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Falconer v. United States

United States District Court, E.D. Missouri, Eastern Division

March 29, 2017

ERICK A. FALCONER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         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 NOS[1" name="FN1" id="FN1">1] (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 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. 18 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, 13 U.S. 1180');">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 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, 1 U.S. 63');">431 U.S. 63, 74 (1977). See also, United States v. Harvey, 147 Fed.Appx. 627');">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 ...


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