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Saoud v. United States

United States District Court, N.D. West Virginia

April 13, 2018

ALLEN G. SAOUD, Petitioner,



         Pending is the Motion for Relief Pursuant to 28 U.S.C. § 2255 (“Petition”) filed by the petitioner, Allen G. Saoud (“Saoud”). The question presented is whether, under the Sixth Amendment and United States v. Cronic, 466 U.S. 648 (1984), the Court must presume that Saoud was prejudiced by the ineffective assistance of trial counsel because the grand jury returned a second superseding indictment eight days before his trial. Concluding that no such presumption obtains under the facts of this case, the Court DENIES the Petition and DISMISSES the case WITH PREJUDICE (Dkt. No. 1).

         I. BACKGROUND

         A. Conviction and Sentencing[1]

         On December 4, 2012, a grand jury sitting in the Northern District of West Virginia returned a 23-count indictment against Saoud, charging him with health care and bankruptcy fraud, among other offenses (Dkt. No. 1). In short, the indictment alleged that Saoud defrauded Medicare and Medicaid by concealing his involvement in medical practices that participated in federal health care programs, despite the fact that he previously had entered into a settlement agreement with the Government that forbade him from receiving payment from such programs. See id. On May 7, 2013, the grand jury returned a superseding indictment, which amended certain language in the original indictment but did not allege any additional violations (Dkt. No. 29). Saoud responded by asserting his right to a speedy trial and requesting that the case proceed to trial as scheduled on June 12, 2013 (Dkt. No. 33).

         On June 4, 2013, however, the grand jury returned a second superseding indictment, which added eight new counts of health care fraud, in violation of 18 U.S.C. § 1347, and one new count of aggravated identify theft, in violation of 18 U.S.C. § 1028A(a)(1) (Dkt. No. 56 at 8-11). The crux of the new charges was the allegation that Saoud had solicited Dr. Frank Swisher to be the laboratory director at his dermatology practice, which in turn submitted claims for laboratory services that falsely indicated they had been performed by Dr. Swisher. Id. Saoud moved to sever the additional counts based on undue prejudice under Fed. R. Crim. P. 14(a) or, in the alternative, to continue the trial on the entire indictment (Dkt. No. 62).[2] Asserting that “[t]he bulk of the evidence” it would offer had been “disclosed to [Saoud] months ago, ” the Government opposed the motion because Saoud had failed to make the requisite “strong showing of prejudice” (Dkt. No. 64).

         At the pretrial conference on June 7, 2013, the Government explained that the additional charges would be proven through the testimony of Dr. Frank Swisher - from whom it already had intended to elicit similar testimony regarding the original charges - as well as approximately 15 pages of billing records (Dkt. No. 194 at 13, 16-17). The Court thus denied Saoud's motion, finding he had failed to establish that any undue prejudice would result if trial proceeded as scheduled (Dkt. Nos. 71; 194 at 18). The Court explained in a subsequent order:

A defendant seeking to sever charges has the burden of demonstrating a strong showing of prejudice. Here, Saoud failed to establish a strong showing of prejudice based on the additional charges being added shortly before trial. The new charges in the Second Superseding Indictment not only related to the existing charges in the original indictment, but they also occurred within the same time frame as the existing charges. Moreover, the issues presented were not complicated, nor did they require extensive preparation on the part of defense counsel in order to refute them at trial, as Saoud already possessed the relevant discovery material.

(Dkt. No. 191 at 3) (internal citation omitted).

         On June 25, 2013, following a ten day jury trial, Saoud was convicted of thirteen counts of health care fraud, in violation of 18 U.S.C. § 1347; one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1); one count of concealment of a health care matter, in violation of 18 U.S.C. § 1035(a)(1); one count of a corrupt endeavor to obstruct and impede the due administration of internal revenue laws, in violation of 26 U.S.C. § 7212(a); five counts of bankruptcy fraud, in violation of 18 U.S.C. § 152(2); and one count of false statement to a federal agent, in violation of 18 U.S.C. § 1001(a)(3). Notably, the jury convicted Saoud of all nine additional counts included the second superseding indictment (Dkt. No. 106). On March 25, 2014, the Court sentenced Saoud to 99 months of imprisonment and imposed a $2, 630, 000 fine (Dkt. No. 170). The Court also imposed $339, 817.50 of restitution and a forfeiture money judgment in the amount of $1, 243, 118.29 (Dkt. No. 240).

         B. Direct Appeal

         On April 8, 2014, Saoud noticed his appeal to the Fourth Circuit Court of Appeals (Crim. No. 1:12cr113, Dkt. No. 183). As relevant to the pending Petition, Saoud argued that he had been unduly prejudiced when this Court denied his motion to sever or, in the alternative, continue the trial. More particularly, Saoud asserted that he “did not have adequate time to prepare a defense, ” “review the over 200, 000 pages of discovery documents, ” “interview the witnesses contained in the additional nine counts, ” or “hire an expert” (Dkt. No. 5-1 at 24). As it did below, the Government argued that Saoud had not been prejudiced “because the new charges were related to the original charges, were not complex, and were largely based on previously disclosed discovery” (Dkt. No. 5-2 at 22).

         At oral argument on appeal, Saoud's trial counsel repeatedly expressed that he had not been prepared to defend against the additional counts in the second superseding indictment (Dkt. No. 1 at 4-5). Nonetheless, on December 19, 2014, the court of appeals affirmed Saoud's conviction:

[Saoud] does not explain, as he must, how his inability to do these things specifically prejudiced his defense. Our precedent establishes that an appellant cannot demonstrate prejudice with “a general allegation of ‘we were not prepared, '” United States v. LaRouche, 896 F.2d 815, 825 (4th Cir. 1990), or “post-hoc assertions by counsel that given more time something might have turned up, ” id. (quoting United States v. Badwan, 624 F.2d 1228, 1231 (4th Cir. 1980)) (internal quotation marks omitted). Even at oral argument, with the benefit of hindsight, Dr. Saoud could identify no specific source of prejudice.

See Unites States v. Saoud, 595 Fed.Appx. 182, 186 (4th Cir. 2014). The Supreme Court of the United States denied Saoud's petition for a writ of certiorari on April ...

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