Winston Hall Worthington v. United States

726 F.2d 1089

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 5, 1984
• Docket: 83-5239
• Status: Published

Opinions

WEICK, Senior Circuit Judge.

Winston Hall Worthington, M.D., Petitioner-Appellant, has appealed to this Court from the judgment of the Federal District Court denying, without a hearing, his motion and amended motion to vacate sentence, filed pursuant to 28 U.S.C. § 2255.

I.

On November 17, 1978, in a 300 count indictment returned in the United States District Court for the Western District of Tennessee, Western Division, Worthington had been charged with ten violations of four different criminal statutes based upon his filing false claims under the Medicare and Medicaid statutes and regulations for medical services never rendered by him. The pertinent facts were partially stipulated by the parties in a trial by jury which lasted nearly two months. The jury found him guilty on 82 counts and not guilty on 116 counts. The court dismissed one (RICO) count and the government dismissed 101 counts. He was sentenced to two (2) years imprisonment and fined $40,000. Later the District Court reduced the fine to $20,000.

The offenses had been committed partially in the Eastern District of Arkansas and in the Western District of Tennessee, but the defendant, with the advice of his counsel, executed a written waiver of venue form agreeing that the trial be held in the Western District of Tennessee. The case had been originally assigned to District Judge Bailey Brown, but was later transferred for trial to District Judge Robert M. McRae, Jr. A jury was selected on April 7, 1980, but because two jurors were unable to . attend, a mistrial was declared. The second trial commenced before a jury on April 9, 1980. Between December 1,1978, and April 7,1980, defendant had filed some 20 different motions and 10 pretrial hearings were conducted.

Defendant, with new counsel, appealed to this Court from the judgment of conviction alleging seven grounds of error, none of which involved his present claim of incompetence of his trial counsel. We affirmed the judgment of conviction. United States v. Worthington, 698 F.2d 820 (6th Cir.1983). The judgment of conviction became final as appellant did not petition the Supreme Court for a writ of certiorari.

II.

The district judge in his Ruling On Motion To Vacate Sentence Pursuant To 28 U.S.C. § 2255 gave careful consideration to the contentions of petitioner. The Court stated:

The Motion was addressed to a single ground, the denial of the effective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution of the United States of America. The reasons stated in numbered paragraph 10 of the Motion are as follows:

(a) Trial counsel, John Farese, failed to timely file a motion to suppress evidence, specifically attacking the search warrant and its supporting affidavit as being in violation of defendant’s rights under the Fourth Amendment to the Constitution of the United States, thereby denying defendant appellate review of the merits of the search and seizure, the product of which substantially supported the government’s case. The Court of Appeals held that counsel had failed to comply with Rule 12(b)(3) and 12(f) of the Federal Rules of Criminal Procedure and thus, the motion to suppress was waived.

(b) Trial counsel,-John Farese, failed to diligently and reasonably conduct an investigation of the allegations of the indictment, having had nearly three years to do so.

(c) Trial counsel, John Farese, was paid exorbitant sums of money for attorney’s fees, expenses and management of litigation and was motivated more by personal pecuniary goal than the best interests of defendant.

On March 8,1983, counsel for the defendant filed an Amended Petition for Relief Pursuant to 28 USC § 2255. The Amended Motion asserts two numbered grounds. The first is limited to an elaboration of the Motion to Suppress issues asserted in the original Motion to Vacate and the Court of Appeals. The second ground of the Amended Motion is based upon an allegation that the defendant was induced by John Farese to waive venue for those offenses of the indictment alleged to have occurred in Arkansas. Defendant charges that “Farese” did not advise him that he was executing such a waiver, the alternatives or the consequences.

28 U.S.C. § 2255 provides in part as follows:

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 ... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

* # * * * *

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

This Court concludes that the “motion and the files and records of the case conclusively show that the [about to be] prisoner is entitled to no relief.” The reasons for this conclusion are set forth below.

The leading case in this circuit and the one relied upon by the movant/defendant is Beasley v. United States, 491 F.2d 687 (C.A. 6 1974). That case notes that the clause of the Sixth Amendment to the Constitution which guarantees “assistance of counsel for his defence” means effective assistance of counsel. This means counsel who is reasonably likely to render and does render reasonably effective assistance. Defense counsel must perform at least as well as. a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest undeflected by conflicting considerations. Defense counsel must investigate all apparently substantial defenses and must assert them in a proper and timely manner. If the action or inaction taken by an attorney that appears to be erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective.

Item 10(a) of the original Motion to Vacate charges that John Farese failed to timely file a motion to suppress evidence on the grounds of a violation of the Fourth Amendment to' the Constitution. (The Amended Motion reflects that that affidavit for the search warrant was overbroad and was otherwise unreasonable.) Although other grounds are conclusively stated, the significant ground for this Motion is based upon the single premise: John Farese did not timely file a third motion to suppress based upon the overbreadth of the affidavit and warrant, thereby resulting in the defendant being deprived of an appellate review on this issue and a fair trial.

First, it must be noted that it is the law of this case that the third Motion to Suppress, which was not timely filed, was also denied on the merits by this Court and this Court was not reversed on that ruling.

When this motion was raised as grounds for reversal in the áppeal of the criminal case, the Court of Appeals held that the third Motion to Suppress was not timely filed and therefore not a ground for reversal. This Court is confident that the Court of Appeals would not affirm a conviction upon the ground of untimeliness in the court below, if it would automatically entitle the defendant to a new trial. Therefore, under ground 10(a) the prisoner to be is conclusively shown not to be entitled to relief.

In our opinion, in the direct appeal, we dealt with this subject under the reading of “The Motion To Suppress.” Actually, defendant did not file just one Motion to Suppress, but filed three Motions to Suppress. We stated:

The district court overruled the April 7 Motion to Suppress on grounds of timeliness and on the merits. On April 8 a mistrial was declared for other reasons. A new trial commenced on April 9. Not until the 20th day of the new trial, namely, on May 19, 1980, did defendant “renew” his motion to suppress. The renewed motion alleged for the first time that the evidence should be suppressed because the scope of the search warrant was too broad. The district court concluded that the May 19 motion to suppress was not a renewal of the earlier motion, but rather was a new motion alleging a new reason why the evidence should be suppressed. The court overruled the new motion stating that “... it was not filed in accordance with the rules; it is not the renewal of another motion, it’s a new motion, and it -is called a renewal to try to get around the rule.”

Fed.R.Crim.P. 12 provides:

(b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the' general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:

(3) Motions to suppress evidence;

(f) Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defense or objections or to make requests which must be made prior to trial, ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.

Appellant further argues that since the district court ruled on the merits of his third motion to suppress, the issue was preserved for appeal. Under the facts of this case, we disagree. The district court overruled the midtrial motion to suppress on both timeliness grounds and on the merits. That it chose to rule on the merits at all does not alter the fact that the motion to suppress was made in violation of Fed.R.Crim.P. 12(b)(3), nor does it alter the fact that defendant waived the objection under Criminal Rule 12(f). United States v. Baker, 638 F.2d 198, 202 (10th Cir.1980); United States v. Sisca, 503 F.2d 1337, 1349 (2d Cir.1974), cert, denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974).

698 F.2d at 823-24.

Actually, it is now the contention of appellant that the search warrant was over-broad; that it included matters relating to his private practice, for which he was not indicted. We hold that there was probable cause to support the issuing of the search warrant. The affidavit supporting the warrant contained averments by five former employees that fraudulent Medicare and Medicaid practices were regularly pursued during their terms of employment, and covered appellant’s medical records for the period authorized by the warrant. Cf. United States v. Abrams, 615 F.2d 541, 545 (1st Cir.1980) (similar employee averment sufficient to authorize seizure of all records of Medicare and Medicaid services billed and purportedly performed during period of employment). The matters relating to his private practice were not offered in evidence at the trial. We, therefore, separate the private practice part in the warrant from the portion offered at the trial, and hold that the defendant was not prejudiced by the contested warrant. Accord Vonder-Ahe v. Howland, 508 F.2d 364, 372 (9th Cir.1975).

In his reply brief, appellant states: “The petitioner has alleged that he repeatedly asked counsel to file a motion to suppress attacking the warrant and affidavit. He was advised that ‘the time was not yet right.’ ” (Page 5). Thus it appears that counsel’s timing for filing a motion to suppress was trial strategy and its employment in good faith by counsel violates no duty owing to his client.

In a trial which was the longest ever to take place in the district, where 115 witnesses testified, 75 for the government and 40 for the defendant, and the defendant’s counsel was able to obtain acquittal on 116 counts of the indictment, dismissal by the government of 101 counts, dismissal of the RICO count by the court and conviction on only 82 counts, the defendant ought not to be heard to say that he had ineffective assistance of counsel. The District Court was in the best position to determine whether defendant’s counsel was incompetent and it ruled that petitioner “received the effective assistance of counsel.” (Record, p. 044).

The District Court in its opinion stated: In the Amended Motion to Vacate, the defendant asserts what appears to be a new ground for vacating the sentence. Present counsel assert that John Farese induced him to waive venue from Arkansas to Tennessee. This pertains only to the first 137 counts of the 300-count, indictment.

In the first place, the defendant is now claiming that he did not know what he was doing. Elsewhere in the Motion, the defendant asserts that he was knowledgeable enough to tell his attorney how to investigate the case and when to file a motion to suppress and upon which grounds.

Other assignments of error not treated herein have no merit.

We find no merit in this appeal. Fornash v. Marshall, 686 F.2d 1179 (6th Cir.1982).

The judgment of the District Court is affirmed.