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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

vs. CASE NO. 1:02CR38-MMP/AK

MAHMOUD ELDICK,

Defendant.

 /

REPORT AND RECOMMENDATION

This cause is before the Court on Defendant’s motion to vacate, set aside, or correct

sentence with a supporting memorandum and affidavit. Docs. 182-184. The Government has

filed an amended response, Doc. 192, and Defendant has submitted his reply. Doc. 194. This

matter is therefore in a posture for decision. Having carefully considered the matter, the Court

recommends that the motion to vacate be denied.

BACKGROUND

Defendant was charged with one count of fraudulently obtaining money from health care

programs by filing claims falsely representing that he was a licensed physician in Florida and

one count of dispensing hydrocodone. Only the hydrocodone count is at issue in this

proceeding.
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As stated in the Indictment, Defendant was charged in Count Two with dispensing and

causing to be dispensed “a quantity of hydrocodone, a Schedule III controlled substance. All in

violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C).” Doc. 15. This

was in error either because (1) hydrocodone was misidentified as a Schedule III controlled

substance, when it should have been listed as a Schedule I or II substance, or (2) the penalty

provision, which covers offenses involving Schedule I and II controlled substances, was wrong

and should have been stated as § 841(b)(1)(D). The ambiguity was important because Defendant

was looking at either a 5-year maximum sentence (if hydrocodone is a Schedule III substance) or

a 20-year maximum sentence (if it is a Schedule I or II substance).

On June 27, 2003, Defendant appeared before the Court for a change of plea. 

Immediately, the Government orally moved to amend the penalty provision of Count Two from

§ 841(b)(1)(C) to § 841(b)(1)(D), thereby setting the statutory maximum sentence on that count

at 5 years imprisonment. Doc. 75. The Plea and Cooperation Agreement which Defendant

signed reflected the change: “On Count Two, the defendant faces a maximum possible penalty

of five years imprisonment....” Doc. 49. In the early stages of the colloquy, the Court,

concerned about Defendant’s hesitant responses, inquired:

THE COURT: Do you know why you are here this morning, Mr. Eldick?

THE DEFENDANT: Yes, sir.

THE COURT: And you know that if I accept what you tell me and what

the government can give me as a factual basis to support

the matter which you are here pleading to, two felonies,

that could send you to prison for ten years on one count and

five years on another; do you understand that?

THE DEFENDANT: Yes, sir.
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THE COURT: All right. And do you have any problems today

understanding what I’m telling you?

THE DEFENDANT: No, sir.

Doc. 75 at 9. 

In advising Defendant of the charges against him, the Court clarified that hydrocodone is

a Schedule III controlled substance, and he directed the parties to correct the Plea Agreement to

reflect that understanding. Id. at 16-17; see also Doc. 49. After the statement of facts was read

into the record, the Court again advised Defendant that the “[m]aximum penalty that could be

imposed as to the offense in Count II is five years of imprisonment....” Doc. 75 at 32. The Court

questioned Defendant further:

THE COURT: There is no mandatory minimum sentence prescribed by

law for either of these offenses.

But do you understand, sir, that by pleading guilty, you

face...a maximum of five years imprisonment as to the

offense in Count II?

THE DEFENDANT: Yes, sir.

Id. Defendant then acknowledged that he had signed the Plea Agreement and that he fully

understood all of its terms and conditions. Id. at 35. The Court again pointed out that the “plea

agreement does provide that you would plead guilty to the offense in both Count I and II and that

you do face the penalties that I have heretofore described and outlined to you in open court.” Id.

at 35-36. In response, Defendant acknowledged that he “underst[ood] and realize[d]...what [the

Court] [had] told [him] about [his] plea agreement[.]” Id. at 37. The proceedings concluded

with the following:
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THE COURT: Now have you and your lawyers discussed this plea

agreement and they explained to you in more detail than I

have done all of its terms and conditions?

THE DEFENDANT: Yes, sir.

THE COURT: And has anyone made any promise to you, Mr. Eldick,

other than those which are actually set forth in your written

plea agreement that has in any induced you or led you to

plead guilty to these charges?

THE DEFENDANT: No, sir.

THE COURT: Does the written plea agreement in fact contain every

promise and every understanding that you have reached

with the government and based upon the terms of which

you are entering your guilty plea this morning?

THE DEFENDANT: Yes, sir.

THE COURT: Are there any secret or any undisclosed promises or

inducements that have led you to plead guilty to these

charges?

THE DEFENDANT: No, sir.

THE COURT: And, by that, I mean neither your lawyer, the government

or any other person has told you anything or has promised

you anything that is contrary to the written terms of this

agreement or is in addition to the written terms of this

agreement that has in any way induced you or led you to

plead guilty to these charges?

THE DEFENDANT: No, sir.

THE COURT: Has anyone used any type of threat, force, pressure,

intimidation of any type to make you plead guilty?

THE DEFENDANT: No, sir.

* * *

THE COURT: Now have you had sufficient time to discuss your case fully

with your lawyers and to explain to them everything you
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know about the facts of the case as well as your

involvement in the case?

THE DEFENDANT: Yes, sir.

THE COURT: And have you done so?

THE DEFENDANT: Yes, sir.

THE COURT: During these conferences with your lawyer or lawyers,

have they generally answered what questions you may have

and have they advised you where they think you may fall

within the sentencing guidelines....

THE DEFENDANT: Yes, sir.

THE COURT: And are you satisfied with your lawyers and the way that

they have represented you in this case?

THE DEFENDANT: Yes, sir.

Id. at 42-43. Afterward, the Court found that Defendant understood the charges against him and

the consequences of pleading guilty and that his plea was freely, voluntarily, and intelligently

made. Id. at 44.

The Court later sentenced Defendant to 108 months on each count, to run consecutively. 

Docs. 65 & 67. Defendant appealed, and the Eleventh Circuit vacated the judgment and

remanded for resentencing based on the fact that although the parties had stipulated in the Plea

Agreement that hydrocodone was a “Schedule 3 opiate, which carried a five-year statutory

maximum,” Defendant had been erroneously sentenced on Count Two “as if the drug was a

Schedule 2 opiate, which carries a 20-year statutory maximum.” Doc. 99. 

On re-sentencing, the Court sentenced Defendant to 120 months on Count One and 60

months on Count Two, to run consecutively. Docs. 130 & 140. Defendant again appealed the

judgment. On appeal, he argued that the Court “was required to impose a sentence within the
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guidelines range based upon language in his plea agreement,” and that the consecutive statutory

sentences were unreasonable in light of Booker. Doc. 174. The Eleventh Circuit rejected these

arguments, concluding that “nothing in Eldick’s plea agreement bound the district court or the

government to a mandatory application of the guidelines, the district court correctly calculated

the guidelines range, and the court’s decision to sentence above that range was supported by the

record and did not result in an unreasonable sentence.” Id. It therefore affirmed the judgment.

The instant motion to vacate followed. On this occasion, Defendant makes one claim,

namely, that counsel rendered ineffective assistance “when [they] failed to prepare by not

reviewing the charged offense in Count Two of the indictment and by misleading [Defendant]

into provided a plea of guilty under the misleading position that Count Two carried a statutory

maximum sentence of 20 years.” Doc. 182. In his affidavit, Defendant states that he did not

know he was facing only a 5-year sentence on Count Two “until right before the Change of Plea

hearing and after I had already debriefed the Government,” and that if he had known that the

statutory maximum was 5 years, not 20 years, he “would have never debriefed the Government”

and would not have pled guilty to Count Two. Doc. 184.

In response, the Government has submitted the affidavit of one of Defendant’s attorneys,

Fred Haddad. According to Mr. Haddad, he explained to Defendant and discussed with cocounsel that “Count Two of the Indictment sounding in hydrocodone could be listed as a

Schedule III substance as well as a Schedule II substance which would make the count a five

year statutory maximum as opposed to a twenty year maximum that this is generally charged,

and would in fact reduce exposure by fifteen years if we could [convince] the prosecutor he in

fact charged a Schedule III violation.” Doc. 192, Ex. 1. He further states that he “suggested that
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we probably ought not to raise the issue until such time as most advantageous so that the

Government could not supersede and clarify the Indictment,” and that Defendant was aware of

this strategy. Id. Haddad also maintains that after reviewing the discovery, he concluded that

the case was not “reasonably triable to a jury on the facts,” as (1) Defendant had engaged in

similar identity theft in the past, for which he had been convicted, (2) the patients he had treated

would be viewed sympathetically by a jury, and (3) his Middle Eastern descent could be difficult

to handle before a jury given the circumstances of “posing as a doctor obtaining medicare

monies and distributing drugs as well as the alleged failed diagnoses which allegedly resulted in

deaths and/or serious injury.” Id. He indicates that a plea was further in Defendant’s best

interests since it minimized the chances that he would be prosecuted either in the Middle District

of Florida, where the majority of the underlying acts actually occurred, or in state court, and it

allowed for Defendant to attempt cooperation with other investigations, thereby opening up the

possibility of a downward departure. Id. 

In his reply, Defendant maintains that at the time he “debrief[ed]” law enforcement,

thereby waiving “any possible defense to the instant case,” he had been told he was facing a 20-

year sentence, and he again claims that he would not have met with law enforcement or pled

guilty to Count Two if he had known that he was facing only a 5-year sentence. Doc. 194.

According to Defendant, hydrocodone “will always carry a five-year statutory maximum since

the drug has a medical purpose,” and that counsel’s suggestion that Count Two was not triable is

without merit, as the jury, “for some unknown reason,” could have “very easily” acquitted him

on the distribution count. 

DISCUSSION
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The only issue in this case is whether counsel acted ineffectively; therefore, a review of 

Strickland v. Washington, 466 U.S. 668 (1984), is appropriate. 

To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must

demonstrate (1) that his counsel’s performance was below an objective and reasonable

professional norm, and (2) that he was prejudiced by this inadequacy. Strickland, 466 U.S. at

686. The court may dispose of the claim if a defendant fails to carry his burden of proof on either

the performance or the prejudice prong. Id. at 697. The court need not address the adequacy of

counsel’s performance when a defendant fails to make a sufficient showing of prejudice. Id.; see

also Tafero v. Wainright, 796 F.2d 1314, 1319 (11th Cir. 1986).

With regard to the performance prong of Strickland, a defendant must provide factual

support for his contentions that counsel’s performance was constitutionally deficient. Smith v.

White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The court must consider counsel’s performance

in light of all of the circumstances at that time and indulge in a strong presumption that counsel’s

conduct fell within the wide range of reasonably professional assistance. Strickland, 466 U.S. at

689-90. To show counsel’s performance was unreasonable, a defendant must establish that “no

competent counsel would have taken the action that his counsel did take.” Grayson v. Thompson,

257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). This standard is objective, and “it

matters not whether the challenged actions of counsel were the product of a deliberate strategy or

mere oversight.” Gordon v. United States, 496 F.3d 1270, 1281 (11th Cir. 2007). “The relevant

question is not what actually motivated counsel, but what reasonable could have motivated

counsel.” Id. When the court “can conceive of a reasonable motivation for counsel’s actions,” it

can deny the claim of ineffectiveness without evidentiary hearing. Id. “An ambiguous or silent
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record is not sufficient to disprove the strong and continuing presumption...that [counsel] did

what he should have done and that he exercised reasonable professional judgment.” Chandler v.

United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204

(2001). “The relevant question is not whether counsel’s choices were strategic, but whether they

were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute

rules” for determining whether counsel’s actions were indeed reasonable, as “[a]bsolute rules

would interfere with counsel’s independence–which is also constitutionally protected–and would

restrict the wide latitude counsel have in making tactical decisions.” Putnam v. Head, 268 F.3d

1223, 1244 (11th Cir. 2001). “To uphold a lawyer’s strategy, [the Court] need not attempt to

divine the layer’s mental processes underlying the strategy.” Chandler, 218 F.3d at 1315 n.16. 

“No lawyer can be expected to have considered all of the ways [to provide effective assistance].” 

Id. Quite importantly,

If a defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense (that the lawyer did not think of at all) existed and that the

lawyer’s pursuit of course A was not a deliberate choice between course A,

course B, and so on. The lawyer’s strategy was course A. And [the Court’s]

inquiry is limited to whether this strategy, that is, course A, might have been a

reasonable one.

Id.

To show prejudice, a defendant must show more than simply that counsel’s unreasonable

conduct might have had “some conceivable effect on the outcome of the proceeding.” Strickland,

466 U.S. at 693. Instead, a defendant must show a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

“reasonable probability is defined as a probability sufficient to undermine confidence in the
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outcome.” Id. Additionally, prejudice is established only with a showing that the result of the

proceeding was fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

Finally, the Eleventh Circuit has recognized that given the principles and presumptions

set forth above, “the cases in which habeas petitioners can properly prevail...are few and far

between.” Chandler, 218 F.3d at 1313 (11th Cir. 2000). This is because the test is not what the

best lawyers would have done or even what most good lawyers would have done, but rather

whether a reasonable lawyer could have acted in the circumstances as defense counsel acted. 

Williamson v. Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 534 U.S. 903 (2001).

Having carefully considered the matter, the Court finds that Defendant’s allegations are

without merit. It is absolutely appropriate for counsel to explain the reasoning behind his 

decision not to tell the Government that it had made an error in the Indictment until the day of

the plea and to shed light on the thought process behind recommending that his client plead and

cooperate, rather than go to trial. Defendant is in error when he asserts that hydrocodone can

never be charged as a Schedule II offense simply because it has a medical purpose, see

http://www.deadiversion.usdoj.gov/drugs_concern/hydrocodone/hydrocodone.htm, and if Mr.

Haddad had tipped his hand on the error before the plea deal was struck, the Government most

certainly would have moved to amend the Indictment to correct a scrivener’s error or would have

superseded the indictment by presenting it again to the grand jury with the corrected drug

scheduling, thereby exposing Defendant to the 20-year sentence. As to his claim that he

“debriefed” the Government while under the impression that he was facing 20 years

imprisonment on Count Two, it is specious at best since, on the day the search warrant was

executed on Defendant for his clinic and pharmacy, he met with an FBI special agent and
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confessed to him that he had fraudulently obtained a medical license and a DEA registration to

dispense controlled substances. Presentence Report at ¶ ¶ 26 & 28. This occurred

approximately one month before Defendant was indicted, i.e., before the error had even been

made and before Defendant could have been erroneously advised by counsel as to the penalties. 

Id. 

Be that as it may, at the time that Defendant entered his plea, he knew he was facing a 5-

year maximum sentence, and he went forward with the plea anyway. He clearly acknowledged

during the hearing (1) that he knew the penalty for Count Two was 5 years, (2) that he had

discussed that fact and also the pros and cons of going to trial with his counsel, and (3) that he

knew that by pleading guilty he was giving up any defenses he might have to the charges. The

law is well established that a “guilty plea means something. It is not an invitation to a

continuing litigation dialogue between a criminal defendant and the court.” Murray v. United

States, 145 F.3d 1249, 1254 (11th Cir. 1998). In fact,

the representations of the defendant, his lawyer, and the prosecutor at...a [plea]

hearing, as well as any findings made by the judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceedings. Solemn declarations

in open court carry a strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to summary dismissal,

as are contentions that in the face of the record are wholly incredible.

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). For Defendant now to claim that he did not

know before the plea hearing began that he was facing only 5 years on the drug count is flatly

and unequivocally belied by the plea transcript itself which begins with the Court asking counsel

for the Government, “How did you resolve it, Mr. Sanford,” to which counsel responded, “[As

to] Count II of the Indictment...I would orally amend...the penalty provision.” Therefore, his

contentions to the contrary are “wholly incredible.”
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The Court does not find anything deficient in counsel’s performance, and therefore,

Defendant’s claim of ineffectiveness fails.

CONCLUSION

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s motion

to vacate, set aside, or correct sentence, Doc. 182, be DENIED.

IN CHAMBERS at Gainesville, Florida, this 31st day of August, 2009.

s/A. Kornblum

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.