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August 12, 2005.

BRIJ MITTAL, Petitioner

The opinion of the court was delivered by: JOHN KOELTL, District Judge


The petitioner, Brij Mittal, was convicted of participating in a kickback scheme in connection with the Medicare program in violation of 42 U.S.C. § 1320a-7b(b)(1) and (2). He now moves pursuant to 28 U.S.C. § 2255 to vacate his conviction on the grounds of ineffective assistance of counsel.

The petitioner alleges that his trial counsel, Mark Marcus, Esq., suffered from a medical condition called obstructive sleep apnea, and that the sleep apnea prevented defense counsel from fully investigating and preparing the petitioner's case. Specifically, the petitioner contends that his counsel's medical condition prevented him: (1) from fully investigating whether the indictment returned by the grand jury was presented in open court; (2) from preparing certain witnesses who were called and from fully investigating whether to call certain other witnesses who were not; and (3) from failing to investigate and introduce evidence that allegedly could have supported a defense based on a safe harbor provision that exempts remuneration in a bona fide employer-employee relationship from prosecution under the Medicare anti-kickback statute.*fn1 The petitioner also alleges that Marcus was in association with Mohammed Rafikian, a/k/a "Mo Kian," who held himself out as a law partner of Marcus at the law firm of Marcus and Associates. The petitioner has submitted a declaration stating that he had "many discussions" with Rafikian about his criminal case and that he considered Rafikian to be "as much his lawyer as Mr. Marcus." (See Ex. A (undated Decl. of Brij Mittal ("Second Decl.") ¶ 4 attached to Second Am. Mem. of Law in Supp. of Mot. to Vacate, Set Aside or Correct Sentence Pursuant to Title 28, United States Code Section 2255 ("Second Pet'r Mem.").) The petitioner alleges that he has made payments of over $300,000 in legal fees and that neither Marcus nor Rafikian has ever accounted for $119,000 that was placed in an escrow account but is now gone. (Id. ¶ 8.)

  The petitioner represents that Rafikian has been indicted in Queens County, New York. In the complaint filed against Rafikian in Queens County, it is alleged that Rafikian represented himself to be an attorney, and that Rafikian defrauded Mittal out of more than $3.4 million, which Rafikian allegedly promised to invest at a promised 26% rate of return. (See Ex. C attached to Second Pet'r Mem.) The petitioner attaches copies of various business cards to this declaration, including First Investor Capital cards that display Mo. R. Kian as the "CEO, Chairman" and Mark Marcus as Vice President — Compliance of First Investors Capital. (See Ex. A attached to Second Pet'r Mem.)

  In addition to the allegations of ineffective assistance contained in the first amended motion, the petitioner added a new claim in his second amended motion, namely, that his trial counsel had an actual conflict of interest because of Rafikian's alleged investment scheme. The petitioner alleges that Marcus and Rafikian failed to pursue a plea bargain, in part, to allow Rafikian to carry on the alleged investment fraud.


  The facts underlying this petition have previously been detailed in two earlier opinions issued by this Court: United States v. Mittal, No. 98 Cr. 1302, 1999 WL 461293 (S.D.N.Y. July 7, 1999) (denying defendant's pretrial motions to dismiss indictment, among other things), and United States v. Mittal, No. 98 Cr. 1302, 2000 WL 160799 (S.D.N.Y. Oct. 27, 2000). See also United States v. Mittal, No. 01-1318, 2002 WL 1275105 (2d Cir. June 10, 2002) (affirming conviction on direct appeal). Familiarity with these decisions is presumed, although the operative facts are described herein as necessary.

  The indictment charged that from in or about October 1990 through 1997, the petitioner, a medical doctor licensed by the State of New York, together with others known and unknown, knowingly conspired to violate provisions of the Medicare anti-kickback statute, 42 U.S.C. § 1320a-7b(b)(1), (2). As an object of the alleged conspiracy, the petitioner solicited and received remuneration, including kickbacks, bribes, and rebates, in return for referring patients to Ganesh Surgical Supplies ("Ganesh") and American Open MRI Center Inc. ("American Open") for equipment and services covered in whole or in part by the Medicare program. Ganesh and American Open were both Medicare-approved providers owned and operated by Niranjan Patel and Josh Goldstein. Ganesh was a supplier of durable medical equipment while American Open performed magnetic resonant imaging ("MRIs") and CAT scans. Count One charged the petitioner with conspiracy to violate 42 U.S.C. § 1320a-7b(b)(1) and (2) in violation of 18 U.S.C. § 371. Counts Two through Four charged substantive violations of § 1320a-7b(b)(1): namely, that the defendant solicited and received kickbacks from Patel on September 5, 1997 in the amount of $4970 (Count Two), on January 14, 1998 in the amount of $9300 (Count Three), and on February 13, 1998 in the amount of $4140 (Count Four). On April 17, 2000, after a trial before this Court, the jury returned a verdict of guilty on all four counts of the indictment. The Government at trial presented compelling evidence of the conspiracy and of the three payments, which were made by Patel after he had begun cooperating with Government. The payments were carefully documented, and audio tapes and transcripts of the meetings during which the payments were made were created under the supervision of the Federal Bureau of Investigation ("FBI"). The tapes and transcripts were introduced at trial, and the defendant's own words on those tapes provided substantial evidence of the kickback scheme. The Government called Patel as a witness, who unambiguously incriminated the defendant and testified that he personally paid kickbacks to the defendant over many years. (See, e.g., Tr. 531-80.) The Government also called Patel's nephew who testified that he personally delivered cash kickbacks to the defendant on a number of occasions on behalf of his uncle. (See Tr. 1484-88.)

  In addition, powerful evidence that the petitioner knew his conduct was unlawful came from Dr. Pritpal Kang, who testified that in 1993, he, Mittal, and another doctor sought legal advice regarding a diagnostic center that they jointly owned. (See Tr. at 718-19); see also Mittal, 2002 WL 1275105, at *2 (citing Kang's testimony as evidence of Mittal's mens rea). An attorney, Edward S. Kornreich, Esq., met with them for a couple of hours and then sent a letter, dated February 5, 1993, summarizing what they had discussed and providing legal advice on those matters. (See Gov't Ex. 27; Tr. at 733-38.) Among other things, the letter described the Medicare anti-kickback provisions and the safe harbors under the statute. Kang testified that the letter accurately reflected what was discussed with the attorney, and he also testified that he spoke with Mittal about the contents of the letter soon after receiving it. (Tr. at 736-37.)

  Following the return of the jury verdict, the petitioner moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure on the grounds that he received ineffective assistance of counsel at trial. See generally Mittal, 2000 WL 1610799. Among other things, the petitioner complained of deficiencies in his counsel's performance in the opening statement, in cross-examinations, and in closing argument. Particularly relevant for the purposes of this § 2255 motion, the petitioner also alleged that his counsel was ineffective in failing to interview, prepare, and call certain witnesses and potential witnesses. The petitioner further alleged that defense counsel slept during the trial. Trial counsel, Mark Marcus, submitted a letter supporting the motion on the grounds that poor health inhibited his performance.*fn2 The Court denied the Rule 33 motion, rejecting in detail each of the defendant's assertions that defense counsel provided ineffective assistance of counsel. The Court repeatedly emphasized that the defendant was unable to show that he was prejudiced by trial counsel's performance, and it found that the alleged instances of Marcus sleeping during trial — which Marcus at the time denied — were insufficient to warrant a new trial. As the Court noted: "In this case trial counsel vigorously participated throughout the trial and was assisted by co-counsel. It was apparent that trial counsel objected in the course of the government examination of witnesses and vigorously cross examined the government witnesses." Mittal, 2000 WL 1610799, at *8. This issue was repeated on appeal and this Court's rejection of the argument was affirmed "substantially for the reasons stated" in this Court's opinion. Mittal, 2002 WL 1275105, at *3.

  The first amended § 2255 motion and the previous Rule 33 motion differ primarily two respects. First, the first amended § 2255 motion purportedly focuses on trial counsel's alleged deficiencies in preparing for trial and fully investigating the case, whereas the Rule 33 motion focused on counsel's conduct during trial. Second, whereas Marcus had merely submitted an unsworn letter in support of the Rule 33 motion, in connection with the first amended § 2255 motion, the petitioner has submitted a sworn affidavit by Marcus as well as other documents confirming and describing Marcus's health disorder, known as obstructive sleep apnea. (See Exs. B, E attached to Am. Mem. of Law in Supp. of Mot. to Vacate, Set Aside or Correct Sentence Pursuant to Title 28, United States Code Section 2255 ("First Pet'r Mem.").)


  This first amended motion pursuant to 28 U.S.C. § 2255 seeks to vacate the petitioner's conviction on the grounds of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must show both that: (1) defense counsel's performance was deficient, and (2) that his counsel's deficient performance was prejudicial to the petitioner's defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995). A petitioner cannot meet the first prong of this test merely by showing that his counsel employed poor strategy or made a wrong decision. Instead, the petitioner must establish that his counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment." See Strickland, 466 U.S. at 687. In fact, there is a "strong presumption" that defense counsel's conduct fell within the broad spectrum of reasonable professional assistance, and a defendant bears the burden of proving "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S. at 688-89).

  To meet the second prong of the Strickland test, the petitioner must show that "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Mittal, 2000 WL 1610799, at *3; Ramos v. United States, No. 97 Civ. 2572, 1998 WL 230935, at *3 (S.D.N.Y. May 8, 1998).

  At this stage, the issue is whether to afford the petitioner an evidentiary hearing on the claims of ineffective assistance of counsel. Section 2255 provides that the court shall grant a prompt hearing to determine the issues and make findings of fact and conclusions of law "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also United States v. Aiello, 900 F.3d 528, 534 (2d Cir. 1990). The petitioner is entitled to a hearing if he can establish ...

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