Catoggio v. United States

• Docket Number: 23-60910-CIV-ALTMAN,21-60048-CR-ALTMAN
• Decision Date: 23 June 2023
• Parties: ALISA CATOGGIO, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

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ALISA CATOGGIO, Movant, v. UNITED STATES OF AMERICA, Respondent.

Nos. 23-60910-CIV-ALTMAN, 21-60048-CR-ALTMAN

United States District Court, S.D. Florida

June 23, 2023

Alisa Catoggio, pro se

ORDER

ROY K ALTMAN UNITED STATES DISTRICT JUDGE

Our Movant, Alisa Catoggio, pled guilty to one count of conspiring to defraud the United States and to pay healthcare kickbacks. See Judgment, United States v Catoggio, No. 21-60048-CR-2-ALTMAN (S.D. Fla. Aug. 22 2022), ECF No. 127 at 1-2. For that crime, we sentenced her to 60 months in a federal prison. Ibid. Catoggio has now filed a motion to vacate under 28 U.S.C. § 2255, challenging the legality of her conviction and sentence. See generally Motion to Vacate (the “Motion”) [ECF No. 1]. Rule 4(b) of the Rules Governing Section 2255 Cases authorizes us to summarily deny a § 2255 motion, even without a response from the Government, “if it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief.” Broadwater v. United States, 292 F.3d 1302, 1303 (11th Cir. 2002) (cleaned up). For two reasons, that's what we have here. First, Catoggio has procedurally defaulted all four of her claims because she never appealed her conviction and sentence to the Eleventh Circuit. Second-and in any event-none of Catoggio's claims is cognizable in a § 2255 proceeding. We therefore summarily DISMISS her Motion.

The Facts

A grand jury in this District charged Catoggio-along with her co-conspirator (and former boss) Matthew Smith-with seven separate crimes: one count of conspiracy to commit healthcare and wire fraud (Count 1); one count of conspiracy to defraud the United States and to pay healthcare kickbacks (Count 2); and five counts of paying kickbacks in connection with a federal healthcare program (Counts 3-7). See Indictment, United States v. Catoggio, No. 21-60048-CR-2-ALTMAN (S.D. Fla. Feb. 16, 2021), ECF No. 1. Catoggio worked as Smith's executive assistant at Diabetic Care Rx, LLC d/b/a Patient Care America (“PCA”), a pharmacy “that purported to prepare and dispense prescription drugs” in Broward County, Florida. Id. at 3. At her change-of-plea hearing, Catoggio admitted (under oath) that, “had this case gone to trial, the Government would have proved . . . beyond a reasonable doubt” the following:

In the summer of 2014, Defendant was hired to be the lead pharmacy technician, and later promoted to Executive Assistant to Senior VP Matt Smith, at [PCA]. During the conspiracy, co-conspirators negotiated agreements with independent contractor “sales reps” through which PCA agreed to pay for each compound prescription the sales reps referred to PCA. The sales reps would typically receive 45% to 65% of the insurance reimbursements for each prescription referral, minus a minimal cost of goods sold. The vast majority of referred prescriptions involved Tricare beneficiaries. In addition, to induce patients to order the drugs because they were marketed as “free” or “no cost” to the beneficiary, PCA failed to collect mandatory co-payments and/or paid the co-payments through sham charities. As set forth in PCA's own corporate compliance documents-signed by Defendant at the beginning of her employment- the above activities constituted illegal kickback arrangements under Federal law.

As one way to conceal the true source of the scripts, Defendant and others used “white out” to remove fax headers and phone numbers from the prescriptions. Later, PCA used sham contracts to conceal the true nature of the referral agreements. These sham contracts described a fictitious payment system whereby sales reps were purportedly paid an hourly wage based on various types of marketing activities (untethered to the volume or value of the patient referrals), when in fact the sales reps continued to receive a large percentage of the insurance reimbursements for each referral. Defendant maintained an electronic “contracts spreadsheet” to track the true compensation system. Defendant calculated the kickbacks owing to each sales rep at regular intervals throughout the scheme.... In addition, Defendant tracked the copayment amounts owed from certain sales reps who agreed to pay their patients' copays through a sham charity. In all, PCA failed to collect over $225,000 in required copayments.

Throughout the conspiracy, Defendant and others at PCA received numerous complaints from patients that the patients: (1) had never spoken to a doctor, (2) were offered payment for ordering the drugs, and (3) were told they had no co-pay. In all, PCA paid approximately $40 million in kickbacks to the sales reps for the referral of Tricare and CHAMPVA patients.

Factual Proffer, United States v. Catoggio, No. 21-60048-CR-2-ALTMAN (S.D. Fla. May 17, 2022), ECF No. 82 at 2-3.

In exchange for her guilty plea to Count 2, the Government agreed to “dismiss the remaining counts as to this defendant after sentencing.” Plea Agreement, United States v. Catoggio, No. 21-60048-CR-2-ALTMAN (S.D. Fla. May 17, 2022), ECF No. 81 at 1. Crucially, as part of the plea agreement, Catoggio acceded to the following appellate waiver:

The defendant is aware that Title 18, United States Code, Section 3742 affords the defendant the right to appeal the conviction and sentence imposed in this case. Acknowledging this, in exchange for the undertakings made by this Office in this plea agreement, the defendant thereby waives all rights conferred by Section 3742 to appeal the conviction and any sentence imposed, including any restitution or forfeiture order, or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure or an upward variance from the guidelines as calculated by the Court. The defendant further understands that nothing in this agreement shall affect the government's right and/or duty to appeal as set forth in Title 18, United States Code, Section 3742(b). However, if the government appeals the defendant's sentence pursuant to Section 3742(b), the defendant shall be released from the above waiver of appellate rights. By signing this agreement, the defendant acknowledges that she has discussed the appeal waiver set forth in this agreement with her attorney. The defendant further agrees, together with this Office, to request that the district Court enter a specific finding that the defendant's waiver of her right to appeal the sentence to be imposed in this case was knowing and voluntary.

Id. at 5 (emphasis added).

We accepted Catoggio's guilty plea, adjudicated her guilty of Count 2, and (a couple months later) sentenced her to 60 months in prison and ordered her to pay $75,106,971.83 in restitution. See Judgment, United States v. Catoggio, No. 21-60048-CR-2-ALTMAN (S.D. Fla. Aug. 22, 2022), ECF No. 127 at 1-2, 6. Consistent with her appellate waiver, Catoggio didn't appeal her conviction or sentence. See generally Docket.

The Law

Because collateral review isn't a substitute for a direct appeal, a movant can proceed under § 2255 only in extremely limited circumstances. As relevant here, a prisoner is entitled to relief under § 2255 if (1) “the sentence was imposed in violation of the Constitution or laws of the United States,” (2) “the court was without jurisdiction to impose such sentence,” (3) “the sentence was in excess of the maximum authorized by law,” or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); accord McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). In other words, “relief under § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988) (cleaned up); see also United States v. Frady, 456 U.S. 152, 165 (1982) (“[W]e have long and consistently affirmed that a collateral challenge will not do service for an appeal.”).

If a court grants a § 2255 claim, the court “shall vacate and set aside the judgment 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). The movant bears the burden of proving his § 2255 claim. See Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017) (“We rest our conclusion that a § 2255 movant must prove his [claim] on a long line of authority holding that a § 2255 movant bears the burden to prove the claims in his § 2255 motion.” (cleaned up)), cert. denied, 139 S.Ct. 1168 (2019).

Analysis

In her Motion, Catoggio advances four grounds for relief. First, she argues that the Mandatory Victim Restitution Act (“MVRA”) doesn't apply to her case because the task of identifying the victims of her conspiracy would be “impracticable.” Motion at 4 (“The MVRA is clear that restitution can only be imposed to the extent that victims of a crime are actually identified.”). Second, Catoggio insists that Tricare and CHAMPVA-the federal agencies she and Smith defrauded-can't be “victims” under the MVRA because they aren't “persons.” Id. at 5. Third, Catoggio says that “pharmacy field [and] pharmacy billing is beyond the expertise/scope of the prosecution” and that “there was not a pharmacy consultant on this case.” Id. at 7. We aren't quite sure what Catoggio means here, but we assume she's alleging that her prosecution was somehow illegal because the Government needed a “pharmacy consultant” to adequately investigate her case.^[1] Fourth, Catoggio asserts that because she had “no ownership in the pharmacy,” we erred in ordering her to pay restitution and in applying a 22-point...