United States v. Walter-Eze, No. 15-50315 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed defendant's conviction and sentence for health care fraud and conspiracy. The panel held that defendant failed to establish that she was denied her Sixth Amendment right to counsel because, although she established a conflict of interest, she failed to meet the prejudice prong of Strickland v. Washington; the district court did not erroneously fail to grant a continuance; the jury instructions as a whole properly conveyed the government's burden of proof; it was not error to give a deliberate ignorance charge; the district court properly calculated loss under USSG 2B1.1(b)(1); the district court properly applied a leadership role enhancement under USSG 3B1.1(a); and the district court did not err in calculating restitution based upon the entire amount of reimbursements received by defendant from Medicare and Medi-Cal.
Court Description: Criminal Law. The panel affirmed a jury conviction and sentence for health care fraud and conspiracy. The panel held that the defendant was not denied effective assistance of counsel when her attorney obtained only a short continuance of trial and declined the district court’s offer of a longer continuance conditioned on counsel’s paying the costs incurred by the continuance, including witness and jury fees. The panel held that both the threat of fees and the risk of a bar investigation and sanctions as a result of the fees created an actual conflict of interest that adversely affected counsel’s performance. The panel assumed without deciding that the rule of Cuyler v. Sullivan, 446 U.S. 335 (1980), regarding a presumption of prejudice upon a showing of an actual conflict, can extend to a case of pecuniary conflict. Under the circumstances of this case, however, Sullivan did not control because the actual conflict was relegated to a single moment of the representation and resulted in a single identifiable decision that adversely affected the defendant, rather than tainting every interaction with or decision made by counsel. The defendant therefore was required to demonstrate that she was prejudiced by her counsel’s failure to obtain the longer continuance. The defendant did not make this showing, and thus failed to establish a Sixth Amendment violation. UNITED STATES V. WALTER-EZE 3 The panel held that the district court did not abuse its discretion in ruling on the defendant’s morning-of-trial request for a fifth continuance. The panel held that the district court did not abuse its discretion in giving a deliberate ignorance jury instruction. Even though the government’s case-in-chief relied primarily on the claim that the defendant had actual knowledge of the health care fraud, the jury instruction had foundation in the evidence. The timing of the instruction, after the defense had already made its summation but before the government’s rebuttal, did not deprive the defendant of the right to fully defend herself. The panel held that the district court did not plainly err in its oral recitation of a jury instruction on the elements of health care fraud. The jury instructions as a whole properly conveyed the government’s burden of proof. The panel held that at sentencing, the district court did not err in calculating the amount of loss based on the total amount billed to Medicare and Medi-Cal. The district court did not plainly err in applying an enhancement for the defendant’s leadership role in a criminal activity involving five or more people. The district court also did not plainly err in calculating the amount of restitution. Concurring only in the judgment, Judge Nguyen joined fully in the majority’s conclusions. She wrote separately because she feared that the majority’s reasoning regarding conflicts of interests could create confusion in the court’s case law. Judge Nguyen would hold that there was no “actual conflict” that adversely affected counsel’s performance, and thus Sullivan’s presumed prejudice rule did not apply. Like 4 UNITED STATES V. WALTER-EZE the majority, she would apply the prejudice standard and hold that the defendant could not show prejudice due to the overwhelming evidence against her.
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