ARTHUR J. TARNOW, Senior District Judge.
On October 7, 2015, Movant, through an attorney, filed a Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence. [368]. The Government responded on December 1, 2015 [372], and Movant, through an attorney, filed a notice of supplemental authority on August 30, 2016 [378]. For the reasons stated below, Movant's Motion to Vacate [368] is
On February 17, 2011, Movant was indicted, alongside ten other individuals, for conspiracy to commit healthcare fraud. [3 at Pg ID 7-17]. Movant then filed a notice of appeal on November 28, 2012. He raised three issues: (1) that the District Court committed plain error by failing to specifically determine the amount of loss attributable to Movant from his time participating in the conspiracy; (2) that his sentence violated the Sixth Amendment, because the amount of loss used in determining the Guidelines based offense level enhancement, and the amount of restitution was not determined by the jury; and (3) that he was entitled to a judgment of acquittal on the conspiracy charge. A panel of the Sixth Circuit Court of Appeals rejected his arguments and affirmed his sentence in an Opinion issued on August 8, 2014.
On appeal from Movant's conviction, the Sixth Circuit summarized the background of this case, in pertinent part, as follows:
United States v. Agbebiyi, 575 F. App'x 624, 629-30 (6th Cir. 2014).
To succeed on a motion to vacate, set aside, or correct a sentence, a movant must allege "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)).
Movant challenges his sentence here on four grounds and requests relief from judgment and commitment. Movant claims that: (1) trial counsel was ineffective for failing to object to the jury instruction on "deliberate ignorance;" (2) trial counsel was ineffective for advising Movant not to testify at trial; (3) trial counsel was ineffective for failing to file a sentencing memorandum to explain how Movant's sentence should be tailored to his age and health; and (4) the Government committed a Brady violation by failing to produce over 500 potentially exculpatory patient records.
The Government disputes all of these claims, both on the merits and based upon procedural default for the Brady claim and the ineffective assistance of counsel claims, because they are presented as claims on the merits and do not meet the standard for demonstrating ineffective assistance of counsel.
A Movant will be procedurally barred from asserting claims in a § 2255 motion that could have been raised on direct appeal, but were not brought, unless the Movant can show both good cause for failing to raise the claim on direct appeal and that he would suffer actual prejudice if the claims were not heard. Massaro v. United States, 538 U.S. 500, 504 (2003). However, ineffective assistance of counsel claims are exempted from the general rule barring a court from considering, on a motion to vacate sentence under 28 U.S.C.§ 2255, arguments not raised on direct appeal. Id. The Court will consider the merits of Movant's claims in this Motion, despite the Government's argument that the claims have been procedurally defaulted.
To establish ineffective assistance of counsel, a movant must demonstrate that defense counsel rendered deficient performance and thereby prejudiced the movant's defense, so as to render the outcome of the proceedings unreliable. See Strickland v. Washington, 466 U.S. 668, 687 (1984). "Counsel's failure to object to an error at sentencing or failure to raise a viable argument that would reduce his client's sentence may constitute deficient performance." McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012) (citing United States v. Thomas, 38 Fed. Appx. 198, 203 (6th Cir. Mar. 15, 2002)). However, a court owes "substantial deference to counsel's decisions not to raise an argument, even a meritorious argument, if the decision might be considered sound trial strategy." Id. (quoting Hodge v. Hurley, 426 F.3d 368, 385 (6th Cir. 2005)) (internal quotation marks omitted). Therefore, counsel's omission of an argument for a lighter sentence constitutes deficient performance only if the omission was objectively unreasonable. See id. If a movant establishes that counsel's performance was in fact deficient, he need not prove that an effective counsel likely would have changed the outcome; he need only show a probability of a different outcome sufficient to undermine confidence in the results of the proceedings. See Nix v. Whiteside, 475 U.S. 157, 175 (1986) (citing Strickland, 466 U.S. at 694).
Movant contends that his trial counsel was ineffective for failing to object to the jury instruction of "deliberate blindness" since the state of mind required to be convicted of a conspiracy is that the "Defendant knowingly and voluntarily joined the conspiracy." [368 at Pg ID 3044-3045]. Specifically, the jury was instructed, regarding Movant's state of mind, that:
[299, Pg ID 1800]. Further, Movant contends that this instruction should not have been given because the Government failed to show that Movant knew enough about the daily operations of the conspiracy to be aware of the illegal activity and deliberately ignore it. [368 at Pg ID 3046].
First, Movant is incorrect that the deliberate ignorance instruction was clearly erroneous and lowers the mental state required for conspiracy. This deliberate ignorance instruction follows the Sixth Circuit Pattern Criminal Jury Instruction §2.09, and repeatedly has been upheld as a valid instruction in conspiracy cases in the Sixth Circuit. See e.g. United States v. Williams, 612 F.3d 500, 507-08 (6th Cir. 2010); United States v. Myint, 455 F. App'x 596, 604 (6th Cir. 2012).
As the Court in United States v. Williams explained, this instruction is appropriate because the "deliberate-ignorance instruction was provided well before the Court's instruction about the elements of a criminal conspiracy" and the Sixth Circuit has previously held that this instruction is permissible to show a conspirator's knowledge of the unlawful aims of a conspiracy. 612 F.3d 500, 507-08 (6th Cir. 2010). Similar to in Williams, the deliberate ignorance instruction was delivered before the conspiracy instructions, which, in a separate portion of the instructions, clearly states that the Government must prove that Movant "knowingly and voluntarily joined the conspiracy." [299, Pg ID 1800, 1802]. Therefore the instruction is valid under Sixth Circuit precedent.
Movant also has failed to demonstrate that, even if trial counsel was constitutionally deficient, the outcome would have been different if he had objected to the instruction, or even if the instruction had not been given. Because of the extensive evidence produced at trial by testimony from Teener and various non-physician staff, Movant does not attempt to show that the outcome of the trial would have been different, beyond conclusory statements that there was no direct evidence that he had direct knowledge of any wrongdoing, and fails to establish that a different outcome would have occurred if the instruction had been objected to or not given.
Finally, even if, as claimed by Movant, the deliberate ignorance instruction was not supported by sufficient evidence, it would be harmless error as a matter of law because, since the instruction does not misstate the law, as explained above, "even if we assume that there was insufficient evidence to justify giving the instruction, the jury, in following the instruction, must not have convicted the defendant on the basis of deliberate ignorance." United States v. Mari, 47 F.3d 782, 785 (6th Cir. 1995). Therefore, Movant cannot show that there is any prejudice under Strickland and this is not a valid ground to vacate the sentence.
Movant claims that his trial counsel was ineffective for failing to advise him to testify, and by abandoning a previous strategy that called for Movant's testimony. Movant attests that he would not have accepted his advice had he known that a deliberate ignorance instruction would be given.
During his trial, Movant stated to the Court that he knew he had a right to testify, had made a decision not to testify, that his silence could not be used against him, and that he was not forced by anyone to give up the right to testify. [299 at Pg ID 1717]. While Movant asserts in his Motion that he would have given testimony, including, inter alia, that "he never intended to support or conspire to commit fraudulent practices" and that "he provided good medical care to his patients and only ordered medically necessary tests," he does not provide specific details about the content of his testimony had it been delivered and how it would have impacted the outcome of the jury's decision, given the other evidence presented at trial. Thus, he affirmatively cannot prove prejudice by only stating speculative testimony and opinions of how this would have impacted the jury's decision. Hodge v. Haeberlin, 579 F.3d 627, 640 (6th Cir. 2009).
Additionally, Movant does not address the valid trial strategy that this decision served, given the Government's trial brief filed prior to the trial. In this document, the Government informed defense about its intent to introduce evidence, pursuant to Rules 405(b) and 405, that illustrated instances of Movant's poor medical judgment, including that he was previously censured for, inter alia, poor medical judgment, taking fees for medical services he did not render, and ordering "Vitamin B-12 injections for a patient whose medical records lacked any `clinical evidence' or laboratory tests to `support the use of Vitamin B-12,'" ultimately leading to his license to practice being revoked in 1994. [249 at Pg ID 1354-1358]. The Government warned that, if Defendant took the stand and testified that, "in his medical judgment, the neurological tests he ordered were medically necessary," this evidence would be used to impeach him under Rule 608(b). Considering the information at hand, it cannot be demonstrated that counsel was inadequate by advising Movant not to testify, regardless of the jury instructions, and therefore this claim must fail.
Movant claims that his trial counsel was ineffective for failing to file a sentencing memorandum, specifically arguing that the absence of a memorandum that disclosed his health condition was particularly prejudicial because this meant that the Court did not adequately take into consideration his age and health at sentencing. [368 at Pg ID 3051].
During sentencing, Movant testified that he had read the Presentence Report, which stated that Movant had "self-diagnosed" himself with degenerative disc disease, and that he had discussed this report with his attorney and was satisfied with its contents. PSR §52; [328 at Pg ID 2645]. Before allocution, defense counsel informed the Court that Movant was having back pains, and requested that he be permitted to sit down during the proceedings. [328 at Pg ID 2643].
Movant acknowledges that the Court "greatly weighted [his] health and age when determining his sentence." [368 at Pg ID 3052]. Specifically, the Court considered Movant's age, 63, and health, observing that:
[328 at Pg ID 2662]. Based on this assessment, the Court considered the advisory sentence of 78-97 months' imprisonment, and rendered a sentence of 60 months.
Movant argues that he was prejudiced because the Court only considered the aspects of Movant's health that were observable, but offers no evidence of what other health-related information would have been supplied in a sentencing memorandum that would have led to a substantial likelihood of a lower sentence. Rather, Movant makes conclusory statements that the lack of a sentencing memorandum that described his health and age prejudiced the outcome of the proceeding, and prevented the Court from even considering probation. Therefore, Movant has not established prejudice under Strickland, and this ground for ineffective assistance of counsel must fail.
Movant further claims that the Government committed a Brady violation when it failed to produce the entirety of the medical records that contained potentially exculpatory evidence. There is no dispute that any possible Brady claims have been procedurally defaulted by Movant, but the Court will examine the merit of the claim in this Order.
To establish a Brady claim, Movant must show that the Government suppressed evidence, that this evidence was favorable to the defense, and that the suppressed evidence was material. United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007), citing Carter v. Bell, 218 F.3d 581, 601 (6th Cir.2000). To be material under Brady, it must present a "`reasonable probability' that the outcome of the trial would have been different if the evidence had been disclosed." Pudelski v. Wilson, 576 F.3d 595, 614 (6th Cir. 2009). There must be more than pure speculation on hypothetical uses of a report in order to establish materiality. Id at 614-15.
Before Movant's trial, the Government filed a subpoena on Marieva Briceno, a non-cooperating defendant who had previously pled guilty to the same health care fraud conspiracy that Movant was charged with. This subpoena requested, inter alia, business records pertaining to the clinics, and medical records concerning nineteen different patients treated at three different medical clinics that were operated by Briceno, and at which Movant worked as a physician. [232-1]. Briceno moved to quash the subpoena. [232].
The Government eventually obtained approximately 20 patient files from storage in Florida as requested. At the trial, FBI Special Agent Alfred Burney testified that the 20 files requested and obtained were "the medical records for the top 20 beneficiaries that were billed by those three clinics and also the medical records...of the beneficiaries that we interviewed during the process of the investigation." [299 at Pg ID 1721]. On cross examination, Special Agent Burney was further questioned on these 20 files. Defense counsel questioned:
[299 at Pg ID 1734].
Movant contends that he requested the remainder of the files be turned over, and that the prosecution and FBI investigators allegedly "claimed to have no knowledge of their whereabouts," constituting "at least an inadvertent suppression or information, if not willful," because the Government had at its disposal the means to obtain all the files. [368 at Pg ID 3054]. Further, Movant claims that, in this case, the "prosecution was aware that the FBI hand-picked only those files that would favor the prosecution" and that this violated Brady. Movant also states that "[t]he fact that so many missing files were never obtained by the Defense creates a reasonable probability that those files would have produced a different verdict." [368 at Pg ID 3054].
First, Movant has not provided any evidence that he ever requested these documents, or that the prosecutors and FBI told him that they did not have any knowledge of their location. Movant merely offers a conclusory statement that is absent of any proof supporting the allegation. Additionally, Movant does not provide any evidence that the FBI intentionally "hand-picked files that would favor the prosecution," as alleged in the Motion. In fact, per testimony offered at trial on direct and cross, the files were not hand-picked, but were instead retrieved based on previous interviews during the investigation and on a statistical sampling of the top beneficiaries. Indeed, Movant was not targeted specifically in the 20 files requested. Movant offers no evidence to refute or bring into question the veracity of this sworn statement.
Finally, Movant has filed to provide any evidence that the contents of these other files would have been material, or that it was reasonably probable to result in a different outcome. Pudelski, 576 F.3d at 614-15. In fact, the files of the 20 patients provided such damning evidence against Movant that defense counsel fought, successfully, to prevent the Government's attempts to introduce them into evidence. Given the opinion evidence of Teener and other non-physician staff concerning these files, there is nothing on the record to support Movant's bare-bones bones conclusory statement that the remaining files would have produced a different verdict, or that their absence "eviscerated" Movant's defense. [368 at Pg ID 3055]. Therefore, Movant has not proven that this Brady violation claim should successfully vacate Movant's sentence.
Accordingly,
