U.S. v. Cohen

• Citation: 459 F.3d 490
• Decision Date: 17 August 2006
• Docket Number: No. 05-4565.,05-4565.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Ira COHEN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 490

459 F.3d 490

UNITED STATES of America, Plaintiff-Appellee, v. Steven Ira COHEN, Defendant-Appellant.

No. 05-4565.

United States Court of Appeals, Fourth Circuit.

Argued May 26, 2006.

Decided August 17, 2006.

ARGUED: Larry Constantine Economos, Mills & Economos, L.L.P., Greenville, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Office of The United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Christine Witcover Dean, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER and TRAXLER, Circuit Judges, and JOSEPH R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Dismissed by published opinion. Judge TRAXLER wrote the opinion, in which Judge NIEMEYER and Judge GOODWIN joined.

OPINION

TRAXLER, Circuit Judge.

Pursuant to a written plea agreement, Steven Ira Cohen pled guilty to two counts of mail fraud, see 18 U.S.C.A. § 1341 (West Supp.2006), and one count of conspiracy to commit health care fraud, see 18 U.S.C.A. § 1347 (West 2000). The district court sentenced Cohen to a term of 28 months imprisonment, followed by a three-year term of supervised release, and ordered Cohen to pay $371,901 in restitution, pursuant to the Mandatory Victims Restitution Act ("MVRA"), see 18 U.S.C.A. § 3663A (West 2000 & Supp.2006).

Cohen now seeks to appeal, arguing that the district court erred in determining the amount of loss for sentencing purposes and in calculating the amount of restitution owed to his victims. The United States moved to dismiss the appeal based on an appeal waiver contained in Cohen's plea agreement. Because the appeal waiver is valid and the issues Cohen seeks to raise fall within its scope, we grant the government's motion and dismiss the appeal.

I.

Defendant Cohen is a chiropractor licensed to practice in the State of North Carolina, who has owned, operated, and practiced at several chiropractic clinics in the state since the early 1980s. In January 2004, Cohen was indicted on 21 counts of mail fraud and 16 counts of health care fraud (the "First Indictment"). The First Indictment charged that, from July 6, 1998 through October 22, 1998, Cohen devised a scheme to defraud Blue Cross/Blue Shield ("BCBS") and the United States Department of Labor's Office of Worker's Compensation Programs ("OWCP") by submitting claims for medical services that had never been provided and by submitting claims that misrepresented the nature and extent of patient treatments. According to the First Indictment, Cohen's fraudulent claims caused BCBS and OWCP to send checks by U.S. Mail in payment for the services purportedly rendered at Cohen's clinics.

Approximately three months later, Cohen was charged in a separate indictment with one count of conspiracy to commit health care fraud, 511 counts of health care fraud, one count of conspiring to launder money, in violation of 18 U.S.C.A. § 1956 (West 2000 & Supp.2006), and two counts of attempting to influence a witness, in violation of 18 U.S.C.A. § 1512(b)(1) (West 2000) (the "Second Indictment"). The Second Indictment charged a much broader scheme, alleging that from June 1999 through April 2004, Cohen set up several different clinics and conspired with others, including other medical providers, to submit false and fraudulent health care claims to BCBS and several additional insurance companies. According to the Second Indictment, Cohen and other members of the conspiracy submitted claims with fictitious addresses, multiple claims for the same treatment, claims for services that were never rendered, and claims that misrepresented the nature of the treatment provided. Each of the 511 separate counts of health care fraud represents a separate fraudulent billing that incorporates by reference the factual basis of the conspiracy.

On July 7, 2004, the district court ordered the two indictments consolidated for trial. The parties engaged in plea negotiations and, on July 23, 2004, reached a plea agreement that was memorialized in writing. In paragraphs 2.a. and 2.b. of the plea agreement, respectively, Cohen agreed, without qualification, "[t]o plead guilty to counts sixteen and seventeen of the [First Indictment], filed January 14, 2004; and count one of the [Second] Indictment filed April 15, 2004," and "[t]o make restitution to any victim in whatever amount the Court may order, pursuant to 18 U.S.C. §§ 3663 and 3663A [of the MVRA]." J.A. 65. Counts sixteen and seventeen of the First Indictment charged Cohen with receiving payment from BCBS for two fraudulent health care claims. Count One of the Second Indictment charged Cohen with the June 1999 through April 2004 conspiracy to defraud the insurance companies.

Paragraph 2.c. of the agreement memorialized an appeal waiver, under which Cohen agreed:

To waive knowingly and expressly all rights, conferred by 18 U.S.C. § 3742, to appeal whatever sentence is imposed, including any issues that relate to the establishment of the [applicable and advisory] Guideline range, reserving only the right to appeal from an upward departure from the Guideline range that is established at sentencing, and further to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of the Defendant's guilty plea. The foregoing appeal waiver does not constitute or trigger a waiver by the Government of any of its rights to appeal provided by law.

J.A. 66. In paragraph 4 of the agreement, Cohen represented that he understood the maximum terms of imprisonment for his crimes, as well as the applicable penalty of "[r]estitution pursuant to 18 U.S.C. §§ 3663 and 3663A [of the MVRA], and as agreed to in paragraph 2(b) [of the agreement]." J.A. 71, 72.

Following a guilty plea proceeding pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, the district court accepted Cohen's plea. At the subsequent sentencing hearing, the district court heard arguments and evidence as to the amount of loss for purposes of calculating the advisory guideline sentence, as well as to the amount of restitution due under the MVRA. At the conclusion of the hearing, the district court calculated the amount of loss from the fraudulent schemes, for purposes of determining Cohen's advisory guideline range, at $377,095. Cohen was sentenced to 28 months in prison, followed by a three-year term of supervised release. In addition, the district court calculated Cohen's restitution obligations to his victims to be $371,901.¹

II.

Despite the appeal waiver, Cohen thereafter filed this appeal seeking to challenge the district court's calculation of the $377,095 guideline loss as clearly erroneous, and the restitution amount of $371,901 as an abuse of discretion. He argues that the appeal waiver provision contained in the plea agreement is invalid and unenforceable. Even if enforceable, Cohen argues that he may nevertheless appeal the restitution portion of the order because restitution falls outside the scope of the appeal waiver.

The government moved to dismiss the appeal based upon the appeal waiver. Thus, "[t]he threshold issue we must consider is whether the appeal waiver in [Cohen's] plea agreement precludes him from presenting these issues on appeal." United States v. Blick, 408 F.3d 162, 167 (4th Cir.2005). Generally speaking, we will uphold a defendant's waiver of appellate rights if the waiver is valid and the issue sought to be appealed falls within the scope of the waiver. See United States v. Attar, 38 F.3d 727, 731-33 (4th Cir.1994); see also Blick, 408 F.3d at 168 (We "adhere[ ] to the principle that sentencing appeal waivers generally are enforceable, and we have enforced such waivers in a number of cases."). To determine whether an appeal waiver is valid, we look to "whether the defendant knowingly and intelligently agreed to waive the right to appeal," an inquiry "ultimately ... evaluated by reference to the totality of the circumstances." Id. at 169 (internal quotation marks omitted). We review the validity of an appeal waiver de novo. See id. at 168.

A.

On appeal, Cohen argues that we should find his appeal waiver to be invalid and unenforceable because: his ability to knowingly and intelligently waive his right to appeal was compromised by his Attention Deficit Hyperactivity Disorder ("ADHD") and accompanying reading and writing disability; the government drafted the plea agreement and he was in an unequal bargaining position given the severity of the charges leveled against him; the appeal waiver was not reciprocal; and the government induced him to sign the plea agreement by promising not to argue a guideline loss in excess of $76,211.61 at sentencing.

Cohen's argument that the agreement was not knowingly and intelligently entered into because he suffered from ADHD during its negotiation and execution is simply not supported by the record. The record reflects that the district court undertook a careful inquiry to determine that Cohen was competent and understood what he was doing by entering into the plea agreement and pleading guilty. The district court asked specific questions about Cohen's ADHD condition, and explained to Cohen that the court had to be "clear and certain that the record is correct and that you had the requisite understanding of what's going on in order to enter a plea" because "at some point in time, there may be a reason that you or some other individual would challenge your capacity to enter a plea today." S.J.A. 858. Cohen was also represented by counsel during the proceedings, who assured the district court that the various doctors who evaluated Cohen all found him...