Cain v. United States
| Decision Date | 01 September 2017 |
| Docket Number | Criminal No. ELH-12-019 |
| Parties | LENNY CAIN, Petitioner, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
(Related Civil No.: ELH-15-3320)
Lenny Cain has filed a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF 393), as supplemented by two additional submissions, ECF 407 and ECF 408 (collectively, the "Petition"). The government filed a response in opposition to the Petition (ECF 413, "Opposition"), along with numerous exhibits. ECF 413. Mr. Cain filed a reply. ECF 421.
Under 28 U.S.C. § 2255(b), a hearing is required "[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief . . . ." This is such a case; no hearing is necessary. For the reasons that follow, I shall deny the Petition.
A.
This multi-defendant case began with an Indictment filed on January 11, 2012, charging five defendants with conspiracy to distribute and possession with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. ECF 1. However, Cain was not named as a defendant at that time.1
Cain was named as a defendant on September 19, 2012, by way of a Superseding Indictment charging Cain and seven others with conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. ECF 88; see also ECF 89. A Second Superseding Indictment was filed on April 10, 2013, adding a second count against Mr. Cain, for distribution and possession with intent to distribute oxycodone. ECF 229. All seven of Mr. Cain's codefendants pled guilty.
Mr. Cain proceeded to a jury trial that began on May 13, 2013. ECF 257. At trial, Mr. Cain testified in his own behalf. On June 7, 2013, the jury convicted Cain of conspiracy to distribute or possess with intent to distribute oxycodone (Count One) and distribution of oxycodone (Count Two). ECF 295.
Sentencing was held on September 26, 2013. ECF 346; ECF 369 (Sentencing Transcript). According to the Presentence Report (ECF 322, "PSR"), Cain had a total offense level of 38. See ECF 322, ¶ 32. The PSR included a two-level upward adjustment for possession of a handgun (id., ¶ 25), which I rejected at the sentencing. It also awarded four levels for a leadership role in the conspiracy. Id. ¶ 27. However, I awarded only a three-level enhancement for a managerial role. ECF 369 at 79. Therefore, I found that Mr. Cain had a final offense level of 35 and a criminal history category of VI, with an advisory sentencing guidelines range of 292 to 365 months' imprisonment. ECF 351 at 1; ECF 322; ECF 345 (Amended Presentence Report); ECF 369 at 79.
I sentenced Mr. Cain to concurrent terms of imprisonment of 160 months as to Count One and Count Two. See ECF 350 (Judgment). That sentence was well below the bottom of the advisory sentencing guidelines range.
Following the sentencing, Mr. Cain noted an appeal. ECF 347. Mr. Cain was represented on appeal by the same lawyer who represented him at trial. On October 7, 2014, the United States Court of Appeals for the Fourth Circuit affirmed the conviction, in an unpublished opinion. See ECF 383; see also United States v. Cain, 586 Fed. App'x 104 (4th Cir. 2014) (per curiam). The mandate issued on November 12, 2014. ECF 387. Thereafter, on March 23, 2015, the Supreme Court denied Mr. Cain's petition for writ of certiorari. Cain v. United States, 135 S.Ct. 1571 (2015).
Set forth below is a very abbreviated version of the evidence adduced at trial.
In 2010, Mr. Cain and several others conspired to create phony prescriptions for oxycodone pills, a Schedule II controlled substance; to fill those prescriptions at Baltimore area pharmacies; and to resell the pills for profit.
Joseph Church, a codefendant, testified at trial that he and Mr. Cain were "best friends" (ECF 364, Transcript of 5/22/13, at 43) as well as "partners" in the oxycodone enterprise. Id. at 52. Church stated that he "brought [Cain] into the operation" (id. at 43) and added: "I taught him everything he knew." Id. at 44. According to Church, both he and Cain sold the pills and"split" the proceeds. Id. at 53; see id. at 43-46, 56. The sales of oxycodone generated $30,000 to $40,000 per month. Id. at 56.
Church explained that, through a friend, he and Cain obtained "a fake ID" in the name of Christopher Markley. ECF 364 at 45. In addition, Church recounted that, as the "head of the operation" (id. at 46), he and Cain "recruited runners" to go into the pharmacies, because they "didn't want to go in . . . ." Id. The runners included Eddie Moyer, Joseph Hopper, and Jason Baldwin. See, e.g., ECF 364 at 47-48; ECF 362 at 184.
Several other members of the conspiracy also testified at the trial. For example, Wendy Pinkard was recruited by Church, who was then her boyfriend. She worked at a doctor's office, where she stole prescription forms and verified phony prescriptions upon calls from pharmacists seeking to establish the legitimacy of the prescriptions. See, e.g., ECF 362, Transcript of 5/20/13, at 158-61. Cain used some of the prescriptions that Pinkard obtained to acquire oxycodone. Id. at 173-74; ECF 364, Transcript of 5/22/13, at 57.
During the investigation, law enforcement conducted a court-authorized search of the residence of Ms. Pinkard. Agents recovered, inter alia, prescription pads, a gun, and identification in the name of "Christopher Markley." ECF 362, Transcript of 5/20/2013, at 179-181. Ms. Pinkard stated that she did not know a person by the name of Christopher Markley. Id. at 180. Moreover, she claimed that Church and Cain were the ones who had the Markley identification. Id. In addition, a notebook was recovered that detailed the pharmacies utilized during the conspiracy. Id. at 182-84; ECF 364, Transcript of 5/22/13, at 63-66. Some of the handwriting was Pinkard's and some was that of Church. ECF 362 at 182-83.
At the relevant time, Nneka Ewell worked as a medical assistant at a medical clinic in Baltimore. ECF 363, Transcript of 5/21/13, at 141. Cain recruited her to answer phones and toverify phony prescriptions. Id. at 142-44, 165; ECF 364 at 49. Ewell testified that Cain came to her office with Loni Holbeck, a patient at the clinic, to seek Ewell's assistance in obtaining prescription pads. ECF 363 at 142-45, 165. Holbeck was one of the drug dealers to whom Church and Cain sold oxycodone pills. ECF 362, Transcript of 5/20/13, at 88, 95-96; ECF 364, Transcript of 5/22/13, at 53-56.
Cain initially asked Ewell to steal prescriptions. ECF 363 at 144-45. When she refused, Cain asked her to answer the phone and verify the prescriptions if the pharmacists called to check. Id. at 145. Ewell agreed, and Cain provided her with a cell phone that he or Church would call to alert her to expect a call from a pharmacy. Id. at 145-46; see ECF 364 at 51-52. When Cain called, it generally was for a prescription for 30 mg oxycodone pills in the patient name of "Christopher Markley." ECF 363 at 146-47.
Another conspirator, Jason Baldwin, was involved in writing phony oxycodone prescriptions in the name of Christopher Markley. ECF 362, Transcript of 5/20/13, at 64-66, 76. He also worked as a "runner," entering pharmacies to fill phony prescriptions, including with Cain. See, e.g., ECF 362 at 62-63, 80-89, 161; 184; see also ECF 364 at 44-45, 58-60, 62-63. During a search of Baldwin's residence, law enforcement recovered a notebook in which Baldwin had practiced signing the name of "Christopher Markley," and the name of a doctor. ECF 362 at 77-78.
Christopher Markley testified that at some point he lost his license (Govt. Exhibit 46), and reported the loss to the MVA. ECF 364, Transcript of 5/22/13, at 153. He claimed that he did not know various conspirators. Id. at 155. Moreover, he denied that he used his identification to obtain prescription pills of oxycodone. Id. at 154.
Codefendant Edward Moyer testified that he filled phony prescriptions of Oxycodone in the name of his brother, Shawn Moyer, using his brother's ID. ECF 364, Transcript of 5/22/13, at 47-48; ECF 363, Transcript of 5/21/13, at 197-203. He obtained the fraudulent prescriptions from Mr. Cain. ECF 363 at 199, 201. Mr. Cain also supplied the identification of Shawn Moyer, in whose name prescriptions were written. Id. at 199-200, 202. Edward Moyer gave the oxycodone pills that he obtained to Mr. Cain, in exchange for money and pills. Id. at 200, 203-204.
At trial, Shawn Moyer testified that he was incarcerated in October 2011. ECF 363, Transcript of 5/21/13, at 87. Further, he was unable "to pass" prescriptions from November 2010 to January 2011. Id. at 85-86. He also stated that his wallet, with his identification, was stolen at a bar about two weeks prior to his incarceration. ECF 363 at 86. The ID was returned to his home, while he was incarcerated. Id. However, Shawn Moyer never saw it when he was released. Id. And, he stated that his brother, Edward Moyer, had access to it. Id. He also denied passing phony prescriptions. Id. at 87.
Church and Cain, along with Justin Serio, created fake prescriptions on a computer. ECF 362 at 164-65. They printed them on special prescription paper that had been obtained via the internet. Id. at 61-62; ECF 364 at 50-51, 70-71. A phone number of a conspirator was put on the prescription forms in the event a pharmacy called to verify the prescription. ECF 362 at 62.
Dustin Ray, who had been incarcerated with Cain and Church, testified about several of the conversations he had with Cain. According to Ray, Cain disclosed that he and Church were working together. ECF 363, Transcript of 5/21/13, at 178-79. Cain also told Ray that he had gone into pharmacies himself on a few occasions. Id. at 178-80.
Law enforcement was alerted to the prescription fraud scheme involving oxycodone when pharmacies contacted law enforcement to report suspicious prescriptions submitted in the...
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