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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DANIEL SMORYNSKI, 

Movant, 

v. 

UNITED STATES OF AMERICA, 

Respondent. 

Criminal Case No. 09-20213-2 

Civil Case No. 14-13181 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

 / 

ORDER DENYING MOVANT’S MOTION TO VACATE, SET ASIDE, OR CORRECT 

SENTENCE [246]; DENYING MOVANT A CERTIFICATE OF APPEALABILITY;

AND DENYING MOVANT’S MOTION FOR DISCOVERY AND EVIDENTIARY 

HEARING [274] 

 On June 22, 2010, a jury convicted Movant of five counts of healthcare 

fraud and one count of conspiracy to commit healthcare fraud, in violation of 

18 U.S.C. § 1347 and 18 U.S.C. § 1349, respectively. Movant filed several posttrial motions, alleging, inter alia, that his 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 nine years (108 months) of imprisonment. The Sixth Circuit affirmed Movant’s 

convictions and sentence on November 5, 2012. United States v. Smorynski, No. 

10-2681 (6th Cir. Nov. 5, 2012). 

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 Movant filed a Motion to Vacate, Set Aside, or Correct Sentence [246] on 

August 15, 2014. On order of the Court, the government filed a Response [264] on 

December 4, 2014. Movant filed a Reply [272] on January 26, 2015, followed by 

an Amended Reply [273] on February 5, 2015. On June 24, 2015, Movant filed a 

Supplemental Brief [292]. On September 21, 2015, Movant filed a Second 

Supplemental Brief [296]. On March 2, 2016, Movant filed a Revised Appendix to 

his Amended Reply [303]. 

 On February 23, 2015, Movant filed a Motion for Discovery and Evidentiary 

Hearing [274]. On April 7, 2015, the government filed a Response [280] to 

Movant’s discovery motion. Movant filed a Reply [285] in support of his 

discovery motion on April 23, 2015. 

 For the reasons stated below, Movant’s Motion to Vacate, Set Aside, or 

Correct Sentence [246] is DENIED. Movant is DENIED a certificate of 

appealability. Movant’s Motion for Discovery and Evidentiary Hearing [274] is 

also DENIED. 

FACTUAL BACKGROUND

 Movant and his co-defendant Bernice Brown were convicted of carrying out 

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

the vice-president and Brown was the president. The government accurately 

summarized the evidence presented at trial as follows: 

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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. 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. 

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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 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. 

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 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 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. 

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 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 McDade, Rice, and Hamad had performed the 

services or supervised the services, when they knew that that was not 

true. Tr. 107, 750. 

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 . . . 

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, 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 

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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. SmithWashington 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 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 “re-billed” 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. 

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MOTION FOR DISCOVERY AND EVIDENTIARY HEARING

 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 has not shown good cause for the discovery he requests. He simply 

gestures to the arguments presented by the government in its Response and asserts 

that his requested discovery is necessary to rebut those arguments. His request 

appears to be a “fishing expedition” based on a conclusory allegation that the 

requested discovery would be helpful. 

 Movant’s request for an evidentiary hearing likewise does not describe the 

evidence to be presented or explain the need for it. In requesting a hearing, 

Movant merely states his belief that he needs to appear personally in court to rebut 

the government’s arguments. For the reasons explained below, “the files and 

records of the case conclusively show that [Movant] is not entitled to relief.” Ross 

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v. United States, 339 F.3d 483, 490 (6th Cir. 2003). The Court therefore need not 

hold an evidentiary hearing. Id.

 Accordingly, Movant’s Motion for Discovery and Evidentiary Hearing [274] 

is denied. 

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 alleges a violation of his constitutional right to the effective 

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

show that his 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 his counsel’s performance. None, however, meet the Strickland

standard. 

I. Failure to advance Movant’s interpretation of Medicare regulations 

 Movant faults his counsel for failing to advance Movant’s interpretation of 

Medicare regulations. As Movant interprets the regulations, they permitted WCT 

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to bill Medicare for therapy not personally performed or directly supervised by its 

therapists, since its therapists were not in private practice and did not have 

individual provider numbers. Movant argues that his counsel should have 

advanced his interpretation in various ways, including presenting certain “critical 

exculpatory proofs,” proposing a jury instruction on the defense’s theory of the 

case, and retaining a Medicare expert to testify. 

 On direct appeal, however, the Sixth Circuit rejected Movant’s 

interpretation, stating that “the 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 his 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. 

II. Failure to move for a continuance 

 On May 12, 2010, Movant made an oral motion to terminate his 

representation by attorney Lawrence Bunting. The same day, the Court granted the 

motion by oral order and entered an Order Appointing Federal Defender [87]. On 

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June 1, 2010, attorney Thomas Warshaw filed an appearance on Movant’s behalf 

and represented him at a motion hearing. During the hearing, the Court asked 

Warshaw if he needed anything to prepare for trial, which was scheduled to begin 

on June 8, 2010 (one week later). Warshaw responded that he did not need 

anything. Trial began one week later, as scheduled. Movant argues that Warshaw 

did not have adequate time to prepare for trial, and thus rendered ineffective 

assistance by failing to move for a continuance. 

 “Not every restriction on counsel’s time or opportunity . . . to prepare for 

trial violates a defendant’s Sixth Amendment right to counsel.” Morris v. Slappy, 

461 U.S. 1, 11 (1983) (citing Chambers v. Maroney, 399 U.S. 42, 53–54 (1970)). 

Trial judges are afforded “a great deal of latitude in scheduling trials,” partly due to 

the difficulty of “assembling the witnesses, lawyers, and jurors at the same place at 

the same time.” Id. Accordingly, “only an unreasoning and arbitrary insistence 

upon expeditiousness in the face of a justifiable request for delay violates the right 

to the assistance of counsel.” Id. at 11–12 (quoting Ungar v. Sarafite, 376 U.S. 

575, 589 (1964)) (internal quotation marks omitted). Applying these principles, 

the Supreme Court found no constitutional violation where a defendant was 

assigned new counsel only six days before trial, relying on the fact that the 

defendant’s new counsel reviewed the files prepared by his predecessor, met with 

the defendant, and represented to the court that he was prepared for trial. Id. at 12. 

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Similarly, the Sixth Circuit has held that a trial court acted within its discretion by 

denying a motion for continuance filed by counsel who appeared only eight days 

before trial, since the defendant “made no specific showing of prejudice” and his 

new counsel “presumably had access to the fruits of [predecessor] counsel’s earlier 

preparation efforts.” United States v. Martin, 740 F.2d 1352, 1360–61 (6th Cir. 

1984). 

 Movant has not explained how Warshaw was so hamstrung by his seven-day 

trial preparation period as to render a denial of a continuance, if he had requested 

one, “unreasoning and arbitrary.” Morris, 461 U.S. at 11. The Court concludes 

that Warshaw was afforded sufficient trial preparation time to safeguard Movant’s 

right to counsel. 

III. Failure to successfully move for a bill of particulars

 Attorney Lawrence Bunting filed a Motion for Bill of Particulars [72] on 

Movant’s behalf on April 2, 2010. The government filed a Response [75] on April 

22, 2010. The Court held hearings on the motion on May 12, 2010, and June 1, 

2010. At the second hearing, Movant’s new counsel, Thomas Warshaw, 

represented that the government had provided sufficient evidence and notice to 

prepare Movant for trial. The Court accordingly denied the motion as moot. The 

Sixth Circuit did not address the denial of the motion on appeal. However, the 

Sixth Circuit noted co-defendant Brown’s argument that she lacked notice of what 

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“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 “Brown was properly charged by indictment” and 

because there was “no indication that the prosecution withheld evidence from her.” 

 Movant faults his counsel for failing to convince the Court to grant his 

motion for a bill of particulars. However, Movant was charged in the same 

indictment found by the Sixth Circuit to properly charge Brown. Movant provides 

no reason to believe that the government withheld evidence from him, particularly 

in light of the fact that the Sixth Circuit found no sign that it withheld evidence 

from Brown. Movant has made no showing that his counsel rendered deficient 

performance by conceding that a bill of particulars was not necessary, or that doing 

so prejudiced his defense. 

IV. Failure to move 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.

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(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 and brackets omitted). A defendant moving 

to sever his trial from that of a co-defendant “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 his counsel for failing to move to sever Movant’s trial from 

co-defendant Brown’s trial. However, Movant and co-defendant Brown 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 his 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 identified no reason to believe 

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that counsel, if he moved for severance, could have convinced the Court that 

failing to grant the motion would result in compelling, specific, and actual 

prejudice. Thus, Movant has made no showing that his counsel’s failure to file a 

motion for severance constituted deficient performance or prejudiced his defense. 

V. Failure to insist on thorough hearing of co-defendant’s motion 

 to suppress 

 Movant’s co-defendant Brown filed a Motion to Suppress [85] on April 27, 

2010. The government filed a Response [80] on May 6, 2010. The Court denied 

the motion at the conclusion of a hearing held on June 1, 2010. The Sixth Circuit 

affirmed the denial of the motion. 

 Movant faults his counsel for failing “to have the Court hold a thorough 

hearing on all of the issues raised in Brown’s suppression motion.” Movant does 

not explain why he believes the Court’s consideration of the motion was 

insufficiently thorough. Nor does he identify cause to believe that a more thorough 

hearing would likely have resulted in the motion being granted. Movant has 

therefore failed to make a showing of deficient performance or prejudice. 

VI. Failure to move for a ruling on the end date of the fraud 

 In its case in chief, the government introduced evidence that postdated 

September 13, 2006—the date government officers searched WCT offices pursuant 

to a warrant. On June 15, 2010, government counsel raised objections, which the 

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Court sustained, on some defense evidence that postdated September 13, 2006. 

Movant believes that the Court applied a double standard in prohibiting the defense 

from admitting evidence that postdated September 13, 2006, while allowing the 

government to admit such evidence. He faults his counsel for failing to challenge 

this alleged double standard via motion for a ruling on “the end date of the fraud.” 

 This argument appears to be based on a misconception. The Court did not 

exclude any evidence on June 15, 2010, on the grounds that the evidence postdated 

September 13, 2006, or postdated “the end date of the fraud.” It is true that the 

preparation of certain evidence after September 13, 2006, factored into the Court’s 

decision to exclude that evidence as inadmissible hearsay. The date established 

that the records were prepared after Movant and his co-defendant knew, as a result 

of the government search on that date, that they were at risk of prosecution—

allowing government counsel to argue that the records were prepared in 

anticipation of prosecution rather than in the ordinary course of business, and thus 

did not fall under the business records exception to the hearsay rule. In sustaining 

the government’s hearsay objections, which relied in part on the timing of the 

search, the Court did not categorically prohibit the defense from admitting 

evidence postdating the search. The Court therefore did not apply a double 

standard by allowing the government to admit evidence postdating the search. 

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Movant has identified no legitimate grounds for the motion he argues counsel 

should have filed. 

VII. Failure to defend certain defense exhibits against government objections

 On June 15, 2010, the Court addressed the admissibility of numerous 

defense exhibits. Government counsel objected to some exhibits. Counsel for codefendant Brown responded to the objections, but Movant’s counsel did not 

separately respond. The Court sustained the government’s objections to some of 

the exhibits. 

 Movant faults his counsel for failing to defend the excluded exhibits. He 

does not explain how his counsel should have supplemented the responses from 

co-defendant Brown’s counsel. He has therefore failed to show deficient 

performance. 

VIII. Failure to challenge Agent Bartnik’s testimony about Movant’s out-of-

 court statements 

 At trial, the government called Darren Bartnik, a special agent of the United 

States Department of Health and Human Services, to testify. Bartnik testified that 

he interviewed Movant while participating in the investigation of WCT’s fraud. 

He testified regarding several statements Movant made during this interview, 

including Movant’s alleged admission that he knew that only services provided or 

directly supervised by a licensed therapist met Medicare’s billing requirements. 

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Movant faults his counsel for failing to challenge testimony concerning this 

statement, among others. Movant claims the testimony was false and constituted 

hearsay. 

 Movant’s counsel did challenge this testimony; when government counsel 

first asked Bartnik what Movant said about his responsibilities at WCT, Movant’s 

counsel raised a hearsay objection. Government counsel responded that Movant’s 

out-of-court statements were admissible as “party admissions.” See Fed. R. Evid. 

801(d)(2) (providing that a statement offered against an opposing party and made 

by that party in an individual or representative capacity is not hearsay). The Court 

overruled the hearsay objection raised by Movant’s counsel. 

 Movant has not identified any viable grounds for excluding this testimony, 

and has therefore failed to show that his counsel’s failure to successfully challenge 

the testimony rendered his performance deficient or prejudiced Movant’s defense. 

IX. Failure to introduce McDade memoranda 

 Movant faults his counsel for failing to introduce into evidence multiple 

memoranda written by Dana McDade, purportedly showing that she directed the 

fraud. Movant emphasizes that many of the memoranda do not state that copies 

were delivered to Movant, arguing that the memoranda thus show that he was 

unaware of McDade’s fraudulent activities. However, the fact that the memoranda 

do not explicitly indicate that they were provided to Movant does not prove that 

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Movant did not see the memoranda. More importantly, even if Movant did not see 

the memoranda, he could be aware of the facts discussed in them. There was 

sufficient evidence at trial to prove that Movant was aware of and participated in 

the fraud. Movant has not explained how these memoranda contradict that 

evidence. Thus, Movant has not shown that omission of these memoranda 

rendered counsel’s performance deficient or prejudiced his defense. 

X. Failure to secure presence of certain witnesses 

 Movant faults his counsel for failing to “check to make sure that Defense 

witnesses were properly subpoenaed” and for failing to move for a continuance 

when it became known that certain witnesses would not appear for trial. Movant 

says nothing about the witnesses and their potential testimony, aside from 

mentioning that Margaret Rider was a “senior biller” and that Doris Johnson was 

involved in “file and billing preparation.” Even assuming that these witnesses 

would have appeared at trial absent counsel’s deficient performance, Movant’s 

failure to explain how these witnesses would have bolstered his defense precludes 

him from showing prejudice. 

XI. Failure to make adequate opening statement 

 Movant faults his counsel for making an inadequate opening statement, and 

for declining to make any opening statement at all until Movant insisted that he do 

so after the close of the government’s evidence. “[T]he decision to forgo an 

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opening statement entirely is ordinarily a mere matter of trial tactics and will not 

constitute a claim of ineffective assistance of counsel.” Jackson v. Houk, 687 F.3d 

723, 741 (6th Cir. 2012) (quoting Millender v. Adams, 376 F.3d 520, 525 (6th Cir. 

2004)) (internal quotation marks and ellipses omitted). Movant provides no reason 

to believe that his counsel’s decision to forego an opening statement did not fall 

within this general rule. 

XII. Failure to make adequate closing statement 

 Movant faults his counsel for failing to clarify, in his closing statement, that 

Movant was neither the “head biller” nor a Medicare expert. But Movant’s 

counsel did challenge the government’s characterization of Movant as the head 

biller in his closing argument: counsel noted that no witness described Movant as 

the head biller and faulted the government for relying on a single memorandum out 

of thousands that were likely exchanged by WCT employees. Counsel also argued 

that Movant played no real role in WCT’s affairs. Movant does not explain why 

his counsel needed to present further argument concerning Movant’s lack of 

involvement in billing. Nor does he explain the need to emphasize Movant’s lack 

of expertise in Medicare regulations; the billing violations at issue were not so 

complex as to be unrecognizable without expertise. Accordingly, Movant has not 

shown that these omissions from closing argument rendered counsel’s performance 

deficient or prejudiced Movant’s defense. 

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XIII. Failure to object to jury instruction on deliberate ignorance 

 Movant faults his counsel for failing to object to the manner in which the 

Court instructed the jury on deliberate ignorance. Co-defendant Brown challenged 

the propriety of the Court’s instruction on direct appeal. The Sixth Circuit held 

that the Court “acted within its discretion by giving an instruction that closely 

tracks Sixth Circuit Pattern Jury Instruction 2.09.” Movant therefore cannot show 

that his counsel’s failure to object to the instruction rendered his performance 

deficient or prejudiced Movant’s defense. 

XIV. Failure to propose additional jury instructions 

 Movant faults his counsel for failing to propose jury instructions in addition 

to those the Court delivered. Movant identifies several Sixth Circuit Pattern Jury 

Instructions that he believes competent counsel would have proposed. He offers 

no argument regarding most of the additional instructions, which the Court will 

therefore not address. 

 Movant only attempts to develop an argument concerning pattern jury 

instructions 7.03 and 7.03A, which advise jurors that they need not accept a 

witness’s opinion and that they should consider “the witness’s qualifications and 

how he reached his conclusions” in evaluating the weight to give opinion 

testimony. However, Movant identifies no opinion testimony that likely 

influenced the jury’s verdict. Nor does he attempt to explain why the jurors may 

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have weighed that testimony differently—so as to undermine confidence in the 

verdict—if they had been differently instructed. The Court instructed the jurors 

that they could disbelieve any testimony provided by a witness. The Court further 

instructed them that they should use common sense in determining what additional 

factors to consider when evaluating a witness’s testimony. Even assuming that 

Movant’s counsel rendered deficient performance by failing to propose additional 

instructions similar to pattern jury instructions 7.03 and 7.03A, Movant has made 

no plausible claim of prejudice. 

XV. Cumulative effect of errors 

Errors that are insufficiently prejudicial, when considered in isolation, to 

violate a defendant’s rights “may cumulatively produce a trial setting that is 

fundamentally unfair.” United States v. Dado, 759 F.3d 550, 563 (6th Cir. 2014) 

(quoting United States v. Hughes, 505 F.3d 578, 597 (6th Cir. 2007)). Thus, 

“examining an ineffective assistance of counsel claim requires the court to consider 

‘the combined effect of all acts of counsel found to be constitutionally deficient, in 

light of the totality of the evidence in the case.’” Id. (quoting Lundgren v. 

Mitchell, 440 F.3d 754, 770 (6th Cir. 2006)). 

 As explained above, Movant has failed to show that the majority of his 

counsel’s alleged errors constituted deficient performance. The Court has declined 

to rule on the deficient performance issue with respect to certain alleged errors, 

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including counsel’s failure to secure the presence of certain witnesses and to 

propose Sixth Circuit pattern jury instructions on opinion testimony. Even 

assuming that these alleged errors constituted deficient performance, their 

cumulative effect does not undermine the Court’s confidence in the verdict, in light 

of the totality of the evidence in the case. 

CONCLUSION

 For the reasons stated above, the Court concludes that neither discovery nor 

an evidentiary hearing is necessary to reject Movant’s claim that his constitutional 

right to the effective assistance of counsel was violated. For the same reasons, the 

Court concludes that Movant has failed to make a substantial showing of the denial 

of a constitutional right. Thus, the Court will deny Movant a certificate of 

appealability. See Tennard v. Dretke, 542 U.S. 274, 282 (2004) (citing 28 U.S.C. 

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Accordingly, 

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

Sentence [246] is DENIED. Movant is DENIED a certificate of appealability. 

IT IS FURTHER ORDERED that Movant’s Motion for Discovery and 

Evidentiary Hearing [274] is DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: May 20, 2016 Senior United States District Judge 

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