Loute v. United States of America

Filing 13

OPINION AND ORDER denying 1 Motion to Vacate / Set Aside / Correct Sentence (2255). The Clerk shall enter judgment, terminate all motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 2/17/2021. (LYB)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
NESLY LOUTE,
Petitioner,
v.

Case No: 2:20-cv-124-SPC-MRM
Case No: 2-15-cr-99-SPC-MRM

UNITED STATES OF
AMERICA,
Respondent.
/
OPINION AND ORDER1
Before the Court are Petitioner Nesly Loute’s Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
(Doc. 1), the Government’s response (Doc. 9), and Loute’s reply (Doc. 12).2
BACKGROUND
A Grand Jury charged Loute by Superseding Indictment of three counts
of conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349. (Cr-Doc.
133). Loute was represented at trial by attorney James W. Chandler. After
the Government rested, the Court granted Loute’s motion to dismiss Counts 2

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2 The Court cites to the civil docket as (Doc. _) and to the criminal docket as (Cr-Doc. _).
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and 3 as multiplicitous. (Cr-Doc. 288 at 182). The jury found Loute guilty of
Count 1. (Cr-Doc. 187). The Court sentenced Loute to a 168-month term of
imprisonment, 36 months of supervised release, and payment of $2,146,147.23
in restitution. (Cr-Doc. 285). Loute appealed the conviction and sentence, and
the Eleventh Circuit affirmed. United States v. Loute, 758 F. App’x 814 (11th
Cir. 2018). This § 2255 Motion followed. Loute argues he was denied the
effective assistance of counsel because Chandler failed to (1) contact, interview,
subpoena, and call potentially exculpatory witnesses and (2) use evidence from
an allegedly related state investigation. (Doc. 1; Doc. 2).
At trial, the Government presented evidence that Loute orchestrated a
scheme to fraudulently collect insurance payments through chiropractic
clinics. Loute arranged for physicians to be straw owners of the clinics to avoid
certain Florida licensing requirements.

Loute recruited acquaintances to

manage the day-to-day operations of the clinics, and he hired chiropractors to
work in the clinics. Loute and his co-conspirators paid people to stage car
accidents and receive unneeded treatment at the clinics. The clinics then used
the United States mail to submit fraudulent claims to insurance providers and
collect payment on those claims.
In 2013, the FBI launched an investigation into suspicious chiropractic
clinics in Florida. (Cr-Doc. 276 at 80). As part of the investigation, Dr. John
Webb—a FBI informant—contacted Loute.

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(ECF. 279 at 24).

Webb had

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previously met with Loute and co-defendants Wisler Cyrius and Anouce
Toussaint about setting up chiropractic clinics. (Cr-Doc. 279 at 24-25). Loute
told Webb that Cyrius and Toussaint were ready to open a clinic and would
pay Webb $2,000 plus monthly fees for being the straw owner. (Cr-Doc. 279 at
42-43, 46-47, 63). In return, Webb would give Loute a portion of the payments
Webb received. (Cr-Doc. 279 at 43).
Loute opened Tamiami Pain and Rehab, listing Webb as the principal of
the business. (Cr-Doc. 280 at 25-26). And he set up a bank account with Webb
and Toussaint and had Webb pre-sign checks for the account. (Cr-Doc. 279 at
61-66). Loute then hired Dr. David Adamson, a chiropractor, to treat patients
at the clinic. (Cr-Doc. 288 at 8). After Tamiami drew the attention of insurance
investigators, Cyrius and Toussaint—at Loute’s instruction—closed Tamiami
and reopened it nearby as First Choice Pain and Rehab. (Cr-Doc. 279 at 15455).
Toussaint pled guilty and testified at Loute’s trial. He said that Loute
recruited him into the scheme and introduced him to Webb. (Cr-Doc. 279 at
134-36). Loute told Toussaint to pay patients to receive treatment at the clinic,
and Loute directed patients to the clinic and instructed Toussaint to pay them.
(Cr-Doc. 279 at 145-49). The patients generally committed to 30-35 treatments
and were paid $1,000 after 15 visits and $1,000 after the final visit. (Cr-Doc.

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279 at 149). Toussaint also described staging car accidents at Loute’s direction
to generate patients. (Cr-Doc. 279 at 157-62).
Loute operated a similar scheme at a nearby clinic called Parkway
Medical and Rehab.

Co-defendant Garry Joseph worked with Loute at

Parkway and gave testimony that tracked Toussaint’s. (Cr-Doc. 278 at 76132). Lherisson Domond, an obstetrician and gynecologist in his eighties, was
initially the straw owner of Parkway. (Cr-Doc. 276 at 172-73; Cr-Doc. 278 at
80-83). Loute hired Dr. Phillip Cobb—a confidential informant for the state of
Florida—to treat patients at Parkway. (Cr-Doc. 277 at 7-9). Loute, Joseph,
and co-conspirator Sijames Melus eventually offered Cobb 5% of the clinic’s
collections to become the straw owner. (Cr-Doc. 277 at 32-33). After consulting
his law enforcement contacts, Cobb accepted, and Parkway was rebranded as
Collier Chiropractic Clinic. (Cr-Doc. 277 at 32-34).
Loute testified at trial. He denied any illegal conduct and claimed he
was acting under the direction of Webb and Domond. (Cr-Doc. 288 at 193, 221,
236). And he attempted to explain away some of the incriminating recordings
made by informants and undercover agents. (See, e.g., Cr-Doc. 288 at 208-210).
LEGAL STANDARD
A. 28 U.S.C. § 2255
A prisoner in federal custody may move for his sentence to be vacated,
set aside, or corrected on four grounds: (1) the imposed sentence violates the

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Constitution or laws of the United States; (2) the court lacked jurisdiction to
impose the sentence; (3) the sentence was over the maximum authorized by
law; or (4) the imposed sentence is otherwise subject to collateral attack. 28
U.S.C. § 2255(a). A § 2255 motion “may not be a surrogate for a direct appeal.”
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (stating § 2255
relief is “reserved for transgressions of constitutional rights and for that
narrow compass of other injury that could not have been raised in direct appeal
and would, if condoned, result in a complete miscarriage of justice” (internal
quotations omitted)). The petitioner bears the burden of proof on a § 2255
motion. Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015) (citation
omitted).
B. Ineffective Assistance of Counsel
Criminal defendants have a Sixth Amendment right to reasonably
effective assistance of counsel. In Strickland v. Washington, the Supreme
Court established a two-part test for determining whether a convicted person
may have relief under the Sixth Amendment. 466 U.S. 668, 687-88 (1984). A
petitioner must establish: (1) counsel’s performance was deficient and fell
below an objective standard of reasonableness; and (2) the deficient
performance prejudiced the defense. Id. Failure to show either Strickland
prong is fatal. See Kokal v. Sec’y, Dep’t of Corr., 623 F.3d 1331, 1344 (11th Cir.

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2010) (“a court need not address both Strickland prongs if the petitioner fails
to establish either of them”).
When considering the first prong, “courts must ‘indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Sealey v. Warden, 954 F.3d 1338, 1354 (11th Cir.
2020) (quoting Strickland, 466 U.S. at 689). When considering counsel’s duty
to investigate, “strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable judgments support the
limitations on investigation.” Strickland, 466 U.S. at 690-91.
The second prong requires the defendant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Id. at 1355 (quoting Strickand,
466 U.S. at 694).

“A reasonable probability is a probability sufficient to

undermine confidence in the outcome, which is a lesser showing than a
preponderance of the evidence.” Id. (cleaned up). “At the same time, “it is not
enough for the defendant to show that the errors had some conceivable effect
on the outcome of the proceeding’ because ‘virtually every act or omission of
counsel would meet that test.” Id (quoting Strickland, 466 U.S. at 693).
DISCUSSION
A. Failure to Call Witnesses

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Loute faults his trial counsel for failing to contact, interview, subpoena,
and offer testimony from six potential witnesses. Loute failed to satisfy either
Strickland prong as to any of the proposed witnesses.
1. Wisler Cyrius
Cyrius was a co-defendant and the person who managed the day-to-day
operations of Tamiami and First Choice with Tousssaint. Loute claims Cyrius
could have testified that Loute was unaware Cyrius was staging auto
accidents. But Cyrius pled guilty to conspiring with Loute to commit mail
fraud. (Cr-Doc. 130). Testimony that Loute was unaware of certain fake
accidents would not have been exculpatory, and any benefit would have been
far outweighed by the admissions Cyrius made in his plea agreement. (See CrDoc. at 19-20).
2. Dr. Lherisson Domond
Dr. Domond was the initial straw owner of Parkway. Loute does not
identify any potentially exculpatory testimony Domond might have given.
What is more, Domond had been declared incompetent, and the Court made
clear that he would not have been allowed to testify. (Doc. Cr-Doc. 288 at 14244).
3. Ashley Jean and 4. Nick Dorset
Jean and Dorset worked at the clinics as a receptionist and a massage
therapist, respectively. Loute claims they would have testified that Loute was

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not their boss. But that is consistent with the Government’s case. Loute
recruited accomplices to run the day-to-day operations of each clinic. And he
never used his own name when registering up the business entities. The
proposed testimony from Jean and Dorset would not have been exculpatory.
5. Detective Robert Nichols and 6. Lieutenant Glen Clasen
Nichols is a detective with the State of Florida. Loute contends his trial
counsel could have questioned Nichols about an earlier state case styled
Florida v. Vilbon, Circuit Court of the Twentieth Judicial Circuit in and for
Collier County, Florida, Case No. 12-2271CF-JRS-EL. Clasen worked with the
Division of Insurance Fraud, participated in the investigation of Loute and his
co-defendants, and sat at the Government’s table during trial. Loute claims
Clasen could have “emphasized” that the Vilbon investigation disproved Cobb’s
alleged role as straw owner of Collier Chiropractic. (Doc. 2 at 12). For the
reasons stated in the next section, the Vilbon case has no relevance here. Thus,
Loute has not identified any relevant testimony Nichols and Clasen could have
given in this case.
B. Failure to Investigate Prior State Investigation
Loute next faults his trial counsel for failing to mine the Vilbon case for
impeachment evidence. Specifically, he claims evidence from the Vilbon case
proved that Wilhem Vilbon was the true owner of Collier Chiropractic Clinic,
which could have been used to impeach testimony from Dr. Cobb and State

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Farm Insurance investigator Judy Riley. But the Vilbon case has no apparent
connection to this one.

As evidenced by the case number, the Vilbon

investigation culminated in criminal charges in 2012, about two years before
Loute and his co-conspirators set up a clinic called Collier Chiropractic Clinic.
These were clearly different clinics. The only apparent connection is that the
State of Florida listed Cobb and Riley as potential witnesses. (Doc. 3-1 at 15,
18). That is not surprising given that Cobb works as a confidential informant
and that Riley is an insurance investigator. The Vilbon case is irrelevant.
Chandler did not err by ignoring it, and Loute was not prejudiced by its absence
from his trial.
EVIDENTIARY HEARING
A court must hold an evidentiary hearing “unless the motion and the
files and records of the case conclusively show that the prisoner is entitled to
no relief.” 28 U.S.C. § 2255(b). “If the petitioner alleges facts, that if true,
would entitle him to relief, then the district court should order an evidentiary
hearing and rule on the merits of his claim.” Griffith v. United States, 871 F.3d
1321, 1329 (11th Cir. 2017) (quoting Aron v. United States, 291 F.3d 708, 71415 (11th Cir. 2002)). A petitioner need only allege, not prove, facts that would
entitle him to relief. Id. However, the alleged facts must be reasonably specific
and non-conclusory. Aron, 291 F.3d at 715 n.6; see also Allen v. Sec’y, Fla. Dep’t
or Corr., 611 F.3d 740, 745 (11th Cir. 2010), cert denied, 563 U.S. 976 (2011).

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Further, if the allegations are “affirmatively contradicted by the record” and
“patently frivolous,” the court need not hold an evidentiary hearing. Id.
The Court finds an evidentiary hearing unwarranted here. Loute has
not alleged facts that, if proven, would entitle him to relief.
CERTIFICATE OF APPEALABILITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement
to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather,
a district court must first issue a certificate of appealability (COA). “A [COA]
may issue...only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a
petitioner must demonstrate that “reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong,” Tennard
v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 335–
36 (2003) (citations omitted). Loute has not made the requisite showing here
and may not have a certificate of appealability on any ground of his Motion.
Accordingly, it is now
ORDERED:
Petitioner Nesly Loute’s Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1) is DENIED.

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The Clerk shall enter judgment, terminate all motions and deadlines, and close
the file.
DONE and ORDERED in Fort Myers, Florida on February 17, 2021.

SA: FTMP-1
Copies: All Parties of Record

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