Drivas v. United States of America

Filing 25

OPINION AND ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). For the reasons stated herein, Drivas's petition for a writ of habeas corpus is denied on the basis of the existing record, without the need for a further ev identiary hearing. Since petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability shall not issue. 28 U.S.C. § 2253(c)(2). The court certifies pursuant to 28 U.S.C.  7; 1915(a) that any appeal from this order would not be taken in good faith and therefore in forma pauperis relief is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438 5 444-45 (1962). The Clerk of Court is directed to enter judgment for respondent. Ordered by Judge Nina Gershon on 10/31/2017. C/M (Barrett, C)

Li

CLERK'S OFF'o
p .s. DISTRICT COURT E•D.N.Y.

* OCT 31 2017

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GUSTAVE DRIVAS,

BROOKLYN OFFICE
OPINION AND ORDER
15-cv-2327 (NG)
10-cr-771 (NG)

Petitioner,
- against UNITED STATES OF AMERCA,
Respondent.
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GERSHON, United States District Judge:
On September 26, 2013, petitioner, Gustave Drivas, was convicted after a jury trial of
conspiracy to commit health care fraud, in violation of 18 U.S.C. § 1349, and one count of health
care fraud, in violation of 18 U.S.C. § 1347. Petitioner was sentenced to 151 months' incarceration.
Petitioner was also sentenced to a three-year term of supervised release, forfeiture in the amount
of $511,000, restitution in the amount of $50,943,386 and a special assessment of $200. Drivas
now brings a 28 U.S.C. § 2255 petition challenging his convictions, objecting to the court's
evidentiary rulings at trial and the jury instructions, and claiming ineffective assistance of counsel.
In addition to a response from the government, at my request, Drivas's trial attorneys, Nicholas J.
Pinto, Gerald DiChiara, and Louis Diamond, submitted a joint affirmation in response to Drivas's
petition. Drivas submitted a reply to that joint affirmation. I requested supplemental papers from
trial counsel and the government on a specific issue, and in response trial counsel and the
government filed additional papers. For the reasons stated below, Drivas's § 2255 petition is
DENIED. A hearing with regard to counsel's alleged ineffectiveness is not required.
BACKGROUND
Petitioner is a doctor who, along with several co-conspirators, submitted fraudulent claims
to Medicare and received fraudulent proceeds of approximately $50 million. The claims were
submitted by clinics in Brooklyn that billed Medicare under three different corporate names, Bay

Medical Care PC, SVS Welicare Medical PLLC, and SZS Medical Care PLLC (together the "Bay
Medical clinics"). Petitioner was listed as an owner of Bay Medical, the "contracted managing
employee" at SVS Wellcare, and an owner of SZS Medical Care. Petitioner rarely, if ever, treated
patients at the clinics, but his Medicare billing number was used to bill over $20 million to
Medicare, with a significant portion of those claims stating that petitioner had personally provided
or overseen the provision of care at the Bay Medical clinics.
Prior to petitioner's indictment, in January of 2007, the Bay Medical clinics were involved
in litigation with Auto One Insurance over claims made by the clinics. Drivas attempted to avoid
liability in that litigation by signing an affidavit (the "January 31, 2007 affidavit") that evidenced
his lack of knowledge relevant to the claims there, but in so doing acknowledged facts relevant to
his knowledge in this criminal case. A partially redacted version of this affidavit was admitted as
evidence during petitioner's criminal trial as Exhibit GX-46A.
After his convictions, petitioner filed an appeal to the Second Circuit, claiming that (1) the
evidence was insufficient to sustain his convictions; (2) the jury was improperly charged on
conscious avoidance; (3) the decision to admit the redacted affidavit was in error; and (4) his
sentence was procedurally and substantively unreasonable. The Circuit rejected all of petitioner's
arguments and affirmed the convictions via summary order. United States v. Wahl, 563 Fed. Appx.
45 (2d Cir. 2014).
Drivas now argues that his trial counsel was ineffective by: (1) ignoring Drivas's
instruction to investigate the January 31, 2007 affidavit, which he informed them was fraudulent;
(2) failing to obtain a handwriting expert to provide testimony about whether certain documents
were actually signed by Drivas; (3) failing to cross-examine co-defendant Elena Girenko; and (4)
not allowing Drivas to testify on his own behalf. Drivas also argues that one of his trial attorneys,

Louis Diamond, was "obviously in an impaired state" during Mr. Diamond's cross-examination
of a government witness, co-defendant Dr. Jonathan Wahl.'
Trial Counsels' First Affirmation
In a joint affirmation responding to Drivas's allegations, all three trial counsel state that
Drivas never informed them that the January 31, 2007 affidavit was a wholesale fabrication and
that he admitted to signing some form of the affidavit but contended it had been altered after he
signed it. Additionally, another affidavit by Drivas, prepared in 2008 by his counsel in a civil
matter, disputed certain aspects of the 2007 affidavit but did not allege it to be a wholesale
fabrication, nor did it state, as Drivas does now in his petition, that it could not be authentic because
it references a corporation that was not yet incorporated on the date it was purportedly signed.
With respect to Elena Girenko, she was not called by the government and no opportunity
for cross-examination ever arose. Interpreting Drivas's argument to be that his defense counsel
should have called her as a witness, counsel state that they made a tactical decision not to do so
after reading her 3500 material. They did not elaborate on what, specifically, in the 3500 material
led them to decide not to call her.

Drivas also argues that the jury was improperly charged on conscious avoidance and that the
redacted affidavit should not have been admitted into evidence under Fed. R. Ev. 408. As noted
above, those arguments were made and rejected on direct appeal and Drivas is procedurally barred
from raising them on collateral review. Cabrera v. United States, 972 F.2d 23, 33 (2d Cir. 1992).
Finally, Drivas argues that I improperly failed to instruct the jury on the significance of 18 U.s.c.
§ 201(c)(3) (prohibiting bribery of witnesses) as it pertains to Dr. Wahl, a cooperating government
witness who received leniency from the government in exchange for his cooperation. The
instruction Drivas believes should have been given would have been erroneous because a
cooperation agreement with the government does not constitute bribery of a witness. United States
v. Stephenson, 183 F.3d 110, 118 (2d cir. 1999) ("We. . . hold that 18 u.s.c. § 201(c)(2) does not
apply to the United States or to any Assistant United States Attorney acting within his or her
official capacity"); United States v. McFadden, 2017 WL 1540846 at *3 (2d cir. May 1, 2017)
(summary order).
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Counsel state that their decision not to call a handwriting expert was a tactical one, because
they were able to establish through other witnesses that many of the applications submitted in the
clinic with Drivas's signature were, in fact, not signed by Drivas. Witnesses testified that people
in the clinic would sign Drivas's name to documents. Having a handwriting expert confirm that
some of the signatures were not Drivas's would have been redundant. There was also, however, a
"large amount of evidence" tying Drivas through authentic signatures of his in the initial Medicare
application and some subsequent applications to Medicare. Therefore, because the government
could "parade a plethora of documents that were, in fact, signed by Dr. Drivas," a handwriting
expert would have been counterproductive.
Defense counsel further state that, while they discussed the dangers of testifying with
Drivas at length, and advised him not to testify as [defense counsel] believed it would not be in his
best interest, it was Drivas who, in the end, decided not to testify.
Finally, while defense counsel acknowledged that Mr. Diamond fell ill during the crossexamination of a witness, Mr. DiChiara was aware of Mr. Diamond's condition, and was prepared
to go forward if Mr. Diamond had difficulties. Mr. DiChiara did in fact complete the examination
of the witness after Mr. Diamond could not continue. Defense counsel also point out that the
witness in question, Dr. Wahl, testified as to Drivas's connection to the kickback scheme, which
was the count of the indictment as to which Drivas was found not guilty.

Drivas's Response and My ReQuest for Supplemental Papers
Drivas was afforded an opportunity to respond to counsels' affirmation and did so on July
5, 2017. Drivas disputed some of counsels' assertions and stated that he could not respond to others
without additional documents. Specifically, Drivas could not respond to counsels' representation
that their decision not to call Elena Girenko was based on a review of her 3500 material because

he was not in possession of that material. Drivas had stated in his petition that Girenko was caught
on a wiretap asking "Why did they arrest Dr. Drivas? Dr. Drivas has no idea what was being done,
he was clueless. Why didn't they arrest Dr. Rakber? He is the one who ran everything." I agreed
that, given the seriousness of the allegation that a leader of the conspiracy made a statement
exonerating him of knowledge of the conspiracy, the simple assertion that the decision had a basis
in Girenko's 3500 material, without explanation or production of that material, was insufficient. I
therefore requested a more specific explanation from defense counsel and the government. (Docket
No. 21.)
On October 5, 2017, Drivas's trial counsel filed their supplemental affirmation. Counsel
specifically reference summaries of recorded telephone calls to which Girenko was a party and
provide the supporting documentation. In those calls, Girenko makes multiple statements which
inculpate Drivas in the fraud. They also point to multiple credibility issues with Girenko as a
witness, characterizing her as "unstable, angry, [and] drunk" during many of the calls.
On October 6, 2017, the government filed a supplemental letter stating that the statement
by Girenko to which Drivas refers, when placed in context, was not exonerating of Drivas. The
government states that, while Girenko did ask why Drivas was arrested, she was asking why only
two doctors were arrested instead of many more, and clarifies that Girenko was recorded stating
that all the doctors knew they were engaged in a fraud. The government references the portions of
the 3500 material that trial counsel had submitted to support its position.
DISCUSSION
A prisoner in custody serving a sentence for a federal offense may "move the court which
imposed the sentence to vacate, set aside, or correct the sentence" on the basis that the sentence
was "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a).

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In deciding a § 2555 motion, the district court must hold a hearing "[u]nless the motion and the
files and records of the case conclusively show that the petitioner is entitled to no relief." 28 U.S.C.
§ 2255(b). To be entitled to a hearing with respect to claims of ineffective assistance of counsel,
petitioner "need establish only that he has a 'plausible' claim of ineffective assistance of counsel,
not that he will necessarily succeed on the claim." Puglisi v. United States, 586 F.3d 209, 213 (2d
Cir.2009) (internal quotation marks omitted). And, where, as here, a petitioner is appearing pro Se,
the court must construe his habeas petition liberally and interpret it to raise the strongest arguments
that it suggests. See Erickson v. Pardus, 551 U.S. 89, 84 (2007); Green v. United States, 260 F.3d
78, 83 (2d cir.2001).
Although the court must "view[] the evidentiary proffers, where credible, and record in the
light most favorable to the petitioner," the court "need not assume the credibility of factual
assertions... where the assertions are contradicted by the record in the underlying proceeding."
Puglisi, 586 F.3d at 214. Where "material facts are in dispute," the court should "usually" hold a
hearing, and make relevant findings of fact. Id. However, "when the judge that tried the underlying
proceedings also presides over the Section 2255 motion, a less-than full-fledged evidentiary
hearing may permissibly dispose of claims where the credibility assessment would inevitably be
adverse to the petitioner." Id. Instead, a district court may "choose a middle road" by soliciting
affidavits to expand the record, if the judge determines that live testimony "would add little or
nothing to the written affidavits." Foster v United States, 581 F. App'x 105, 106 (2d Cir. 2014)
(quoting Chang v. United States, 250 F.3d 79, 86 (2d cir. 2001)). The court may properly choose
to credit trial counsel's sworn statements over a petitioner's "self-serving and improbable
assertions" in dismissing the petition. Chang, 250 F.3d at 86 (holding that trial court did not err in
crediting counsel's "eminently credible" and "detailed" affidavit over petitioner's assertions); see

also Foster, 581 F. App'x at 106 ("[A]n affidavit from the petitioner's trial counsel credibly
describing the circumstances concerning appellant's failure to testify... was sufficient to support
dismissal of the petition."); Padin v. United States, 521 F. App'x 36, 38 (2d Cir. 2013) (internal
quotation marks omitted).
Drivas's Claims of Ineffective Assistance of Counsel

To succeed on a claim of ineffective assistance of counsel, a petitioner must show that (1)
"counsel's representation fell below an objective standard of reasonableness" and (2) that "the
deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). A court's review of counsel's performance must be "highly deferential," and the court
"must indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689. Further, "an error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment." Id. at 691. To show prejudice, a petitioner must establish that "there is
a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694.
A. Failure to Investigate the Affidavit

Petitioner's allegation that his defense counsel did not investigate the January 31, 2007
affidavit is belied by the record. The admissibility of the affidavit was litigated extensively prior
to, and at, the trial, and the affidavit was admitted in redacted form and for a limited purpose at,
trial. Defense counsel credibly state in their affirmation that they questioned Drivas at length as to
his knowledge of the affidavit and he never denied signing some version of it; he told them it was
altered after he signed it and that the date was wrong. They further state that at no time did Drivas
advise them that any of the corporations named in the affidavit were not in existence on the date it

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was purportedly signed, nor was that contention made in the affidavit signed by Drivas in a
subsequent civil proceeding. Based on counsel's affirmation and on the extent of the litigation
surrounding the affidavit, I find that counsel adequately investigated the affidavit and relied on
Drivas's representations regarding it. Counsel were therefore not ineffective.
B. Failure to Obtain a Handwriting Expert
First, contrary to the government's contention, Drivas is not procedurally barred from
making this argument by the Circuit's holding that the evidence was sufficient to sustain the
conviction. Petitioner is arguing that his attorneys should have presented additional, exonerating
evidence, which could have changed the Second Circuit's analysis. Were they in fact ineffective
in failing to do so, Drivas would be entitled to a new trial.
The decision to call or not call an expert witness, however, is exactly the sort of decision
that falls within counsel's overall trial strategy. "A defense counsel's decision not to call a
particular witness usually falls under the realm of trial strategy that we are reluctant to disturb" so
long as it is "grounded in some strategy that advances the client's interests." Eze v. Senkowski, 321
F.3d 110, 129 (2d Cir. 2003).
Drivas cites United States v. Tarricone, 996 F.2d 1414 (2d Cir. 1993), where the Circuit
held that a hearing was necessary to determine whether the failure to call a handwriting expert
amounted to ineffective assistance of counsel. Tarricone, 996 F.2d at 1418-19. But, unlike
Tarricone, no hearing is necessary here because counsel have submitted an affirmation explaining
their strategic reasons for not calling such a witness, which I find satisfactory. Witnesses testified
that many of the documents were not signed by Drivas, so a handwriting expert was not necessary
as to those signatures, and many of the documents were in fact signed by Drivas, so a handwriting
expert would have been counterproductive as to those documents.

Drivas points to specific government exhibits-2C, 21-B, and 2E—that he contends a
handwriting expert would have been able to testify he did not sign. 2 Notably, Drivas does not
contend that he did not sign any of the documents introduced into evidence, or that none of the
signatures that were purportedly his were genuine. I therefore credit defense counsel's assertion
that, after much discussion, they made the tactical decision not to call a handwriting expert because
the expert would have confirmed that a number of the government's documents were in fact signed
by Drivas, potentially harming his case more than it would have helped. Under the circumstances,
counsel's strategic decision was reasonable.
C. Failure to Call Elena Girenko
Elena Girenko was a co-defendant charged with being one of the two leaders of the
Medicare fraud scheme. She pled guilty pursuant to a cooperation agreement but was not called as
a witness by the government. Drivas argues that she was caught on a wiretap after Drivas's arrest
stating, "Why did they arrest Dr. Drivas? Dr. Drivas has no idea what was being done, he was
clueless. Why didn't they arrest Dr. Rakber? He is the one who ran everything." (Petr. Mem. at 7;
Petr. Reply Mem. at 4.) For the reasons set forth in trial counsel's second affirmation, including
the annexed exhibits, I find that counsel's decision not to call Elena Girenko as a witness for the
defense was not ineffective. Counsel's affirmation is very detailed and supported by the material
it cites. The affidavit and exhibits indicate that Elena Girenko made multiple recorded statements
inculpating Drivas in the conspiracy, and also supports counsels' assertion that she would have
been unreliable as a witness. The government's submission cites to the same material and provides

2

Exhibit 21-B was a photograph of the clinic on the day the search warrant was executed, not a
document purportedly signed by Drivas. (Tr. 926; 1587.) I will assume that by 21B, Drivas meant
exhibit 2B which, along with 2C and 2E, was a document purportedly signed by Drivas (Tr. 57071 (2C); 582-83; 1587 (2E); 452 (admitting all of Exhibit 2, including 2B, though 2B was not
specifically discussed during the trial).)

context for the statement to which Drivas points. To the extent counsels' affirmation refers to
things that happened on the record at or before trial, it comports with my understanding of what
occurred.
D.

Failure to Allow Drivas to Testify

Drivas claims that he wanted to testify in his own defense but counsel prevented him from
doing so. That would indeed constitute ineffective assistance of counsel, as a criminal defendant's
decision to testify belongs to the defendant alone. Counsel, however, state that they discussed the
dangers of testifying with Drivas and advised him not to take the stand, but did inform him that
the decision to testify was his and his alone, and he elected not to testify. I credit trial counsel's
sworn statements over the petitioner's "self-serving and improbable assertions." Chang, 250 F.3d
at 86. Experienced defense counsel were well aware that the decision to testify belongs to a
defendant and would have been unlikely to waive his right to testify over his objection. Moreover,
Drivas did not say or do anything during the trial that indicated to me that he wished to testify but
was being denied the opportunity. It is reasonable to assume that, had Drivas wished to testify, and
had his counsel rested his case over his objection, Drivas would have voiced an objection at that
time, or at least requested to speak to his attorney. Drivas did not do so.
E.

The Cross-Examination of Dr. Wahl

During the cross-examination of Dr. Wahl, one of the three attorneys representing Drivas,
Lou Diamond, fell ill. Defense counsel state that he had been fighting a pneumonia-like illness
during the trial. Another of Drivas's attorneys, Mr. DiChiara, therefore took detailed notes during
the cross-examination of Dr. Wahl, anticipating that he may have to finish it if Mr. Diamond was
unable to continue. That was indeed the case, and Mr. DiChiara completed the cross-examination
of the witness.

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Drivas cannot point to any area that went unexplored or question that was left unasked in
Dr. Wahl's cross-examination. That one attorney was forced to stop and another took over does
not in and of itself constitute ineffectiveness. Since the totality of the cross-examination was
completed adequately, his claim of ineffective assistance of counsel fails. Moreover, as Drivas
concedes in his reply to counsel's affirmation, since Dr. Wahl primarily testified about the one
charge for which Drivas was acquitted, even if the cross-examination had been deficient it would
be very unlikely that Drivas could show prejudice.
Finally, it is worth noting that I observed all of Drivas's lawyers throughout their
representation of Drivas, and they zealously defended and advocated on behalf of their client
throughout the proceedings. I have no reason to doubt the veracity of their affirmations or the
competence of their representation.

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CONCLUSION
For the foregoing reasons, Drivas's petition for a writ of habeas corpus is denied on the
basis of the existing record, without the need for a further evidentiary hearing. Since petitioner has
not made a "substantial showing of the denial of a constitutional right," a certificate of
appealability shall not issue. 28 U.S.C. § 2253(c)(2). The court certifies pursuant to 28 U.S.C. §
1915(a) that any appeal from this order would not be taken in good faith and therefore in forma
pauperis relief is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S.
438 5 444-45 (1962).
The Clerk of Court is directed to enter judgment for respondent.

SO ORDERED.

/s/

Nina Gershon

NINA GERSHON
United States District Judge
Dated: October 31, 2017
Brooklyn, New York
cc:

Gustave Drivas, 65285-053
FCI Loretto
Federal Correctional Institution
772 St. Joseph St.
Loretto, PA 15940

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