United States v. Philipose

163 F. App'x 636
Court of Appeals for the Tenth Circuit·Decided December 22, 2005·No. 04-6240·Unpublished

Opinions

ORDER AND JUDGMENT*

LUCERO, Circuit Judge.

Mariamma Philipose appeals the district court’s denial of her § 2255 habeas petition. She argues that she was denied effective assistance of counsel in connection with her decision to plead guilty to making a false statement to obtain federal employee’s compensation. Because her counsel’s performance did not fall below an objective standard of reasonableness, we AFFIRM the district court’s decision denying Philipose habeas relief.

I

Philipose severely injured her back while working as a nurse at the Y.A. Hospital. On July 6, 1980, Philipose attempted to lift a patient out of bed when she lost her balance and struck her back against a wall heater. Increasing pain and a failed back surgery forced her to work only sporadically until 1984, when Philipose’s doctors determined that she was no longer able to work at all. Philipose subsequently endured three more failed surgeries, after which her primary treating physician determined that she “could not stand, walk, or sit, without some change in position, for more than 20 to 30 minutes at a time,” and that Philipose “could not lift, bend or stoop.” As a result of her total disability stemming from a personal injury incurred while performing duties as a federal employee, Philipose collected compensation from the United States government.

Dr. Wade McCoy, a family practitioner, began treating Philipose for her constant pain. He became increasingly concerned with Philipose’s mental health, as Philipose reported suffering from suicidal ideation. In response, Dr. McCoy recommended that Philipose “try to be with family as much as possible ... that she be in the store, that she owns a retail shop in Bethany, if possible, that she go to the store and, at least for part of the day, be there in the store.... ” Philipose and her husband owned two stores located on the same street and, in response to Dr. McCoy’s recommendation, Philipose began spending time in these establishments.

Suspecting that Philipose was performing some duties at her family’s stores, the FBI and the U.S. Department of Labor Office of Inspector General launched an undercover operation in March 1998. The record reveals that on July 7, 1998, an undercover law enforcement officer pur[638] chased a pair of “scrub pants” from Philipose, that a series of undercover agents posed as customers over a one-year period, and that Philipose “had helped several agents who had come to the store.”

On May 4, 1999, Philipose filled out Form 1032. By completing and sending this form to the Department of Labor (“DOL”), benefits recipients comply with federal regulations requiring them to disclose to the DOL any employment compensation they have received. Philipose truthfully reported that she had not received any compensation. Form 1032 also requires disclosure of any employment, self-employment, volunteer work, and any involvement in a business enterprise for the preceding fifteen months. Philipose indicated on Form 1032 that she had not performed any work over the covered period of time.

In January 2000, four federal agents appeared at one of Philipose’s stores. Two agents took Philipose aside for questioning and the other two agents began questioning a store employee. According to the employee’s affidavit, she felt “very threatened” by the agents’ questioning. For example, after the employee stated that Philipose’s husband, and not Philipose, managed the store’s accounts and deposited money in the bank, the agents allegedly said: “You had better be careful because Mary is in serious trouble and you don’t want to get into serious trouble by lying” and “we have been watching her for a long time and today we watched her walk between the uniform store and the clothing store.” The employee acknowledged that on occasion, Philipose “rang up a sale or sacked clothes.” In response to questioning by the other two agents, Philipose admitted that she occasionally completed sales at a cash register, drove from the store to her house, and made bank deposits for the stores.

Aware that she was the subject of a serious federal criminal investigation, Philipose retained Mark Blasdel as counsel. Blasdel had extensive experience as a state prosecutor and criminal defense attorney. He met numerous times with Philipose and extensively reviewed her medical history and the facts surrounding her activities at the stores. Blasdel interviewed Philipose’s husband and store employees. After securing affidavits from the employees, he submitted them to the U.S. Attorney’s Office in advance of several meetings that he had with prosecutors to discuss the investigation. He also provided prosecutors with Philipose’s medical records and letters from physicians, and on one occasion brought one of Philipose’s treating physicians with him to meet with prosecutors. Blasdel presented a compelling case to the U.S. Attorney’s Office that Philipose was functionally incapable of working at her family’s stores.

Despite Blasdel’s efforts, prosecutors informed him that they were contemplating filing four felony charges against Philipose. Blasdel entered plea negotiations and secured an offer from the government that would allow Philipose to plead guilty to a single misdemeanor charge — making a false statement to obtain federal employee’s compensation. 18 U.S.C. § 1920. After receiving the government’s offer, Biasdel met for several hours on numerous occasions with Philipose, her husband, and her son (a chiropractor) to discuss the possibility of pleading guilty. They discussed the facts of the case, possible defenses, the risk of trial, and the benefits and detriments of pleading guilty to the misdemeanor. As a result of these conversations, Philipose decided to accept the plea offer.

With the assistance of Blasdel, Philipose completed a Petition to Enter a Plea of Guilty. On this form, Philipose answered [639] that she has “been under the care of a doctor or under treatment for a mental or emotional condition,” and elaborated that she was being treated for “pain management.” She represented that she had enough time to speak with Blasdel about her case and that she was satisfied with his representation. She indicated an understanding of the rights that she was waiving by pleading guilty and of the sentence exposure that she faced. In her own words, she stated that she “did the act charged,” specifically representing: “I made a statement on the Federal Workers Compensation form that I was not working when I was.”

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