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United States v. Berkowitz

United States District Court, E.D. Louisiana

June 13, 2019

UNITED STATES OF AMERICA
v.
ROY E. BERKOWITZ

         SECTION “R”

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE

         Defendant Roy E. Berkowitz moves to vacate his sentence under 28 U.S.C. § 2255.[1] He also moves for a temporary restraining order.[2] Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. For the following reasons, Berkowitz's motions are denied.

         I. BACKGROUND

         On September 25, 2014, Berkowitz was charged in a second superseding indictment (the indictment) with (1) conspiracy to commit healthcare fraud, in violation of 18 U.S.C. §§ 1347, 1349 (count one); and (2) two substantive counts of healthcare fraud, in violation of 18 U.S.C. § 1347 (counts 10 and 11).[3] During the period in which the charged conduct occurred, Berkowitz was a medical doctor licensed in the State of Louisiana.[4]The indictment states that from April 2005 to around July 2014, Berkowitz conspired with others to (1) refer Medicare beneficiaries for home health services that were medically unnecessary and, in some cases, were not rendered; and (2) to prescribe durable medical equipment that was not medically necessary.[5] As a result of these referrals, Berkowitz caused the submission of false and fraudulent claims to Medicare.[6] The indictment further states that Berkowitz's co-conspirators paid him money in exchange for these medical assessments and referrals.[7] Finally, the indictment states that Berkowitz was the referring physician for approximately $4, 952, 816 in claims to Medicare.[8]

         Berkowitz went to trial.[9] At trial, the jury heard testimony that Berkowitz spent about ten to fifteen minutes “at most” with each new patient, and that he never performed a physical exam to see if a new patient was mobile.[10] Berkowitz also admitted that he knew some of the patients he certified as homebound were not homebound, and that the certification forms he signed were already filled out by the staff of his co-defendant, Mark Morad.[11] The jury convicted Berkowitz on all counts.[12]

         On December 16, 2015, Berkowitz was sentenced to a term of imprisonment of 64 months on all counts, to run concurrently, and two years of supervised release, also to run concurrently.[13] This sentence constituted a variance from Berkowitz's guideline range under the United States Sentencing Guidelines.[14] The Court also found that Berkowitz was jointly and severally liable with his co-conspirators to pay $4, 952, 816 in restitution to Medicare, which was mandatory under 18 U.S.C. § 3663A.[15] This restitution amount corresponded to the amount of the fraudulent claims to Medicare for which Berkowitz was responsible, according to the indictment.[16] This restitution amount was included in Berkowitz's final presentence investigation report.[17] Neither Berkowitz nor his counsel objected to the restitution amount at sentencing.[18]

         Berkowitz appealed his convictions on the grounds that the evidence at trial was insufficient to find that he had knowledge of the conspiracy to commit healthcare fraud.[19] The Fifth Circuit Court of Appeals affirmed his conviction on February 13, 2017.[20] Berkowitz now moves to vacate his sentence under 28 U.S.C. § 2255.[21] Berkowitz initially alleged that his trial counsel provided ineffective assistance in eight different ways.[22] But in his reply brief, Berkowitz states that he wishes to voluntarily dismiss grounds two through eight in his petition.[23] He further states that he is “fully aware that dismissal of these claims means that [he] will not be able to seek relief on those grounds at any time.”[24] Because Berkowitz has voluntarily dismissed these claims, the Court will address only the first claim in his petition. Berkowitz argues in this claim that his counsel provided ineffective assistance by failing to object at sentencing and on appeal to the restitution amount of $4, 952, 816, which he is jointly and severally liable to repay with his co-conspirators.[25] Berkowitz also moves for a temporary restraining order to prevent the United States from enforcing the restitution order until the Court has ruled on his Section 2255 motion.[26] For the following reasons, the Court denies both motions.

         II. STANDARD OF REVIEW

         A. 28 U.S.C. § 2255

         Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable on a Section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” Id. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a Section 2255 proceeding unless the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         When a Section 2255 motion is filed, the district court must first conduct a preliminary review. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . .” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Id., Rules 6-7.

         After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. Id., Rule 8. An evidentiary hearing must be held “[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(b). No. evidentiary hearing is required if the prisoner fails to produce any “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

         Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain “structural” errors, relief follows automatically once the error is proved. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). For other “trial” errors, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case. Id. at 637-38 (citation omitted); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht in a Section 2255 proceeding). If the court finds that the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         B. Ineffective Assistance of Counsel

         To establish a claim of constitutionally ineffective assistance of counsel, a petitioner must show both (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance, the likely outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96 (1984). The petitioner must meet both prongs of the Strickland test and, if the Court finds that the petitioner has made an insufficient showing as to either prong, the Court may dispose of the claim without addressing the other prong. See id. at 697.

         As to the first prong of the Strickland test, counsel's performance must be compared to “an objective standard of reasonableness, mindful of the strong presumption of adequacy.” Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). A court should not find inadequate representation merely because, with the benefit of hindsight, the court disagrees with counsel's strategic choices. Id. The Fifth Circuit has made clear that “[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Id. (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983)). As to the second Strickland prong, a petitioner must show “that there 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.

         III. DISCUSSION

         A. Section 2255 Motion

         Berkowitz alleges that his counsel provided ineffective assistance by failing to object at sentencing to the restitution amount of $4, 952, 816, which his is jointly and severally liable to repay with his co-conspirators.[27] He further alleges that his counsel was ineffective by failing to raise this argument on appeal.[28] Berkowitz asserts that he should have been ordered to repay as restitution only $107, 760, which he says corresponds to the amount he actually acquired through the fraudulent scheme.[29] He argues that the Supreme Court's decision in Honeycutt v. ...


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