The opinion of the court was delivered by: Loretta A. Preska, District Judge
Petitioner Yalena Dzinchveladze ("Petitioner") seeks, by a petition pursuant to 28 U.S.C. 2255, to vacate the judgment of conviction entered against her on August 25, 2006. For the following reasons, this petition is denied.
A. Petitioner's Criminal Conduct
Petitioner was one of approximately fifteen defendants who were arrested in connection with various fraudulent activities that were being conducted at certain corrupt medical clinics engaged in the treatment of no-fault insurance claimants in New York State. The scheme involved large-scale fraud, totaling over $6 million, and involved the participation of several groups of co-conspirators. (PSR ¶ 27).*fn1
Owners of the management companies that ran the medical clinics found the locations at which to open medical clinics; rented or otherwise obtained equipment that was placed at the clinics; found a licensed doctor under whose name they opened and operated the clinics; hired individuals who represented themselves to be doctors, chiropractors, acupuncturists, physical therapists and others to staff the medical clinics; hired administrative staff as receptionists, bookkeepers, filing clerks and billing consultants; employed 'runners' who referred patients to the medical clinics; and, on rare occasions, dealt with patients." (PSR ¶ 28).
"While the owners of the management companies who operated the medical clinics often became involved in processing the false and fraudulent claims that were submitted to the insurance companies for reimbursement for treatment that was either not performed or was not necessary, other individuals employed or hired by the owners also were involved in the process of creating the claim forms and submitting them to insurance companies. (PSR ¶ 29).
The success of the fraud scheme relied heavily upon the use of people known as "runners," who staged fake accidents involving "patients," who had volunteered to be passengers in the vehicles which were involved in the staged accidents. The clinic owner generally paid the runners approximately $2,000 for each of the "patients." The runners then paid the "patients" an agreed-upon amount, typically about $200; the "patients" were then required to go through a series of unnecessary medical procedures performed by doctors, therapists and technicians at the medical clinics, or simply signed documents certifying that medical treatment was received. While the owners generally dealt directly with the runners, other members of the administrative staffs of the clinics also dealt directly with the runners and were aware of the fraudulent nature of the treatment provided to the "patients" at the various medical clinics. The clinics and doctors earned profits by billing the insurance companies for medical treatment that purportedly was performed on patients who were never actually injured. (PSR ¶ 30).
The fraud scheme also involved accidents that were not actually staged. In those cases, the runners located people who had been in accidents where little or no bodily injury had actually occurred and "coached" the victim on what injuries to report to the doctor at the clinic. As a result, the accident would be billed as a large medical claim, with extensive, but unnecessary, treatment from a network of clinics and doctors, all of whom ultimately would be paid by the insurance companies. Billing was also submitted to insurance companies for visits and procedures that never occurred. (PSR ¶ 31).
Petitioner was an office manager and bookkeeper at 52 & 2 Medical Premises, one of the corrupt medical clinics involved in the scheme. Between March and October 2002, a cooperating witness and several undercover police detectives made repeated visits to the medical clinic during which they obtained medical treatment even though they were not injured. (PSR ¶ 51). During these visits, the cooperating witness and the undercover detectives observed that Petitioner was involved in all aspects of the operation of the 52 & 2 Medical Premises, and that she had frequent and continuous contact with all patients and employees at the 52 & 2 Medical Premises. (PSR ¶ 62).
Specifically, on March 6, 2002, when the cooperating witness first went to the clinic, he was met by Petitioner. Petitioner brought the cooperating witness to various doctors and therapists at the 52 & 2 Medical Premises. Petitioner also gave the cooperating witness approximately twenty documents to fill out, including a personal information form, an attorney authorization form, a no-fault insurance form, an authorization to release information form, and an authorization for treatment of a child form, even though there was no indication that any care of a child was involved in the cooperating witness' case. One of the practitioners that the cooperating witness saw on that first day was an acupuncturist who attempted to treat him with invasive acupuncture needles. When the cooperating witness refused the acupuncture treatment, the acupuncturist told him that he needed to use needles in order to bill the insurance companies for the treatment. When the cooperating witness continued to refuse treatment, Petitioner intervened and said that she would handle the problem and that they would try to work it out. Petitioner told the cooperating witness that he had to return for additional treatment the very next day. (PSR ¶ 63).
The cooperating witness returned to 52 & 2 Medical Premises on March 7, 2002, and saw additional doctors, including a general practitioner and a chiropractor. The cooperating witness also saw the acupuncturist, and he again refused invasive acupuncture treatment. At the end of this session, Petitioner told the cooperating witness that she would recommend a lawyer for him and that since his case was so special, she wanted to recommend the right lawyer for him. (PSR ¶ 64). As discussed above, the filing of a lawsuit is an integral part of these insurance fraud schemes, as it permits the participants to collect additional monies from the insurance companies.
On June 17, 2002, the cooperating witness met with Vladislav German, one of Petitioner's co-conspirators, and offered to refer three undercover police detectives as "patients" to the 52 & 2 Medical premises. The cooperating witness told German that he was in possession of a police accident report for the three patients. German offered to pay the cooperating witness $3,000 for referring the three patients, and the cooperating witness agreed to send them to the clinic the next day. (PSR ¶ 51). German and the cooperating witness then went into a room where Petitioner was present. German gave Petitioner the police accident report. Petitioner reviewed the report and then told the cooperating witness that he "would be taken care of," meaning paid, when the cooperating witness brought the patients to the clinic. (PSR ¶ 51).
On or about June 18, 2002, Petitioner met with one of the undercover police detectives who had gone to the 52 & 2 Medical premises as a "patient" seeking treatment. During this visit, the undercover detective refused to undergo any acupuncture treatment that included the use of needles. After the undercover specifically refused such treatment, Petitioner nevertheless tried to persuade the undercover to take the acupuncture treatment, apparently without regard to whether the undercover actually needed such treatment. (PSR ¶ 65).
According to the cooperating witness and the undercover detectives, Petitioner was the individual at the 52 & 2 Medical Premises who repeatedly insisted that they had to return frequently for additional treatments. (PSR ¶ 66). As described above, none of these individuals suffered from any injuries during the time they went to the 52 & 2 Medical Premises and received treatments.
B. Petitioner's Guilty Plea
On April 10, 2006, Petitioner, her counsel, and the Government executed a written plea agreement. In the plea agreement, the Government agreed to accept a guilty plea from Petitioner to Counts One and Five of the Indictment and, in return, to dismiss any remaining open counts against the defendant at the time of sentencing. Petitioner and the Government stipulated that Petitioner's base offense level was six, pursuant to United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") Section 2B1.1, and that a twelve-level increase in the offense level was warranted, pursuant to U.S.S.G. Section 2B1.1(b)(1)(G), because the loss resulting from the offenses charged in Counts One and Five of the Indictment that was reasonably foreseeable to the defendant was more than $200,000 but not more than $400,000. The parties also stipulated that a further two-level increase in the offense level was warranted because the offense involved more than ten but fewer than fifty victims, pursuant U.S.S.G. Section 2B1.1(b)(2)(A)(i). After applying a three-level reduction for acceptance of responsibility, pursuant to Guidelines Section 3E1.1(a) and 3E1.1(b)(2), the parties reached an agreed-upon total offense level of seventeen. Petitioner and the Government also agreed that Petitioner had no criminal history points, resulting in a Criminal History Category of I.
Based upon all of these calculations, the parties agreed that Petitioner's Sentencing Guidelines range was 24 to 30 months imprisonment. In the plea agreement, Petitioner agreed that no departure from the stipulated Sentencing Guidelines range of 24 to 30 months was warranted, and that she would not seek either a downward departure or an adjustment of the Guidelines computation. Petitioner further agreed that a sentence within the stipulated Guidelines range of 24 to 30 months would be a reasonable sentence in light of all of the factors set forth in Title 18, United States Code, Section 3553(a).
Petitioner further agreed that she would "not file a direct appeal from, nor litigate under Title 28, United States Code, Section 2255 and/or Section 2241, any sentence within or below the Stipulated Sentencing Guidelines range of 24 to 30 months imprisonment . . . ."
On April 10, 2006, Petitioner appeared before this Court and entered a guilty plea to Counts One and Five of the Indictment. Before accepting Petitioner's guilty plea, the Court conducted a hearing which complied in all respects with Rule 11 of the Federal Rules of Criminal Procedure.
At the outset of the proceeding, the Court determined that Petitioner was competent to plead guilty and had the opportunity to review all aspects of her case with her attorney. (Plea Tr. 2-5).*fn2 The Court confirmed that Petitioner had reviewed a copy of the Indictment with her counsel, who had explained the charges against her. (Plea Tr. 4). The Court also ensured that Petitioner ...