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Federal Register / Vol. 86, No. 170 / Tuesday, September 7, 2021 / Notices
subchapter II; or 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, among other reasons. 21
U.S.C. 824a. The OSC alleged material falsification and felony conviction as the proposed bases for revocation of Respondents registration. 21 U.S.C.
824a1 and 2.

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B. Allegation That Respondent Materially Falsified an Application 21
U.S.C. 824a1
As already discussed, I find clear, unequivocal, and convincing record evidence that Respondent submitted to the Agency three registration renewal applications containing a false answer to the first Liability question. Supra section II.F. Also, as already discussed, I find clear, unequivocal, and convincing record evidence that Respondent submitted to the Agency two registration renewal applications containing a false answer to the third Liability question. Id. My findings that Respondent submitted these false answers to the Agency stem from Respondents conviction for violating a Georgia First-Degree Felony when she forged and presented for filling a controlled substance prescription for herself. Id.; infra section III.C. Further, my fact findings directly implicate three of the factors I am statutorily mandated to consider as I act on applications for registration: The applicants experience in dispensing controlled substances, the applicants conviction record under Federal or State laws relating to the dispensing of controlled substances, and other conduct which may threaten the public health and safety. 21 U.S.C.
823f2, 3, and 5. Thus, Respondents false responses on three registration renewal applications directly implicated my statutorilymandated analyses and decisions by depriving me of legally relevant facts when I evaluated those three registration renewal applications of Respondent. RFAAX 1, at 111; see also Frank Joseph Stirlacci, M.D., 85 FR
45,229, 45,235 2020. Accordingly, I
find, based on the CSA and the analyses underlying multiple Supreme Court decisions explaining materiality, that the five false Liability question responses Respondent submitted to the Agency in the three registration renewal applications at issue were material, and that the five false responses are grounds for the suspension or revocation of her registration. 21 U.S.C. 824a1; see Frank Joseph Stirlacci, M.D., 85 FR
45,235.

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According to the Written Statement, Respondent responded No to liability question 1 with the understanding that . . . she was not guilty of a felony substance control conviction. RFAAX
3, at 1. Due to the clear, unequivocal, and convincing record evidence, I do not credit this portion of Respondents Written Statement.8 See, e.g., RFAAX 4, at 9 and RFAAX 5, at 3; see also infra section III.C.
Respondents Written Statement also states that she answered No to the third Liability question with the understanding because at that time . . .
her nursing license was no longer under probation. RFAAX 3, at 1. I do not credit this portion of Respondents Written Statement because the third Liability question asks whether the applicant ever . . . had a state professional license . . . placed on probation. RFAAX 1, at 4; id. at 10
emphasis added.
C. Allegation That Respondent Has Been Convicted of a Felony Related to Any Controlled Substance 21 U.S.C.
824a2
As already discussed, I find substantial record evidence that Respondent entered a negotiated guilty plea to Forgery in the First Degree, Ga.
Code Ann. 1691, a Georgia felony, on November 18, 2010.9 Supra section II.E.
I also find substantial record evidence that the facts underlying Respondents First-Degree Felony conviction include her having forged a controlled substance prescription for herself. Id.
Based on the facts I found in this matter, I conclude that Respondent has been convicted of a felony under a State 8 If Respondent intended to argue that her negotiated guilty plea in 2010 and her treatment as a first offender mean that she was not convicted of a First-Degree Felony, I reject her argument. The Agency established over thirty years ago, and recently reiterated, that a deferred adjudication is still a conviction within the meaning of the . . .
CSA even if the proceedings are later dismissed.
Kimberly Maloney, N.P., 76 FR 60,922, 60,922
2011. In reaching this conclusion, the Agency explained that, any other interpretation would mean that the conviction could only be considered between its date and the date of its subsequent dismissal. Id. citing Edson W. Redard, M.D., 65
FR 30,616, 30,618 2000. The same reasoning applies to treatment as a first offender. I also note that the GBN Consent Order exists because Respondent failed to report her felony conviction to the Board within ten 10 days of such conviction as required by O.C.G.A. 43127. RFAAX 5, at 3.
9 A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing. Ga. Code Ann. 1691 West, Westlaw effective to June 30, 2012.

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law relating to a controlled substance.
21 U.S.C. 824a2. First, to state the obvious, the state of Georgia used its First-Degree Felony Forgery statute to prosecute and convict Respondent of forging a controlled substance prescription even though that Georgia statute does not include the phrase controlled substance in its text. See n.9. Georgias choice of this forgery statute shows that Respondent was convicted of a felony under a state law relating to any controlled substance. 21
U.S.C. 824a2.
Second, according to the Supreme Court, the phrase in relation to is interpreted expansively, and means with reference to or as regards.
Smith v. United States, 508 U.S. 223, 237 1993. The Smith decision involved an offer to trade an automatic weapon for cocaine. 508 U.S. at 225.
The decision addressed the question of whether the exchange of a firearm for cocaine constitutes using a firearm during and in relation to . . . a drug trafficking crime within the meaning of 18 U.S.C. 924c1. Id. The Supreme Courts analysis cited prior Supreme Court and appellate court decisions interpreting the phrase in relation to and concluding that the phrase should be interpreted expansively. Id. at 237;
see, e.g., District of Columbia v. Greater Washington Board of Trade, 506 U.S.
125, 129 1992 We have repeatedly stated that a law relates to a covered employee benefit plan . . . if it has a connection with or reference to such a plan. . . . This reading is true to the ordinary meaning of relate to . . . and thus gives effect to the deliberately expansive language chosen by Congress.; United States v. Harris, 959
F.2d 246, 261 D.C. Cir. 1992 per curiam The only limitation is that the guns be used in relation to the drug trafficking crime involved, which we think requires no more than the guns facilitate the predicate offense in some way.; United States v. Phelps, 877
F.2d 28 9th Cir. 1989 concluding that the situation was unusual and not covered, the court stated that the phrase in relation to is broad.
The Supreme Court also cited a dictionary definition in its analysis. 508
U.S. at 23738. It stated that according to Websters, in relation to means with reference to or as regards. Id. at 237. It concluded, thus, that the phrase in relation to, at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. Id. at 238. The Court also stated that the gun at least must facilitatee, or have the
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