Roy v. United States

Decision Date20 December 2018
Docket Number17 C 5217
PartiesANKUR ROY, Petitioner, v. UNITED STATES, Respondent.
CourtU.S. District Court — Northern District of Illinois

Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER

In July 2014, Ankur Roy was convicted under 18 U.S.C. § 1347 of five counts of healthcare fraud. United States v. Roy, No. 13 CR 377 (N.D. Ill.), Dkts. 1 (indictment), 98 (verdict). This court sentenced him to 75 months' imprisonment. Id., Dkt. 206. The Seventh Circuit affirmed. United States v. Roy, 819 F.3d 998 (7th Cir. 2016).

In July 2017, Roy filed this petition under 28 U.S.C. § 2255, alleging that his trial counsel, Lorenzo Palomares-Starbuck, provided constitutionally ineffective assistance in conducting plea negotiations and that his sentencing counsel, Marcia Jean Silvers, provided constitutionally ineffective assistance during sentencing. Doc. 4. The court granted Roy's request for an evidentiary hearing under 2255 Rule 8. Docs. 19, 21. The hearing took place over two days, Docs. 72-73, and the parties filed post-hearing briefs, Docs. 79-80, 87-88. For the following reasons, Roy's petition is denied and a certificate of appealability will not issue.

Background

Section 2255(a) provides: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Such relief is "appropriate only for 'an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). Under Seventh Circuit precedent, the court must "review evidence and draw all reasonable inferences from it in a light most favorable to the government." Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992); see also Messinger v. United States, 872 F.2d 217, 219 (7th Cir. 1989) (same); United States v. Smith, 2017 WL 1321110, at *1 (N.D. Ill. Apr. 3, 2017) (same), aff'd, 877 F.3d 720 (7th Cir. 2017). That said, even if the governing standard were more forgiving to Roy and required only that he prove his case under the ordinary civil preponderance of the evidence standard, see Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000), the court still would have found the facts set forth below in this Background section and the Discussion section that follows.

A. Overview of the Criminal Case

On May 8, 2013, Roy was indicted along with two co-defendants, Dipen Desai and Akash Patel, and was arrested six days later. Roy, 13 CR 377, Dkt. 1; Doc. 70-2 at ¶ 4. (Record citations to the docket in this case, 17 C 5217, are Doc. ___, while record citations to the docket in the underlying criminal case, 13 CR 377, are Dkt. ___.) The indictment charged the defendants—the owners of Selectcare Health, Inc., a registered Medicare provider of outpatient physical and respiratory therapy—with executing a scheme to defraud Medicare and Blue Cross Blue Shield of Illinois ("Blue Cross" or "BCBS") by submitting fraudulent claims for respiratory therapyservices that were never provided. Roy, 13 CR 377, Dkt. 1 at 1, 4. Specifically, the indictment alleged that between March 2011 and July 2011, the defendants "sought reimbursement for respiratory services (i) allegedly provided on days that ... Selectcare's sole respiratory therapist[] was not working; (ii) for time periods in which the patients were not receiving care from Selectcare; and (iii) for treatment seven days a week for three hours per day, a schedule well in excess of any schedule prescribed for patients at Selectcare." Id., Dkt. 1 at 4-5. (The government later narrowed the time frame to March 2011 through May 2011. Doc. 80-2.) The indictment further alleged that Roy, working with Desai and Patel, submitted fraudulent claims worth slightly more than $4 million, resulting in payments to Selectcare of approximately $2.2 million from Medicare and $320,000 from Blue Cross. Roy, 13 CR 377, Dkt. 1 at 5. The indictment also alleged that Roy personally deposited to his account over $440,000 worth of fraudulent proceeds, all in cashier's checks. Id., Dkt. 1 at 12.

Desai and Patel testified at trial that the scheme was Roy's idea. Id., Dkt. 245 at 44-45. (Desai and Patel testified only at trial, and Roy and Palomares testified only at the § 2255 evidentiary hearing, so references to their testimony should be so understood.) As Patel stated in a March 25, 2014 interview with federal investigators, the three borrowed heavily to fund their purchase of the business in September 2006 from its previous owners and their own expansion efforts. Doc. 9-33 at 2-3. Because of personal financial difficulties, Roy also borrowed money from the company for his own use without Desai's and Patel's permission. Roy, 13 CR 377, Dkt. 189 at 5; id., Dkt. 245 at 53 (where the court observed in sentencing Roy that he "was more culpable, given that it was his unauthorized loans from the company that led, at least in part, to the company's financial distress, which in turn led to the scheme"). Patel testified that he believed Roy owed him and Desai "upwards of close to $200,000." Id., Dkt. 235 at 20.

Beginning in late 2009, Desai, Patel, and Roy contemplated ending their partnership. Id., Dkt. 235 at 16-17. Consistent with those discussions, Roy was removed as a signatory from Selectcare's primary bank account. Id., Dkt. 235 at 17-19. Desai and Patel formed a separate corporate entity, North Suburban Therapy, to which they planned to transfer Selectcare's Medicare license and other assets. Id., Dkt. 235 at 20-21; id., Dkt. 236 at 16-17. In early 2010, Desai and Patel submitted documents to Medicare indicating that Selectcare's assets had been sold to North Suburban Therapy. Id., Dkt. 235 at 68-78; Doc. 9-33 at 8-10. Medicare did not approve transfer of the license, and the planned separation between Desai and Patel, on the one hand, and Roy, on the other, was never executed before Selectcare was dissolved in late 2011, months after the fraudulent billings had ceased. Roy, 13 CR 377, Dkt. 235 at 99-100; id., Dkt. 236 at 17; see also 42 C.F.R. § 489.18 (requiring that "[a] provider who is contemplating or negotiating a change of ownership ["CHOW"] must notify CMS [the Centers for Medicare and Medicaid Services]"); Medicare Enrollment Application (CMS-885A) at 5, https://www.cms.gov/Medicare/CMS-Forms/CMS-Forms/downloads/cms855a.pdf (explaining that "[a] CHOW typically occurs when a Medicare provider has been purchased (or leased) by another organization"). Roy testified that he had begun thinking about moving to Miami in early 2011, and in fact moved to Florida permanently in July of that year. Doc. 80-7 at 60.

As the court noted at Roy's sentencing, Desai and Patel testified credibly that "Roy thought that because they were such small players, they were unlikely to get caught." Roy, 13 CR 377, Dkt. 245 at 45. Trial evidence showed that the three defendants "took steps to avoid getting caught. They structured the claims to Medicare so as not to draw Medicare's attention. They destroyed Selectcare records ... to hide the evidence of fraud. There was shredding." Ibid. (Indeed, Roy admitted during the § 2255 evidentiary hearing that he, together with Patel andDesai, "collectively agreed to destroy the company's records," including hard drives and documents. Doc. 80-7 at 105.) Trial evidence also showed that Roy personally deposited to his own account over $440,000 in fraudulent proceeds, using that money to pay his debt to Selectcare, his student loans, and credit card bills. Roy, 13 CR 377, Dkt. 189 at 5.

Having agreed to cooperate against Roy, Desai and Patel each pleaded guilty to one count of healthcare fraud under 18 U.S.C. § 1347. Id., Dkts. 57-58 (Patel), 63-64 (Desai). Acknowledging their acceptance of responsibility, their cooperation against Roy, and their efforts to voluntarily disgorge their ill-gotten gains, the court sentenced Desai and Patel to imprisonment terms of 27 months and 30 months, respectively, and ordered both to pay restitution of approximately $2.5 million. Id., Dkt. 157; id., Dkt. 245 at 47, 52-56; id., Dkt. 262. The court sentenced Roy to 75 months' imprisonment, ordering restitution in the same amount. Id., Dkt. 206.

B. Roy's Initial Efforts to Obtain Representation

In July 2012, after learning from Desai that FBI agents were investigating Selectcare's billing, Roy—who has a bachelor's degree from the University of Illinois at Urbana-Champaign and a master's degree from the Massachusetts Institute of Technology ("MIT"), Doc. 80-7 at 81-82—retained Frank Burke, an experienced criminal defense attorney at Seyfarth Shaw LLP, to represent him. Id. at 85-86; Doc. 80-18 at ¶¶ 1-4. Roy testified that he was "involved" in hiring attorneys for Selectcare and was referred to Burke by an attorney who had done transactional work for the company. Doc. 80-7 at 83, 87.

In September 2012, Burke participated in a proffer session with prosecutors from the United States Attorney's Office for the Northern District of Illinois. Doc. 80-18 at ¶¶ 10-11; see also Gov't Exh. Aug. 2012 Proffer. According to Burke, Maureen Merin—an Assistant United States Attorney assigned to the Selectcare investigation and later to Roy's prosecution team—"indicated that the government had substantial incriminating evidence against Mr. Roy, that the government had suffered a substantial loss, and would require a...

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