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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

BERNICE BROWN, 

Movant, 

v. 

UNITED STATES OF AMERICA, 

Respondent. 

Criminal Case No. 09-20213-1 

Civil Case No. 14-13949 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

 / 

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE 

[250]; GRANTING IN PART A CERTIFICATE OF APPEALABILITY; DENYING MOTION 

TO APPOINT COUNSEL [255]; DENYING MOTION FOR DISCOVERY, EVIDENTIARY 

HEARING, AND APPOINTMENT OF COUNSEL [263]; GRANTING MOTION FOR 

EXTENSION OF TIME TO FILE REPLY [270]; DENYING MOTION FOR DISCLOSURE 

[271]; DENYING MOTION TO PROVIDE A COPY [275]; AND DENYING AS MOOT

 MOTION FOR STATUS REPORT [297] 

 On June 22, 2010, a jury convicted Movant of nine counts of health care fraud 

and one count of conspiracy to commit health care fraud, in violation of 18 U.S.C. § 

1347 and 18 U.S.C. § 1349, respectively. Movant filed several post-trial motions, 

alleging, inter alia, that her counsel had rendered ineffective assistance. On October 

22, 2010, the Court issued an Order [Dkt. #180] denying Movant’s post-trial motions. 

On December 14, 2010, the Court sentenced Movant to roughly twelve-and-a-half 

years (151 months) of imprisonment. The Sixth Circuit affirmed Movant’s 

convictions and sentence on November 5, 2012. United States v. Brown, No. 10-2668 

(6th Cir. Nov. 5, 2012). 

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 On August 29, 2014, Movant filed a Motion for Appointment of Counsel [255]. 

On October 10, 2014, Movant filed a Motion to Vacate, Set Aside, or Correct 

Sentence [250]. On November 21, 2014, Movant filed a Motion for Discovery, 

Evidentiary Hearing, and Appointment of Counsel [263].1

 On December 12, 2014, on 

order of the Court, the government filed a Response [266] to Movant’s motion to 

vacate her sentence. On January 9, 2015, Movant filed a Motion for Disclosure [271]. 

On March 16, 2015, Movant filed a Motion to Provide a Copy [275],2

 as well as a 

Reply [276] in support of her motion to vacate her sentence.3

 Movant filed an 

Amended Reply [282] on April 10, 2015. Movant filed a Supporting Memorandum 

[291] on May 26, 2015. On October 1, 2015, Movant filed a Motion for Status Report 

[297]. 

 For the reasons stated below, Movant’s Motion for Appointment of Counsel 

[255], Motion for Discovery, Evidentiary Hearing, and Appointment of Counsel 

[263], and Motion for Disclosure [271] are DENIED. Movant’s Motion to Vacate, 

Set Aside, or Correct Sentence [250] is DENIED. Movant is GRANTED a 

 

1

 On January 9, 2015, Movant filed a Supplemental Memorandum [269] in support 

of this motion. 

2

 This motion requests that the Court provide Movant a copy of a filing, which 

Movant identifies as a motion for reconsideration of her § 2255 motion. Movant 

states that the motion was “written and submitted by this court” in relation to her 

Motion for Discovery, Evidentiary Hearing, and Appointment of Counsel [263]. 

This description does not match any filing in this case. Because the Court cannot 

ascertain which filing is at issue, the motion for a copy of the filing is DENIED. 3

 Movant previously filed a Motion for Extension of Time to File Reply [270]. 

That motion is GRANTED and Movant’s Reply accepted as timely. 

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certificate of appealability on her argument that her constitutional right to counsel on 

appeal was violated, but otherwise DENIED a certificate of appealability. Finally, 

Movant’s Motion for Status Report [297] is DENIED as moot. 

FACTUAL BACKGROUND

 Movant and her co-defendant Daniel Smorynski were convicted of carrying out 

Medicare fraud through Wayne County Therapeutic (WCT), of which Movant was the 

president and Smorynski was the vice-president. In its Response [266], the 

government accurately summarized the evidence presented at trial as follows: 

1. The Physical and Occupational Therapy Contractor Scheme 

 A. Regulatory Framework 

 The government called Kelly Hartung to testify about Medicare 

rules for billing for physical, occupational, and psychotherapy services. 

Tr. 57; see also Gov’t Tr. Exs. 1A-1F.3 She testified that Medicare pays 

for services provided to a Medicare beneficiary only by a person or 

clinic enrolled with Medicare. Tr. 63-64, 129. To enroll with Medicare 

as a provider of outpatient physical or occupational therapy, an 

occupational or physical therapist must be registered in the state. Tr. 135. 

Registered occupational therapists are called “OTRs” and registered 

physical therapists are called “RPTs.” Hartung testified that if an OTR or 

RPT does not perform or supervise the therapy, Medicare will not pay 

for the services. Tr. 103, 106-107. The whole point of the system is to 

ensure that a licensed and enrolled Medicare provider is either 

performing or directly supervising the therapy provided. Tr. 136. 

B. WCT Therapists 

 During the period of the alleged conspiracy, October 2002 to 

September 2006, WCT employed a number of OTRs and RPTs who 

were enrolled with Medicare, among them Dana McDade (OTR), 

Desmond Rice (OTR), and Hamad Hamad (RPT). Tr. 264. McDade, 

Rice, and Hamad each had individual provider numbers with Medicare, 

under WCT’s group number. Tr. 75-77. McDade and Rice both testified 

at trial. Tr. 260-297, 576-664. McDade and Rice explained that WCT 

staff assisted in processing and submitting their claims to Medicare. Tr. 

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266-67, 513-516. Numerous witnesses, including McDade, Marc Riley 

(a biller), and Tamika Taylor (Smorynski’s assistant), testified that 

Smorynski oversaw WCT’s Medicare billing operations. Tr. 405, 516, 

537-38, 770-72, 817, 1057-58, 1098-99. 

 Hartung testified, and the supporting Medicare documents 

showed, that McDade, Rice, and Hamad each reassigned all of their 

benefits (e.g., payments) from Medicare to WCT. Tr. 74-77, 131, 267-

69, 305, 584-85, 958; see also, e.g., Gov’t Tr. Ex 2C. WCT submitted 

bills to Medicare on behalf of McDade, Rice, and Hamad electronically, 

and Medicare paid the claims through direct deposit into WCT’s bank 

account. Numerous witnesses testified and documentation established 

that Brown controlled the WCT bank account. See, e.g., Gov’t Tr. Ex. 

202A; Tr. 406, 694, 733, 741-42. Therefore, payment for any “therapy” 

services provided by McDade, Rice, or Hamad went directly to Brown. 

 Although McDade, Rice, and Hamad were registered therapists, 

McDade, Rice, and other WCT staff testified that the three therapists 

actually performed very little therapy at WCT. In fact, by 2005, the three 

performed almost no therapy themselves. Tr. 174. McDade and Rice 

each testified that Brown instructed them to simply “co-sign” the files of 

other people who were not licensed therapists and/or who were not 

enrolled with Medicare. Tr. 270, 272, 308, 604-09, 750-52. WCT then 

billed Medicare for the therapy as if McDade, Rice, and Hamad had 

performed the therapy themselves. Tr. 107, 420-21, 608-10, 739-42 750. 

C. The Contractors 

 Beginning in October 2002, WCT contracted with three 

companies, Universal Rehab Services, Inc. (Universal), M&M 

Management, Inc. (M&M), and Lords Physical Therapy and Rehab 

Services, Inc. (Lords) (collectively the Contractors). Gov’t Tr. Exs. 3-5. 

Brown signed the contracts on behalf of WCT. WCT entered into a 

contract with Lords in October 2002, with Universal in November 2004, 

and with M&M in July 2005. Tr. 165-166, 407-10, 415, 588-94. Each of 

the Contractors employed one physical therapist and one occupational 

therapist. Of the six Contractor therapists, only half were licensed, and 

none were enrolled with Medicare. Tr. 160-61, 588, 603-04. 

 The Contractors operated in similar fashion. Pradeep Pillai, as 

well as a number of beneficiaries, testified about how the Contractors 

operated. They bribed patients to sign fictitious forms, indicating they 

had received physical or occupational therapy and created fictitious 

“initial evaluations,” “progress notes,” and “discharge summaries” to 

supposedly document the therapy. Tr. 162, 173, 177, 198-99. They used 

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those forms to create patient charts that appeared to document therapy. 

Tr. 159, 162, 172-73, 213-14, 229, 239-241, 249-50. 

 Paul Smith, Henderson Butler, and Norris Moore, Jr. testified 

about receiving cash kickbacks to sign forms indicating that they had 

received therapy, which never occurred. Tr. 213, 239-241, 249-250; see 

also Tr. 175. The government introduced photographs showing M&M’s 

owner paying cash to him for signing the fictitious forms. Tr. 218, Gov’t 

Tr. Ex. 39. 

 Because none of the Contractors were enrolled with Medicare, 

they sold the fictitious therapy files to WCT. Pillai testified that Brown 

told him not to worry about not being enrolled with Medicare because 

she would have her staff sign the files. Tr. 159, 163-164, 194-95, 307, 

523-25. Pillai testified that he was instructed not to sign any initial 

evaluations. Tr. 175. 

D. The Fraud 

 Taylor and McDade testified that when WCT received the patient 

files and billing paperwork from the Contractors, the patient files was 

sent to WCT therapists and the billing paperwork went to the billing 

department. Tr. 417. With respect to the patient files, McDade, Rice, and 

Brown herself testified that Brown instructed McDade, Rice, and Hamad 

to “co-sign” the files, which meant that they signed each initial 

evaluation, progress note, and discharge summary. Tr. 163-64, 167, 174-

79, 271-72, 585-86, 596-604, 659, 798-99. Because the Contractors 

never signed the initial evaluations or discharge summaries, the WCT 

staff therapist’s signature was the only one on those documents. Tr. 174-

79, 279-280, 739-41, 749-51. The files made it appear to any outside 

observer that the WCT staff therapist (McDade, Rice, or Hamad) had 

performed the initial evaluation and discharge summary for the patient. 

See Gov’t Tr. Exs. 9-15, 17, Tr. 174, 298, 701-02, 732, 739-41, 749-51. 

Typically, Brown paid McDade, Rice, and Hamad $10 per signature. Tr. 

270, 304, 308, 418-421, 588, 1140. McDade and Rice both testified that 

they never performed any work, and that their signatures signified 

nothing more than the $10 payment from Brown. Tr. 276, 283-284. 

 Multiple witnesses testified that Brown and Smorynksi knew that 

Rice and Hamad only worked an hour or two every other week at WCT. 

See, e.g., Tr. 274-275, 418-419. They had full time jobs elsewhere. Tr. 

262-63, 274-75, 418-419, 448, 580, 1043. Yet they signed for 200, 500, 

and at times, 1000, visits in a single session, which typically lasted less 

than an hour, and involved doing nothing more than signing paperwork 

to the point where their hands hurt. Tr. 273-274, 417. Brown knew how 

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many files they were signing because she was paying them per signature. 

Tr. 275. Rice testified that he told Brown that he was uncomfortable 

signing evaluation and discharges for patients who he had never seen or 

supervised. Tr. 274, 279. Brown told him to just keep signing the files. 

Tr. 279. 

 Smorynski also knew what the therapists were doing. Tr. 275-76, 

282, 304-08, 418, 449. Taylor testified that Smorynski routinely 

witnessed both Rice and Hamad signing large stacks of files without 

even reviewing the pages. Tr. 418. Rice testified that Smorynski, upon 

seeing him signing a stack of files, told him that he had “the easiest job 

in the world.” Tr. 275-276. Special Agent Bartnik also testified that 

when he interviewed Smorynski, he admitted that WCT staff had done 

nothing to check to see if the therapy had been performed, let alone 

performed the therapy themselves. Tr. 308. 

 In addition to the sheer volume of visits submitted by the 

Contractors, the dates of service reflected in the files made it impossible 

for McDade, Rice, or Hamad to supervise, let alone perform, the 

services. That is because, in many cases, the files were so “old” that the 

patient had purportedly been discharged months before WCT even 

received the file. Tr. 618-21. McDade, Rice, and Hamad could not have 

performed or supervised therapy that had long since occurred. Marc 

Riley testified that Brown and Smorynski were aware of the staleness of 

the files because Medicare often imposed a 10% payment penalty on 

WCT for very old claims. Tr. 516, 521. Smorynski authored a 

memorandum about this very problem. Gov’t Tr. Ex. 26. 

 For all the therapy visits reflected in the files that the Contractors 

had sold to WCT, the witnesses uniformly testified that McDade, Rice, 

and Hamad never met the patient, never spoke to the patient over the 

phone, never spoke to the contractor therapist who had supposedly 

provided the service about the patient, and had no idea if the therapy had 

been performed at all. Tr. 174, 179, 216, 241-242, 278, 282-283, 577. 

WCT therapists did not perform the services or supervise the services 

reflected in the Contractors’ files. Tr. 167, 175-176, 178, 180, 217-218, 

241-242, 250, 283. 

 Meanwhile, the billing paperwork was sent to WCT’s billing 

department, where it was used to submit claims to Medicare. Tr. 511-22. 

At the direction of Brown and under the guidance of Smorynski, the 

claims were submitted, under the provider numbers of McDade, Rice, 

and Hamad. Tr. 302-03, 511-22, 527, 608-10, 739-42. By causing the 

claims to be submitted to Medicare, Defendants represented that 

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McDade, Rice, and Hamad had performed the services or supervised the 

services, when they knew that that was not true. Tr. 107, 750. 

E. The Money 

 WCT billed Medicare for over $24 million for the Contractor 

files, and Medicare paid over $6 million into the WCT account, which 

was controlled by Brown. Tr. 694, 713-16, 733, 741-42. Given that 

WCT did almost nothing to gain this money, its profit margins were 

huge. Gov’t Tr. Ex. 55. Brown rewarded herself, her family, and 

Smorynski accordingly. From June 2003 to June 2006, Brown paid 

herself in excess of $2 million, and paid two of her children, Ebony and 

Darnell Brown, over $1 million. Gov’t Tr. Ex. 67. Smorynski made over 

$500,000 during that period. Tr. 303. During the height of the fraud, 

Bernice Brown, Ebony Brown, Darnell Brown, and Smoynski were the 

highest compensated people at WCT. Neither Ebony nor Darnell Brown 

did any substantive work for WCT during that period. Tr. 410-13. 

 Brown also tried to hide her money. Jacques Graves, a teller from 

Citizens Bank, testified, with supporting documentation, that at 

approximately 9:00 a.m. on September 13, 2006 (moments after law 

enforcement began executing a search warrant at WCT), Brown tried to 

transfer her entire account, almost $200,000, to her son’s account. Gov’t 

Tr. Ex. 204. Graves testified that Brown had never sought to empty her 

account before. 

2. The Social Work Scheme 

 Taylor, Renee Watson, and Riley testified that Brown restructured 

the entire WCT staff to begin performing psychotherapy or, as she 

termed it, “social work” for WCT patients after Medicare imposed a cap 

on physical and occupational therapy reimbursements in January 2006. 

Tr. 330-31, 356, 425-427, 529-30, 625-26, 719-20. Numerous internal 

WCT documents—many either handwritten or initialed by Brown 

herself—corroborated their testimony. See, e.g., Gov’t Tr. Exs. 102-111. 

For a short time, WCT was forced to lay off some of its staff members 

and cut the salaries of several others. Tr. 303, 425. Brown had authorized 

a contemporaneous memorandum warning, “All jobs were on the line 

because of the cap.” Tr. 1070. 

 Taylor, Watson, and Riley testified that Brown told her staff that 

WCT’s current physical and occupational therapy clients must be 

“depressed” because they were not receiving as much therapy due to the 

cap. Tr. 334-35, 357-58, 367. The witnesses testified that Smorynski 

drafted petitions for the patients to sign, demanding repeal of the cap, 

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and drafted letters to Congress, purportedly on behalf of the patients, 

also demanding repeal of the cap. Tr. 335, 339, 342-43, 429, 432-35. 

Smorynski also drafted a script that WCT staff was supposed to read to 

patients over the phone regarding the cap, WCT’s lobbying effort, and 

the fact that WCT would bill Medicare for its lobbying efforts. Tr. 335-

40, 343-46, 350, 354, 427-30, 432-34, 460, 532-35. 

 Taylor, Watson, and Riley testified that, at a meeting on February 

13, 2006, Brown gave specific instructions to her staff on how to bill for 

their new work. Tr. 435. She distributed a memorandum and a sample 

billing sheet with precise instructions. Gov’t Tr. Exs. 103C-D; Tr. 350-

351, 437. All patients were to be diagnosed with “depression.” Tr. 350-

54, 357-39, 367, 437-38, 442, 531-32. Brown wrote that “the only 

billable code for social work is 311 for depression.” Gov’t Tr. Exs. 

103C-D. Brown instructed the WCT staff that the initial telephone call, 

during which they were instructed to read from the script prepared by 

Smorynski, was to be billed using a code 90801, which stood for 

individual psychotherapy evaluation. Tr. 350-54, 357-59, 361-62, 367, 

389, 437-430, 460, 532-35. All subsequent phone calls, time spent 

writing the letters to Congress, and other time spent on the process, 

should by billed using a code 90806, which signified a 45-50 minute 

face-to-face psychotherapy session with the client. Tr. 350-354, 361-62, 

437-40. But rather than face-to-face meetings, Brown instructed her staff 

to make only phone calls, and that “permission” from management was 

required to see a patient. Tr. 345-46, 349-353, 440. 

 The persons Brown selected to actually perform the social work 

“evaluations” and “meetings” were a motley collection of billers, 

drivers, unlicensed and licensed occupational therapists, and 

administrative assistants. Tr. 430. Brown told those “social workers” that 

they were to create notes, but that the one licensed social worker on 

staff, Joanne Smith-Washington, would “co-sign” their notes. Tr. 348-

49, 359-63, 367-68, 440-441, 445-46, 756-57. Smith-Washington did not 

meet with or speak to the patients, or the persons supposedly performing 

the “therapy.” Tr. 349, 359-360, 363, 365, 398. Smith-Washington also 

did not supervise the persons supposedly performing “therapy.” Tr. 360. 

Watson testified that Brown informed her to leave the signature on the 

initial evaluation, which she had prepared, blank, so Smith-Washington 

could sign it, because otherwise Medicare would not pay. Tr. 360, 363. 

Brown directed Smith-Washington to sign all of the patient notes—

making it look like Smith-Washington had performed the social work 

services. Tr. 348-49, 359-63, 367-68, 440-41, 445-46, 756-57. All of the 

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reimbursements from Medicare were paid into the WCT bank account, 

which Brown controlled. Tr. 756.4 

 Rita Perry and Bettye Everson, two Medicare beneficiaries, 

testified that they never received the services billed by WCT to Medicare 

on their behalf. Tr. 396-401, 487-494. Medicare actually sent a letter to 

Smorynski demanding an accounting. Tr. 759-62, 1057. But rather than 

come clean, Brown and Smorynski, knowing that Perry never received 

any therapy, submitted false paperwork to Medicare and actually “rebilled” Medicare for services supposedly provided to her. Tr. 759-62. 

Defendants’ own witness, Melyssa Byrd, admitted on cross-examination 

that she had no idea that WCT had billed Medicare for psychotherapy, 

and denied ever receiving such services from WCT. Tr. 856. Yet WCT 

billed Medicare fifteen times for psychotherapy “treatments” and 

maintained a false file to document such services. Gov’t Tr. Exs. 119-

121. 

REQUESTS FOR APPOINTMENT OF COUNSEL

 Movant has requested the appointment of counsel in her Motion for 

Appointment of Counsel [255], her Motion for Discovery, Evidentiary Hearing, and 

Appointment of Counsel [263], and her Supplemental Memorandum [269] in support 

of the latter. Movant points out that if an evidentiary hearing were warranted, the 

Court would be required to appoint counsel to represent her at the hearing. Rules 

Governing § 2255 Proceedings, Rule 8(c), 28 U.S.C.A. foll. § 2255. As explained 

below, however, an evidentiary hearing is not warranted. It is true that the Court has 

discretion to appoint counsel to represent a financially eligible § 2255 movant where 

the interests of justice so require. 28 U.S.C. § 2255(g); 18 U.S.C. § 3006A(2)(B). 

Movant has not convinced the Court, however, that the interests of justice require the 

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appointment of counsel. Accordingly, Movant’s requests for appointment of counsel 

are DENIED. 

REQUESTS FOR DISCOVERY AND EVIDENTIARY HEARING

 Movant requests discovery and/or an evidentiary hearing in her Motion for 

Discovery, Evidentiary Hearing, and Appointment of Counsel [263], in her 

Supplemental Memorandum [269] in support thereof, and in her Motion for 

Disclosure [271]. The Court may authorize a party to conduct discovery in support of 

a motion under 28 U.S.C. § 2255 for “good cause.” Rules Governing § 2255 

Proceedings, Rule 6, 28 U.S.C.A. foll. § 2255. The good cause requirement bars 

“fishing expeditions based on a petitioner’s conclusory allegations.” Cornwell v. 

Bradshaw, 559 F.3d 398, 410 (6th Cir. 2009) (quoting Williams v. Bagley, 380 F.3d 

932, 974 (6th Cir. 2004)). The movant must “present[] specific allegations showing 

reason to believe that the facts, if fully developed, may lead the district court to 

believe that federal habeas relief is appropriate.” Id. (quoting Lott v. Coyle, 261 F.3d 

594, 602 (6th Cir. 2001)). 

 Movant’s Motion for Discovery, Evidentiary Hearing, and Appointment of 

Counsel requests discovery and mentions “new evidence” to be presented at an 

evidentiary hearing, but does not describe any evidence Movant hopes to discover. In 

her Motion for Disclosure, Movant requests discovery of all “immunity agreements, 

special deals, agreements not to prosecute, named and unnamed parties, and proffers 

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... to include any plea deals whether accepted or not.” The motion makes clear that 

Movant seeks such evidence not only concerning the parties to this case, but also 

concerning the parties in a related case before the Honorable Sean F. Cox. Movant 

presents no argument whatsoever in support of these discovery requests. She has 

therefore failed to carry her burden of presenting specific allegations showing reason 

to believe the requested discovery may lead the Court to believe that relief is 

appropriate. 

 Movant’s Supplemental Memorandum cites several cases in which the Sixth 

Circuit found an evidentiary hearing necessary in habeas corpus or § 2255 

proceedings. However, the need for an evidentiary hearing must be assessed in light 

of the factual issues (or lack thereof) presented in each case. For the reasons 

explained below, “the files and records of the case conclusively show that [Movant] is 

not entitled to relief.” Ross v. United States, 339 F.3d 483, 490 (6th Cir. 2003). The 

Court therefore need not hold an evidentiary hearing. Id.

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

 To succeed on a motion to vacate, set aside, or correct sentence, a movant must 

allege “(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.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) 

(quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). Movant 

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alleges two errors of constitutional magnitude: a violation of her Sixth Amendment 

right to the effective assistance of counsel, and a violation of her right, derived from 

principles of equal protection and due process, to counsel on appeal. However, she 

fails to make a sufficient showing of either violation. 

I. Ineffective assistance of counsel 

 Movant alleges a violation of her Sixth Amendment right to the effective 

assistance of counsel. To establish ineffective assistance of counsel, Movant must 

show that her counsel rendered deficient performance and thereby prejudiced 

Movant’s defense so as to render the outcome of the proceedings unreliable. See 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Movant raises many challenges 

to her counsel’s performance. None, however, meet the Strickland standard. 

 A. Failure to advance Movant’s interpretation of Medicare 

 regulations 

 Many of Movant’s challenges to her counsel’s performance center on counsel’s 

failure to advance Movant’s interpretation of Medicare regulations.4

 As Movant 

interprets the regulations, they permitted WCT to bill Medicare for therapy not 

personally performed or directly supervised by its therapists. On direct appeal, 

however, the Sixth Circuit rejected Movant’s interpretation, stating explicitly that “the 

 

4

 For instance, Movant faults her counsel for failing to move to dismiss the 

indictment on the grounds that it was premised on an erroneous interpretation of 

the regulations; for failing to retain her Medicare compliance attorney to testify 

that WCT complied with the regulations; and for failing to object to jury 

instructions that allegedly misrepresented the regulations. 

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regulations required WCT’s registered therapists to perform or directly supervise 

therapy that was billed to Medicare.” Accordingly, the Sixth Circuit held that 

evidence that Movant “knew that WCT’s therapists did not provide any services or 

supervision regarding some of the billings” and instead “merely signed the files that 

were prepared by other contractors” sufficed to support her Medicare fraud 

convictions. 

 Movant’s counsel did not render deficient performance or prejudice Movant’s 

defense by failing to advance an interpretation of Medicare regulations rejected by the 

Sixth Circuit. 

 B. Failure to file motion for severance 

 Multiple charges against the same defendant may be tried together if the 

charged offenses are of “similar character, or are based on the same act or transaction, 

or are connected with or constitute parts of a common scheme or plan.” United States 

v. Medlock, 792 F.3d 700, 711 (6th Cir. 2015) (quoting FED. R. CRIM. P. 8(a)). 

Charges against multiple defendants may be tried together if the defendants “are 

alleged to have participated in the same act or transaction, or in the same series of acts 

or transactions, constituting an offense or offenses.” Id. (quoting FED. R. CRIM. P. 

8(a)). “Under Rule 8(b), defendants who are indicted together, ordinarily should be 

tried together.” United States v. Gardiner, 463 F.3d 445, 472 (6th Cir. 2006) (quoting 

United States v. Breinig, 70 F.3d 850, 852 (6th Cir. 1995)) (internal quotation marks 

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and brackets omitted). A defendant moving to sever his trial from that of a codefendant “must show compelling, specific, and actual prejudice from a court’s 

refusal to grant the motion to sever.” Id. (quoting United States v. Saadey, 393 F.3d 

669, 678 (6th Cir. 2005)). The mere fact that the government has stronger evidence 

against the co-defendant than against the moving defendant, or that the moving 

defendant would have a greater chance of acquittal if tried separately, does not 

establish sufficient prejudice. Id. (citing United States v. Warner, 971 F.2d 1189, 

1196 (6th Cir. 1992)). 

 Movant faults her counsel for failing to move to sever her trial from codefendant Smorynski’s trial. However, Movant and co-defendant Smorynski were 

properly tried together because they were accused of participating in the same 

fraudulent scheme, through the same company, in the same time period. Movant also 

faults her counsel for failing to move to sever the charges concerning fraudulent 

billing for occupational and physical therapy from the charges concerning fraudulent 

billing for psychotherapy. The offenses underlying these charges, however, were 

properly tried together because they constituted parts of a common scheme or plan. 

Moreover, Movant has failed to explain how her counsel could have convinced the 

Court that failing to grant a motion for severance would result in compelling, specific, 

and actual prejudice. Thus, Movant was not prejudiced by her counsel’s failure to file 

a motion for severance. 

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C. Failure to more thoroughly consult with Movant before trial

 Movant faults her counsel for failing to consult with her more thoroughly 

before trial. The Court has rejected this argument before. In her post-trial motion for 

a new trial, Movant conceded that counsel met with her three or four times before 

trial, for several hours each time. She argued that these consultations were 

insufficient only because counsel did not review certain documents with Movant or 

use them at trial. The Court rejected the argument when it denied Movant’s motion 

for a new trial. Movant’s instant motion does not persuade the Court that it erred. 

 D. Failure to inform Movant of the basis of the charges against her 

 Movant faults her counsel for failing to sufficiently inform her of the 

government’s case against her. Specifically, Movant faults counsel for failing to 

inform her of the contents of government exhibits and the expected testimony of 

government witnesses. 

 This argument fails. On direct appeal, Movant argued that her Sixth 

Amendment rights were violated because she lacked notice of what “was being 

charged, including, what evidence, witnesses, and what the witnesses were going to 

testify to in court.” The Sixth Circuit found this “undeveloped” argument 

unpersuasive because Movant “was properly charged by indictment” and there was 

“no indication that the prosecution withheld evidence from her.” As the Sixth Circuit 

concluded, Movant appeared to have sufficient notice of the case against her. 

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Moreover, Movant has not explained how she would have mounted a stronger defense 

if her counsel had provided her with any more detailed information on the 

government’s case. Movant has therefore failed to show that her counsel’s discussion 

with her regarding the basis of the charges constituted deficient performance or 

prejudiced her defense. 

 E. Failure to object to government appeals to the passion of the jury 

 During his rebuttal to the defendants’ response to his closing arguments, 

government counsel said the following: 

 Now, when I asked Ms. Brown yesterday about licensing 

requirements, you remember the answer that she gave. She couldn’t give 

an answer as to why someone would get a license. She testified you don’t 

need a license to do anything with the state. 

 Come on, ladies and gentlemen. You think the state has its 

complicated licensing rules for no reason? You think therapists go out 

and get their license for no reason? Would you want -- if you had like a 

hip problem and you wanted a therapist to help you with that, do you want 

someone -- doing electric treatments on you, do you want someone who is 

not even licensed in the state? 

 She mentioned, well, [the WCT contractors] have a Bachelor’s 

Degree. 

 The contractors in the state had Bachelor’s Degrees. They were 

from India and Pakistan. Do you want someone who has no verification 

that they have any sort of basic skills from this country performing 

therapy on you? 

Movant argues that government counsel improperly appealed to the passion of the 

jury by referencing electric treatments provided by unlicensed therapists, as well as by 

referencing India and Pakistan. She further argues that her counsel’s failure to object 

to these improper appeals constituted ineffective assistance. 

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 Even assuming that counsel’s failure to object to these statements constituted 

deficient performance rather than a reasonable strategic decision, Movant cannot 

show prejudice. The Court instructed the jury that government counsel’s statements 

were not evidence. “The prosecutor’s statements were not so extreme that the 

instructions given could not cure any prejudice that may have resulted.” Hale v. Burt, 

--- F. App’x ---, 2016 WL 1445368, at *7 (6th Cir. 2016) (citing Johnson v. Bell, 525 

F.3d 466, 484–85 (6th Cir. 2008)). 

 F. Gaps in representation 

 On July 5, 2010, Movant filed a Motion for Judgment of Acquittal [100] and 

Motion for New Trial [101] through attorney Fred Walker. On July 16, 2010, Movant 

filed a Motion to Terminate Fred Walker’s Representation [113]. On July 27, 2010, 

Movant filed a pro se Superseding Motion for Judgment of Acquittal [127]. On 

August 3, 2010, she filed a Motion for Arrest Warrants [130] and a Superseding 

Motion for New Trial [132]. On August 13, 2010, the Court issued an Order [154] 

allowing Fred Walker to withdraw from representing Movant. On August 25, 2010, 

attorney Lloyd Johnson filed an appearance on Movant’s behalf. Attorney Johnson 

died on September 20, 2010. On October 20, 2010, the Court held a hearing on 

Movant’s superseding post-trial motions. During the hearing, Movant requested that 

the Court postpone decision on the motions until she was represented by new counsel. 

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The Court declined to postpone decision, issuing an Order [180] denying the motions 

two days later. 

 Movant argues that her right to counsel was violated by gaps in 

representation—between Walker’s withdrawal and Johnson’s appearance, as well as 

following Johnson’s death—leading up to the Court’s denial of her post-trial motions. 

On direct appeal, however, the Sixth Circuit expressly held that Movant did not show 

she was prejudiced by the absence of counsel at the hearing on her post-trial motions. 

Movant may not relitigate this issue. 

 G. Failure to move for an evidentiary hearing on victims’ loss 

 The Court sentenced Movant and her co-defendant Smorynski to pay restitution 

in the amount of $6,721,272.30, to compensate the Medicare Trust Fund’s loss of 

$6,659,551.34 and Blue Cross Blue Shield’s loss of $61,720.96. Movant faults her 

counsel for failing to move for an evidentiary hearing on the amount of loss suffered 

by each victim. 

 This argument fails. On direct appeal, the Sixth Circuit rejected co-defendant 

Smorynski’s argument that the Court erred by failing to hold an evidentiary hearing 

before sentencing, stating as follows: 

[Smorynski] now argues that he was entitled to an evidentiary hearing 

before sentencing and that the district court erred in calculating the 

amount of loss that was attributed to him. However, the court was 

already aware of the evidence regarding the amount of loss because it 

had presided over Brown’s trial. The evidence at trial indicated that 

WCT submitted over $18,000,000 in fraudulent claims to Medicare, 

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even if the amount of co-pays was excluded. As a result, the court 

properly increased Smorynski’s offense level by twenty levels because 

the intended loss exceeded $7,000,000. See USSG § 2B1.1(b)(1)(K); 

United States v. Gale, 468 F.3d 929, 935 (6th Cir. 2006); United States 

v. Sosebee, 419 F.3d 451, 456 (6th Cir. 2005). 

Movant does not identify any grounds for an evidentiary hearing that were not 

advanced by her co-defendant and rejected by the Sixth Circuit. Indeed, Movant does 

not even attempt to identify any error in the loss calculation. Movant thus fails to 

show any likelihood that holding an evidentiary hearing would have changed the 

outcome of the sentencing proceedings. 

H. Conclusion on ineffective assistance of counsel 

 Movant has failed to make a substantial showing of a denial of her 

constitutional right to the effective assistance of counsel. Accordingly, Movant’s 

ineffective assistance of counsel argument is denied, and she is denied a certificate of 

appealability on the issue. 

II. Violation of constitutional right to counsel on appeal 

 Indigent criminal defendants generally have a right, derived from the 

Constitution’s equal protection and due process guarantees, to counsel on a first 

appeal. Smith v. Robbins, 528 U.S. 259, 276–78 (2000). “[A]n indigent defendant’s 

... right to counsel on appeal will not be deemed waived even in the absence of a 

request for appointment of appellate counsel.” United States v. Aloi, 9 F.3d 438, 444 

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(6th Cir. 1993) (citing Swenson v. Bosler, 386 U.S. 258, 260 (1967)). A non-indigent 

defendant does not have this right. Id. 

 On March 26, 2010, the Court permitted Movant’s retained counsel to 

withdraw, and Movant informed the Court that she did not have funds to retain a new 

attorney. The Court subsequently appointed counsel to represent Movant. Movant 

was represented by appointed counsel until the Court permitted attorney Fred Walker 

to withdraw on August 13, 2010 (after Movant had been convicted). Movant 

subsequently retained attorney Lloyd Johnson, who died shortly thereafter. Movant 

retained attorney Dionne Webster-Cox to represent her in sentencing proceedings. 

 After Movant was sentenced and judgment was entered, Webster-Cox filed an 

appeal on Movant’s behalf on December 21, 2010. On March 28, 2011, Webster-Cox 

filed, in the Sixth Circuit, a motion to withdraw as appellate counsel. The motion 

explained only that Webster-Cox’s “services were terminated.” The Sixth Circuit 

granted this motion on March 29, 2011, directing Movant to file a status report 

advising the court if she intended to retain new counsel or represent herself on appeal. 

Movant sent a written response advising the Sixth Circuit that she would proceed pro 

se until she was “able to select another attorney or be granted a Court Appointed 

Attorney.” On April 25, 2011, the Sixth Circuit sent Movant a letter advising her that 

the court had reviewed her status report, enclosing a form for submission of a pro se 

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brief. Movant proceeded to represent herself on appeal. Movant now argues that her 

right to counsel on appeal was violated. 

 As evidenced by the fact that Movant retained counsel and informed the Sixth 

Circuit that she would represent herself until she was able to “select” another attorney, 

Movant was not indigent in the sense of lacking funds to retain counsel. She therefore 

had no right to counsel on appeal that could not be waived by her election to proceed 

without counsel. 

 While the Court concludes that there was no violation of Movant’s right to 

counsel on appeal, it further concludes that Movant has made a sufficiently substantial 

showing to warrant a certificate of appealability on this issue only. In any event, the 

Sixth Circuit may be better positioned to evaluate the constitutional soundness of its 

own proceedings. 

CONCLUSION

 For the reasons stated above, 

IT IS ORDERED that Movant’s Motion for Appointment of Counsel [255], 

Motion for Discovery, Evidentiary Hearing, and Appointment of Counsel [263], 

Motion for Disclosure [271], and Motion to Provide a Copy [275] are DENIED. 

IT IS FURTHER ORDERED that Movant’s Motion for Extension of Time to 

File Reply [270] is GRANTED. Movant’s Reply is accepted as timely. 

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 IT IS FURTHER ORDERED that Movant’s Motion to Vacate, Set Aside, or 

Correct Sentence [250] is DENIED. Movant is GRANTED a certificate of 

appealability on her argument that her constitutional right to counsel on appeal was 

violated, but otherwise DENIED a certificate of appealability. 

IT IS FURTHER ORDERED that Movant’s Motion for Status Report [297] 

is DENIED as moot. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: May 25, 2016 Senior United States District Judge 

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