Opinion
98 CR 1302 (JGK).
October 23, 2000.
OPINION AND ORDER
On April 17, 2000, a jury returned a verdict of guilty against the defendant Dr. Brij Mittal on all four counts of an indictment charging criminal offenses in connection with the Medicare program. Count one charged conspiracy to violate the provisions of 42 U.S.C. § 1320a-7b(b)(1) (2) in violation of 18 U.S.C. § 371 and counts two through four charged substantive violations of 42 U.S.C. § 1320a-7b(b)(1). The defendant now moves, pursuant to Federal Rule of Criminal Procedure 33, for a new trial based on his allegation that he received ineffective assistance of counsel at trial.
I.
The Court previously detailed the allegations in the Government's indictment in its decision denying the defendant's motion to dismiss, familiarity with which is assumed. See United States v. Mittal, 98 Cr. 1302, 1999 WL 461293 (S.D.N.Y. July 7, 1999). The allegations are repeated here to the extent relevant for this decision. The indictment charged that from in or about October 1990 through 1997, the defendant, a medical doctor licensed by the State of New York and others known and unknown to the Grand Jury knowingly conspired to violate 42 U.S.C. § 1320a-7b (b)(1) and (2). As an object of the alleged conspiracy, the defendant solicited and received renumeration, including kickbacks, bribes, and rebates, in return for referring individuals to Ganesh Surgical Supplies ("Ganesh") and American Open MRI Center Inc. ("American Open") for furnishing and arranging for the furnishing of items and services for which payment would be made in whole or in part under the Medicare Program, and in return for arranging for and recommending purchasing, leasing and ordering of goods, facilities, services, and items for which payment could be made under Medicare. (Ind. ¶ 9.) Ganesh, an approved Medicare provider, was owned and operated by Niranjan Patel and Joseph Goldstein and was a supplier of durable medical equipment. (Ind. ¶ 5.) American Open, also an approved Medicare provider, was also owned and operated by Niranjan Patel and Joseph Goldstein and performed magnetic resonance imaging. (Ind. ¶ 6.) The indictment detailed the means and methods of the conspiracy as well as a number of alleged overt acts committed in furtherance of the conspiracy. (Ind. ¶¶ 11-12.)
The indictment also charged that the defendant solicited and received renumeration, including kickbacks, bribes, and rebates, in return for referring individuals to Ganesh and American Open for furnishing and arranging for the furnishing of items and services for which payment could be made in whole or in part under Medicare, and in return for arranging for and recommending purchasing, leasing, and ordering of goods, facilities, services, and items for which payment could be made in whole or in part under Medicare. In particular, the defendant is alleged to have solicited and received cash kickbacks from Niranjan Patel in return for referring patients, several of whom were Medicare patients, to Ganesh and American Open on September 5, 1997 in the amount of $4,970 (Count 2), on January 14, 1998 in the amount of $9,300 (Count 3), and on February 13, 1998 in the amount of $4,140 (Count 4).
At trial, the Government presented powerful evidence that the defendant regularly received kickbacks over a period spanning more than seven years in exchange for referring his Medicare patients to Ganesh for durable medical equipment and to American Open for various diagnostic tests, including MRIs and CAT scans. The three payments to the defendant on September 5, 1997, January 14, 1998, and February 13, 1998 were made by Niranjan Patel after he had begun to cooperate with the Government and were carefully documented. Audio tapes and transcripts of the meetings during which the payments were made were introduced at trial. The Government presented the testimony of Niranjan Patel, who, as one of the owners of Ganesh and American Open, personally paid kickbacks to the defendant for over seven years. The Government also presented the testimony of Nilay Patel, Niranjan Patel's nephew, who personally delivered cash kickbacks to the defendant on a number of occasions on behalf of his uncle.
In addition, the Government introduced the three undercover tapes of conversations between the defendant and Niranjan Patel, made by Niranjan Patel under the supervision of the Federal Bureau of Investigation ("FBI"). The defendant's own words on these tapes provided substantial evidence of the kickback scheme. Niranjan Patel's testimony, which directly and unambiguously incriminated the defendant, was corroborated by extensive documentary evidence including Ganesh and American Open documents reflecting all referrals from the defendant with some handwritten notations indicating when cash kickbacks were delivered to the defendant and records reflecting the three undercover payments to the defendant and the patients for whose referral the cash payments were being made. The Government also presented the testimony of a supervising FBI agent as to how the undercover tapes were created and the circumstances surrounding the undercover payments and the testimony of the expert translator who was responsible for preparing the transcripts of the tapes including the translation of Hindi portions into English.
Niranjan Patel also video taped the final two meetings during which he testified he made payments to the defendant. Those video tapes, which were made with a hidden camera, were inconclusive because of technical problems and difficulties in the focus of the camera.
II.
A court may grant a new trial "if the interests of justice so require." Fed.R.Crim.P. 33; accord United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992); United States v. Adams, No. Cr. 51, 1998 WL 516115, at *2 (S.D.N.Y. Aug. 20, 1998), aff'd, 216 F.3d 1073 (2d Cir. 2000).To establish a claim of ineffective assistance of counsel, the defendant must show both that: (1) his counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) that his counsel's deficient performance was prejudicial to his case. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995).
The defendant cannot meet the first prong of this test merely by showing that his counsel employed poor strategy or made a wrong decision. Instead, the defendant 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 at 688-89).
To meet the second prong of the Strickland test, the defendant 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 Ramos v. United States, No . 97 Civ. 2572, 1998 WL 230935, at *2-*3 (S.D.N.Y. May 8, 1998).
(A)
The defendant first claims that his trial counsel promised in opening argument to produce the testimony of a translator and independent transcripts of government tape recordings but that he failed to do so. The record shows that parts of the tapes were in Hindi and trial counsel stated in his opening that he had seen an independent translator's transcript of the tapes that was substantially different from the government's transcript. (Tr. at 56.) Trial counsel ultimately was unable to introduce those independent transcripts into evidence (Tr. at 1277), and the testimony of the defendant's translator was limited to explaining the difficulties in translating the audio tapes. The defendant alleges that these failures were due to trial counsel's inadequate preparation for trial. The defendant also maintains that if trial counsel had reviewed the transcripts carefully, he would not have made such a bold claim in his opening because the proposed defense transcripts were incomprehensible and did not undermine the government's case.
However, trial counsel never promised that he would introduce the defense transcripts at trial. In his opening statement, while trial counsel alluded to the existence of a different translation of the government's tapes, he never promised to produce the actual transcripts. (Tr. at 56.) The primary claim in the opening statement was not that trial counsel would introduce independent transcripts, but that the government's transcripts were unreliable. Trial counsel stated that the tapes never explicitly recorded an exchange of money (Tr. at 59-60), critiqued the audibility of the tapes (Tr. at 59), noted the presence of gaps in the tape (Tr. at 56), and argued that the government's translator could not be trusted (Tr. at 56), but he never said he would introduce physical transcripts in court. Trial counsel did refer briefly to calling his own interpreter. (Tr. at 58.) ("And when the interpreter comes in it is up to you to decide which one of the interpreters is giving you the accurate interpretation."). However, trial counsel also noted that he had not stated what witnesses he would produce (Tr. at 59), and that he was not telling the jury what he was prepared to prove at trial. (Tr. at 62) ("And I am not going to tell you what I am prepared to prove because I don't want them to know."). Furthermore, at a sidebar conference during the first week of testimony, trial counsel noted that he would "never promise" to bring in his own translator. (Tr. at 357.) Later, trial counsel informed the Court that he would not try to introduce the transcripts unless there was a foundation for them. (Tr. at 1194.)
When the defense called its expert translator, the expert translator was not able to lay a proper foundation for the introduction of the defense transcripts. (Tr. at 1277.) The transcripts did not indicate which portions of the tapes had been in English and which were in Hindi, and indicated that large portions were inaudible. The translator testified that the only way to prepare a transcript was to play the tape again and again (Tr. at 1267), and he could not establish the admissibility of the tapes the defense sought to introduce. (Tr. 1247-48, 1272-77.) The testimony of the defense translator was marginally helpful to the defense because the witness was qualified as an expert translator (Tr. at 1264), and emphasized the difficulty of preparing accurate transcripts of the tapes. (Tr. 1248-50, 1265-67.) But the testimony was not helpful to the defense to the extent that it possibly raised the jury's expectations that there would be a competing set of transcripts which did not materialize.
However, defense counsel's conduct with respect to his effort to introduce competing expert testimony cannot be said to rise to the level of objectively unreasonable conduct. The fact that trial counsel did not follow the exact letter of his opening statement does not mean that his representation fell below reasonable professional standards. Changing course from the roadmap outlined in opening statement as the trial progresses is not necessarily ineffective assistance. See, e.g., United States v. McGill, 11 F.3d 223, 227-28 (1st Cir. 1993) (holding that failure to deliver on opening promise to put on expert witness was not ineffective assistance); Schlager v. Washington, 887 F. Supp. 1019, 1026-27 (D. Ill. 1995), aff'd 113 F.3d 763 (7th Cir. 1997) (holding that strategic decision not to introduce witnesses promised in opening statement was not ineffective assistance). In this case, trial counsel decided not to offer the transcripts into evidence because he realized that he could not overcome the evidentiary objections made by the government. (Tr. at 1194, 1277.) He did not withdraw crucial evidence without reason as inHarris v. Reed, 894 F.2d 871 (7th Cir. 1990) where counsel failed to fulfill a promise to call eyewitnesses who saw a man other than the defendant run from the scene of the crime, or Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988) where counsel promised but failed to call an expert witness to support a theory that defendant was a "a robot" with no appreciation of his actions.
Most importantly, the defendant cannot establish prejudice from his trial counsel's failure to introduce the transcripts at trial. The defendant has not proffered any set of allegedly admissible transcripts that could have been admitted and that would have supported the defendant's contentions at trial. Indeed the defense argues on this motion that the defense transcripts are so incomprehensible that trial counsel erred in referring to them in his opening. The defendant was not prejudiced by his trial counsel's inability to introduce transcripts that the defendant's current counsel does not even contend were admissible. The fact that trial counsel was left to rely on his cross examination of the Government's expert without introducing alternative transcripts did not prejudice the defendant. See, e.g., United States v. Nguyen, 997 F. Supp. 1281, 1291 (D. Cal. 1998); United States v. Atherton, 846 F. Supp. 170, 173-74 (D. Conn. 1994).
Moreover, trial counsel's effort to admit the transcripts was not prejudicial to the defendant because it did not detract from any of the defendant's arguments that the tapes were unreliable, that the Government translator was untrustworthy, and that the Government transcripts were the result of extensive collaboration between the Government translator and the prosecutor. Similarly, trial counsel's examination of the defense expert did not prejudice the defendant. This effort marginally supported the defendant's argument that the tapes were difficult to understand and translate and these efforts did not detract from the major thrust of the defendant's claim that the Government transcripts were unreliable.
The defendant's speculation on this motion that his trial counsel did not review the defense transcripts of the tapes prior to trial is not supported by the record. The transcripts were produced to the government the Wednesday before trial. (Tr. at 362.) Trial counsel referred to the transcripts and their difference from the Government transcripts in his opening. (Tr. at 56.)
The defendant's additional argument that the transcripts would have been useable if counsel had prepared them with the defendant is also speculation without foundation. The defendant has not offered any purportedly admissible transcripts, prepared with the defendant's assistance. Moreover, a purpose for hiring an independent translator was to produce an allegedly objective transcript. If the defendant influenced the translation process, he would no longer have been able to argue, as his trial counsel repeatedly did, that the government's transcripts were not objective and were unreliable.
The trial counsel's failure to introduce the transcripts at trial was not an instance of ineffective assistance of counsel and the defendant was not prejudiced by his trial counsel's efforts in connection with those transcripts or the limited testimony of the defense expert.
(B)
The defendant presents a list of his counsel's alleged deficiencies. These include trial counsel's confusion about certain documents, failure to review certain exhibits and tapes, delegation of witness interviews to an investigator, failure to understand basic legal principles, poor cross examination skills, and inflammatory comments during summation. The defendant's argument is fatally flawed from the start because he concedes that he cannot demonstrate that any of these omissions would have made a difference in the trial. (Tr. of Sept. 22, 2000 at 21.)
Furthermore, many of these assertions are unsupported speculation. This was a complex trial with numerous exhibits and documents. Confusion about the location or content of some of these materials was understandable. Indeed while the defendant now points to confusion over the various versions of the tapes from originals to redacted versions, trial counsel's efforts to emphasize the different versions of the tapes was consistent with the reasonable defense strategy of casting doubt on the reliability of the tapes. Trial counsel's knowledge of the materials and legal and evidentiary rules was not so deficient as to support a claim that he was unprepared for trial or was not competent to try the case. Indeed, defense counsel conducted a thorough and extensive examination of the main government witnesses — Niranjan Patel, Nilay Patel, the government agent, and the government translator.
The defendant alleges that his trial counsel's delegation of witness preparation to an investigator was ineffective assistance of counsel. The investigator interviewed numerous witnesses and taped those interviews and trial counsel only presented a small number of these witnesses at trial. But those witnesses or potential witnesses were generally former patients of the defendants whose testimony was only marginally relevant to the case. While they could testify that they needed medical services and found the services provided to be satisfactory, they had no way of knowing whether the defendant had received any payments for referring them for the services they received. The testimony of the witnesses called was brief and did not require extensive preparation. The defendant's trial strategy was to emphasize that the testimony of his witnesses was unscripted because he had not met with them before, as contrasted to the testimony of the government witnesses who had allegedly been coached. (Tr. at 1783.) It cannot be said that this was unreasonable trial strategy, particularly given the relatively unimportant testimony from the defense witnesses. Trial counsel's delegation of witness interviews to an investigator was not the sort of complete failure to investigate critical issues that is objectively unreasonable.
The defendant's general allegation of inadequate preparation is insufficient to establish that he received ineffective assistance of counsel. This case is unlike the cases on which the defendant now relies where trial counsel failed to interview critical witnesses. See United States v. Kauffman, 109 F.3d 186 (3d Cir. 1997) (failing to interview known alibi witnesses); Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994) (failing to procure alibi witnesses whom counsel knew to have important information about the case); Tosh v. Lockhart, 879 F.2d 412 (8th Cir. 1989) (making no effort to locate any witnesses).
Most importantly, the defendant has not shown that he was prejudiced at all by trial counsel's preparation for witness examinations or his efforts to find additional witnesses. He has failed to show that there were additional witnesses who should have been called or any additional testimony that should have been elicited. See. e.g., Polanco v. United States, No. 99 Civ. 5739, 2000 WL 1072303, at *10 (S.D.N.Y. Aug. 3, 2000) (collecting .cases); Waters v. Hoke, No. 85 Civ. 2655, 1986 WL 14616, at *2 (E.D.N.Y. Nov. 18, 1986). Indeed, the defendant conceded at the argument of this motion that he could not say that the result at trial would have been any different had trial counsel rather than an investigator interviewed the witnesses. (Tr. of Sept. 22, 2000 at 19-20.)
The defendant now contends that his trial counsel's cross examination "was so repetitive and misguided as to render it largely useless." (Def. Memo at 21.) That is simply not an accurate description of the trial record. While the cross examination was lengthy and objections were sustained, and while the Court understandably attempted to accelerate the pace of the cross examination at side-bar conferences, the cross examination appeared to the Court to be extremely thorough and skillfully conducted. The cross examinations developed numerous themes which the defendant emphasized, including the extent of Niranjan Patel's interest in cooperation with the Government, the extent of the Government's witness preparation, the lack of clearer audio and videotapes, and the extent to which the Government translator had labored to produce the transcripts. While the cross examination was aggressive, the conduct of cross examination is generally entrusted to the judgment of trial counsel. See United States v. Luciano, 158 F.3d 655, 659 (2d Cir. 1998). Significantly, defense counsel does not explain in the current motion what additional lines of cross examination should have been pursued or what additional evidence could have been produced to alter the result of the trial.
The defendant's current allegations that trial counsel made inflammatory statements in his summation are also inaccurate. He first claims that trial counsel stereotyped people living in the Bronx as drug dealers. In fact, rather than insulting people who live in the Bronx, this statement alleged that the Government's main witness preyed on those individuals. (Tr. at 1776.) He then claims that trial counsel made certain ethnically or religiously offensive remarks. Some of these remarks were apparently intended to evoke sympathy for the defendant because of his ethnicity and, while improper, they were part of a trial strategy that cannot be found to have prejudiced the defendant in any way. Indeed, the Court instructed the jury that bias or prejudice was not to enter the jury deliberations in any way.
Most importantly, the defendant fails to show how he was prejudiced by any of the alleged trial errors. At argument of the present motion, the defendant did not seek to link any particular alleged failure by the defense to a different result at trial but asked the Court to find that "as a whole trial counsel was not doing his job." (Tr. of Sept. 22, 2000 at 21.) But, having assessed the entire trial record, it is clear that none of the alleged failures of trial counsel either individually or taken together were such that there is "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Indeed, it is quite clear to the Court that the alleged errors in this case had no effect on the outcome of the trial.
The Government's evidence was overwhelming. Niranjan Patel testified that he paid kickbacks to the defendant, detailed those kickbacks, and supported his testimony with documents and audio tapes evidencing the payments that were the subject of the three substantive counts. (Tr. 531-635, 798-930.) Nilay Patel testified that he delivered cash to the defendant. (Tr. 1473-88.) Trial counsel vigorously cross examined the government witnesses, but the jury's verdict was a determination that the testimony of the government witnesses, supported by documents and tapes, was credible. There is nothing in the errors alleged by trial counsel now that would have dented the government's evidence at trial or produced any different result. See. e.g., Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir. 1991); United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991); United States v. Reiter, 897 F.2d 639, 645 (2d Cir. 1990); Wise v. Smith, 735 F.2d 735, 739 (2d Cir. 1984).
The Court has carefully considered all of the alleged trial errors alleged by the defense. To the extent not specifically discussed, the Court has found them not to support a claim of ineffective assistance of counsel either singly or cumulatively.See Wise, 735 F.2d at 739.
(C)
Finally, the defendant's claim that his trial counsel slept at trial is unsupported by the record and is not a basis for any relief. At the start of trial, trial counsel informed the Court that at times he closed his eyes because of a medical condition but was paying attention and not sleeping. (Tr. 115-16.) On March 31, 2000 the Court noticed that trial counsel had been closing his eyes and asked trial counsel prior to the lunch recess if he had been paying attention. (Tr. 630.) Both trial counsel and his co-counsel assured the Court that trial counsel had been awake.(Id.) A similar sequence of events occurred only once more on April 13, 2000 with the same result. (Tr. at 1733.)The two instances where trial counsel closed his eyes during the course of the trial are not a basis for a new trial. See, e.g., United States v. Muyet, 994 F. Supp. 550, 560 (S.D.N.y. 1998) (concluding that counsel who fell asleep a few times during trial was not ineffective); see also United States v. Ditommaso, 817 F.2d 201, 215-16 (2d Cir. 1987) (holding that record did not support allegation that counsel was sleeping). This case is not one like Tippins v. Walker, 77 F.3d 682, 689 (2d Cir. 1996) where counsel was repeatedly unconscious during times when the defendant's interests were at stake. 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. In the only two instances where it appeared that trial counsel closed his eyes both trial counsel and his co-counsel assured the Court that trial counsel was not sleeping. Trial counsel's participation did not fall below prevailing professional norms and was not unprofessional error.
While trial counsel has submitted an unsworn letter supporting the motion, he does not suggest that any of his representations to the Court were false. See Aug. 3, 2000 letter of Mark Marcus.
CONCLUSION
For the reasons explained above, the defendant's motion under Rule 33 of the Federal Rules of Criminal Procedure for a new trial is denied.
SO ORDERED.