Pill Mill Doctor Mounts Baseless Motion for Relief, Challenging Handwriting Expert

Zach Barreto

Written by
— Updated on March 19, 2020

Pill Mill Doctor Mounts Baseless Motion for Relief, Challenging Handwriting Expert

Court: United States District Court for the District of New Jersey
Jurisdiction: Federal
Case Name: Durante v. United States
Citation: 2020 U.S. Dist. LEXIS 6865

Facts

A New Jersey doctor was implicated in a federal sting operation for illegally selling oxycodone pills to two drug distribution networks. He was caught on tape taking $300 from the distributor in return for prescriptions, as well as $100 for an extra drug he offered to an undercover agent. After a multi-week trial, the jury found him guilty on fifteen counts of oxycodone distribution and one count of conspiracy to distribute oxycodone. He was sentenced to 136 months in prison.

The doctor then unsuccessfully appealed this decision. After this, he filed a § 2255 motion, raising 10 grounds for relief, including claiming his counsel provided him with insufficient assistance. The petitioner argued his counsel was incompetent for failing to challenge the testimony given by the plaintiff’s handwriting expert witness.

The Handwriting Expert Witness

The petitioner’s complaint decried that his lawyer did not challenge the findings of the plaintiff’s handwriting expert. The petitioner also contended that the defense counsel had failed to stop the plaintiff from producing forged prescriptions as evidence in his name.  The handwriting expert witness testified that 33 prescriptions introduced as evidence had been signed by the petitioner.

On the grounds of that motion, the Court had held a mid-trial hearing in Daubert and eventually allowed the Government to call its handwriting witness.

Discussion

The court pointed out that the petitioner’s counsel had filed a motion to exclude the plaintiff’s handwriting expert before the commencement of the initial trial. The motion included allegations of violating Federal Rules of Evidence 702 and Federal Rules of Criminal Procedure 16.

The motion also claimed failure to comply with Daubert’s requirement of reliability and that the plaintiff breached their discovery obligations under Rule 16 concerning expert handwriting reports and materials.

As a result, the court conducted a Daubert hearing midtrial and ultimately allowed the plaintiff to call their handwriting witness. However, after the plaintiff counsel rested their case in the hearing, the petitioner’s counsel was able to have nearly 500 prescriptions struck from evidence based on lack of foundation. The court found this to be “every argument that the petitioner wanted her to make.” Thus, the petitioner’s claims against his counsel were not valid.

Held

The motion for relief based on insufficient counsel for failure to challenge the opposing party’s handwriting expert witness was denied.

 

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