Lasher v. United States of America

Filing 9

MEMORANDUM AND ORDER: denying 8 Motion for Hearing. For the foregoing reasons, Lasher's petition is denied without a hearing. Because Lasher has not made a substantial showing of the denial of a constitutional right, a certificate of appealabi lity will not issue. See 28 U.S.C. § 2253(c). Pursuant to 28 U.S.C. § 1915(a) (3), it is hereby certified that any appeal from this Memorandum and Order would not be taken in good faith. The Clerk of Court is respect fully directed to termi nate the motions pending at ECF Nos. 347, 354, 356, 358, 368, 369, 371, 372, 377, 378, 380, 382, 383, 384, 385, 386, 387, 389, 390, 402, and 404 in No. 12 Cr. 868 (NRB), and ECF No. 8 in No. 17 Civ. 5925(NRB). SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 8/20/2018) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------X
LENA LASHER,
Petitioner,
MEMORANDUM AND ORDER

- against -

17 Civ. 5925 (NRB)
12 Cr. 868 (NRB)

UNITED STATES OF AMERICA,
Respondent.
-------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

On

May

convicted

of

15,

2015,

petitioner

misbranding

Lena

Lasher

prescription

drugs,

(“Lasher”)
conspiracy

was
to

misbrand prescription drugs, conspiracy to commit mail and wire
fraud, mail fraud, and wire fraud.

This Court sentenced her to

36 months’ imprisonment followed by two years’ supervised release,
and ordered

forfeiture

of

$2.5

million.

The

Second

Circuit

affirmed Lasher’s conviction and sentence on September 2, 2016,
and the Supreme Court denied her petition for certiorari on June
12, 2017.
Proceeding pro se, Lasher filed a habeas corpus petition to
vacate, set aside, or correct her sentence pursuant to 28 U.S.C.
§ 2255, asserting that there was insufficient evidence to support
her fraud conviction, that the Government violated her right to
due process, and that she received ineffective assistance from her
1

trial counsel.
(“Habeas

Mot. to Vacate, August 4, 2017, ECF No. 347

Pet.”).

Lasher

has

also

filed

motions in support of this petition.

numerous

additional

See ECF Nos. 354, 356, 358,

368, 369, 371, 372, 377, 378, 380, 382, 383, 384, 385, 386, 387,
389, 390, 393, 402, 404.

For the following reasons, the § 2255

petition is denied without a hearing, and each of the supplementary
motions is also denied.
BACKGROUND
Lasher was a supervising pharmacist at Hellertown Pharmacy
and

Palmer

Pharmacy,

both

located

in

Pennsylvania.

She

was

charged by indictment along with nine co-defendants for her role
in

an

internet

pharmacy

scheme

that

filled

thousands

of

prescriptions for barbiturates, opioids, and muscle relaxants by
doctors

who

had

never

met

or

consulted

Indictment, Nov. 20, 2012, ECF No. 2.
contained seven counts:

their

patients.

The original indictment

(1) narcotics conspiracy under 21 U.S.C.

§§ 841 and 846; (2) narcotics distribution under 21 U.S.C. § 841;
(3) conspiracy to misbrand under 18 U.S.C. § 371; (4) misbranding
under 21 U.S.C. §§ 331(a), 333(a)(2), and 353(b); (5) conspiracy
to

commit

mail

and

wire

fraud

under

18

U.S.C.

§

1349;

(6) international money laundering conspiracy under 18 U.S.C. §
1956(h); and (7) domestic money laundering conspiracy under 18
U.S.C. § 1956(h).

Id.
2

Lasher
insufficient.

moved

to

dismiss

the

indictment

Mot., May 8, 2014, ECF No. 151.

as

legally

The Court denied

this motion, holding: (1) Fioricet is a controlled substance under
the Controlled Substances Act despite being subject to certain
specific and limited regulatory exemptions; (2) the indictment
adequately alleged that the prescriptions were issued outside a
bona fide physician-patient relationship; and (3) the indictment
adequately alleged specific intent.

Order, Aug. 21, 2014, ECF No.

171.
Eight of Lasher’s co-defendants pleaded guilty.

The ninth

is believed to be living abroad and has never appeared in this
case.

Lasher alone decided to go to trial.

Before

trial,

the

Government filed a superseding indictment charging Lasher with (1)
conspiracy to misbrand under 18 U.S.C. § 371; (2) misbranding under
21 U.S.C. §§ 331(a) and 333(a)(2); (3) conspiracy to commit mail
and wire fraud under 18 U.S.C. § 1349; (4) mail fraud under 18
U.S.C. § 1341; (5) wire fraud under 18 U.S.C. § 1343; and (6)
witness tampering under 18 U.S.C. § 1512.

Superseding Indictment,

Apr. 2, 2015, ECF No. 209. 1
The trial began on May 4, 2015 and lasted two weeks.

At

trial, the Government presented evidence that Lasher and her co-

1

Notably, the operative indictment did not charge Lasher with the
distribution of controlled substances or conspiracy to distribute controlled
substances.

3

defendants perpetrated an internet pharmacy scheme.
customers

would

prescription

visit

drugs

any

for

of

sale

a

number

of

(including

That is,

websites

opioids

offering

and

muscle

relaxants), fill out a short questionnaire with questions about
their medical history, and a doctor would issue the prescription
without ascertaining the validity of any of the answers to the
questionnaires.

These prescriptions would be transmitted to one

of several pharmacies, including the ones where Lasher worked, and
the pharmacies would fill the prescriptions and send the drugs to
customers

around

Executive

Director

the
of

country.
the

One

National

government
Association

witness,
of

Boards

the
of

Pharmacy, testified that the questionnaires relied on by Lasher
were obviously insufficient, and appeared to be merely an effort
to

make

it

look

like

legitimate

doctor-patient

relationships

existed.
The Government presented documentary evidence that Lasher
supervised the two pharmacies, was responsible for responding to
governmental inspections, and had the ability to fire employees.
The Government presented evidence that Lasher and her employees
poured

pills

into

vials

without

counting

them,

re-dispensed

returned medication to new customers without properly inspecting
the pills, and altered the instructions on pharmacy labels such
that they did not correspond to what any physician had ordered.
4

One witness testified that she was a drug addict whose own doctor
had refused to fill her prescriptions for tramadol but was then
able to order this drug online from Hellertown Pharmacy.
One

of

the

Government’s

exhibits

showed

that

these

two

pharmacies filled a total of 2,100 prescriptions in a single day,
and further evidence showed that 95-99% of the prescription drugs
shipped out of the pharmacies were Fioricet, tramadol, Soma, and
muscle relaxants.

The Government also presented evidence that

Lasher installed strict rules in her pharmacies:

the employees

were punished if they talked, took a break, or called in sick, and
Lasher set a quota of five totes of tramadol or Fioricet per day
for each pharmacist and technician.

For at least some period of

time, Lasher received a commission for each prescription filled.
The Government argued that the strict conditions imposed and focus
on volume were evidence of a “classic pill mill.”
The
efforts

Government
to

pharmacies.

conceal

also
the

presented
illegal

evidence
activity

that

Lasher

occurring

in

took
her

Another government witness, one of Lasher’s former

employees, testified that Lasher told him not to speak with an
individual inspecting the pharmacy.

The witness testified that

after he spoke honestly with the inspector, and the pharmacy
consequently failed the inspection, Lasher then directed him to

5

draft a letter, which she edited, telling the inspector that he
had repeatedly lied during the inspection.
The defense then presented its case, calling one character
witness and Lasher, who testified in her own defense.

Lasher

testified that she properly instructed her employees about pilldispensing practices, and would call the prescribing doctor or the
police

if

she

prescriptions.

suspected

an

issue

with

customers

or

their

Lasher also stated that she personally spoke on

several occasions with two doctors who provided prescriptions over
the internet.

On rebuttal, the Government called one of these

doctors, who testified that she never spoke with Lasher or anyone
at either Hellertown Pharmacy or Palmer Pharmacy.
After a two-week trial, the jury began deliberations on May
15, 2015, and returned a verdict that same day, finding Lasher
guilty

of

conspiracy

to

misbrand,

misbranding,

conspiracy

to

commit mail fraud and wire fraud, mail fraud, and wire fraud, and
not guilty of witness tampering.

On September 2, 2015 Lasher was

sentenced by this Court to 36 months’ imprisonment, two years’
supervised release, and forfeiture of $2.5 million.

The Second

Circuit affirmed Lasher’s conviction and sentence on September 2,
2016, United States v. Lasher, 661 F. App’x 25 (2d Cir. 2016), and
the Supreme Court denied her petition for certiorari on June 12,
2017, Lasher v. United States, 137 S. Ct. 2254 (2017).
6

In addition to her direct appeal and this habeas petition,
Lasher has filed malpractice actions against her trial attorney,
the

retained

counsel

who

represented

her

on

appeal,

and

the

attorney she hired to defend her pharmacist license, Lasher v.
Freeman, No. 17 Civ. 6388 (NRB) (S.D.N.Y.); Lasher v. Stavis, No.
17 Civ. 6632 (JPO) (S.D.N.Y.); Lasher v. Brent, No. 17 Civ. 4117
(JFL) (E.D. Pa.); actions in the District of Nebraska, District of
New Jersey, District of Oregon, and Middle District of Pennsylvania
against those states’ respective Boards of Pharmacy challenging
the revocation of her pharmacist license, Lasher v. Nebraska State
Board of Pharmacy, No. 17 Civ. 3125 (RGK) (D. Neb.); Lasher v.
Efremoff, No. 18 Civ. 525 (MC) (D. Or.); Lasher v. Rubinaccio, No.
18 Civ. 2689 (ES) (JAD) (D.N.J.); Lasher v. Pennsylvania State
Board of Pharmacy, No. 17 Civ. 1546 (CCC) (M.D. Pa.);

an appeal

with the Department of Health and Human Services’ Departmental
Appeals Board and a further appeal with the District Court for the
District of Columbia regarding her exclusion from all federal
health care programs for 10 years, Lasher v. Department of Health
& Human Services, No. 17 Civ. 1746 (ABJ) (D.D.C.), separate Bivens
actions against the DEA agents who investigated her case and the
undersigned, Lasher v. Popowich, No. 17 Civ. 12061 (ES) (JAD)
(D.N.J.); Lasher v. Buchwald, No. 18 Civ. 1829 (CM) (S.D.N.Y.); a
motion to disqualify the undersigned from this case, Mot., Dec.
7

18, 2017, ECF No. 373, and a judicial misconduct claim against the
undersigned. 2

Lasher has also filed eight separate appeals with

the Second Circuit, one appeal each with the Eighth and Ninth
Circuits, as well as two petitions for certiorari, a petition for
rehearing, and numerous additional motions with the Supreme Court.
Lasher has not obtained relief in any of these proceedings.
In

her

initial

habeas

petition,

Lasher

argued

that

her

conviction was based on insufficient evidence and that her trial
lacked due process, and proffered several reasons why her counsel
was constitutionally ineffective.

Habeas Pet.

Lasher has since

filed a near-constant stream of supplementary briefing, including
two motions for relief based on the Supreme Court’s decision in
Honeycutt v. United States, 137 S. Ct. 1626 (2017), and several
requests for an evidentiary hearing.

See ECF Nos. 354, 356, 358,

368, 369, 371, 372, 377, 378, 380, 382, 383, 384, 385, 386, 387,
389, 390, 402, 404.
DISCUSSION
Pro se litigants are “entitled to a liberal construction of
their pleadings, which should be read ‘to raise the strongest
arguments that they suggest.’”

Green v. United States, 260 F.3d

78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79

2

The Government represents that Lasher has also filed suit in state
court against several of the individuals who testified against her. See Mem.
of Law at 1, Sept. 22, 2017, ECF No. 359; Letter, July 3, 2018, ECF No. 397.

8

(2d Cir. 1996)).

However, pro se habeas petitioners must still

prove the unconstitutionality of their sentences under Section
2255 by a preponderance of the evidence.

See Triana v. United

States, 205 F.3d 36, 40 (2d Cir. 2000).
A habeas petitioner is entitled to a hearing on his petition
“[u]nless

the

motion

and

the

files

and

records

of

the

conclusively show that the prisoner is entitled to no relief.”
U.S.C. § 2255(b).

case
28

However, courts have broad discretion when

deciding if a collateral attack brought pursuant to 28 U.S.C.
§ 2255 requires an evidentiary hearing.

Chang v. United States,

250 F.3d 79, 85-86 (2d Cir. 2001) (affirming dismissal of Section
2255 petition without hearing).

It is the responsibility of the

district court to “determine[] whether, viewing the evidentiary
proffers, where credible, and record in the light most favorable
to the petitioner, the petitioner, who has the burden, may be able
to establish at a hearing a prima facie case for relief.”
v. United States, 586 F.3d 209, 213 (2d Cir. 2009).
based

on

vague

or

conclusory

allegations,

or

Puglisi

Petitions
allegations

conclusively contradicted by the record, may be dismissed without
a hearing.
I.

See id. at 218; Chang, 250 F.3d at 85.
Insufficient Evidence

Lasher first argues that there was insufficient evidence to
support her conviction beyond a reasonable doubt.
9

When there is

a

challenge

to

the

sufficiency

of

the

evidence

supporting

a

conviction, the Court “will uphold a conviction if ‘any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’”

United States v. Dupree, 870 F.3d

62, 78 (2d Cir. 2017) (quoting United States v. Rosemond, 841 F.3d
95, 113 (2d Cir. 2016)).

This insufficiency argument previously

formed one of Lasher’s primary bases for relief on direct appeal,
and it was rejected by the Second Circuit.
Lasher, 661 F. App’x 25, 27 (2d Cir. 2016).

United States v.
The Second Circuit

has already disposed of this claim, and Lasher cannot now exhume
it for the purposes of her habeas petition.

See United States v.

Pitcher, 559 F.3d 120, 123 (2d Cir. 2009) (quoting United States
v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)) (“It is well established
that a § 2255 petition cannot be used to ‘relitigate questions
which were raised and considered on direct appeal.’”).

“A motion

under § 2255 is not a substitute for appeal,” and Lasher “may not
now

challenge

attack.”

the

sufficiency

of

the

evidence

by

collateral

United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998).

Even if not precluded, this argument would not form the basis
for relief.

Lasher’s primary insufficiency argument appears to

be

Government

that

the

treated

Fioricet

interchangeably

with

butaltibal, which she argues is misleading because butalbital is
a controlled substance and Fioricet is not.
10

Habeas Pet. at 6-9;

see also Pet., Jan. 8, 2018, ECF No. 377; Mot. at 2-3, Jan. 3,
2018, ECF No. 378; Mot., Mar. 16, 2018, ECF No. 382; Pet., Mar.
19, 2018, ECF No. 383; Pet., Mar. 19, 2018, ECF No. 384; Mot.,
Mar. 19, 2018, ECF No. 386; Mot., Aug. 15, 2018, ECF No. 404.
This argument has no basis in the record, and, even if correct,
would not support vacating the conviction for lack of sufficient
evidence.
While

the

original

indictment

contained

charges

for

delivering, distributing, and dispensing controlled substances and
conspiracy to do the same, these charges were dropped from the
operative superseding indictment.
2, 2015, ECF No. 209.

Superseding Indictment, Apr.

Accordingly, this argument is irrelevant

to the charges on which Lasher was actually tried, and cannot form
the basis for habeas relief.
In

addition,

Lasher

unsuccessfully

tried

to

raise

this

argument in her motion to dismiss the controlled substances charges
in the original indictment.
ECF

No.

152

(listing

See Mem. of Law at 3-15, May 8, 2014,
“Butalbital

and

Fioricet

are

Interchangeable Drug Names” as the heading for Point I.A).

Not
In

denying that motion, the Court accurately described Fioricet as “a
combination drug containing the schedule III controlled substance
Butalbital.”

Mem. & Order at 4-5, Aug. 21, 2014, ECF No. 171.

Noting that Fioricet is subject to certain regulatory exemptions,
11

the Court held that it was exempt for administrative purposes only
and

that

Fioricet

was

nonetheless

properly

classified

as

a

controlled substance for the purposes of the criminal provisions
of the Controlled Substances Act.

Id. at 5-13.

We therefore

rejected Lasher’s contention that Fioricet is not a controlled
substance.
II.

Due Process

Lasher next argues that the Government’s failure to provide
her with certain video evidence constitutes a Brady violation and
a

violation

Amendment.

of

her

due

process

rights

under

the

Fourteenth

Habeas Pet. at 9-11; see also Pet., Nov. 7, 2017, ECF

No. 371; Pet. at 3, Jan. 8, 2018, ECF No. 377; Mot. at 4-5, Jan.
3, 2018, ECF No. 378.

Specifically, Lasher asserts that video

from Towne Pharmacy would show that she was not physically there
on certain dates.

Lasher already made this argument in a post-

trial “petition to compel exculpatory evidence” that was rejected
by this Court, see Order, Mar. 28, 2017, ECF No. 324, and it fares
no better as a basis for habeas relief.
Lasher again provides no credible basis to suggest that the
Government failed to fulfill its Rule 16 or Brady disclosure
obligations at trial.

To the extent that Lasher is requesting

discovery that she did not receive at trial, post-conviction
discovery requires a showing of good cause, i.e. that she has made
12

specific allegations that if fully developed entitle her to relief.
See Rule 6 of the Rules Governing Section 2255 Proceedings for the
United States District Courts; Cardoso v. United States, 642 F.
Supp. 2d 251, 265 (S.D.N.Y. 2009).
here.

That is certainly not the case

Even assuming arguendo that Lasher’s description of the

content of the video is correct, there is no likelihood that it
would have had a material effect on the outcome of this case.
Lasher asserts that the video evidence is from Towne Pharmacy, but
the Government’s case was based on Lasher’s conduct as pharmacist
at two different pharmacies:
Pharmacy.

Hellertown Pharmacy and Palmer

See Trial Tr. 216-18, 224-26, 390, 432-33, 437-43, 757-

62, ECF Nos. 234, 236, 240.

As Lasher’s convictions were not

premised

Towne

on

her

activity

at

Pharmacy,

video

from

that

pharmacy is facially irrelevant to any post-conviction relief that
could be afforded her.
committing

her

Moreover, Lasher was not charged with

crimes

alone,

but

rather

as

a

member

of

a

conspiracy, so the fact that she was not physically present when
certain prescriptions for pain medication were filled would not
have provided her with a defense.
III. Ineffective Assistance
We next address Lasher’s allegations that her attorney at
trial,

Louis

assistance

by

Freeman,
failing

to

provided
bring
13

constitutionally

video

evidence

to

deficient
the

jury’s

attention,

challenge

the

amount

of

forfeiture,

call

certain

witnesses, seek telephone records, present a “reliance of in-house
counsel” argument, and object to the admissibility of certain
testimony and evidence.
To

prevail

on

a

Sixth

Amendment

claim

of

ineffective

assistance of counsel, “a habeas petitioner must demonstrate that:
(1)

[her]

standard

counsel's
of

representation

reasonableness;

and

fell

(2)

below

there

is

an
a

objective
reasonable

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.”

McCoy v.

United States, 707 F.3d 184, 187 (2d Cir. 2013) (citing United
States v. Strickland, 466 U.S. 668, 687-88 (1984)).

The Court

must accord a “strong presumption” that counsel's decisions were
reasonable under the circumstances and constitute “sound trial
strategy.”

Strickland, 466 U.S. at 689.

To establish prejudice,

a petitioner must show “a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting
guilt.”

Id. at 695.

“[T]he likelihood of a different result in

the absence of the alleged deficiencies in representation ‘must be
substantial, not just conceivable.’”

Waiters v. Lee, 857 F.3d

466, 469 (2d Cir. 2017) (quoting Harrington v. Richter, 562 U.S.
86, 112 (2011)).

14

Initially,

we

emphasize

that

Lasher

was

more

than

ably

represented by Louis Freeman at trial, and, as discussed below,
counsel’s representation never fell below an objective standard of
reasonableness.

Further,

given

the

overwhelming

evidence

of

Lasher’s guilt presented at trial, the challenged actions by her
counsel, even if unreasonable (which they were not), would not
have detracted from the ample evidence supporting guilt.

See id.

(quoting Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001)
(“Where a conviction is ‘supported by overwhelming evidence of
guilt,’ habeas relief on the ground of ineffective assistance is
generally not warranted.”).
a. Video Evidence
Lasher first argues that her counsel should have addressed
the supposedly suppressed video evidence that forms the basis for
her due process claim discussed above.

Habeas Pet. at 12-13.

This argument is illogical on its face.

Lasher asserts that her

counsel should have “provid[ed] the knowledge of the suppressed
exculpatory evidence, which at the time were unable to prove was
in the custody of the government, as the government declined
possession of the evidence.”
that

the

Government

Habeas Pet. at 12.

improperly

suppressed

the

Even assuming
evidence

–

an

incorrect assumption, as discussed above – counsel cannot possibly
be faulted for failing to object to something he did not know
15

existed.

In any event, as explicated above, the suppression of

this evidence had no prejudicial effect given that Lasher was not
alleged to have committed her crimes alone and the video was of a
different pharmacy from the ones principally discussed at trial.
b. Forfeiture
Lasher next argues that her counsel should have challenged
the $2.5 million forfeiture order because forfeiture should have
been limited to property she actually acquired as the result of
the crime under Honeycutt v. United States, 137 S. Ct. 1626 (2017).
But counsel could not have formulated an argument based on Justice
Sotomayor’s

June

2017

decision

in

Honeycutt

before

the

jury

returned its verdict on May 15, 2015. 3
Moreover, counsel did object to the amount of forfeiture at
sentencing on the basis that no proceeds or property “wound up in
Ms. Lasher’s hands or in her bank accounts or in her possession”
other than her salary, some of which was “for legitimate work that
she

did

having

nothing

to

do

with

Sentencing Tr. 36:14-25, ECF No. 308.

the

Internet

pharmacy.”

This argument was rejected

at the time as contrary to Second Circuit precedent, and Lasher
points to no colorable forfeiture argument available to her that
counsel failed to make at sentencing.

3

In any event, as discussed below, it is far from clear that Honeycutt
has any application to Lasher’s case.

16

Finally,

even

if

Lasher

were

correct

that

Freeman’s

representation fell below an objectively reasonable standard and
prejudiced the amount of forfeiture she was ordered to pay, she
cannot possibly make inroads with the argument that, absent her
counsel’s deficient forfeiture argument at sentencing, the jury
would have had a reasonable doubt at trial respecting her guilt.
See Strickland, 466 U.S. at 695; Kaminski v. United States, 339
F.3d 84, 87 (2d Cir. 2003) (holding that a habeas petition pursuant
to § 2255 “may not be used to bring collateral challenges addressed
solely to noncustodial punishments”).
c. Additional Witnesses & Telephone Records
Lasher
investigated
pharmacists

next

asserts

eleven
–

that

individuals

Elfreda

Ekwunife

counsel
as
and

should

potential
James

have

further

witnesses:

Kacer

–

and

two
seven

pharmacist technicians – Thomas Pisko, “Lindsay H.,” Chris Haring,
Erik Cajilema, Laura Getz, Lenine Lasher, 4 and Katie Scott.

Habeas

Pet. at 14-15.
Counsel’s decision whether to call any witnesses, and if so
which witnesses to call, “is a tactical decision of the sort
engaged in by defense attorneys in almost every trial.”
States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987).

4

United
“Courts

Lasher’s inclusion of her daughter Lenine Lasher in this list of
pharmacist technicians would appear to be in error.

17

applying

Strickland

are

especially

deferential

to

defense

attorneys’ decisions concerning which witnesses to put before the
jury.”

Greiner v. Wells, 417 F.3d 305, 323 (2d Cir. 2005); see

also United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998)
(per curiam) (“The decision not to call a particular witness is
typically a question of trial strategy that [reviewing] courts are
ill-suited to second guess.”).

Therefore, “counsel’s decision as

to ‘whether to call specific witnesses – even ones that might offer
exculpatory evidence – is ordinarily not viewed as a lapse in
professional representation.’”

Greiner, 417 F.3d at 323 (quoting

United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)).
Lasher’s allegations relating to these potential witnesses
are largely conclusory; her only specific assertion along these
lines is that counsel should have called Katie Scott, a pharmacist
technician at Hellertown Pharmacy and Palmer Pharmacy, as a witness
to

impeach

the

credibility

of

certain

Government

witnesses.

Specifically, Lasher asserts that Scott made phone calls to two
doctors who testified at trial that they never spoke to anyone
from the pharmacy.

See Habeas Pet. Ex. T, Scott 3513-01, Drug

Enforcement Administration Report of Investigation, ECF No. 347-7
at 19.

While a DEA Report of Investigation provided to the defense

as 3500 material indicates that Scott recalled that she once
contacted one of these doctors, that same report indicates that
18

Scott would have had significant inculpatory testimony such that
it was reasonable for counsel not to call Scott as a witness.

Id.

For example, Scott stated to DEA agents that Lasher was one of the
pharmacists who would approve the prescriptions received via the
internet pharmacy operation and that the pharmacy was filling
internet

prescriptions

consultations.

Id.

without

required

doctor/patient

Scott also stated that “Lasher prohibited

any of the employees from discussing the questionable procedures
of the internet pharmacy operation at PALMER stating that the
pharmacy was under video/audio surveillance and could be monitored
from remote locations.”

Id.

Counsel therefore reasonably could

have believed that any incremental advantage in impeaching the
credibility
outweighed

of

Government

Scott’s

by

certain

testimony

witnesses
on

other

would

have

subjects.

been
This

determination falls squarely within the ambit of trial strategy,
and does not rise to the level of constitutionally deficient
representation.
Lasher’s

See Nersesian, 824 F.2d at 1321.

allegations

regarding

the

other

eight

potential

witnesses are conclusory – she merely asserts that they were
“available to testify in her defense,” but did not.
at 14.

Habeas Pet.

The Court cannot and will not guess as to what these

witnesses might have said in the absence of specifics about the
content of their testimony and how their testimony would have
19

affected the outcome.

Without more, such conclusory assertions

cannot form the basis for relief.

See, e.g., United States v.

Feyrer, 333 F.3d 110, 120 (2d Cir. 2003).
Lasher also questions her counsel’s decision not to subpoena
telephone

company

records.

Habeas

Pet.

at

14.

Lasher’s

undeveloped theory appears to be that these records would have
proven that she called prescribing doctors to verify the legitimacy
of prescriptions.

But Lasher does not provide a coherent basis

as to how these records would have altered the outcome in the face
of the overwhelming evidence against her, and the Court again will
not speculate as to how they might have.

See Feyrer, 333 F.3d at

120.
d. Expert Witness
Lasher next objects to her counsel’s failure to call Dr.
Richard Greene, who was the senior director of regulatory affairs
and clinical pharmacist for a national pharmacy, as an expert
witness.
that

Dr.

See Letter, Apr. 24, 2015, ECF No. 221.
Greene

would

have

“explain[ed]

to

Lasher asserts
the

jury

that

allegations and charges against the Petitioner were not true.”
Habeas Pet. at 15.
truth

of

the

Initially, we note that testimony about the

allegations

against

permitted from an expert witness.

Lasher

would

not

have

been

See, e.g., Nimely v. City of

New York, 414 F.3d 381, 397 (2d Cir. 2005) (internal citations and
20

alterations omitted) (“[E]xpert testimony that usurps either the
role

of

the

trial

judge

in

instructing

the

jury

as

to

the

applicable law or the role of the jury in applying that law to the
facts before it, by definition does not aid the jury in making a
decision; rather, it undertakes to tell the jury what result to
reach, and thus attempts to substitute the expert’s judgment for
the jury’s.”).

Nor would it have been permissible for Dr. Greene

to have testified about the credibility or truthfulness of other
witnesses.

United States v. Scop, 846 F.2d 135, 142 (2d Cir.

1988) (internal citation omitted) (“The credibility of witnesses
is exclusively for the determination by the jury, and witnesses
may not opine as to the credibility of the testimony of other
witnesses at the trial.”).
Moreover, counsel informed the Court at trial that he and
Lasher had decided not to call Dr. Greene as an expert witness, an
assertion to which Lasher did not object.
25, ECF No. 244.

Trial Tr. at 1335:19-

Having agreed with this decision at trial, Lasher

is not now entitled to object to her counsel’s strategic decision.
See Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (“[I]n order to
determine whether counsel performed below the level expected from
a reasonably competent attorney, it is necessary to ‘judge . . .
counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.’”) (quoting Strickland,
21

466 U.S. at 690).

Nor can Lasher credibly assert that the proposed

testimony of Dr. Greene on the indicia of validity and level of
due diligence appropriately considered by a reasonable pharmacist
could have changed the outcome of the trial in light of the
overwhelming documentary and testimonial evidence that Lasher did
not meet these standards.

See Notice of Expert Testimony, May 1,

2015, Habeas Pet. Ex. V, ECF No. 347-7 at 25.

At the very least,

the decision not to call Dr. Greene as an expert witness was a
reasonable tactical decision that cannot be considered a lapse in
professional representation.

See, e.g., Greiner, 417 F.3d at 323.

e. “Reliance of In-House Counsel”
Lasher next asserts that she met with the pharmacies’ inhouse counsel, the son of one of her co-defendants, at least once
per month and relied on his advice regarding the legality of the
internet

pharmacy

scheme.

Lasher

therefore

argues

that

her

counsel should have raised a “defense of reliance of in-house
counsel.”

Habeas Pet. at 15.

The record makes clear that the

advice of counsel defense would not have helped Lasher.
“Reliance on advice, offered as a defense, ‘presupposes the
defendant’s solicitation of advice in good faith.’”

United States

v. Evangelista, 122 F.3d 112, 117 (2d Cir. 1997) (quoting United
States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1194 (2d Cir.
1989)).

It requires a defendant not only to seek the advice of a
22

lawyer in good faith, but also that the defendant “in good faith
and honestly follow[ed] such advice.”
F.2d at 1194-95).

Id. (quoting Beech-Nut, 871

Here, Lasher filed a declaration before trial

stating only that she had relied on counsel’s advice “regarding
the

legality

of

dispensing

prescriptions

via

the

Internet.”

Decl., Mar. 27, 2015, Habeas Pet. Ex. W, ECF No. 347-7 at 30.
But even assuming that Lasher sought the advice of counsel in
good faith on the limited question of whether it is legal to
dispense prescriptions over the internet, she did not purport to
have sought the advice of counsel on the conduct for which she was
actually charged.

It was not merely dispensing prescriptions over

the internet that formed the basis of the misbranding, conspiracy,
mail fraud, and wire fraud charges against her.

Under such

circumstances, an advice of counsel defense instruction would not
have

been

warranted

even

if

Evangelista, 122 F.3d at 117.

Freeman

had

sought

one.

See

Accordingly, counsel’s failure to

rely on this defense cannot form the basis for relief.

See United

States v. Abad, 514 F.3d 271, 276 (2d Cir. 2008) (“[C]ounsel could
not . . . have been ineffective for failing to make a motion that
would have been futile.”).
f. Other Evidence and Testimony
Finally, Lasher asserts that her counsel should have objected
to the admission of “other act” evidence under Federal Rule of
23

Evidence 404(b).

This argument fails on numerous grounds.

First,

counsel did object to the admissibility of “other act” evidence at
trial.

See Trial Tr. at 64:20-65:6, 177:9-15, ECF Nos. 232, 234.

Second, Lasher already raised this argument on direct appeal, and
the Second Circuit rejected it.

Lasher, 661 F. App’x at 28-29.

Lasher is therefore precluded from relitigating it by means of
this petition.

See Pitcher, 559 F.3d at 123.

Third, as stated

by the Second Circuit, this evidence was admissible as evidence of
Lasher’s intent, as well as absence of mistake, was admitted with
an

appropriate

prejudicial.

limiting

instruction,

and

was

not

unfairly

Lasher, 661 F. App’x at 28-29.

Lasher also argues that her counsel should have “challenged”
the testimony of several Government witnesses.

“[T]he conduct

of . . . cross-examination is entrusted to the judgment of the
lawyer,” and courts “should not second-guess such decisions unless
there is no strategic or tactical justification for the course
taken.”

Luciano, 158 F.3d at 660.

Lasher’s proffered lines of

cross-examination range from vague to incoherent.

For example,

counsel was clearly justified in abstaining from cross-examining
two agents about why “they did not put one tote in one box to
assure the integrity of the tote was maintained,” Habeas Pet. at
19,

and

cross-examination

about

24

the

agents’

tote-collecting

practices could not possibly have affected the outcome of the
trial.
Finally,

counsel’s

decision

not

to

argue

that

certain

photographs were planted by the Government on Lasher’s phone
strikes the Court as eminently reasonable trial strategy.

Counsel

reasonably could have believed that engaging in this type of
conspiracy theorizing would have adversely affected his client’s
credibility before the jury.

In any event, Lasher has not provided

any substantive support for this assertion, and the Court may not
grant habeas relief on the basis of “mere speculation.”

Wood v.

Bartholomew, 516 U.S. 1, 6 (1995).
IV.

Honeycutt

In addition to seeking to vacate her sentence, Lasher contends
that this Court should vacate or stay her forfeiture order based
on the Supreme Court’s decision in Honeycutt v. United States, 137
S. Ct. 1626 (2017).

See Habeas Pet. at 13-14; Pet., Aug. 28,

2017, ECF No. 354; Mot., Aug. 3, 2018, ECF No. 402.

Honeycutt

stands for the proposition that “[f]orfeiture pursuant to [21
U.S.C.] § 853 is limited to property the defendant himself actually
acquired as the result of the crime,” 137 S. Ct. at 1635, and
Lasher asserts that “a plain reading” of Honeycutt makes clear
that her forfeiture order pursuant to 21 U.S.C. § 981 is invalid.
Not so.
25

As a threshold issue, forfeiture orders may not be challenged
by means of a § 2255 habeas petition, which “may not be used to
bring

collateral

punishments,”

challenges

including

addressed

orders

of

solely

to

forfeiture

noncustodial

and

restitution

because a “monetary fine is not a sufficient restraint on liberty
to

meet

the

conjunction

‘in

with

custody’
a

requirement,”

challenge

to

a

even

sentence

of

if

raised

in

imprisonment.

Kaminski, 339 F.3d at 87-88 (2d Cir. 2003); see United States v.
Boyd, 407 F. App’x 559, 560 (2d Cir. 2011); Pinhasov v. United
States, No. 16 Civ. 7349 (KBF), 2018 WL 550611, at *3 (S.D.N.Y.
Jan. 22, 2018); Fazio v. United States, No. 16 Civ. 7792 (KBF),
2018 WL 357310, at *3 (S.D.N.Y. Jan. 10, 2018); Nigro v. United
States, No. 15 Civ. 3444 (PKC), 2016 WL 3211968, at *9 (S.D.N.Y.
June 9, 2016).
More

specifically,

courts

have

universally

rejected

the

argument that Honeycutt can form the basis to disturb a final
forfeiture order on a § 2255 petition.

United States v. Gooden,

No. 15 Cr. 5 (DCR), 2018 WL 276131, at *3 (E.D. Ky. Jan. 3, 2018)
(holding that Honeycutt argument is barred because “a § 2255 Motion
may

not

be

used

to

raise

a

freestanding

challenge

to

the

noncustodial components of a defendant’s sentence”); United States
v. Ball, No. 14 Cr. 20117 (DML), 2017 WL 6059298, at *1-3 (E.D.
Mich. Dec. 7, 2017) (concluding “that section 2255 forecloses
26

defendant’s

Honeycutt

and

other

forfeiture-related

claims”);

Ferguson v. United States, No. 16 Cr. 10 (JLG), 2017 WL 5991743,
at

*1

(S.D.

Ohio

Dec.

4,

2017)

(quoting

United

States

v.

Blankenship, No. 15 Cr. 11 (DCR), 2017 WL 3260604, at *3 (E.D. Ky.
July 31, 2017)); United States v. Alquza, No. 11 Cr. 373 (FDW),
2017 WL 4451146, at *3 (W.D.N.C. Sept. 21, 2017), aff’d, 722 F.
App’x 348 (4th Cir. 2018) (“Defendant may not invoke Honeycutt on
collateral review . . . under 28 U.S.C. § 2255.”); Bangiyev v.
United States, No. 14 Cr. 206 (LOG), 2017 WL 3599640, at *4 (E.D.
Va. Aug. 18, 2017) (“To the extent that Petitioner seeks to reduce
the

amount

he

owes

in

forfeiture

through

this

Motion,

the

Government correctly points out that the relief cannot be provided
through § 2255.”); see also United States v. Ortiz, No. 11 Cr. 251
(JED), 2018 WL 3304522, at *7-8 (E.D. Pa. July 5, 2018) (holding
that Honeycutt is inapplicable on a § 2255 petition because it is
a “new rule” under Teague v. Lane, 489 U.S. 288 (1989), is
procedural rather than substantive, and is not a “watershed rule”).
Finally, even if the issue were properly before us, it is far
from

clear

that

forfeiture order.

Honeycutt

has

any

application

to

Lasher’s

Honeycutt narrowly addresses the issue of

whether joint and several liability is available for forfeiture
for co-conspirators in certain drug crimes under 21 U.S.C. §
853(a)(1).

137 S. Ct. 1626.

But Lasher’s forfeiture order has a
27

completely different statutory basis:
and 28 U.S.C. § 2461.

18 U.S.C. § 981(a)(1)(C)

Second Circuit precedent mandates joint and

several liability under Section 981, see, e.g., United States v.
Contorinis, 692 F.3d 136, 147 (2d Cir. 2012), and this precedent
binds the Court unless and until the Supreme Court or Second
Circuit says otherwise.

Indeed, another court in this district

recently issued a thorough and well-reasoned opinion holding that
Honeycutt

does

§ 981(a)(1)(C).

not

apply

to

a

forfeiture

order

under

United States v. McIntosh, No. 11 Cr. 500 (SHS),

2017 WL 3396429, at *3-6 (S.D.N.Y. Aug. 8, 2017), appeal docketed,
No. 17-2623 (2d Cir. Aug. 24, 2017); accord. Bangiyev, 2017 WL
3599640, at *4 (“[U]nlike 21 U.S.C. § 853, calculating fraud loss
does

incorporate

the

bedrock

principles

of

conspiracy

liability.”). 5
Accordingly, Lasher is not entitled to any relief based on
the Supreme Court’s decision in Honeycutt.
V.

Evidentiary Hearing

Lasher requests that the Court hold an evidentiary hearing.
“[I]f it plainly appears from the motion, any attached exhibits,

5

The Second Circuit has not yet determined whether Honeycutt applies to
forfeiture ordered pursuant to § 981(a)(1)(C). See United States v. Fiumano,
721 F. App’x 45, 51 n.3 (2d Cir. 2018) (declining to reach the question
“whether Honeycutt’s ruling, made with respect to a forfeiture order under 21
U.S.C. § 853(a)(1), applies equally in all respects to forfeiture orders
under other statutes, including 18 U.S.C. § 981(a)(1)(C), applicable here”).

28

and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion” without
holding an evidentiary hearing.

Puglisi v. United States, 586

F.3d 209, 213 (2d Cir. 2009); see also Schriro v. Landrigan, 550
U.S. 465, 474 (2007).
current

record

The Court denies this request because the

conclusively

establishes

that

Lasher

is

not

entitled to the relief sought in her § 2255 petition. 6

6

Lasher’s request for a Fatico hearing, see Mot., Aug. 15, 2018, ECF No.
404, is likewise denied. A Fatico hearing is an evidentiary proceeding to
resolve disputed facts prior to sentencing, not after a criminal defendant
has been sentenced. See United States v. Cuevas, 496 F.3d 256, 260 (2d Cir.
2007); see generally United States v. Fatico, 579 F.2d 707 (2d Cir. 1978).

29

CONCLUSION
For
without

the
a

foregoing

hearing.

reasons,

Because

Lasher's

Lasher

has

petition

not made

a

is

denied

substantial

showing of the denial of a constitutional right, a certificate of
appealability will not issue.
to 28 U.S.C. § 1915(a) (3),

See 28 U.S.C. § 2253(c).

Pursuant

it is hereby certified that any appeal

from this Memorandum and Order would not be taken in good faith.
The

Clerk

of

is

Court

respect fully

motions pending at ECF Nos.
372,

377,

378,

380,

382,

383,

347,
384,

directed

354,
385,

356,
386,

to

358,
387,

terminate

the

368,

369,

371,

389,

390,

402,

and 404 in No. 12 Cr. 868 (NRB), and ECF No. 8 in No. 17 Civ. 5925
(NRB).
SO ORDERED.
Dated:

New York, New York
August 20, 2018

0J L

_-

~~

NOMIRE~

UNITED STATES DISTRICT JUDGE

30