Lasher v. United States, 17 Civ. 5925 (NRB)

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
PartiesLENA LASHER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Docket Number17 Civ. 5925 (NRB),12 Cr. 868 (NRB)
Decision Date20 August 2018

LENA LASHER, Petitioner,

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


August 20, 2018



On May 15, 2015, petitioner Lena Lasher ("Lasher") was convicted of misbranding prescription drugs, conspiracy 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

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trial counsel. Mot. to Vacate, August 4, 2017, ECF No. 347 ("Habeas Pet."). Lasher has also filed numerous additional motions in support of this petition. 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.


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 their patients. Indictment, Nov. 20, 2012, ECF No. 2. The original indictment contained seven counts: (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.

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Lasher moved to dismiss the indictment as legally insufficient. Mot., May 8, 2014, ECF No. 151. 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-

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defendants perpetrated an internet pharmacy scheme. That is, customers would visit any of a number of websites offering prescription drugs for sale (including opioids 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 the country. One government witness, the Executive Director of the National Association of Boards 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.

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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 Government also presented evidence that Lasher took efforts to conceal the illegal activity occurring in her pharmacies. 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

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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 pill-dispensing practices, and would call the prescribing doctor or the police if she suspected an issue with customers or their prescriptions. 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).

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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.

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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...

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