JOHN A. ROSS, District Judge.
This matter is before the Court on Movant Donald Havey's motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, as amended. (Doc. No. 1). The motion is fully briefed and ready for disposition. For the following reasons, Havey's motion is denied.
On October 22, 2015, Havey waived indictment and pled guilty to one felony count of executing a healthcare fraud scheme in violation of 18 U.S.C. § 1347(a)(1). At his plea hearing (Case No. 4:15CR00483, Plea Transcript, Doc. No. 44 at 16-18; Plea Agreement, Doc. No. 5 at 6-9), Havey acknowledged, under oath, that the following facts were true and correct:
At all relevant times, Havey was a licensed doctor of chiropractic medicine in the state of Missouri. Havey owned and operated companies that sold orthotic devices in Missouri, namely Spinal Decompression of Chesterfield; Senior Care, Inc.; Advanced Custom Orthotics, Inc.; and Missouri Custom Orthotics; and in Illinois, namely Midwest Illinois Orthotics, LLC (referred to collectively as "Companies"). The Companies were principally engaged in providing durable medical equipment (DME) to the public, including Medicare Part B beneficiaries.
Between 2009 and 2014, Havey executed and attempted to execute a scheme to defraud Medicare, Medicaid, other public and private health insurance companies, and patients by creating and using false documents, including false and fraudulent reimbursement claims, related to ankle-foot orthotics. Havey marketed a "Fall Prevention Program" ("Program") to nursing homes, claiming it would reduce falls by almost 20% and improve the patients' quality of life. Havey, and others acting at his direction, deliberately concealed from the nursing homes that the real purpose of the Program was to sell orthotic boots to their patients. Havey, and others acting at his direction, told the nursing homes that there would be little or no cost to patients, when he knew that a Medicare patient could be charged as much as $500.00, if the patient did not have supplemental insurance. Havey created several websites to market the Program. One website in particular, www.seniorcareinc.net, stated that patients would incur little or no cost if they participated in the Program.
Havey employed chiropractors in Missouri and other states, including Texas, Alabama, California, Georgia, Illinois, Kentucky, Massachusetts, Mississippi, Oklahoma, Rhode Island, and Tennessee, to market the Program and sell orthotic boots. He created a document entitled "Senior Care, Inc. Fall Prevention Program Training Manual and Handbook" ("Training Manual"), which provided detailed instructions on how to implement the Program. The document contained a number of misleading and false statements to induce others to implement the Program.
The Training Manual clearly displays Havey's knowledge and understanding of Medicare reimbursement. Specifically with respect to reimbursement, Havey states in the Training Manual that Medicare Part B patients would be preferred and targeted because Medicare does not require pre-authorization, usually has a higher allowable/payable amount than commercial or HMO policies, and usually pays within 14-21 days from the day the claim is received. Further, Havey stated in the Training Manual that Medicare has a set allowable amount for the product so the provider knows how much reimbursement to expect each time. In addition, Medicare pays 80% of the allowable, with the remaining 20% paid by secondary insurance or Medicaid if the resident has the additional benefits on their policy.
Havey further stated in the Training Manual that Medicare required the DME provider to deliver the product to the patient before submitting a reimbursement claim to Medicare. Nonetheless, he knowingly submitted and caused to be submitted reimbursement claims before the orthotic boots were delivered to patients.
Knowing that that Medicare would scrutinize any company that submitted claims for large numbers of expensive orthotic boots, Havey submitted claims through several of the Companies, although there was no business reason for submitting claims in this manner. For example, a representative of Havey assessed and ordered orthotics for five Medicare patients residing in the same facility on the same day. Two of the residents' claims were submitted to Medicare using Advanced Custom Orthotics as the supplier and the other three were submitted to Medicare using Senior Care Orthotics as the supplier.
Healthcare Common Procedure Coding System ("HCPCS") is a standardized coding system used to identify certain supplies, services, and products, such as DME products provided to patients. Havey included on reimbursement claims a combination of HCPCS codes that did not describe the orthotic boots actually provided to the patients.
On or about September 27, 2011, in the Eastern District of Missouri, Havey knowingly and willfully executed and attempted to execute the above described scheme and artifice to defraud a health care benefit program, in connection with the delivery and payment for health benefits, items, and services, by causing the submission of a false and fraudulent reimbursement claim to Medicare for orthotic boots provided to Patient A. W.
At various times during the above described scheme, Havey requested that administrative law judges review and overturn the decisions of Medicare contractors who had denied his reimbursement claims. During these hearings, Havey knowingly and willfully presented false documents and made false statements to support the claims. During the investigation of the above described offense, Havey knowingly and willfully produced, in response to a federal subpoena, bogus documents that he created to conceal the fraud scheme. Havey signed the names of other chiropractors on some of the bogus documents. The parties stipulated to a loss of $2,276,221.00.
The transcript of the plea hearing reflects that the Court closely examined Havey regarding the voluntariness of his plea, and reflects a plea that was entered "freely, voluntarily, and intelligently, with a full understanding of the charges and the consequences of the pleas, with an understanding of his rights attending a jury trial, [and] the effect of the pleas of guilty on those rights." (Plea Tr. at 28).
Havey waived his right to appeal all non-jurisdictional, non-sentencing issues (Plea Tr. at 23-24) and further waived his right to contest his sentence or conviction in a post-conviction proceeding, except for claims of prosecutorial misconduct or ineffective assistance of counsel. (Plea Agreement at 24-25).
On March 2, 2016, the Court sentenced Havey to a term of imprisonment of 51 months for the crime of health care fraud, followed by supervised release for a term of three years. Restitution in the amount of $2,276,220.95 was also ordered. No direct appeal was filed.
On March 6, 2017, Havey filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence raising three grounds for relief:
It is well-established that a petitioner's ineffective assistance of counsel claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
The first prong of the
In his first ground for relief, Havey alleges his counsel was ineffective for failing to investigate and challenge the warrant or arrest and whether or not he was Mirandized, and for failing to file a motion to suppress illegally obtained information.
If a defendant is in custody and being interrogated, he must be advised of his right not to answer questions and to have an attorney present during questioning before any of his statements are admissible in evidence.
Furthermore, Havey fails to identify any information or statement that the Government obtained in violation of his rights and subsequently used against him. In the absence of objective evidence of illegally obtained statements or information, Havey's counsel had no basis for filing a motion to suppress.
In addition, Havey's claim of ineffective assistance of counsel is belied by his sworn testimony acknowledging to the Court at both the plea and sentencing hearings that he was satisfied with his counsel:
(Plea Tr. at 10). At the sentencing hearing, the Court again questioned Havey about his counsel's representation:
(Sentencing Transcript, Case No. 4:15CR00483, Doc. No. 41 at 3-4).
Havey has failed to establish that he is entitled to relief on either a stand-alone
Next, Havey alleges his counsel was ineffective for failing to challenge the loss amount of $2,276,221.95. In response, the Government argues that over a period of months, Havey's counsel took reasonable steps to investigate and challenge the Government's estimate of the loss amount and to negotiate a lower number. (Doc. No. 6 at 9). The Government also notes that after it agreed to a $200,000 reduction in the loss amount, Havey stipulated to the loss amount at his plea hearing (Pls Tr. at 18; Plea Agreement at 10 ¶ 6(a)(2) ("The parties stipulate to loss of $2,276,221.")), and did not object when the Court informed him that 16 levels would be added to his offense level calculation based on the loss amount (Plea Tr. at 21).
In his affidavit, Havey's counsel acknowledges that the amount of loss was always a contentious issue in the case and that "[a]fter many meetings and months of negotiations, a loss amount was agreed to in order to avoid a multi-count indictment and to avoid a felony indictment of Ms. Reno" (Havey's fiancée at the time). (D'Agrosa Aff. at 5). According to counsel, the compromise was worked out with Dr. Havey's full knowledge:
(
It is well established under
Lastly, Havey alleges the Government failed to provide an accurate accounting for restitution, thereby failing to prove a loss amount of $2,276,220.95.
To the extent Havey is claiming his counsel was ineffective in challenging the loss amount, that claim is denied, for the reasons discussed above. To the extent Havey is alleging ineffective assistance of counsel regarding the restitution order, such a claim is not cognizable under § 2255. "Because a dispute about restitution does not involve a claim of a right to be released from custody, a prisoner cannot challenge the restitution portion of his sentence under § 2255."
Accordingly,
