U.S.A v. Williams

• Decision Date: 15 July 2010
• Docket Number: No. 09-3521.,09-3521.
• Citation: 612 F.3d 500
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Martin T. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

612 F.3d 500

UNITED STATES of America, Plaintiff-Appellee,v.Martin T. WILLIAMS, Defendant-Appellant.

No. 09-3521.

United States Court of Appeals Sixth Circuit.

Argued: June 8, 2010.

Decided and Filed: July 15, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Kenneth P. Tableman, Kenneth P. Tableman, P.C., Grand Rapids, Michigan, for Appellant. Carol M. Skutnik, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Kenneth P. Tableman, Kenneth P. Tableman, P.C., Grand Rapids, Michigan, for Appellant. Carol M. Skutnik, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: DAUGHTREY, GILMAN, and SUTTON, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

A jury convicted Martin T. Williams on five counts of fraudulently overbilling Medicare, Medicaid, and several private insurance companies as an employee of a psychiatric medical practice. The district court sentenced Williams to 12 months of probation and ordered him to pay restitution in the amount of $822,459.21. Williams appeals his conviction, as well as the amount of restitution that he was ordered to pay. He also brings a claim of ineffective assistance of trial counsel. For the reasons set forth below, we AFFIRM the portion of the district court's judgment relating to Williams's conviction, DISMISS WITHOUT PREJUDICE Williams's ineffective-assistance-of-counsel claim, VACATE the portion of the district court's judgment that concerns restitution, and REMAND the restitution issue for further consideration.

I. BACKGROUND

In January 2002, Dr. Lal P. Rohira, Sharonne A. Szyrej, and Williams were indicted on one count of conspiracy to commit mail fraud, wire fraud, and healthcare fraud; on three counts of wire fraud; and on one count of healthcare fraud. The relevant conduct took place between approximately July 1991 and September 1997. Szyrej and Williams worked as employees of Rohira, a psychiatrist. All three were charged with illegally billing the federal government's Medicare and Medicaid programs, as well as a number of private insurance companies, primarily at the direction of Rohira. Specifically, the indictment charged Rohira, Szyrej, and Williams with “upcoding” (billing for full therapy sessions when only medicine checkups were provided), billing for scheduled patients who missed their appointments, and billing for therapy services provided by Szyrej, who was not licensed to perform such services.

The district court severed the trial of Williams from the joint trial of Rohira and Szyrej. Szyrej subsequently pled guilty to the conspiracy charge and agreed to testify against her codefendants in exchange for the dismissal of the remaining four charges against her. She later testified as a government witness at the separate trials of both Rohira and Williams.

Rohira was tried before a jury in July 2003 and was found guilty on all five counts. He then filed motions for acquittal and for a new trial. These motions remained pending before the district court when Williams went to trial.

Williams was tried before a jury in December 2003. After the close of the evidence, Williams's trial counsel objected to a proposed jury instruction dealing with the concept of deliberate ignorance. His counsel argued that this instruction conflicted with a later instruction explaining the mental state required to show “the defendant's connection to the conspiracy.” The district court overruled Williams's objection and included the instruction in its charge to the jury. Williams was found guilty on all counts.

Three days later, the district court sentenced Szyrej to one year of probation. In addition, the court ordered Szyrej to pay restitution in the amount of $600, concluding that the conspiracy victims had not been able to establish the amount of their losses.

A prior panel of this court described the subsequent procedural history of this case as follows:

Williams filed timely post-trial motions for judgment of acquittal and for a new trial with the court. In the latter filing, he alleged that the prosecution had failed to disclose a letter sent by the government to two prosecution witnesses, a letter that Williams contends constituted a “secret agreement” not to prosecute the witnesses in exchange for their testimony against Rohira and Williams, despite the witnesses' own guilt in the fraudulent billing scheme. According to the defendant, such non-disclosure violated the mandates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Supreme Court decisions requiring the prosecution to provide criminal defendants with evidence in the government's possession that could be considered exculpatory or that could serve to impeach the credibility of prosecution witnesses.

Over a year later, on February 4, 2005, the district court addressed not only Williams's motions for judgment of acquittal and for a new trial, but also Rohira's similar motions that had remained unresolved during the pendency of Williams's trial. In ruling upon those motions in separate decisions, however, the district judge focused upon an issue that had not been raised by either Williams or Rohira. In Williams's case, the district court noted:

The prosecution called FBI Special Agent Graupmann to testify about the amount of financial loss caused by the defendant's alleged billing fraud; through a dubious method, he estimated the loss at over $1 million. Under Booker and Blakely, that is a fact that must be admitted by the defendant or expressly found by the jury beyond a reasonable doubt before it may be used to help convict him or to increase his sentence.

United States v. Williams, 355 F.Supp.2d 903, 908 (N.D.Ohio 2005) (footnote omitted), (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). Because the defendant's “jury was never expressly charged with finding the amount of loss,” the district judge “concluded that Williams is entitled to a new trial under Booker and Blakely.” Williams, 355 F.Supp.2d at 909-10. The court “also noted that the prosecution's alleged Brady violation might entitle Williams to a new trial as well,” id. at 904, but, having already relied upon Booker and Blakely to grant relief to the defendant, ruled that “Williams's motion for a new trial on the ground of the prosecution's alleged violation of Brady v. Maryland and his motion for judgment of acquittal due to insufficient evidence are denied without prejudice.” Id. at 910.

On February 14, 2005, Rohira filed with the district court a timely motion for reconsideration. In that filing, Rohira asked, in the interest of judicial economy, for a ruling by the court on his unresolved request for judgment of acquittal and for a new trial on grounds that he had originally identified in his post-trial motion, including a Brady violation, prosecutorial misconduct, and ineffective assistance of counsel. Eight days later, on February 22, Williams filed his own motion for reconsideration, referencing “the reasons more fully elucidated” by Rohira.

Concluding that Williams's motion for reconsideration was untimely and, thus, was not an impediment to the district court's February 4 ruling becoming final, the United States filed an appeal to this court on March 3, 2005 (docketed here as No. 05-3293). On August 9, 2005, however, the district judge issued a decision addressing Williams's motion for reconsideration and specifying that the prosecution's failure to “turn over a letter which could readily be construed as a promise of nonprosecution in exchange for the testimony of two key government witnesses” did indeed result in a constitutional violation that entitled the defendant to a new trial. The district court also concluded, however, that Williams's motion for judgment of acquittal should be denied “because the jury's guilty verdicts are supported by substantial and competent evidence.” The government then filed a second appeal to this court that challenged only the propriety of the August 9 ruling (docketed here as No. 05-4160). The two matters have now been consolidated for appeal.

United States v. Williams, Nos. 05-3293, 05-4160, 2006 WL 3203748, at *1-*2 (6th Cir. Nov.6, 2006) (brackets and ellipses removed).

With regard to the government's first appeal, this court concluded that the district court erred in holding that Blakely and Booker mandated a new trial for Williams. Id. at *4. The rule set forth by the Supreme Court in Blakely and Booker was not implicated because “the district court never imposed sentence upon [Williams],” and the rule does not otherwise apply to “the jury's resolution of the issues presented to it.” Id.

Concerning the government's second appeal, this court determined that because the district court lacked jurisdiction to enter the August 9, 2005 order, that order “was a legal nullity.” Id. at *7. The panel noted, however, that “because the district court originally denied without prejudice the defendant's motion for a new trial based upon alleged Brady/Giglio violations, Williams remains free to file any subsequent collateral attack upon his convictions that he deems proper.” Id. In conclusion, the court reversed the grant of a new trial in Case Number 05-3293, vacated the judgment in Case Number 05-4160, reinstated Williams's convictions, and remanded the matter for sentencing. Id.

When the district court granted Williams's motions for a new trial and for reconsideration, the court also granted Rohira's motions for the same relief on the same grounds. The government appealed the court's orders as to Rohira but, while that appeal was pending, the parties reached a plea agreement. Rohira agreed to plead guilty to all five counts of the indictment in exchange for a stipulation that, “[a]s a result of the conduct of [Rohira] and his co-conspirators, [the conspiracy...