United States District Court, S.D. Ohio, Western Division
District Judge Susan J. Dlott
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
an action on Defendant's Motion to Vacate under 28 U.S.C.
§ 2255 which Defendant filed with the assistance of
counsel (ECF No. 134). The Motion was referred to the
undersigned who thereupon ordered the United States to answer
(Order, ECF No. 138). The United States has done so (ECF No.
141) and Defendant has filed a Reply in support (ECF No.
was indicted June 19, 2013, on four counts for violations of
18 U.S.C. §§ 1349, 1347, 545, and 1956 (Indictment,
ECF No. 1). On August 8, 2014, after three days of trial but
before the Government had rested its case, Mr. Tsai entered
into a plea agreement with the United States which provided
in pertinent part that he would plead guilty to conspiracy to
commit health care fraud in violation of 18 U.S.C. §
1349 and illegal importation of merchandise in violation of
18 U.S.C. § 545 (ECF No. 63). Judge Dlott ordered a
presentence investigation report from the Probation
Department which she received January 16, 2015 (ECF No. 77).
On June 4, 2015, she sentenced Mr. Tsai to 78 months
imprisonment on each of Counts One and Three with the time to
be served concurrently. Mr. Tsai appealed and the Sixth
Circuit affirmed both the conviction and sentence. United
States v. Tsai, No. 15-3655, 651 Fed.Appx. 380
(6thCir. June 7, 2016). Tsai did not seek review
in the United States Supreme Court, but filed the instant
Motion September 4, 2017.
pleads one ground for relief, that his guilty plea was not
knowing and voluntary due to ineffective assistance of trial
counsel (Motion, ECF No. 134, PagelD 1495.) The United States
opposes the Motion on the merits, not raising any procedural
Motion is supported by a lengthy Memorandum (ECF No. 135,
PagelD 1504-1528). It begins with a statement of factual
background which cites trial testimony Id. at PagelD
1505-1511. The Memorandum then relies on the attached
Affidavit of Peter Tsai (ECF No. 135-1, PagelD 1529-1536),
which details the ways in which Tsai believes Kevin Conners,
his retained defense counsel, was deficient in preparing for
trial in failing to be prepared to effectively cross-examine
the Government's witnesses, in not retaining expert
witnesses for the defense, in not subpoenaing patients to
testify in his behalf, and in a number of other ways.
avers that at the end of the third day of trial, Conners told
him the case was not winnable (Tsai Affidavit, ECF No. 135-1,
¶ 8, PagelD 1530). He further avers, "I decided to
plead guilty because I realized Mr. Conners was not prepared
to defend me at trial." Id. at ¶ 10. The
balance of the Affidavit details the ways in which Mr. Tsai
believes Conners was unprepared.
Supporting Memorandum notes correctly that the governing
standard for ineffective assistance of trial counsel is
provided by Strickland v. Washington, 466 U.S. 668
(1984), and in a guilty plea context by Hill v.
Lockhart, 474 U.S. 52 (1985). It then proceeds to detail
at some length the ways in which Tsai alleges Conners'
performance was defective, which is the first prong of the
Strickland analysis: (1) failure to consult experts
to rebut the reports of Government experts Drs. Terry Torbeck
and Human Akbik (ECF No. 135, PagelD 1516); (2) failure to
consult a radiology expert and an expert on piriformis
syndrome id; (3) failure to subpoena patient
witnesses to trial, id. at PagelD 1520; and (4)
failure to interview Government witnesses id. at
PagelD 1523. As to the prejudice prong of Strickland, Tsai
asserts he would have insisted on completing the trial if
Conners had been prepared. Id. at PagelD 1526.
Government's Answer was filed November 13, 2017, and
indicates it will be supported by an affidavit from Mr.
Conners. The Court had advised the parties that, as a result
of Tsai's claim of ineffective assistance of trial
counsel, he had waived attorney-client privilege as to
relevant communications with Conners (Order, ECF No. 138,
PagelD 1701). However, as of the date of this Report, no
affidavit from Mr. Conners has been filed.
Answer notes what is confirmed by the docket: Tsai was
sentenced ten months after the plea and never sought to
withdraw his plea, change counsel, or otherwise represent
that he had received ineffective assistance of trial counsel.
Nor did he make any such claim at sentencing. Represented by
new counsel on appeal,  Tsai sought reversal on a claim that
Judge Dlott had violated Fed. R. Crim. P. 11 in encouraging
him to plead guilty. Significantly, Tsai claimed Judge
Dlott's statement at the end of the third day of trial
"coerced [him] into an involuntary plea that he
otherwise would not have entered."
But for the district court's violation of Rule 11, Tsai
would not have entered a guilty plea because he was on the
third day of trial. The fact that he pleaded guilty
immediately after the judge made her improper comments
demonstrates that he would ...