United States District Court, N.D. West Virginia
ALLEN G. SAOUD, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6]
AND DENYING AND DISMISSING § 2255 PETITION [DKT. NO.
M. KEELEY, UNITED STATES DISTRICT JUDGE.
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).
Conviction and Sentencing
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).
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). 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).
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
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).
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).
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).
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