United States District Court, M.D. Florida, Tampa Division
EMMANUEL I. MEKOWULU, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. WHITTEMORE, United States District Judge
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.
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.
Section 2255 motion (cv Dkt. 1) raises five grounds for
One: trial counsel were ineffective in failing
A. object to the Government's expert, Professor Doering,
testifying to the ultimate issue of Petitioner's guilt or
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;
Two: whether Professor's Doering's standards are
unconstitutionally vague rendering the conviction
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;
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
Five: whether Professor Doering's testimony and the
deliberate ignorance instruction unconstitutionally shifted
the burden of proof to the defendant.
of Review for Ineffective Assistance of Counsel
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.
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.
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). "[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.
"[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, Petitioner asserts four claims of ineffective
assistance of trial counsel.
One A: Mr. Mekowulu's Attorneys Provided Constitutionally
Ineffective Counsel Regarding Professor Doering's
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.
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
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).
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).
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
• 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
(cv Dkt. 2, pp. 11-12).
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
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
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 ...