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 ...