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Drivas v. United States

United States District Court, E.D. New York

October 31, 2017

GUST AVE DRIVAS, Petitioner,


          NINA GERSHON United States District Judge

         On September 26, 2013, petitioner, Gustave Drivas, was convicted after a jury trial of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and one count of health care fraud, in violation of 18 U.S.C. § 1347. Petitioner was sentenced to 151 months' incarceration. Petitioner was also sentenced to a three-year term of supervised release, forfeiture in the amount of $511, 000, restitution in the amount of $50, 943, 386 and a special assessment of $200. Drivas now brings a 28 U.S.C. § 2255 petition challenging his convictions, objecting to the court's evidentiary rulings at trial and the jury instructions, and claiming ineffective assistance of counsel. In addition to a response from the government, at my request, Drivas's trial attorneys, Nicholas J. Pinto, Gerald DiChiara, and Louis Diamond, submitted a joint affirmation in response to Drivas's petition. Drivas submitted a reply to that joint affirmation. I requested supplemental papers from trial counsel and the government on a specific issue, and in response trial counsel and the government filed additional papers. For the reasons stated below, Drivas's § 2255 petition is DENIED. A hearing with regard to counsel's alleged ineffectiveness is not required.


         Petitioner is a doctor who, along with several co-conspirators, submitted fraudulent claims to Medicare and received fraudulent proceeds of approximately $50 million. The claims were submitted by clinics in Brooklyn that billed Medicare under three different corporate names, Bay Medical Care PC, SVS Wellcare Medical PLLC, and SZS Medical Care PLLC (together the "Bay Medical clinics"). Petitioner was listed as an owner of Bay Medical, the "contracted managing employee" at SVS Wellcare, and an owner of SZS Medical Care. Petitioner rarely, if ever, treated patients at the clinics, but his Medicare billing number was used to bill over $20 million to Medicare, with a significant portion of those claims stating that petitioner had personally provided or overseen the provision of care at the Bay Medical clinics.

         Prior to petitioner's indictment, in January of 2007, the Bay Medical clinics were involved in litigation with Auto One Insurance over claims made by the clinics. Drivas attempted to avoid liability in that litigation by signing an affidavit (the "January 31, 2007 affidavit") that evidenced his lack of knowledge relevant to the claims there, but in so doing acknowledged facts relevant to his knowledge in this criminal case. A partially redacted version of this affidavit was admitted as evidence during petitioner's criminal trial as Exhibit GX-46A.

         After his convictions, petitioner filed an appeal to the Second Circuit, claiming that (1) the evidence was insufficient to sustain his convictions; (2) the jury was improperly charged on conscious avoidance; (3) the decision to admit the redacted affidavit was in error; and (4) his sentence was procedurally and substantively unreasonable. The Circuit rejected all of petitioner's arguments and affirmed the convictions via summary order. United States v. Wahl, 563 Fed.Appx. 45(2dCir.2014).

         Drivas now argues that his trial counsel was ineffective by: (1) ignoring Drivas's instruction to investigate the January 31, 2007 affidavit, which he informed them was fraudulent; (2) failing to obtain a handwriting expert to provide testimony about whether certain documents were actually signed by Drivas; (3) failing to cross-examine co-defendant Elena Girenko; and (4) not allowing Drivas to testify on his own behalf. Drivas also argues that one of his trial attorneys, Louis Diamond, was "obviously in an impaired state" during Mr. Diamond's cross-examination of a government witness, co-defendant Dr. Jonathan Wahl.[1]

         Trial Counsels* First Affirmation

         In a joint affirmation responding to Drivas's allegations, all three trial counsel state that Drivas never informed them that the January 31, 2007 affidavit was a wholesale fabrication and that he admitted to signing some form of the affidavit but contended it had been altered after he signed it. Additionally, another affidavit by Drivas, prepared in 2008 by his counsel in a civil matter, disputed certain aspects of the 2007 affidavit but did not allege it to be a wholesale fabrication, nor did it state, as Drivas does now in his petition, that it could not be authentic because it references a corporation that was not yet incorporated on the date it was purportedly signed.

         With respect to Elena Girenko, she was not called by the government and no opportunity for cross-examination ever arose. Interpreting Drivas's argument to be that his defense counsel should have called her as a witness, counsel state that they made a tactical decision not to do so after reading her 3500 material. They did not elaborate on what, specifically, in the 3500 material led them to decide not to call her.

         Counsel state that their decision not to call a handwriting expert was a tactical one, because they were able to establish through other witnesses that many of the applications submitted in the clinic with Drivas's signature were, in fact, not signed by Drivas. Witnesses testified that people in the clinic would sign Drivas's name to documents. Having a handwriting expert confirm that some of the signatures were not Drivas's would have been redundant. There was also, however, a "large amount of evidence" tying Drivas through authentic signatures of his in the initial Medicare application and some subsequent applications to Medicare. Therefore, because the government could "parade a plethora of documents that were, in fact, signed by Dr. Drivas, " a handwriting expert would have been counterproductive.

         Defense counsel further state that, while they discussed the dangers of testifying with Drivas at length, and advised him not to testify as [defense counsel] believed it would not be in his best interest, it was Drivas who, in the end, decided not to testify.

         Finally, while defense counsel acknowledged that Mr. Diamond fell ill during the cross-examination of a witness, Mr. DiChiara was aware of Mr. Diamond's condition, and was prepared to go forward if Mr. Diamond had difficulties. Mr. DiChiara did in fact complete the examination of the witness after Mr. Diamond could not continue. Defense counsel also point out that the witness in question, Dr. Wahl, testified as to Drivas's connection to the kickback scheme, which was the count of the indictment as to which Drivas was found not guilty.

         Drivas's Response and My Request ...

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