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Mekowulu v. United States

United States District Court, M.D. Florida, Tampa Division

December 19, 2017



          JAMES D. WHITTEMORE, United States District Judge

         BEFORE THE COURT are Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, memorandum and affidavits in support (cv Dkts. 1, 2-7), the Government's response and affidavits in opposition (cv Dkt. 21), Petitioner's reply and affidavits (cv Dkt. 24), and his supplemental authority (cv Dkts. 11, 12, 25), Upon consideration, Petitioner's motion is DENIED in part. An evidentiary hearing is necessary with respect to Petitioner's claims of ineffective assistance of counsel raised in Grounds One B, C, and D.

         Procedural Background

          Petitioner was charged with conspiracy to distribute and dispense controlled substances not for a legitimate medical purpose in violation of 21 U.S.C. §§ 841(b)(1)(C), and 846 (cr Dkt. 1). He was convicted and sentenced to 120 months and three years of supervised release (cr Dkts. 81, 90). The Eleventh Circuit affirmed, finding that there was substantial evidence of guilt. United States v. Mekowutu, 556 Fed.Appx. 865, 867 (11th Cir. 2014).

         Petitioner's Section 2255 motion (cv Dkt. 1) raises five grounds for relief:

         Ground One: trial counsel were ineffective in failing to:[1]

A. object to the Government's expert, Professor Doering, testifying to the ultimate issue of Petitioner's guilt or innocence;
B. call Petitioner as a witness;
C. retain and call a pharmacist expert to rebut Professor Doering's testimony; and
D. advise Petitioner on the "deliberate ignorance" jury instruction, thereby rendering Petitioner's waiver of his right to testify unknowing and involuntary;

         Ground Two: whether Professor's Doering's standards are unconstitutionally vague rendering the conviction unconstitutional;

         Ground Three: the Government's claim that Mr. Mekowulu violated federal law regarding DEA Form 222 violated Mr. Mekowulu's right to be convicted only of crimes charged in the Indictment;

         Ground Four: whether Mr. Mekowulu's conviction based on Professor Doering's testimony is a violation of the prohibition of convictions based on ex post facto laws; and

         Ground Five: whether Professor Doering's testimony and the deliberate ignorance instruction unconstitutionally shifted the burden of proof to the defendant.

         Standard of Review for Ineffective Assistance of Counsel Claims

         Strickland v. Washington, 466 U.S. 668 (1984), governs Petitioner's ineffective assistance of counsel claims. Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998):

The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

         Strickland requires proof of both deficient performance and resulting prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims v. Singletary, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.")- And "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment" Strickland, 466 U.S. at 690. Where, as here, counsel is experienced, the presumption of competence is even higher. Chandler v. United States, 218 F.3d 1305, 1314-16(11th Cir. 2000); Reynolds v. United States, 233 Fed.Appx. 904, 905 (11th Cir. 2007).[2] "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.

         Because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment, " Petitioner must demonstrate that counsel's error prejudiced the defense. Strickland v. Washington, 466 U.S. at 691-92. To meet this burden, he must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., at 694-95. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.


         Ground One

          In Ground One, Petitioner asserts four claims of ineffective assistance of trial counsel.

         Ground One A: Mr. Mekowulu's Attorneys Provided Constitutionally Ineffective Counsel Regarding Professor Doering's Testimony.

         Professor Paul Doering was called by the United States as an expert witness. Petitioner contends that counsel were ineffective in: 1) failing to object or move for a mistrial when Professor Doering "exceeded the permissible boundaries of testimony" by repeatedly testifying as to the ultimate question of guilt; and 2) "invit[ing]" Doering "to opine on whether or not something Mr. Mekowulu did was illegal, and then agreed with the expert that the prescriptions were illegal until proven legal by responding, 'okay, ' after Professor Doering wrongly made this claim." These contentions are without merit.

         "An expert may offer opinion testimony on an ultimate issue of fact. ..." United States v. Caro, ASA Fed. Appx. 817, 843 (11th Cir. 2012) (citing Fed.R.Evid. 704). However, "[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone." Fed.R.Evid. 704(b). Accordingly, an expert cannot "expressly stat[e] an opinion as to the defendant's state of mind at the time of the offense. . . ." United States v. Alvarez, 837 F.2d 1024, 1031 (11th Cir. 1988) (citation omitted).

         Before Doering testified, Petitioner's counsel filed a Motion in Limine directed to the scope of Doering's anticipated testimony (cr Dkt. 44). He challenged, among other things, whether Doering could testify on the ultimate issue of Petitioner's guilty knowledge, the existence of "red flags, " or "imdicators, " which pharmacists should use to identify potential drag diverters and which impose an "affirmative duty" on the pharmacist to inquire into the legitimacy of the prescription. The motion was granted to the extent that Doering was prohibited from offering any "opinions about the ultimate guilt or innocence" of Petitioner, that is, "[w]hether he actually knew or didn't know,,, " But he was permitted to testify to the "red flags, " "the indicia, indications that would put a pharmacists on knowledge or at least on alert; however you want to frame it, that these prescriptions - - those purported prescriptions may be illegitimate." (Cr Dkt. 103 at 7-9).

         Accordingly, Doering was permitted to testify about "indicators, " including, based on hypothetical facts, "pattern prescribing, "cash payments, presenting prescription from distant sites, multiple prescriptions for different patients from one doctor presented by one individual, multiple prescriptions for different patients from a distant source, the delivery of prescriptions to a person in a parking lot or on the side of a road or interstate highway, and the receipt of two prescriptions for the same drug for the same person simultaneously or within a day of each other. (Id. at 36 - 42; 44 -46).

         Notwithstanding the ruling on the motion in limine, Petitioner contends that Professor Doering testified several times on the ultimate issue in the case, Petitioner's knowledge of the criminal conspiracy involving diversion of Oxycodone to illicit uses. He argues, with commentary, that the following testimony "can reasonably be construed as a comment on the ultimate guilt or innocence of Petitioner:

• Professor Doering testified that a person who had a stack of prescriptions in other people's names would be a "deal-breaker, " and state[d], "I can't contemplate any legitimate reason that may be."
• Professor Doering directly testified, without objection, that Mr. Mekowulu's filling of two prescriptions back to back was "a huge indicator of diversion." This is not testimony as to a red flag that would put a pharmacist on notice of criminality of others. Instead, this is direct testimony of Professor Doering's opinion that Mr. Mekowulu had personally been involved in diversion.
• on the topic of back to back prescriptions, Professor Doering was allowed to testify, "In fact, there's probably no explanation that would satisfy my concern.
• Professor Doering specifically testified that he would not have honored certain prescriptions, stating, "I wouldn't honor that because I can't think of a valid reason for that to happen[.]"
• Regarding prescriptions for Oxycodone without no [sic] corresponding log sign-out sheet, he stated, "Well, that's a violation of the law. And it would be a further indicator to me that something is going on that would aid or abet diversion of these drugs." This testimony constitutes Professor Doering's opinion that actions of Mr. Mekowulu were a violation of the law and an indicator that Mr. Mekowulu was aiding and abetting the diversion of drugs[.]

(cv Dkt. 2, pp. 11-12).

         Considered in the proper context, these snippets of Doering's testimony do not reflect opinions on Petitioner's guilt, that is, that he knew that Oxycodone was being diverted for illicit uses. Although Doering's testimony addressing the indicators was certainly material to the determination of whether Petitioner knew or should have known that the prescriptions he was filling were being diverted for illicit uses, it was not directed to the ultimate question of guilt or innocence. Doering was not asked whether Petitioner knew the drugs were being diverted, and did not express an opinion on that. Rather, to assist the jury in understanding and evaluating the evidence, he expressed opinions, based on his experience, training, knowledge and education, on what he considered to be indicators of drug diversion which should alert a practitioner. Accordingly, since Doering's testimony did not violate Rule 704(b), counsel were not ineffective in failing to object to his testimony or move for a mistrial.

         Petitioner further contends that counsel's cross examination of Doering was deficient when he "asked Professor Doering to comment on whether facts that can be attributed to Mr. Mekowulu were illegal, allowed Professor Doering to testify that the burden of proof was shifted to the Defendant and wrongly inform the jury that the prescriptions were illegal until proven to be legal, requiring an explanation, and supports the issue that the Defendant has to testify and offer the explanation." (cvDkt.2, pp. 12-13). Petitioner refers to this exchange between defense counsel and Doering:

Q Okay. Now, you were shown a number of prescriptions for patients that you put on a spreadsheet that the government introduced as Exhibit 69; is that right?
A That's correct, yes.
Q And with regard to those prescriptions, you - other than the fact that there were multiple prescriptions issued, and that they were dispensed on simultaneous - or one day after the - after the first, that it raises your index of suspicion; correct?
A That is correct.
Q Okay. But the fact that that was done in and of itself doesn't make those prescriptions illegal; right?
A Well, it's kind of opposite of our legal system. To me they're illegal until ...

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