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United States v. Mehran Javidan (D-1)

United States District Court, E.D. Michigan, Southern Division

August 23, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
MEHRAN JAVIDAN D-1, Defendant-Petitioner. Civil No. 16-13974

         ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE [#204]; ORDER DENYING AMENDED MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE [#217]; ORDER DISMISSING CIVIL CASE NO. 16-13974; AND ORDER DENYING CERTIFICATE OF APPEALABILITY

          Denise Page Hood Chief, U.S. District Judge.

         I. BACKGROUND

         Defendant Mehran Javidan (“Javidan”) engaged in a Medicare fraud scheme from March 2009 through November 2010. In mid-2008, Javidan approached her friend Muhammed Shahab (“Shahab”) for help entering the home-health business. Shahab was at the time involved with Patient Choice and All American, two fraudulent home-health agencies that were eventually shut down after federal authorities executed a search warrant in September 2009. Javidan shadowed Shahab and later engaged in her own fraudulent scheme, modeled after Shahab's scheme. In November 2008, Javidan purchased Acure Home Care (“Acure”) with Shahab and others. Javidan was part-owner and managed Acure, handling the daily operations. Javidan signed Acure's Medicare application and maintained payroll; was the only person with signatory authority on Acure's bank account; and was solely responsible for Medicare billing at Acure.

         On April 2, 2013, a jury found Javidan guilty on one count of Conspiracy to Commit Health Care Fraud, three counts of Health Care Fraud, three counts of False Statements Relating to Health Care Matters, and one count of Conspiracy to Pay Health Care Kickbacks. (Doc # 89) The jury found Javidan not guilty on one count of Health Care Fraud and one count of False Statements Relating to Health Care Matters. Id. The jury did not reach a verdict on one count of Health Care Fraud. Id.

         Javidan was sentenced to a term of 65 months of imprisonment, followed by a term of 3 years of supervised release, and $2, 215, 186.45 in restitution. (Doc # 129) Javidan filed a Notice of Appeal on November 22, 2013. (Doc # 126) On December 23, 2015, the Sixth Circuit issued an Opinion affirming Javidan's conviction and sentence. (Doc # 192) The Sixth Circuit issued a Mandate on February 5, 2016. (Doc # 194)

         On November 8, 2016, Javidan filed the instant pro se Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 on the basis of (1) alleged ineffective assistance of counsel, and (2) retroactive application of Amendment 794 to Section 3B1.2 of the Federal Sentencing Guidelines. (Doc # 204) The Government filed a Response on December 15, 2016. (Doc # 209) On February 27, 2017, Javidan filed an Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 pro se which raised some new issues as well as many of the same issues as her previous Motion. (Doc # 217) On March 16, 2017, the Government filed a Response. (Doc # 222) Javidan filed a Reply on May 2, 2017. (Doc # 234) Javidan filed an additional and untimely Reply on May 22, 2017. (Doc # 236)

         II. ANALYSIS

         Section 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). Motions brought under Section 2255 are subject to a one-year limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996, generally running from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2253(f)(1); Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir. 2001). As an initial matter, the Court notes that Javidan's Motion was timely filed.

         In order to prevail on a Section 2255 motion, the movant must show “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).

         A. Ineffective Assistance of Counsel

         Javidan argues that Defense Counsel was ineffective because she (1) failed to request a dismissal or mistrial and failed to argue a single large conspiracy; (2) failed to adequately investigate and interview key witnesses; (3) failed to hire an expert on Medicare billing policies; (4) failed to challenge the loss amount; (5) failed to file a mistrial motion based on a three-week trial recess; (6) failed to review the Presentence Report with Javidan; (7) failed to review a plea offer with Javidan; (8) failed to challenge the sentence enhancement for role; and (9) failed to challenge the sentence enhancement for sophisticated means. The Court will address each of these arguments in turn.

         Under the Sixth Amendment, a defendant has a right to “have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. A defendant has a right to “reasonably effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court articulated a two-prong test to show ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown of the adversary process that renders the result unreliable.

Id. “There is a strong presumption that legal counsel is competent. United States v. Osterbrock, 891 F.2d 1216, 1220 (6th Cir. 1989). In addition, a “reviewing court must give a highly deferential scrutiny to counsel's performance.” Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). “The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. At 694. The defendant bears the burden of showing that counsel was so deficient and that prejudice resulted from counsel's errors. Id. at 686-87.

         1. Failure to Request a Dismissal or Mistrial and Failure to Argue Single Conspiracy

         Javidan argues that Defense Counsel was ineffective because she failed to request a dismissal or mistrial and failed to argue at trial that Shahab's scheme at Patient Choice and All American was a single large conspiracy that included the scheme at Acure. Javidan asserts, without any evidence, that Shahab fully funded and controlled Acure. Javidan argues that Defense Counsel should have filed a motion to have the case dismissed because Shahab was the mastermind and leader of a single conspiracy.

         The Government responds that it was reasonable for Defense Counsel not to file a motion for dismissal or mistrial because Javidan's argument has no merit. The Government argues that the fact that Shahab worked with other individuals to open different fraudulent home health care agencies does not make the Acure conspiracy part of one large scheme. The Government further argues that Javidan cannot satisfy the second prong of Strickland because her argument that she is a mere victim of Shahab is factually incorrect, contradicted by all of the evidence, and has been previously rejected by the jury, this Court at sentencing, and the Sixth Circuit on direct appeal.

         At trial, witness testimony, bank records, and Medicare records indicated that Javidan was part-owner of Acure; that Javidan managed Acure and handled its daily operation; that Javidan signed Acure's Medicare application and maintained payroll; that Javidan was the only person with signatory authority on Acure's bank account; and that Javidan was responsible for Medicare billing at Acure. The record shows that Defense Counsel argued at trial that Shahab was the mastermind behind the scheme; that Shahab's people were running Acure and doing the Medicare billing at Acure; that Javidan trusted Shahab and was not aware of the fraud; that Javidan did not think that she had the authority to question Shahab's instructions; and that Javidan was not profiting nearly as much from Acure as Shahab was. See, e.g., Doc # 185, Pg ID 7027-28, 7041-42, 7045, 7061, 7064, 7068. Unfortunately for Javidan, the jury rejected these arguments. Witness testimony, bank records, and Medicare documents showed that it was Javidan who directed the fraud at Acure, and that Javidan continued to run Acure alone after September 2009.

         At sentencing, this Court considered Defense Counsel's arguments that Shahab was the leader of the empire that should be looked at as a whole; that Javidan was just a puppet owner controlled by Shahab; and that Javidan did not know what was going on and was not a manager. See, e.g., Doc # 179, Pg ID 6363, 6366, 6364, 6394, 6436. However, the Court found, based on the evidence presented at trial, that Javidan was an owner of Acure; that she did direct the Acure fraud at points in time; and that she really minimized her involvement substantially throughout the trial. See Id. at 6434, 6466.

         On appeal, the Sixth Circuit rejected Co-Defendant Vishnu Meda's argument that the Acure conspiracy and the Patient Choice/All American conspiracy were in fact a single conspiracy (for purposes of Meda's double jeopardy argument). Doc # 193, Pg ID 7234 (citing United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983)). The court found significant that the Acure conspiracy took place during a different time period as the Patient Choice/All American conspiracy (with only a small time overlap of six months). The court also found that the identity of the central figures were different in each conspiracy.

[Javidan] was the central character in the Acure conspiracy, as she ran the day-to-day operations and made all the Medicare decisions. Unlike at Patient Choice and All American, Shahab was not actively involved in Acure's business. He was merely a part owner. Moreover, unlike Shahab, who played a passive role in the Acure conspiracy, Javidan played no role at all in the Patient Choice/All American conspiracy.

Id. at 7233. Additionally, the Sixth Circuit found that the overt acts charged in each conspiracy were different. Id. at 7234 (“Further illustrating this point is the fact that when Patient Choice and All American were shut down after federal authorities served a search warrant on their respective business premises, Acure continued to operate.”).

         The Court concludes that Javidan has not met her burden of showing that Defense Counsel's performance with regards to the issue of a single large conspiracy with Patient Choice and All American was constitutionally deficient. Defense Counsel did make the arguments that Javidan makes in her instant Motion, and those arguments were considered and rejected by the jury, this Court at sentencing, and the Sixth Circuit on appeal. In light of the significant evidence showing that Javidan owned Acure, directed the fraud at Acure, and played no role in the Patient Choice/All American conspiracy, the Court finds that Defense Counsel made a strategic decision not to request a dismissal or a mistrial based on the theory of a single large conspiracy. The Court further concludes that Javidan has not met her burden of showing that there is a reasonable probability that, but for Defense Counsel's unprofessional errors, the result of the proceeding would have been different, given that Javidan's arguments that Shahab controlled Acure and that she was just a puppet owner controlled by Shahab were considered and rejected at each stage of this case.

         2. Failure to Investigate and Interview Witnesses

         i. Acure's Biller

         Javidan asserts, without detail or much argument, that Defense Counsel was ineffective because she failed to interview Acure's biller.

         The Government responds that Acure's biller, Maseer Ansari, testified for over three days at trial. The Government argues that Javidan's argument fails because she has not identified any other biller, provided any evidence that another unspecified biller was willing to testify on her behalf, or detail how the proposed testimony would have differed from Ansari's.

         The Court concludes that Javidan has not met her burden of showing that Defense Counsel's performance with regards to interviewing Acure's biller(s) was constitutionally deficient. The record shows that Acure's biller, Maseer Ansari, did indeed testify on Javidan's behalf (Doc # 172; Doc # 185), and Javidan does not identify any other biller or detail any proposed testimony.

         ii. Medicare Beneficiaries

         Javidan argues that Defense Counsel was ineffective because she failed to interview Medicare beneficiaries that received appropriate and legitimate services from Acure. Javidan asserts, without further detail, that Defense Counsel “failed to fully investigate additional witnesses that might have been exculpatory.”

         The Government responds that Javidan cannot satisfy the first prong of Strickland because she has failed to specifically identify any witnesses, detail their testimony, or describe how such testimony would have been credible in light of the overwhelming evidence that Acure was a fraud. The Government further argues that Javidan cannot satisfy the second prong of Strickland because the provision of services to some, but not all, beneficiaries is not a defense to the counts of conviction; and because Javidan has not shown that any testimony would have significantly affected the verdict or undermined confidence in the outcome.

         The Court concludes that Javidan has provided no argument and cannot show that that there is a reasonable probability that Defense Counsel's actions as to the unspecified Medicare beneficiaries prejudiced the defense such that the result of the proceeding would have been different. Again, Javidan does not identify any specific Medicare beneficiary who received legitimate services from Acure or detail any proposed testimony. Javidan does not argue and could not show that any testimony from some unspecified Medicare beneficiaries who received legitimate services from Acure would provide a defense to conspiracy to commit health care fraud, substantive health care fraud, the false statement count, or conspiracy to pay health care kickbacks. Javidan does not explain how or why the jurors would have credited the testimony from any unspecified Medicare beneficiaries, especially in light of the fact that the jurors disregarded testimony on the subject of legitimate services from Maseer Ansari and Rhunelle Adams. And Javidan does not explain how the testimony from any unspecified Medicare beneficiaries would have overcome the significant evidence against her presented at trial.

         iii. ...


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