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United States v. Tsai

United States District Court, S.D. Ohio, Western Division

January 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
PETER TSAI, Defendant.

          District Judge Susan J. Dlott

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is 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. 144).

         Procedural History

         Defendant 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.

         Defendant 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 defenses.

         The Parties' Positions

         Defendant's Claims

         Defendant's 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), [1] 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.

         Tsai 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.

         The 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.

         The 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.

         The 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, [2] 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 ...

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