Falconer v. United States of America

Filing 16

MEMORANDUM: For the reasons discussed above, the Court concludes that motion and the files and records of this case conclusively show that Falconer is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims he asserts his m otion to vacate. Therefore, the motion will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the Cour t finds that Falconer has not made a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253. An appropriate Order will accompany this Memorandum. Signed by District Judge Carol E. Jackson on 3/29/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERICK A. FALCONER,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:14-CV-424 (CEJ)

MEMORANDUM
This matter is before the Court upon the motion of Erick A. Falconer to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United
States has filed a response, and the issues are fully briefed.
I. Background
On November 6, 2013, Falconer pleaded guilty to violating 18 U.S.C. §
1001(a)(2) by making a false statement to special agents of the Food and Drug
Administration (FDA) during an investigation of counterfeit Botox, a prescription
drug. Falconer, who was at the time a medical doctor, admitted that when the FDA
agents came to his office on February 12, 2013, he knowingly lied to them about
his purchases of Botox from an unlicensed wholesale drug distributor called Online
Botox. Specifically, Falconer told the agents he had made only three purchases
from Online Botox in 2012 when in fact he had made more than 50 purchases in a
three-year period.

He further admitted that he knew his false statements were

material to the FDA’s investigation of whether he had received any counterfeit or
misbranded drugs.
Falconer was sentenced on February 21, 2014, to a five-month term of
imprisonment to be followed by a one-year term of supervised release. He did not
appeal the judgment.
II. Discussion
In the instant motion to vacate, Falconer asserts eight grounds for relief. He
reasserts these grounds and submits additional argument to support them in an
addendum.
A. Mental Competence (Grounds One and Two)
Falconer alleges that at the time of the offense and at the time of his guilty
plea, he was suffering from a mental disease or defect that rendered him “unable to
appreciate the nature and quality or the wrongfulness of his acts” and unable to
understand the nature and consequences of the proceedings and to assist in his
defense. Mot. to Vacate, p. 4 [Doc. # 1].

Thus, he claims that he was not

criminally responsible for his conduct and that his guilty plea was not made
knowingly and voluntarily.
In support of his claim, Falconer submits a copy of what purports to be the
report of a mental evaluation that he underwent in 2011— almost two years before
the offense—in connection with disciplinary proceedings before the Missouri Board
of Registration for the Healing Arts. The report reflects diagnoses of sexual disorder

2

NOS1

(sexual

compulsivity/addiction),

narcissistic

and

antisocial

traits,

hypertension, severe occupational and relational stress related to the disciplinary
proceedings and possible criminal charges, and a GAF score of 45.2

The

recommendations of the examiners included treatment for sexual compulsivity,
attendance at “a brief, intensive workshop on professional boundaries,” workplace
monitoring, chaperones, reasonable work hours, and no prescribing of medications.
[Doc. # 5-1, p. 5].
Nothing in the report suggests that Falconer was mentally impaired to the
extent that he could not perform his work as a physician.

Indeed, Falconer was

working as a cosmetic surgeon at the time of the offense and as an emergency
room physician at the time of his guilty plea. Falconer submits no records showing
that he suffered from delusions, hallucinations, or cognitive impairments. Further,
it is noteworthy that the examiners’ recommendations did not include psychiatric
hospitalization or medication.

In order to maintain an insanity defense, a

defendant must prove by “clear and convincing evidence” that at the time of the

1

NOS is the abbreviation for “not otherwise specified.”

2

The Global Assessment of Functioning (GAF) score is determined on a scale of 1 to 100
and reflects the clinician’s judgment of an individual’s overall level of functioning, taking into
consideration psychological, social, and occupational functioning. Impairments in functioning
due to physical or environmental limitations are not considered. American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
Revision 32-33 (4th ed. 2000) (DSM-IV). A GAF of 41-50 corresponds with “serious
symptoms OR any serious impairment in social, occupational, or school functioning.” DSMIV Text Revision 34. A GAF of 51-60 corresponds with “moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) OR difficulty in social, occupational or
school functioning (e.g., few friends, conflicts with peers or co-workers).” Id. A GAF of 6170 corresponds with “Some mild symptoms . . . OR some difficulty in . . . social,
occupational, or school functioning . . . but generally functioning pretty well, has some
meaningful interpersonal relationships.” Id.

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offense he suffered from a “severe mental disease or defect” that rendered him
unable to appreciate the nature and quality or the wrongfulness of his acts.

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U.S.C. 17 (emphasis added). Proof of a mental disorder is not enough. See United
States v. Long Crow, 37 F.3d 1319, 1324 (8th Cir. 1994), cert. denied, 513 U.S.
1180 (1995)(even if defendant suffered from post-traumatic stress disorder, he was
not entitled to insanity defense jury instruction absent evidence of the severity of
his mental defect).

Had Falconer asserted an insanity defense based on the

evidence he submits here, he would have failed.
A defendant’s competence is determined by whether he has “sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding” and whether he has “a rational as well as a factual understanding of
the proceedings against him.” Godinez v. Moran, 509 U.S. 389, 396 (1993). In a
postconviction proceeding, the movant has the burden of establishing by a
preponderance of the evidence that he was incompetent at the time of the trial or
guilty plea. Vogt v. United States, 88 F.3d 587, 591 (8th Cir. 1996). Evidence of
emotional instability will not suffice to meet the burden of persuasion. Crawn v.
United States, 254 F. Supp. 669, 673 (M.D. Pa. 1966) (“That there may be
something mentally wrong with a defendant or that he may be emotionally unstable
does not necessarily render him mentally incompetent to understand the
proceedings against him.”).

Again, the evidence submitted by Falconer falls far

short of establishing that he was unable to understand the proceedings against him

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or to assist in his defense. In fact, Falconer does not contend that he was unable to
communicate with his lawyer or understand the legal advice he was given. Further,
at the plea hearing Falconer gave appropriate answers to the questions posed by
the Court and he gave no indication that he did not understand what was
happening.

See, e.g., United States v. Martinez, 446 F.3d 878, 882 (8th Cir.

2006)(district judge’s observations of the defendant “can be as probative on the
issue of competency as the testimony of a medical expert.”)
During the guilty plea colloquy, Falconer stated under oath that he had never
been diagnosed with a mental illness or mental disorder, that he had never
consulted a mental health professional for any reason, and that he understood the
purpose of the plea proceeding. Plea Transcript [Doc. # 3-1, pp. 4-5].

He also

stated under oath that he understood his rights to a jury trial, to confront
witnesses, to compel the attendance of witnesses, and to testify or not testify at
trial. Falconer stated that he had read and understood the plea agreement, that he
had reviewed it with his lawyer, and that the stipulated facts in the agreement
accurately described his conduct. Id. at pp. 8-11, 20. Statements made under oath
in open court Acarry a strong presumption of verity.@ Blackledge v. Allison, 431 U.S.
63, 74 (1977). See also, United States v. Harvey, 147 Fed. Appx. 627, 2005 WL
2923572 (8th Cir. 2005). Falconer’s assertions contradicting his sworn statements
are insufficient to overcome this presumption.3 Further, these assertions are belied

At one point during the plea hearing Falconer gave contradictory responses about whether
his statement to the FDA agents was false and whether he knew it was false at the time he
made it. He later explained that he had misunderstood the Court’s question. Ultimately, he
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by his statement at the sentencing hearing that “[w]hen presented with the
opportunity to truthfully respond to the questions asked by the investigators, I
made the conscious choice not to tell the truth.” Sentencing Transcript, p. 4 [Doc.
# 3-2].
Falconer is not entitled to relief on Grounds One and Two.
B. Prosecutorial Misconduct (Grounds Three through Eight)
Falconer claims that the prosecutor withheld from the Court information
about his mental disorder. It appears that the information he refers to is the 2011
mental health evaluation that was commissioned by the state medical board. For
the reasons discussed above, the report had no bearing on Falconer’s competence
and would not have caused the Court to reject his guilty plea. Had the report been
disclosed during the plea hearing it would have shown that Falconer had lied under
oath about not having been diagnosed with a mental disorder.
Falconer next claims that the prosecutor intentionally misled the Court into
believing (a) that Botox is a dangerous drug; (b) that Falconer was motivated by
financial gain; (c) that Falconer posed a risk to his patients; (d) that before
February 2013, Falconer had received warnings about purchasing Botox from online
suppliers; and (e) that the case was only about making a false statement when it
was really about the prosecutor’s “abusing his power to carry out the agenda of the
Missouri Medical Board to revoke the defendant’s license by demanding felony
prosecution.”

Motion to Vacate, p. 14 [Doc. # 1].

He also claims that the

admitted that he intentionally lied to the agents about his purchases of counterfeit Botox.

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prosecutor knew of other physicians who had purchased counterfeit Botox but
chose not to prosecute them.

The Court has reviewed the pleadings and exhibits

filed in this case and in the underlying criminal case and finds no evidence to
support Falconer’s claims.
As to the danger posed by Botox, Falconer acknowledges in his motion that
the FDA required that the packaging bear a “black box” warning due to reports of
adverse effects of the drug. Id. at p. 8. Certainly, the risk to patient safety would
have been compounded by Falconer’s use of an unapproved version of the drug.
Also, according to the presentencing report (PSR), the counterfeit Botox that
Falconer purchased from Online Botox was less expensive than the FDA-approved
version of the drug.

Thus, there was an obvious cost saving in purchasing the

counterfeit drug. Further, while there was no proof that any patients were harmed
by the counterfeit Botox that Falconer administered, some of his patients
complained that the injections were ineffective.
statements in the PSR.

Falconer did not object to these

Falconer has not pointed to any statement made by the

government about his receipt of FDA warnings about purchasing drugs from Online
Botox. His allegation concerning the government’s motive for prosecuting him is no
more than mere speculation.
Finally, the government has broad discretion to initiate criminal charges
when there is probable cause to believe that a person committed an offense.
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)[“[S]o long as the prosecutor has

Plea Transcript [Doc. 3-1, pp. 16-20].

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probable cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his discretion.”].

However,

prosecutorial discretion is not unlimited. Thus, prosecutions that are “deliberately
based upon an unjustifiable standard such as race, religion, or other arbitrary
classification” violate the Equal Protection Clause of the Constitution. Oyler v. Boles,
368 U.S. 448, 456 (1962).

Falconer presents no evidence—nor does he allege—

that the decision to prosecute him was deliberately based on any classification that
would violate his right to equal protection.
Falconer is not entitled to relief on Grounds Three through Eight.
C. Procedural Bar
In response to the motion to vacate, the government argues that Falconer’s
claims are procedurally barred, because they concern issues that could have been
raised on direct appeal but were not. Because the Court has determined that none
of Falconer’s claims have merit, it is unnecessary to address the procedural bar
issue.
III. Conclusion
For the reasons discussed above, the Court concludes that motion and the
files and records of this case conclusively show that Falconer is not entitled to relief
under 28 U.S.C. § 2255 based on any of the claims he asserts his motion to vacate.
Therefore, the motion will be denied without a hearing. See Engelen v. United
States, 68 F.3d

238, 240 (8th Cir. 1995). Additionally, the Court finds that

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Falconer has not made a substantial showing of the denial of a constitutional right.
Therefore, the Court will not issue a certificate of appealability. See 28 U.S.C. §
2253.
An appropriate Order will accompany this Memorandum.

_______________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 29th day of March, 2017.

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