Picardi v. United States

• Decision Date: 25 September 2018
• Docket Number: CIV. 15-5050-JLV
• Parties: EDWARD J.S. PICARDI, M.D, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of South Dakota

EDWARD J.S. PICARDI, M.D, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIV. 15-5050-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

September 25, 2018

ORDER

INTRODUCTION

Petitioner Edward J.S. Picardi, M.D.,¹ filed a petition (Docket 1) pursuant to 28 U.S.C. § 2255 to vacate or set aside his criminal conviction in United States v. Edward J.S. Picardi, M.D., CR.10-50092 (D.S.D. 2013). Based on the standing order of October 16, 2014, the matter was referred to United States Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B). The government moved to dismiss the petition. (Docket 23). The magistrate judge issued a report recommending the court grant the government's motion to dismiss. (Docket 28). Petitioner timely filed objections to the report andrecommendation. (Docket 34). For the reasons stated below, petitioner's objections are overruled and the report and recommendation is adopted as modified by this order.

PROCEDURAL HISTORY

Picardi was charged on September 21, 2010, in a multi-count indictment. (CR. Docket 1). On October 12, 2011, a superseding indictment was filed. (CR. Docket 75). A second superseding indictment was filed on August 29, 2012. (CR. Docket 141). The second superseding indictment charged Picardi with counts 1-5: income tax evasion for the years 1999 through 2003, inclusive, in violation 26 U.S.C. § 7201; counts 6-10: making and subscribing to a false Form 1040 Schedule B for the years 2005 through 2009, inclusive, in violation of 26 U.S.C. § 7206(1); and counts 11-13: failing to disclose a financial interest in a foreign financial account with an aggregate value in excess of $10,000 for the years 2007 through 2009, inclusive, in violation of 31 U.S.C. §§ 5314 and 5322 and 31 CFR §§ 103.24 and 103.27(c). Id.

Attorney Robert W. Van Norman of Rapid City, South Dakota, and Attorney Jennifer Hinkebein Culotta, who appeared pro hac vice from New Albany, Indiana, represented Picardi throughout the criminal trial. (Docket 28 at pp. 3-4).² On September 17, 2012, the jury trial commenced and took 12 days to complete. (CR. Docket 197). On October 5, 2012, the jury foundPicardi guilty of all 13 counts of the second superseding indictment.³ (CR. Docket 196). Post-trial, Attorney Culotta withdrew and Attorney John R. Murphy of Rapid City joined Attorney Van Norman to represent Picardi at sentencing. (Docket 28 at p. 15; see also CR. Dockets 202 & 206).

On May 7, 2013, the court sentenced Picardi to "60 months on Counts 1-5; 36 months on Counts 6-10; and 60 months on Counts 11-13. All counts to run concurrently for a total sentence of 60 months." (CR. Docket 250 at p. 2). The defendant was placed on one year of supervised release on each count to run concurrently. Id. at p. 3. On January 10, 2014, the United States Court of Appeals for the Eighth Circuit affirmed the convictions. (CR. Docket 264; see also United States v. Picardi, 739 F.3d 1118 (8th Cir. 2014)).

On June 22, 2015, Picardi timely filed a petition pursuant to 28 U.S.C. § 2255 ("§ 2255 Petition") to vacate or set aside his criminal conviction. (Docket 1). Attorney Murphy represented Picardi during his direct appeal to the United States Court of Appeals for the Eighth Circuit and through the filing of petitioner's objections to the report and recommendation in this § 2255 proceeding.⁴ (Docket 28 at p. 32; see also Docket 37).

Attached to the § 2255 Petition was a 33-page opinion letter dated June 15, 2015, of Attorney John Colvin ("Colvin Letter"). (Docket 1-1). Thegovernment filed a motion to exclude the Colvin Letter. (Dockets 14 & 15). The government filed a motion to dismiss the § 2255 Petition pursuant to Fed. R. Civ. P. 12(b)(6) and 12(h)(3). (Docket 23). Petitioner filed briefs in opposition to both of the government's motions. (Dockets 25 & 27).

The magistrate judge filed a report and recommendation ("R&R"). (Docket 28). The magistrate judge denied the government's motion to strike, indicating the Colvin Letter would be considered as "a brief from a lawyer representing a client—it merely sets forth the law and the facts upon which Mr. Picardi relies in support of his grounds for relief . . . ." Id. at p. 25. The R&R recommended the government's motion to dismiss be granted and Picardi's § 2255 Petition be denied. Id. at p. 95. Picardi timely filed his objections to the report and recommendation. (Docket 34).

MOOTNESS

Picardi completed the period of incarceration imposed in the judgment and on September 15, 2017, his period of supervised release expired. (CR. Docket 270). Picardi is no longer subject to the jurisdiction of the court in the criminal case.

"A petition for habeas corpus must be filed while the petitioner is in custody." Leonard v. Nix, 55 F.3d 370, 372-73 (8th Cir. 1995) (referencing Maleng v. Cook, 490 U.S. 488 (1989)). "If a petitioner, though released from custody, faces sufficient repercussions from his allegedly unlawful punishment, the case is not moot." Id. (referencing Carafas v. LaVallee, 391 U.S. 234, 239-40(1968) (a habeas petitioner "should not be . . . required to bear the consequences of [an] assertedly unlawful conviction simply because the path has been so long that he has served his sentence"). "Collateral consequences are presumed to stem from a criminal conviction even after release." Id.

"[I]n Pollard v. United States, 352 U.S. 354 (1957), the [Supreme] Court abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed." Sibron v. New York, 392 U.S. 40, 55 (1968). "[T]he Court concluded that '(t)he possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.' " Id. (citing Pollard, 352 U.S. at 358). "The Court thus acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. The mere 'possibility' that this will be the case is enough to preserve a criminal case from ending 'ignominiously in the limbo of mootness.' " Id. (citing Parker v. Ellis, 362 U.S. 574, 577 (1960) (dissenting opinion)).

Picardi's § 2255 petition was filed on June 22, 2015, while he was in custody under the criminal judgment. (Docket 1 ¶ 24). Although Picardi completed his imprisonment and supervised release prior to the court's adjudication of his § 2255 petition, "[t]he case is nevertheless not moot, because the federal conviction could have collateral consequences in the future, and [Picardi] was still in federal custody when he instituted these § 2255 proceedings . . . ." Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (citingClemmons v. United States, 721 F.2d 235, 237 n.3 (8th Cir. 1983)). It was Picardi's conviction which resulted in the revocation of his license to practice medicine. This collateral consequence "is sufficiently substantial to justify [the court] dealing with the merits" of his § 2255 petition. Sibron, 392 U.S. at 55 (internal citation omitted).

The court finds Picardi's § 2255 Petition is not moot.

PETITIONER'S OBJECTIONS

Petitioner's objections are broken down into six principal categories. Those categories are:

1. The magistrate judge was unduly prejudiced against petitioner by referring to him as Mr. Picardi as opposed to Dr. Picardi.

2. The magistrate judge erred by discounting the credibility of the § 2255 Petition as an unsworn document and because the petition was not supported by documentation.

3. The magistrate judge erred by confusing the identity of the entities engaged in the financial transactions evidenced at trial.

4. The magistrate judge erred by finding petitioner's challenge to the tax laws as void-for-vagueness was procedurally defaulted.

5. The magistrate judge erred by failing to find petitioner received ineffective assistance of counsel at trial.

6. The magistrate judge erred by recommending that no evidentiary hearing be held on the § 2255 Petition.

(Docket 34).

The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(l). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

Each of petitioner's objections will be separately analyzed.

ANALYSIS

1. THE MAGISTRATE JUDGE WAS UNDULY PREJUDICED AGAINST PETITIONER BY REFERRING TO HIM AS MR. PICARDI AS OPPOSED TO DR. PICARDI

Petitioner objects to the magistrate judge's decision to refer to him as Mr. Picardi as opposed to Dr. Picardi. (Docket 34 at pp. 1-3). He argues the magistrate judge engaged in "over-reaching" by not referring to him as Dr. Picardi. Id. at p. 2. Picardi acknowledges the South Dakota Board of Medical and Osteopathic Examiners revoked his license to practice medicine but claims "it did not require Dr. Picardi to cease using the term." Id. Picardi claims "[t]he magistrate appears to have gone out of its way to demote Petitioner in status . . . . It was improper for the magistrate to make this an issue and it was inappropriate to find against Dr. Picardi on the matter in the absence of clear authority justifying its position." Id. at p. 2-3.

In footnote 1, the court addressed its finding about how to address petitioner throughout this order. The magistrate judge went through the same process in developing the R&R. (Docket 28 at p. 3 n.2). The designation of atitle to petitioner throughout the report and this order does not suggest either the magistrate judge or the court is minimizing petitioner's right to have the content of his § 2255 Petition evaluated under the same criteria afforded to every other defendant who files a petition under § 2255. The court finds the magistrate judge gave petitioner the proper level of consideration of his § 2255 Petition.

Picardi's objection on this basis is overruled.

2. THE MAGISTRATE JUDGE ERRED BY...