinic sold or gave methadone to anyone for any other reason, it would be illegal.

Riley also received telephone calls from Mr. Stidham in reference to his son R.L. Stidham. Mr. Stidham wanted to employ R.L. Stidham at the clinic. Riley told Mr. Stidham that the clinic could not employ anyone who would have access to the controlled substances if that person was an addict or if they had a drug related conviction. Mr. Stidham asked Riley if R.L. could work at the clinic as a counselor provided that he did not have access to the methadone. Riley advised Stidham that based on the regulations, R.L. Stidham could be employed in that capacity but that it would not be advisable due to R.L. Stidham's current enrollment in a methadone treatment program for drug addiction and his criminal history. Riley later received a telephone call from Dr. Henson about employing R.L. Stidham as a counselor. Dr. Henson said Mr. Stidham wanted to employ R.L. Stidham at the clinic. Riley cautioned Dr. Henson about access to the controlled substances by R.L. Stidham and about his drug addiction and criminal history. Dr. Henson said he was aware of R.L. Stidham's background but that Mr. Stidham was pushing to have his son employed at the clinic.

At all relevant times, Dr. Edmond C. Henson, M.D. was the Medical Director at Gulf Coast Drug Control Center. He became involved in the clinic through Roland O. Stidham, a chiropractor, who contacted Henson in order to find out whether Henson would be interested in participating in a methadone treatment center. Stidham indicated that he would provide a building, the equipment and the necessary financing.

Henson agreed to become the clinic's medical director. Over a period of time, Henson attempted to negotiate a written agreement with Stidham over Henson's salary and interest in the clinic, but failed to do so. Henson filled out the DEA application. The application for FDA approval of the clinic was signed by three persons, including Henson as Medical Director and Stidham as sponsor.

Henson, as Medical Director, was primarily responsible for hiring and firing of the clinic's nurses, and for obtaining and distributing the methadone to the nurses for distribution to the clinic's patients. He was generally in the clinic for only an hour or two each day. Stidham owned and ran the business. He was responsible for the daily operation of the clinic, including finances and banking, control over clerical workers, drug counselors, receptionist, security guard and persons handling money. As noted previously, Stidham provided the building, the equipment and the financing for the clinic.

Six months after the clinic opened, Ben Bowles resigned as the clinic's administrator

938 F. Supp. 811

due to interference from Stidham. After that, despite Agent Riley's warnings, R.L. Stidham took over many of Bowles's function. At some point during November or December 1991, both Henson and Stidham became aware that drugs and money appeared to be missing from the clinic. Stidham had also received a telephone call from Florida in which he was told that drugs from the clinic were on the street. Nevertheless, Henson and Stidham failed to inform the DEA about the missing drugs and money

Pursuant to a federal search warrant and court order executed on February 20, 1992, DEA agents seized all records, reports, patient files, receipts, dispensing records and methadone from the Gulf Coast Drug Control Center. Agent Traub analyzed these records and has determined that Gulf Coast did not keep a methadone dispensing log as required by 21 U.S.C. § 842 in violation of 21 C.F.R. § 1304.28(a) and (b). The only records available which reflected the dispensing or methadone for the months of December 1989 through March 1, 1992, were the Patient Pharmacy Charts. These Patient Pharmacy Charts were used to perform an audit, the results of which reflected a shortage of approximately fourteen bottles or 56,000 milligrams of methadone. Dosages of methadone rarely exceed 100 milligrams; therefore, a minimum of 560 doses were unaccounted for.

Other records obtained pursuant to the search warrant disclosed that Gulf Coast Drug Control Center dispensed approximately 1,687,760 milligrams of methadone. Based on maximum dosage of 100 milligrams, this equates to a minimum of at least 16,877 doses which were not recorded on a daily dispensing log.

Cash receipt records seized from Gulf Coast Drug Control Center reflected payment for methadone by clients....