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noting that the adequacy of counsel's advice must be analyzed in the context of all previous conversations and information available to the petitioner
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No. 15-CR-242 (JFB)
2020-07-14
UNITED STATES of America, v. Michael BELFIORE, Defendant.
Assistant United States Attorneys Bradley T. King and Charles N. Rose of the United States Attorney's Office for the Eastern District of New York, 610 Federal Plaza, Central Islip, New York 11722, for United States. Bruce A. Barket and Donna Aldea of Barket Marion Epstein & Kearon LLP, 666 Old Country Road, Suite 700, Garden City, NY 11530, for Defendant Michael Belfiore.
Assistant United States Attorneys Bradley T. King and Charles N. Rose of the United States Attorney's Office for the Eastern District of New York, 610 Federal Plaza, Central Islip, New York 11722, for United States.
Bruce A. Barket and Donna Aldea of Barket Marion Epstein & Kearon LLP, 666 Old Country Road, Suite 700, Garden City, NY 11530, for Defendant Michael Belfiore.
MEMORANDUM AND ORDER
Joseph F. Bianco, Circuit Judge (sitting by designation):
On May 23, 2018, following a five-week trial, a jury convicted defendant Dr. Michael Belfiore ("Belfiore") of twenty-six counts of illegal distribution of oxycodone and two counts of distribution of oxycodone causing the death of an individual. (ECF No. 198.)
Belfiore was a doctor of osteopathic medicine with a practice in Merrick, New York. Belfiore was initially charged with illegal distribution of oxycodone to undercover officer James Marinucci, whom Belfiore knew as "James Burke" ("Burke"). (Apr. 18, 2018 Trial Tr. at 51.) At trial, the government presented evidence, in the form of undercover surveillance videos, that captured six occasions during which Belfiore provided oxycodone to Burke. The government argued that Belfiore prescribed the oxycodone without first ensuring that there was a legitimate medical purpose for the prescriptions. In connection with these allegations, the government offered records from Burke's medical files which it asserted contained false information inserted by Belfiore to justify the prescriptions. In addition, the government submitted evidence regarding Belfiore's treatment of two other patients, Edward Martin ("Martin") and John Ubaghs ("Ubaghs"), which the government argued demonstrated that Belfiore's oxycodone prescriptions for both patients were without legitimate medical purpose and caused their deaths.
Now pending before the Court is Belfiore's motion to set aside the verdict, pursuant to Federal Rule of Criminal Procedure 33, on the basis of ineffective assistance of counsel. (ECF Nos. 215, 250.) In his motion, Belfiore principally argues that he received ineffective assistance from his trial counsel, Thomas F. Liotti ("Liotti"), during plea negotiations in that Liotti advised him to reject the plea offer from the government and proceed to trial. Specifically, Belfiore contends that, but for Liotti's unreasonable advice, he would have pled guilty to a one-count Information, pursuant to the plea agreement offered by the government. Belfiore further claims that Liotti was ineffective during the course of the trial when: (1) he pursued a defense involving "Big Pharma"; (2) he pursued an entrapment defense; (3) he failed to request a jury charge on actual and proximate cause; and (4) he based trial decisions on the advice he received from a psychic. For the reasons set forth below, the Court denies Belfiore's motion.
With respect to the plea negotiations, the Court concludes that Liotti did not provide ineffective assistance of counsel. Belfiore was aware of the plea offers, the strength of the government's case, the weaknesses in his defenses, and the large disparity between his potential sentence after a guilty plea to one count and his potential sentence after trial, including the mandatory minimum of 20 years if convicted by a jury of causing the death of a patient, Although Liotti may have been overly optimistic in assessing the likelihood of an acquittal on all charges, his advice that Belfiore did not need to accept the plea was not unreasonable, especially in light of Belfiore's steadfast denial of guilt and strong desire to go to trial. In any event, assuming arguendo that the advice was unreasonable, the Court finds that Belfiore has suffered no prejudice. Specifically, after conducting an evidentiary hearing on this issue and carefully considering all of the evidence (including assessing the demeanor and credibility of Belfiore during his testimony at trial and the Rule 33 evidentiary hearing), the Court finds that there is no realistic probability that Belfiore would have accepted the government's plea offer and pled guilty even if Liotti had advised him (as his prior attorney did) that the government's evidence was overwhelming and Belfiore should take the plea. Even though Belfiore was taking preliminary steps to plead guilty before retaining Liotti, it is abundantly clear that Belfiore was not comfortable doing so. He left the government's plea offer on the table for nine months, and never reached the point where he stated he would accept it or that he would be able to allocute to the crime. Although Belfiore claimed that the long delay was a result of him trying to wind down his medical practice, the Court does not find that explanation credible. Instead, his demeanor and statements throughout this criminal case (including his Grand Jury testimony, trial testimony, hearing testimony, and statements on Facebook and to the media) overwhelmingly demonstrate that Belfiore did not want to lose his medical practice, did not want to go to jail, adamantly denied that he had done anything wrong, and desperately wanted to go to trial. Belfiore's post-trial efforts to downplay those thoughts and feelings, or to attribute them to Liotti's erroneous advice, are entirely lacking in credibility. Having spent hours observing Belfiore during his testimony and the trial as a whole, it is clear to the Court that Belfiore's deep-rooted opinions about what he viewed as a wrongful prosecution may have been shared by Liotti, but they were not created or magnified by Liotti; rather, Liotti was willing to provide an avenue for Belfiore to pursue a course of action that Belfiore strongly wished to follow – that is, fight the charges and proclaim to the jury and the world his innocence, as is his absolute constitutional right to do. In fact, even after Belfiore fired Liotti and tried to persuade the Court that he would have pled guilty but for Liotti's advice, Belfiore was still unable to admit wrongdoing at the evidentiary hearing to the extent that would be required for him to have pled guilty. Instead, Belfiore testified at the evidentiary hearing that, at the time he prescribed the oxycodone to his patients, he believed that it was for a legitimate medical purpose and that his falsification of medical records was more sloppiness than anything else. That testimony represents a barrier to a guilty plea because it would suggest that he prescribed the oxycodone in good faith, and such testimony only further confirms that, notwithstanding the great disparity in penalties between pleading guilty and going to trial, Belfiore would not have pled guilty if Liotti's advice had been different. In short, to allow Belfiore to receive the benefit of the government's plea by now claiming that he would have accepted the plea except for Liotti's advice would provide an unjust windfall to an intransigent defendant as to whom (in the Court's assessment) (1) there was no reasonable probability that the plea deal would have been reached prior to trial, and (2) there was the same lack of any likelihood that he would have been willing and able to actually admit wrongdoing even if he agreed to the plea offer. It is only now, having been told by a unanimous jury that he illegally distributed oxycodone and caused the death of two patients, along with the specter of at least 20 years’ imprisonment from his illegal conduct, that Belfiore claims (with no credibility) that he would have pled guilty but for Liotti's advice, while at the same time continuing to have extreme difficulty admitting to his wrongdoing at this late stage. In the Court's view, that contention is completely lacking in credibility. Accordingly, the ineffective assistance claim regarding the plea negotiations has no merit.
Similarly, the ineffective assistance of counsel claims related to certain of Liotti's decisions and actions during the trial also fail. The Court determined, in its discretion, that no evidentiary hearing on this portion of Belfiore's motion was necessary because it was clear from presiding over the trial that Belfiore's assertions of Liotti's ineffectiveness had no merit and, in any event, there was no reasonable probability that those alleged deficiencies impacted the outcome of trial.
First, the Court finds unpersuasive Belfiore's attempt to second-guess Liotti's use of the entrapment defense and his decision to cast blame on Big Pharma for deceiving doctors and the public about the full extent of oxycodone's dangers as a treatment for pain. As a threshold matter, the Court emphasizes that these strategies were not the core defenses asserted by Liotti on behalf of Belfiore. Instead, Liotti formulated a viable defense that included the testimony of three expert witnesses who, in combination, supported Belfiore's testimony that he prescribed the oxycodone with a legitimate medical purpose and did not cause the death of either Ubaghs or Martin. If the jury credited these three experts, Belfiore would have been acquitted of all counts. Moreover, Liotti's decision to supplement that defense with an entrapment defense, as it related to Belfiore's interactions with the undercover officer posing as a patient, was entirely reasonable given the devastating nature of those undercover videos. The fact that the entrapment defense opened the door to data being introduced by the government regarding Belfiore's overall volume of prescribing oxycodone did not render this strategy constitutionally defective because Belfiore, as a pain doctor, never asserted that he was reluctant to prescribe oxycodone and, thus, the data was not inconsistent with his testimony. In addition, Liotti's presentation of evidence regarding misleading statements by oxycodone manufacturers regarding the benefits and risks of oxycodone was a reasonable supplement to the overall defense that carried very little downside. Liotti presented these defenses in a competent manner in his jury addresses, cross-examination of government witnesses, and presentation of defense witnesses, including the expert testimony. Although the jury rejected those defenses, the Court (having presided over the trial) concludes that there is no basis to find any portion of those strategies to be constitutionally defective. In any event, even if Liotti did not mount the entrapment defense or the assault on Big Pharma, the outcome of the trial would have been exactly the same in the Court's view.
Second, although Belfiore faults Liotti for not requesting a jury instruction with respect to actual and proximate causation as it relates to the deaths of Martin and Ubaghs, Liotti's failure to request such an instruction was not unreasonable because the Court's instruction comported with Supreme Court and Second Circuit precedent. For the same reason, Belfiore suffered no prejudice because, if Liotti made such a request, the Court would have denied that request. In addition, even if the instruction were given, the Court concludes that there was not a reasonable probability that the jury verdict would have been different.
Finally, Belfiore contends that Liotti's discussions with a psychic during the trial regarding how the trial was going resulted in ineffective assistance of counsel. In particular, Belfiore began consulting with the psychic on his own about the case, and eventually introduced Liotti to the psychic, but asserts (with support from the psychic) that Liotti then began consulting with the psychic on his own. Liotti insists that he only spoke to the psychic to placate his client and that it did not impact his trial strategy in any way. The Court need not resolve this dispute about Liotti's motivation because, whether he spoke to the psychic to respect his client's wishes or because he also developed his own curiosity regarding the psychic's views, there is not a shred of evidence in the record – from Belfiore's affidavit, the psychic's affidavit, or any other source – that Liotti altered his defense strategy in any way during the trial based upon his discussions with the psychic. To the contrary, the psychic noted in his affidavit that he told Belfiore and Liotti that he was not in a position to assess the jury's reaction to any particular argument and does not claim to have advocated any strategy. More importantly, it is manifestly clear from the record that the entirety of the defense strategy was developed by Liotti and Belfiore months before trial, was solidified long before Liotti spoke to the psychic, and such strategy remained consistent (along with Liotti's style and approach) before and after the interactions with the psychic. Therefore, these interactions with the psychic by Belfiore and his lawyer during a trial were indisputably immaterial to Liotti's performance and the outcome of the trial.
In sum, for these reasons and those discussed in detail below, the ineffective assistance of counsel claims, as it relates to both the plea negotiations and trial, are without merit, and the Rule 33 motion is denied.
I. BACKGROUND
A. The Filing of the Complaint and Information
On October 6, 2014, the government charged Belfiore on a Complaint with illegal distribution of oxycodone to an undercover officer known as James Burke, who posed as one of Belfiore's patients. (ECF No. 1.) On January 7, 2015, the government provided Belfiore's counsel at the time, Marc C. Gann ("Gann"), with a draft plea agreement. Under the agreement, Belfiore would plead guilty to one count of distribution of oxycodone and would face an advisory U.S. Sentencing Guidelines range of 30-37 months’ imprisonment. (Jan. 7, 2015 Plea Agreement, ECF No. 227, Ex. A.) Under the agreement, there was no mandatory minimum term of imprisonment. (Id. ) Gann advised Belfiore to take the plea. (Belfiore Aff. ¶ 3, ECF No. 215-1.)
On May 15, 2015, Belfiore appeared for a conference before the Honorable Joanna Seybert. At that conference, Belfiore waived indictment and agreed to the filing of an Information, charging him with one count of illegal distribution of oxycodone. A status conference or potential guilty plea hearing was scheduled for July 17, 2015. (ECF Nos. 14-16.) In status conferences held thereafter, the parties sought a series of adjournments so that Belfiore could "wind[ ] down his medical practice" before he pled guilty to the government's plea offer. (July 24, 2015 Tr. at 2.) The issue of winding down his practice had also been the basis of several adjournments between the filing of the Complaint and the Information. (See, e.g. , Jan. 30, 2015 Tr. at 2-3; Mar. 27, 2015 Tr. at 2-3.)
On or around November 4, 2015, Gann was relieved as counsel and replaced by Liotti. At a conference before Judge Seybert on November 4, 2015, the government stated, in the presence of Belfiore, that it "agreed to extend the plea offer for 60 days." (Nov. 4, 2015 Tr. at 3.) Liotti then informed the Court by letter dated January 8, 2016 that he was "still investigating the ramifications of a plea versus pre-trial motions and a trial" and was working with Belfiore's counsel in an Office of Professional Medical Conduct ("OPMC") matter, as well as Belfiore's counsel in a state civil matter. (ECF No. 21.)
On February 22, 2016, the parties appeared again before Judge Seybert. The government informed the Court that Belfiore "[did] not wish to enter a guilty plea or resolve this case short of trial." (Feb. 22, 2016 Tr. at 3.) Liotti further explained that he "tried to look at the possibility" of Belfiore pleading guilty, but Belfiore decided that he could not do so, "because in all likelihood he would lose his license and ability to practice his profession" after a plea. (Id. at 3-4.)
At the conference, Judge Seybert questioned Belfiore on whether he understood the consequences of rejecting the plea offer, and he confirmed that he did. (Id. at 5.) The government then outlined the evidence that it had against Belfiore, including the video recordings that showed Belfiore writing oxycodone prescriptions for Burke, even though he did not appear to have any injury. (Id. at 5.) The government also explained that it would investigate Belfiore's prescription practices and charge Belfiore with additional illegal distributions of oxycodone if the circumstances indicated more criminal activity. (Id. at 7.) After acknowledging that trial would be a "difficult road," Liotti requested that Belfiore have an opportunity to testify before the Grand Jury. (Id. at 4-5.)
On May 13, 2016, after Judge Seybert recused herself, this case was re-assigned to the undersigned.
B. Belfiore's Grand Jury Testimony
Belfiore testified before the Grand Jury on three occasions: May 12, 2016, June 30, 2016, and August 4, 2016. During his Grand Jury testimony, Belfiore claimed that he wrote the oxycodone prescriptions for Burke because Burke was "very persuasive" (June 30, 2016 Grand Jury Tr. at 43-44), but ultimately discharged Burke when it became apparent to Belfiore that Burke was "doctor shopping" (id. at 142-43).
With respect to Martin, one of the patients who was alleged to have died from Belfiore's oxycodone prescriptions, Belfiore testified that, despite the fact that he knew that Martin was an alcoholic, he issued him an oxycodone prescription. (Aug. 4, 2016 Grand Jury Tr. at 41-42.) Belfiore explained that he also gave him referrals to addiction treatment specialists. (Id. at 38-39.) He further placed the blame for Martin's death on Martin himself. (Id. at 35.)
With respect to Ubaghs, the other patient who died, Belfiore was asked about his drug tests that indicated to Belfiore that he was using marijuana, as well as prescriptions that Belfiore did not prescribe. Belfiore responded that he went "over each drug test" with his patients and that he wrote the prescriptions for a "legitimate medical purpose." (Id. at 69-70; see also id. at 25 (claiming that he issued the prescriptions for a legitimate medical purpose).)
C. The Superseding Indictments
On August 25, 2016, the Grand Jury issued a Superseding Indictment that replaced the Information. (ECF No. 41.) While the Information against Belfiore charged one count of distribution of oxycodone, the Superseding Indictment charged Belfiore with twenty-nine counts of distribution of oxycodone to multiple patients. (Id. ) At this point, the government informed Liotti that the one-count plea offer was still open. (March 27, 2015 Tr. at 7; see also Sept. 8, 2017 Resp. to Def.’s Second Omnibus Mot. at 7 & n.9, ECF No. 87.) The government further informed Liotti that, if Belfiore rejected the plea offer, it would present counts against Belfiore for the deaths of Martin and Ubaghs, and such counts carried mandatory minimum sentences. (Aug. 14, 2017 Second Omnibus Mot. at 4-5, ECF No. 82.)
On June 2, 2017, the government filed a letter indicating that it would present Belfiore's case to a new Grand Jury panel to address this Court's concern that the language of the Superseding Indictment failed to explicitly state that the prescriptions were not for a legitimate medical purpose. (ECF No. 76; see also May 10, 2017 Tr. at 40-43.) The Court subsequently dismissed the Superseding Indictment without prejudice.
In the Second Superseding Indictment filed June 28, 2017, the Grand Jury charged Belfiore with twenty-six counts of distribution of oxycodone, and two counts of distribution of oxycodone causing the death of an individual, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). (ECF No. 80.) Because of the two counts involving the deaths of Martin and Ubaghs, Belfiore now faced a mandatory minimum term of imprisonment of 20 years to life if convicted on either of those counts.
D. Belfiore's Media Appearances
Following the filing of the Superseding Indictment in August 2016, Belfiore made several media appearances. For example, on December 18, 2017, Belfiore appeared on the television show Crime Watch Daily, in which he stated that he could not "plead guilty to something that [he] didn't do." (ECF No. 227, Ex. K, Crime Watch Daily Episodes, Part 3, at 6:22-6:30.) He also appeared twice on News 12, once after the Superseding Indictment was returned and once after the Second Superseding Indictment was returned, stating that he was "inflamed" and "angry" because he could not trust the government, and that he "never" wrote prescriptions "recklessly." (ECF No. 227, Ex. K, News 12 Report.) E. Belfiore's Trial
Belfiore's trial began on April 18, 2018. (ECF No. 158.) The government presented videotaped recordings that showed Belfiore prescribe Burke 90 30-milligram oxycodone pills on six different occasions. (April 18, 2018 Trial Tr. at 51.) This 30-milligram dosage was the "highest strength available for short acting oxycodone," according to the government's expert, Dr. Seth Waldman. (Apr. 23, 2018 Trial Tr. at 354.)
Dr. Waldman reviewed the medical files of, inter alia , Burke, Ubaghs, Martin, and John Ortega, another patient. He testified that the medical files for Belfiore's patients contained red flags, such as alcohol abuse, illegal drug use, and a lack of medical documentation of actual injury. (See, e.g. , Apr. 23, 2018 Trial Tr. at 356-57, 420.) For example, Ortega's medical file indicated that he had received multiple prescriptions of oxycodone from Belfiore, even though he had repeatedly tested positive for illegal drugs. (Apr. 24, 2018 Trial Tr. at 483-84, 490.) With respect to Burke, Dr. Waldman noted that Belfiore did not actually perform a physical examination of Burke, and Burke presented no X-ray or MRI to indicate whether he had suffered an injury requiring pain medication. (Id. at 435-36.) Burke also told Belfiore that he was diverting the oxycodone to his "girlfriend," known to Belfiore as Michele Doyle, who in reality was another undercover officer. (Id. at 420-21.) Despite this information, Belfiore agreed to meet with Burke's "girlfriend." (Apr. 23, 2018 Trial Tr. at 295.) The recordings also showed that Belfiore created false entries in Burke's medical file by including information from Burke that Burke never actually conveyed. For example, Dr. Waldman testified that notations in Burke's medical files regarding his alleged pain level, back spasm, and heart murmur did not reflect what actually occurred in the videos. (Id. at 426-29.) Given these circumstances, Dr. Waldman concluded that the prescriptions captured on video were not issued for a legitimate medical purpose. (Id. at 421-22, 431.)
This Court provided a limiting instruction with respect to Ortega, informing the jury that this evidence was presented only for background. (Apr. 24, 2018 Trial Tr. at 573.)
With respect to Martin, the evidence demonstrated that Belfiore prescribed him 248 30-milligram oxycodone pills over the course of January and February 2013. (April 24, 2018 Trial Tr. at 577-78; Gov. Opp'n at 11, ECF No. 227.) Martin was pronounced dead a few days after Belfiore wrote him an oxycodone prescription. (Apr. 26, 2018 Trial Tr. at 963; Apr. 30, 2018 Trial Tr. at 1007-10; see also Gov. Exs. 308A, 3500-DB1.) His body was found in bed with a bottle of prescription oxycodone pills that were issued by Belfiore, and inside a drawer next to the bed was a straw with oxycodone residue. (Apr. 26, 2018 Trial Tr. at 889; Apr. 30, 2018 Trial Tr. at 1016; Gov. Exs. 308E, 3500-DB2, S7.)
With respect to Ubaghs, Belfiore wrote him prescriptions for 5,940 oxycodone pills over the course of three years, including 240 30-milligram oxycodone pills in the span of four days. (Apr. 30, 2018 Trial Tr. at 1161; May 3, 2018 Trial Tr. at 1688.) According to Belfiore's medical files, Ubaghs's drug tests revealed marijuana use, as well as the use of controlled substances that Belfiore did not prescribe. (Apr. 24, 2018 Trial Tr. at 635-36, 640, 650.) They also demonstrated that Ubaghs tested negative for other controlled substances that Belfiore did prescribe, such as Clonazepam and oxycodone, indicating that he was not taking his medication as directed. (Id. at 637, 650.) The primary defense asserted by Belfiore was that all of the oxycodone that he prescribed to his patients – including the prescriptions to the undercover officer, Martin, and Ubaghs – were done in good faith and for a legitimate medical purpose. Moreover, as an alternative argument, he contended that there was not proof beyond a reasonable doubt that the oxycodone he prescribed caused the death of either Martin or Ubaghs. Furthermore, with respect to the undercover officer, Belfiore asserted that he was entrapped by the government, in that Burke lied to him and pressured him to prescribe him oxycodone.
To support these defenses, in addition to testifying on his own behalf, Belfiore presented the expert testimony of three medical professionals, Dr. Dean Olsen, Dr. Richard Blum, and Dr. Mark Taff.
Dr. Olsen, an experienced emergency room physician at Nassau University Medical Center, testified that based upon his review of Belfiore's medical files for the patients at issue in the case, he concluded that Belfiore "did in fact have a legitimate medical purpose" (May 8, 2018 Trial Tr. at 1827), and "had in good faith tried to alleviate the patient's suffering with medication that was prescribed" (id. at 1829). Dr. Blum opined that Martin actually died from pulmonary edema, bronchopneumonia, and congestive heart failure. (May 9, 2018 Trial Tr. at 1948-49.) He also testified that the cause of death for Ubaghs was sudden cardiac death, not a narcotic-induced fatality. (Id. at 1967.) Dr. Taff testified that Martin's cause of death was lung disease and heart disease. (May 10, 2018 Trial Tr. at 2059.) In addition, he stated that Ubaghs's death could not be determined due to his heart disease and the presence of drugs in his system. (Id. at 2073-74.)
With respect to entrapment, Belfiore testified on his own behalf and claimed that he would not have prescribed the medication to Burke had Burke not convinced him that he needed it for his pain. (May 2, 2018 Trial Tr. at 1481-82.) To refute Belfiore's entrapment defense, the government produced evidence that Belfiore had written 6,651 other oxycodone prescriptions to patients, 4,588 of which were for 30-milligram oxycodone pills, in order to demonstrate that Belfiore was predisposed to prescribe oxycodone. (Apr. 30, 2018 Trial Tr. at 1171.)
On May 23, 2018, the jury returned a verdict, finding Belfiore guilty of all charges. (ECF No. 198.)
After the trial, Belfiore, through Liotti, requested two extensions to file his motion for a judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. (ECF Nos. 201, 204.) Thereafter, on June 20, 2018, Bruce A. Barket and Donna Aldea filed notices of appearance in this case on behalf of Belfiore. (ECF Nos. 205-06.) By letter dated June 25, 2018, Liotti informed the Court that he was aware that he had been replaced and was completing Belfiore's Rule 29 motion, but not filing it. (ECF No. 208.)
On October 16, 2018, Belfiore, represented by his new counsel, filed a motion to set aside the verdict, pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Def.’s Mem., ECF No. 215.) In his motion, Belfiore stated that the evidence was "absolutely overwhelming," such that "a reasonably competent attorney [would] counsel his client that he should take the plea offer to a single count of distribution in full satisfaction of all the charges." (Id. at 9.) Belfiore also highlights Liotti's continued belief that he "won this case on the law and the facts." (Id. at 12 (quoting June 21, 2018 Ltr. at 1).)
On November 1, 2018, Liotti filed an affidavit in connection with Belfiore's motion. (Liotti Aff., ECF No. 217.) The government filed its response to Belfiore's motion on January 11, 2019 (Gov. Opp'n, ECF No. 227), to which Belfiore replied on February 8, 2019 (Def.’s Reply, ECF No. 231). Belfiore's prior counsel, Marc Gann, filed an affidavit in support of Belfiore's motion on March 26, 2019. (Gann Aff., ECF No. 234.)
F. Affidavits in Support of the Rule 33 Motion
Belfiore submitted an affidavit with his Rule 33 motion on October 16, 2018. He stated that, prior to retaining Liotti, Gann had advised him "to accept a plea bargain where [his] sentence range was from no prison up to 20 years." (Belfiore Aff. ¶ 3). According to the affidavit, Gann warned him that he would "face substantially more" prison time if he was convicted at trial, and Gann characterized the evidence against Belfiore as "overwhelming." (Id. )
With respect to Liotti, Belfiore stated, inter alia , the following:
At the first meeting, Mr. Liotti urged me to fire Mr. Gann, hire him and take the case to trial. He disparaged Mr. Gann by saying things like "all attorneys like Gann do is settle." He talked about suing Mr. Gann on my behalf because "he didn't do anything." Mr. Liotti[ ] assured me that he would not even accept the case unless he believed there was at least a 30% chance I would be acquitted. Without having the benefit of reviewing the proof, [or] speaking to Mr. Gann, Mr. Liotti urged me to hire him and take the case to trial. At the time I was faced with prison, the loss of my medical license and financial ruin. Mr. Liotti gave me hope that I could avoid all of that, if I hired him and went to trial. Based on his confidence, I hired Mr. Liotti and fired Marc Gann. Sometime after I hired Mr. Liotti the prosecutors again offered a plea bargain and indicated that if I did not accept the offer I would be indicted on counts alleging that two of my patients died as a result of my conduct. I was concerned about the prospect of facing a trial with counts that carried mandatory minimum sentences. Mr. Liotti, however, told me that "there is no reason to take a plea." He assured me "we can win this" and made statements like "I can do this."
(Id. ¶¶ 5-9.)
Belfiore also referred to a psychic that he and Liotti consulted. (Id. ¶¶ 12-13.) Belfiore asserted that Liotti billed him for the psychic's sessions and told Belfiore that the psychic believed that the trial "was going well." (Id. ¶ 15.)
The psychic at issue, Charles Tiemann, submitted his own affidavit in which he claims that Liotti asked him questions about trial strategy. (Tiemann Aff. ¶¶ 3-4, ECF No. 215-2.) In particular, Tiemann states that Liotti sought advice "nearly every day" about what questions to ask, how "the jury perceived the evidence that was presented," whether to introduce certain evidence and testimony, and what to argue during summation. (Id. ¶¶ 4, 7.) Tiemann further states that he told Liotti that he "did not think [he] would be able to get a very good sense of the jury as a whole" since he was unable to personally speak with jurors. (Id. ¶ 7.)
Additionally, Liotti submitted an affidavit, stating that he "repeatedly counseled" Belfiore about the risks of trial. (Liotti Aff. ¶ 7.) He also stated that he called Belfiore "at least once a day." (Id. ¶ 9.) In addition to advising Belfiore about the risks of trial, Liotti asserted that Belfiore received advice from family and friends who were also attorneys. (Id. ) Nevertheless, Liotti explained that Belfiore's "practice was his life; that he had to fight for it and that even if he lost and faced 20 or more years in jail that he had to do it, go to trial." (Id. ¶ 8.) He described Belfiore as "adamant" about getting the case dismissed or proceeding to trial. (Id. ) According to the affidavit, Belfiore told Liotti that "he wanted to take his chances in a trial because he would have no life if he pled guilty," stating that "he might as well go to jail if he couldn't practice medicine," (Id. ¶ 10.) Similarly, in a letter to Belfiore confirming that Belfiore had decided to reject the plea offer and go to trial, Liotti articulated his understanding as the basis for Belfiore's decision: "If you had taken a plea, you may have avoided jail time or been given a reduced sentence but your practice and your professional life would, for all intents and purposes, end due to your plea to a felony and your allocution of wrongdoing." (Feb. 29, 2016 Ltr., ECF No. 217-4.)
With respect to the psychic, Liotti stated that he "reluctantly" spoke to the psychic at Belfiore's request (Liotti Aff. ¶ 11), and that "no part of the strategies or trial techniques which [he] deployed in this case were the byproduct or in any way influenced by the ‘psychic's’ comments" (id. ).
Gann submitted an affidavit as well. He stated that, after investigating the case, he "concluded that Dr. Belfiore had no defense to at least some of the charges and that he should enter a guilty plea." (Gann Aff. ¶ 4.) It was Gann's belief that Belfiore "was prepared to admit his guilt and enter a guilty plea" (id. ¶ 12), and Belfiore had begun winding down his practice and transferring patients to another doctor – which Gann described as "a necessary prerequisite to entering a guilty plea" (id. ).
G. The Evidentiary Hearing
On July 8, 2019, this Court held an evidentiary hearing on the Rule 33 motion, at which Belfiore and Gann testified. (Hr. Tr., ECF No. 245.) The purpose of the hearing was to determine "whether or not Dr. Belfiore received ineffective assistance of counsel with respect to his plea negotiations with the government." (Id. at 2-3.) At the hearing, Gann explained that he represented Belfiore for approximately a year and a half. (Id. at 8.) Gann described the videotapes of Belfiore with the undercover officer (id. at 6-7), and based in part on those videos, Gann believed that the case was "completely indefensible" (id. at 10). With respect to the strength of the government's case, Gann also referred to the fact that Detective Joseph Hill had visited Belfiore's office approximately a year before charges were filed to warn Belfiore about his practices with respect to prescriptions. (Id. at 11.) Furthermore, Gann was aware of evidence that indicated that people were providing prescription medications in the parking lot of Belfiore's practice, and individuals with drug addictions were engaging in fights in the waiting room. (Id. ) He testified that he advised Belfiore to "take a plea" and that he "didn't think there was any way that this case could be tried, and tried successfully." (Id. at 12.) Additionally, Gann discussed the reverse proffers he attended with the government, during which he and the government negotiated the terms of the plea agreement. (Id. at 6-7.)
When asked about steps Belfiore had taken toward pleading guilty, Gann responded that he had referred Belfiore to an attorney, Carolyn Wolf at Abrams Fensterman, who represented medical professionals and had a better understanding of the effect that a plea would have on Belfiore's medical license. (Id. at 13.) Gann shared with Belfiore that he felt "that upon a guilty plea, [OPMC] would probably come in and take his medical license from him." (Id. at 26.) Gann, however, testified that "I don't think the licensing issue was a problem for him." (Id. at 27.) There were also discussions with a doctor about purchasing Belfiore's practice. (Id. at 13.) Gann stated that Belfiore wanted to sell his practice before pleading guilty because Belfiore believed "the value of the practice [would] be substantially diminished once he took a plea," and he wanted to avoid a "fire sale." (Id. at 27.)
Additionally, Gann described a meeting that occurred on October 23, 2015, shortly before Belfiore hired Liotti on October 28, 2015. Multiple people were at the meeting, including Gann, Belfiore, Belfiore's wife, Belfiore's friend who practiced law, a family member who practiced law, Belfiore's office manager, and his father-in-law. (Id. at 15.) During the meeting, the discussions "were clearly leading towards Dr. Belfiore taking a plea." (Id. ) Although most of the individuals present agreed that Belfiore should plead guilty, Belfiore's wife was concerned "about his medical practice, and his ability to earn a living and support the family." (Id. at 16.) Gann believed that Belfiore "wanted to take this plea ... [a]nd recognized the value of taking the plea." (Id. ) Gann also noted, however, that, "I can't say that he ever, you know, said to me I'm taking the plea," but he added that he "had that clear impression" that Belfiore was going to plead guilty based upon their conversations. (Id. at 17.) Gann further acknowledged upon questioning that "defendant never affirmatively told" him that he "was prepared to accept that plea agreement." (Id. at 20.) As his attorney, Gann was "aggressive in indicating that [he] did not think this was a triable case," and he did not believe that Belfiore could wait any longer before reaching a decision, given that the plea agreement had been open for about nine months at that point. (Id. at 21.) Gann confirmed that Belfiore never signed the plea agreement, and no guilty plea was ever scheduled. (Id. at 20, 24.)
Finally, Gann testified to conversations that he had with Belfiore about what Belfiore would have to admit in an allocution should he plead guilty. (Id. at 28.) Gann testified that Belfiore never said that he was "prepared" to admit that he sold narcotics without a legitimate medical purpose for doing so, but Gann stated that "there was certainly an understanding that that would be required of him if he were going to take a plea in the case." (Id. at 29.) Gann stated that, in response to these discussions, Belfiore said, "okay" but Gann was unsure if there was anything "more than that as a response." (Id. )
Belfiore also testified at the Rule 33 hearing. He explained that his family, friends, patients, and practice were the "top priority in [his] life," and before pleading guilty, he wanted to "make sure that [his] patients were taken care of." (Id. at 33.) He described efforts to sell his practice to another doctor, as well as his consultations with other attorneys who Gann recommended. (Id. at 34.) Although Gann testified that Belfiore wanted to sell his practice to avoid a "fire sale" (id. at 27), Belfiore insisted that he sought to sell the practice because he wanted to ensure that another doctor continued to treat his patients (id. at 66).
He further testified that he believed that "[t]here was a good possibility ... that I would be able to practice once this whole situation was resolved." (Id. at 68.) However, he did state that practicing afterwards was not "the priority"; rather, he was concerned with handing the practice over to someone else. (Id. at 68-69.) Belfiore also testified that he was delayed during the nine-month period that the plea agreement was open by the lack of individuals who were interested in buying the practice after potential buyers read the "negative press" about him. (Id. at 67.) With respect to taking the plea, Belfiore testified that "[a]s time moved on, it was something that I accepted ... because ... there was really no way to really fight this." (Id. at 35.) Belfiore testified that after the meeting with Gann, his family members, and friends, he "was working towards accepting that plea." (Id. at 36.) Belfiore reiterated that his biggest concern "was making sure that the practice was settled." (Id. )
He also stated that he had no plans to replace Gann until he spoke with Liotti's son, whom Belfiore knew as a vendor for his office. (Id. ) Belfiore explained that he told Liotti's son that he "was going to have to take a plea" (id. at 37), and Liotti's son recommended that he meet with his father first. Belfiore met Liotti that same day (id. at 38), and Liotti told Belfiore that he should hire him and go to trial, and that Liotti would not accept the case unless "there was at least a 30 percent chance of winning" (id. at 38). According to Belfiore's testimony, Liotti also stated that all attorneys like Gann do "is take your money and settle." (Id. ) With respect to his first meeting with Liotti, Belfiore stated that Liotti did not have all of the evidence before him when he suggested that he could win the case and had only looked at what was publicly available on the Internet. (Id. at 69.)
On cross-examination at the hearing, the government raised the multiple instances in which Belfiore had insisted that he had prescribed the oxycodone for a legitimate medical purpose, including in a civil lawsuit that Belfiore filed, in multiple interviews with the media, before the Grand Jury, and at his trial. (Id. at 45-48.) The government also questioned Belfiore about Facebook posts that Belfiore had written during the trial in which he expressed optimism about the trial, including one in which he stated with respect to his own testimony: "Hit them with the truth is all I can do." (Id. at 53-56.)
On redirect, Belfiore testified that it was Liotti's idea to give interviews, appear before the Grand Jury, and testify at trial, and that Liotti prepared Belfiore before each of these appearances. (Id. at 59-69.) He also explained that his understanding of legitimate medical purpose, as Liotti defined it, was "as long as somebody was complaining about pain, it was a legitimate medical purpose." (Id. at 62.) Belfiore's understanding of "legitimate medical purpose" changed after Liotti stopped representing him. (Id. at 63.)
After the hearing, Belfiore submitted a post-hearing brief on August 26, 2019 (Def.’s Supp. Mot, ECF No. 250), the government opposed (Gov. Supp. Opp'n, ECF No. 251), and Belfiore filed a reply in support (Def.’s Supp. Reply, ECF No. 252).
II. DISCUSSION
A. Federal Rule of Criminal Procedure 33
Belfiore moves for a new trial, pursuant to Federal Rule of Criminal Procedure 33. Rule 33 states, in relevant part, that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A district court may grant a Rule 33 motion only in "extraordinary circumstances," United States v. McCourty , 562 F.3d 458, 475 (2d Cir. 2009) (quotation marks omitted), and only if there exists "a real concern that an innocent person may have been convicted," United States v. Parkes , 497 F.3d 220, 232 (2d Cir. 2007) (quoting United States v. Ferguson , 246 F.3d 129, 134 (2d Cir. 2001) ); accord United States v. Bell , 584 F.3d 478, 483-84 (2d Cir. 2009) ; see also United States v. Middlemiss , 217 F.3d 112, 122 (2d Cir. 2000) ("Granting Rule 33 motions is not favored and is done with great caution."). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Ferguson , 246 F.3d at 134. On a Rule 33 motion, the Court "must examine the entire case, take into account all facts and circumstances, and make an objective evaluation." United States v. Aguiar , 737 F.3d 251, 264 (2d Cir. 2013) (quoting Ferguson , 246 F.3d at 134 ).
It is well settled that an ineffective assistance of trial counsel claim can be asserted in a Rule 33 motion, and considered by the district court, in its discretion, before sentencing. See United States v. Brown , 623 F.3d 104, 113 n.5 (2d Cir. 2010) ("[W]e hold that the proper procedural avenue for defendants who wish to raise ineffective assistance claims after conviction but prior to sentencing is a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33.").
B. Ineffective Assistance of Counsel Standard
Under the standard promulgated in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant is required to demonstrate two elements to state a successful claim for ineffective assistance of counsel: (1) "counsel's representation fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. 2052, and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. 2052.
1. Performance Prong
With respect to Strickland ’s performance prong, "[c]onstitutionally effective counsel embraces a ‘wide range of professionally competent assistance,’ and ‘counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ " Greiner v. Wells , 417 F.3d 305, 319 (2d Cir. 2005) (quoting Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ). The performance inquiry examines the reasonableness of counsel's actions under all circumstances, keeping in mind that a "fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Id. (quoting Rompilla v. Beard , 545 U.S. 374, 408, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ). In assessing performance, a court "must apply a ‘heavy measure of deference to counsel's judgments.’ " Id. (quoting Strickland , 466 U.S. at 691, 104 S.Ct. 2052 ).
In the context of plea negotiations, "counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Missouri v. Frye , 566 U.S. 134, 145, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Additionally, "defense counsel ‘must give the client the benefit of counsel's professional advice on this crucial decision’ of whether to plead guilty." Purdy v. United States , 208 F.3d 41, 44 (2d Cir. 2000) (quoting Boria v. Keane , 99 F.3d 492, 497 (2d Cir. 1996) ). As part of this guidance, an attorney "should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed." Id. at 45. There is no per se rule that defense counsel must always expressly advise the defendant whether to take a plea offer. Id. at 48. "[T]he ultimate decision whether to plead guilty must be made by the defendant," and "a lawyer must take care not to coerce a client into either accepting or rejecting a plea offer." Id. at 45.
In recognition of the challenge of "steer[ing] a course between the Scylla of inadequate advice and the Charybdis of coercing a plea," there is a "wide range" of what qualifies as reasonable advice pertaining to the acceptance or rejection of a plea offer. See id. The Second Circuit has provided that:
[c]ounsel rendering advice in this critical area may take into account, among other factors, the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea (whether or not accompanied by an agreement with the government), whether the defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform his plea decision.
Id.
2. Prejudice Prong
The second prong of the Strickland standard focuses on prejudice to the defendant. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. A defendant is required to show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "Reasonable probability" means that the errors were of a magnitude such that they "undermine[ ] confidence in the outcome." Pavel v. Hollins , 261 F.3d 210, 216 (2d Cir. 2001) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Lindstadt v. Keane , 239 F.3d 191, 204 (2d Cir. 2001) (quoting Strickland , 466 U.S. at 691, 104 S.Ct. 2052 ). Moreover, "[u]nlike the determination of trial counsel's performance under the first prong of Strickland , the determination of prejudice may be made with the benefit of hindsight." Hemstreet v. Greiner , 491 F.3d 84, 91 (2d Cir. 2007) (quotation marks omitted).
"To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Frye , 566 U.S. at 147, 132 S.Ct. 1399. Although the Court need not accept defendants’ "self-serving, post-conviction statements that [they] would have pleaded guilty if properly advised," Gluzman v. United States , 124 F. Supp. 2d 171, 177 (S.D.N.Y. 2000), a defendant is entitled to an evidentiary hearing on this issue if his statement is supported by some objective evidence. See Raysor v. United States , 647 F.3d 491, 495 (2d Cir. 2011) ; see also Dodakian v. United States , No. 14-CV-01188(AJN)(SN), 2015 WL 11144511, at *14, *24 (S.D.N.Y. Aug. 14, 2015), report and recommendation adopted , No. 14-CV-1188(AJN)(SN), 2016 WL 3866581 (S.D.N.Y. July 12, 2016) ; Vargas v. United States , 951 F. Supp. 2d 531, 550 (S.D.N.Y. 2013). Objective evidence may come in the form of a significant disparity between the sentence recommended in the plea offer and the sentence imposed after a conviction at trial. See Pham v. United States , 317 F.3d 178, 182 (2d Cir. 2003). However, such a disparity in outcomes does not mandate a finding of prejudice. See Page v. Martuscello , No. 10 CIV. 9699 JSR AJP, 2011 WL 3678820, at *27 (S.D.N.Y. Aug. 23, 2011) ("The Second Circuit, however, did not create a per se rule that a petitioner is always prejudiced when there is a significant sentencing disparity; rather, such disparity is simply a factor for a court to consider in addressing prejudice."), report and recommendation adopted , No. 10 CIV. 9699 JSR, 2013 WL 1092825 (S.D.N.Y. Mar. 15, 2013), aff'd , 561 F. App'x 118 (2d Cir. 2014) ; Muyet v. United States , No. 03 CIV. 4247 (PKL), 2009 WL 2568430, at *5 (S.D.N.Y. Aug. 19, 2009) ("While a significant sentence disparity between the plea offer and the actual sentence imposed can be indicative of prejudice, such a disparity does not mandate a finding of prejudice in all cases." (internal citations omitted)). Rather, "[e]ven with such a disparity ... the district court must still find the defendant's evidence to the effect that he would have made a different decision but for his counsel's deficient advice to be credible." United States v. Frederick , 526 F. App'x 91, 93 (2d Cir. 2013).
"There is no magic formula to use in determining whether a disparity between sentences is ‘significant.’ " Mickens v. United States , No. 97-CV-2122 JS, 2005 WL 2038589, at *8 (E.D.N.Y. Aug. 17, 2005), aff'd , 257 F. App'x 461 (2d Cir. 2007). In Pham , the Second Circuit found a significant disparity where the sentence imposed was "more than double" the sentence provided for in the plea offer (210 months compared to 78-97 months). 317 F.3d at 183.
C. Liotti's Advice Regarding the Plea Offer
Belfiore argues that Liotti's advice during the pre-trial plea negotiations deprived Belfiore of effective assistance of counsel. Specifically, Belfiore argues that "Liotti's advice to [him] to reject the plea and go to trial, based upon Liotti's legal assessment that there was a strong chance of acquittal, was objectively unreasonable under the circumstances." (Def.’s Mem. at 3.) As set forth below, after careful consideration of the written submissions and conducting an evidentiary hearing on this issue, the Court concludes that Liotti's optimistic view about the chances of acquittal was not constitutionally defective, especially in light of Belfiore's desire to go to trial, his proclamation of innocence, and the full range of information available to Belfiore regarding the strength of the government's case when considering Liotti's advice. Moreover, the Court further holds that, assuming arguendo that Liotti's advice was objectively unreasonable, this ineffective assistance claim still fails because the Court finds that there was no reasonable probability that Belfiore would have accepted the plea offer even if Liotti had advised him to accept the plea offer for the reasons that had been articulated by prior counsel. The Court addresses each issue in turn.
1. Performance Prong
Belfiore asserts that Liotti's advice to reject the government's plea offer and proceed to trial "was objectively unreasonable, and, under the circumstances, easily cleared the hurdle of ‘deficient performance’ under Strickland ’s first prong." (Def.’s Mem. at 6.) With respect to Liotti's specific assessment regarding Belfiore's chances of success at trial, Belfiore states the following in his affidavit supporting the motion: (1) "Mr. Liotti[ ] assured me that he would not even accept the case unless he believed there was at least a 30% chance I would be acquitted" (Belfiore Aff. ¶ 5); and (2) "Mr. Liotti ... told me that ‘there is no reason to take a plea.’ He assured me ‘we can win this’ and made statements like ‘I can do this’ " (id. ¶ 9). The Court accepts these particular statements in Belfiore's affidavit as true, but concludes that Liotti's assessment, though overly optimistic in light of the government's extremely strong proof against Belfiore, does not satisfy the first prong of Strickland. As noted above, defense counsel must provide his client with professional advice on the crucial decision of whether to plead guilty and can "generally discharge [this] obligation by informing the defendant of (1) the strength of the case against him or her and (2) the possible sentence of incarceration that may be imposed after a guilty plea as compared to a guilty verdict." Daley v. Lee , No. 10-CV-6065 NGG, 2012 WL 2577472, at *11 (E.D.N.Y. July 3, 2012) ; see also Rivera v. United States , No. 10-CR-316 (KBF), 2016 WL 1064605, at *6 (S.D.N.Y. Mar. 14, 2016) (finding that counsel provided effective advice by "informing [the defendant] of the terms of the plea offer, the strengths and weaknesses in the case against him, and the alternative sentences to which he would most likely be exposed"); Mitchell v. Rock , No. 11-CV-2642 JG, 2013 WL 4041545, at *19 (E.D.N.Y. Aug. 9, 2013) (upholding decision that counsel had performed effectively, despite the defendant's argument that counsel failed to give his professional opinion on whether plea should be accepted, by "touch[ing] upon critical factors a defendant must consider when weighing such a decision, including his minimum and maximum sentencing exposure, the evidence the state would present at trial, and the amount of time [the defendant] had already served"). Although Belfiore seeks to consider Liotti's performance and advice in isolation, it must be considered in the context of all of the advice and information that was available to Belfiore, including the substance of any advice provided by Gann and information made available to Belfiore prior to Liotti's representation. See generally United States v. Watson , No. 11-cr-0166-002, 2012 WL 1831430, at *6 (N.D. Okla. May 18, 2012) ("Defendant is essentially arguing that the effective assistance of prior counsel can be negated by subsequent counsel's failure to repeat every conversation that prior counsel has had with defendant and retroactively discuss every plea offer that had been rejected. Neither Strickland , nor Lafler / Frye , supports this argument."), aff'd , 766 F.3d 1219 (10th Cir. 2014).
At the hearing, on re-direct examination, Belfiore described Liotti's assessment of the chances of success at trial more strongly than Belfiore had stated in his affidavit and direct testimony, by using the phrase "sure fire win." (Hr. Tr. at 66.) Then, on a second round of re-direct, Belfiore further added that Liotti used the phrase "slam dunk" to describe Belfiore's chances to prevail at trial. (Id. at 73.) The Court finds this testimony regarding the use of those stronger terms by Liotti not credible for several reasons. First, Belfiore never mentioned these terms in his affidavit, or even during his direct examination, in describing Liotti's advice. In fact, his testimony during other portions of the hearing closely mirrored his statements in the affidavit regarding Liotti's trial assessment. (See id. at 39 ("Q. Well, he indicated to you that he thought that he would win, that there was no reason for you to take a plea. A. Right. He said that there's no reason to take a plea."); see also id. at 69 ("He said that he had enough from what he read on the – what he found online, enough to figure out whether or not he could defend this case, and if it was a winnable case."); id. at 70 ("Because 1 gave him whatever information I had, you know what I am saying — I had with me that day, you understand, when I first met with him. And within the – within the 24 hours, he said yes, this is something I could defend.").) Second, Liotti's purposed assessment of the strength of Belfiore's defense as a "slam dunk" or "sure fire win" would have been completely inconsistent with: (1) the assessment that he gave in open court, in Belfiore's presence, that trial would be a "difficult road" for Belfiore (Feb. 22, 2016 Tr. at 4); and (2) his statement in his February 29, 2016 letter to Belfiore that he "admire[d] [Belfiore's] courage" in rejecting the plea (ECF No. 217-4). Third, in assessing Belfiore's demeanor at the hearing, it appeared to the Court that Belfiore was adding these new descriptions late in his testimony in a desperate attempt to support his motion, Thus, the Court finds that Belfiore's affidavit (not these additional descriptions at the hearing) accurately recounts Liotti's assessment of the chances of Belfiore prevailing at trial.
First, the record reflects that Gann made Belfiore well aware of the weaknesses in his case and the strength of the government's evidence. Gann credibly testified that, "I told [Belfiore] that I thought he should take a plea. That I didn't think there was any way that this case could be tried, and tried successfully." (Hr. Tr. at 12.) Both Gann and Belfiore testified about the meeting that Gann arranged at which Gann was "pretty aggressive about indicating to [Belfiore] that we cannot delay [the guilty plea] any further." (Id. at 15.) During his testimony at the hearing, Belfiore confirmed that Gann discussed: (1) the evidence that the government would introduce at trial, including the undercover videos; (2) the expert he had retained who had concluded that there was not a defense to the interactions with the undercover officer; (3) the reverse proffer he had attended in which the prosecutor explained the government's case and position to him; (4) the information he had received about the DEA warning Belfiore about his oxycodone prescribing practices before he was arrested; and (5) the information regarding drug-seeking individuals overrunning Belfiore's practice. (Id. at 57.) Thus, it is clear that, through Gann, Belfiore was well aware of the nature and strength of the government's case against him. See, e.g. , Purdy , 208 F.3d at 46 (finding that counsel satisfied obligation to convey strength of government's case by "repeatedly advis[ing] [the defendant] of the strengths of the government's case against him" and even performed a mock cross-examination of the defendant); Ortiz v. United States , No. 11CR875 DLC, 2015 WL 5613182, at *3 (S.D.N.Y. Sept. 24, 2015) (concluding that the defendant could not show that attorney failed to provide effective assistance of counsel where the defendant was advised of the "nature and strength of the Government's evidence against him" during the reverse proffer session).
Moreover, notwithstanding Liotti's more positive view of Belfiore's ability to win the case (which the Court addresses infra ), there is also evidence in the record that Liotti was exploring the plea options with Belfiore and the obstacles to potential defenses that Belfiore could mount. For example, Liotti informed the Court by letter dated January 8, 2016, that he was "still investigating the ramifications of a plea versus pre-trial motions and a trial." (ECF No. 21.) At a status conference on February 22, 2016, Liotti acknowledged in Belfiore's presence, that trial would be a "difficult road" for Belfiore. (Feb. 22, 2016 Tr. at 4.) In addition, Liotti's billing records demonstrate that he researched the potential consequences of pleading guilty for a medical professional. (Liotti Aff, Ex. C at 2-4.) Liotti also consulted Belfiore's OMPC attorneys, as well as Belfiore's attorneys in a state court matter, and discussed the plea with Belfiore.
Second, the government's plea offer was fully communicated to Belfiore for his consideration and discussion with counsel. Gann testified that he communicated the plea offer and discussed it with Belfiore repeatedly. (Hr. Tr. at 19.) Belfiore confirmed that he was aware of the government's proposed plea agreement, had detailed discussions with Gann about it, and a recommendation from Gann that he should plead guilty. (Id. at 33, 35.) Indeed, Belfiore acknowledges that, even prior to his meeting with Gann and Belfiore's family and friends, Gann had been urging Belfiore to plead guilty for months. (Id. at 56-57.) Similarly, Belfiore acknowledges that Liotti made him aware that the government had re-offered the plea after Liotti was retained, and that they discussed it again. (Belfiore Aff. ¶¶ 8-9.)
Third, Belfiore was also aware of the different sentences that could be imposed. Gann credibly testified that he and Belfiore discussed the Sentencing Guidelines range and potential sentences. (Hr. Tr. at 12-13.) Moreover, at the status conference on November 4, 2015, the government expressly stated that, although the plea agreement offered a Sentencing Guidelines range for around three years, the Superseding Indictment would carry a much higher range. (Feb. 22, 2016 Tr. at 6-7.) Belfiore also admitted that he knew "if [he] went to trial and lost, [he] would face substantially more time." (Belfiore Aff. ¶ 3.)
Although Belfiore claimed in his affidavit that he does not "recall" being informed about the mandatory minimum sentence connected with the two counts relating to Martin's and Ubaghs's deaths (Belfiore Aff. ¶ 10), he admitted in the same affidavit that he was "concerned" about the "mandatory minimum sentences" (id. ¶ 9). Liotti also referred to the mandatory minimum sentence in his August 14, 2017 Motion to Dismiss, September 18, 2017 Reply, and his October 25, 2017 First Amended Requests to Charge. (ECF No. 82 at 18; ECF No. 88 at 5; ECF No. 97 at 2.) The Court concludes that this suggestion by Belfiore that he did not recall being told of the mandatory minimum sentence is not credible, in light of the Court's assessment of the entire record, including his credibility as a witness.
Moreover, although Liotti was advising Belfiore that he could prevail at trial, Liotti also made Belfiore aware of the benefits of a guilty plea. For example, in the February 29, 2016 letter confirming Belfiore was rejecting the plea, Liotti explained that, with a plea, "[he] may have avoided jail or been given a reduced sentence." (Feb. 29, 2016 Ltr.; see also Liotti Aff. ¶ 7 (citing the February 29 letter as verification that Belfiore "was repeatedly counseled by [Liotti] regarding the risks of going to trial," and noting that others also made him aware of those same risks).)
In short, Belfiore is a sophisticated and informed defendant, and the record reflects that he actively participated in his defense and discussed the case with his attorneys on a regular basis. (See, e.g. , Liotti Aff. ¶ 9.) Between his frequent conversations and strategy sessions with his attorneys, it is evident that Belfiore was made aware of the government's plea offer, the government's extremely strong evidence against him, the weaknesses in his case, the potential penalties he was facing, and the benefits of the government's plea offer.
Nevertheless, Belfiore argues that Liotti was ineffective "in advising his client to reject the plea offer." (Def.’s Mem. at 16.) In particular, as noted supra , Belfiore asserts that Liotti told him that "there is no reason to take a plea" and "we can win this ... I can do this." (Belfiore Aff. ¶ 9.) The Court finds these statements attributed to Liotti to be credible. Indeed, Liotti did not deny them in his affidavit and emphasized that he still believes in Belfiore's innocence and the government's failure to prove its case beyond a reasonable doubt. (Liotti Aff. ¶ 3.) However, Liotti's belief in Belfiore's innocence and overly optimistic view about Belfiore's chances of success do not constitute ineffective assistance of counsel under the particular circumstances of this case.
The Supreme Court has emphasized that "an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance." Lafler v. Cooper , 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Instead, in order to reach the level of constitutionally defective performance, defense counsel must have advised the client "to reject a plea bargain in the face of overwhelming evidence of guilt and an absence of viable defenses." Gallo-Vasquez v. United States , 402 F.3d 793, 798 (7th Cir. 2005). In other words, "[f]or counsel's [decision] to rise to the level of constitutional ineffectiveness, the decision ... must have been completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy." Hoxsie v. Kerby , 108 F.3d 1239, 1246 (10th Cir. 1997) (quotation marks omitted).
Therefore, courts have repeatedly rejected ineffective assistance claims merely because defense counsel's advice regarding the chances of winning at trial were overly optimistic. See, e.g. , United States v. Patterson , 525 F. App'x 681, 684-86 (10th Cir. 2013) (rejecting argument that defense counsel was ineffective for stating that the defendant had a "strong defense" and advising him to go to trial because, even if it was an "overestimate[ ]" of the strength of the defense, "[the defendant] does not demonstrate that counsel's advice was completely unreasonable or that it bore no relation to reasonable trial strategy"); Medlock v. United States , No. 3:16-CV-02603, 2017 WL 2972170, at *4-5 (M.D. Tenn. July 11, 2017) (finding that defense counsel's statement that the defendant had "a very good chance of winning" at trial did not establish "that counsel's alleged advice was unreasonable or that counsel precluded her from accepting the plea offer"); United States v. Villasenor , No. 13C14803CR6892, 2016 WL 806550, at *4, *12 (N.D. Ill. Mar. 2, 2016) (finding that attorney's statement that the defendant "had a very good chance of winning" on the conspiracy charge was not "a gross mischaracterization of the strength of the government's case," even though the court viewed counsel's "hub-and-spoke defense" as "less than compelling"), aff'd , 689 F. App'x 851 (7th Cir. 2017) ; Siraj v. United States , 999 F. Supp. 2d 367, 375 (E.D.N.Y. 2013) (rejecting argument that counsel's advice that there was a "50/50" chance of prevailing on an entrapment defense was outside "the wide range of reasonable professional assistance" (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 )); see also Lawrenson v. Sec'y, Dep't of Corr. , No. 8:15-CV-2078-T-23TGW, 2018 WL 6787996, at *14, *15 (M.D. Fla. Dec. 26, 2018) (rejecting ineffective assistance claim where petitioner argued that his attorney said he "was going to destroy [the victim] when she took the stand" and advised him to decline a 10-year plea offer in the face of a life sentence after trial, because petitioner failed to "demonstrate that counsel's advice was either completely unreasonable or bore no relation to a reasonable trial strategy").
In the instant case, although the government had extremely strong evidence of Belfiore's guilt, Liotti planned and presented viable defenses with respect to each of the charges. Among other things, Liotti presented the testimony of three experts to establish that: (1) all of Belfiore's prescriptions at issue were for a legitimate medical purpose; and (2) the deaths of Ubaghs and Martin were not caused by the oxycodone prescribed by Belfiore. If the jury credited the testimony of all these experts, Belfiore would have been acquitted of every count. Moreover, even if he were found guilty on the conduct with respect to the undercover officer, it was certainly not a foregone conclusion that Belfiore would be found guilty on the counts carrying the mandatory minimum penalty, which required jurors to separately find that the prescriptions to Ubaghs and Martin were without legitimate medical purpose and that Belfiore's prescriptions caused their respective deaths. The fact that Liotti may have been overconfident in his view that the jury would credit the testimony of these experts did not render his advice about the chances of winning at trial ineffective, especially given that Belfiore was independently aware of the potential weaknesses in Liotti's assessment based upon all that he had learned during the pre-trial phase, including from his personal counsel Gann. Moreover, "[c]ounsel rendering advice in this critical area may take into account ... whether the defendant has maintained his innocence." Purdy , 208 F.3d at 45. In other words, "the law affords counsel broad discretion in choosing ‘how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea.’ " Colotti v. United States , No. 04 CR 1110-02, 2012 WL 1122972, at *14 (S.D.N.Y. Apr. 4, 2012) (quoting Purdy , 208 F.3d at 45 ). Here, as discussed in more detail infra , Belfiore unequivocally proclaimed his innocence and expressed his strong desire to go to trial. Belfiore's post-trial testimony suggesting that Liotti created or caused these views is entirely lacking in credibility. Given that Belfiore was also undoubtedly aware of the risks of trial and the strength of the government's case, Liotti's belief in Belfiore's claimed innocence and his failure to advise Belfiore to plead guilty were not ineffective. See, e.g. , United States v. Pitcher , 559 F.3d 120, 125 (2d Cir. 2009) (noting that defense counsel has no duty to "arm-twist a client who maintains his innocence into pleading guilty"); Berry v. Ercole , No. 06 CIV. 6957 (DLC), 2009 WL 1321906, at *12 (S.D.N.Y. May 12, 2009) (counsel was not ineffective for failing to advise the defendant that he should plead guilty where the defendant adamantly denied his guilt and had been informed of the risk of conviction and his sentencing exposure), aff'd , 391 F. App'x 87 (2d Cir. 2010).
Belfiore relies on Lafler v. Cooper , in which the Supreme Court found that the attorney provided ineffective assistance when he erroneously advised the defendant that he could not legally be found guilty of murder when the bullets entered the victim's body below the waist. 566 U.S. 156, 161, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Belfiore argues that "just as Lafler refused to admit guilt based on his attorney's incorrect advice that the element of intent could not be proven where he shot the victim below the waist, Dr. Belfiore refused to admit guilt based on Liotti's incorrect advice that the element of lack of ‘legitimate medical purpose’ could not be proven as long as his patients had complained of pain." (Def.’s Supp. Reply at 3.)
The Court is not persuaded by Belfiore's analogy. In Lafler , the parties agreed that it was unreasonable for the attorney to assure the defendant that, as a matter of law, the prosecution could not establish intent to murder because the victim was shot below the waist. 566 U.S. at 174, 132 S.Ct. 1376. In this case, Liotti understood that the definition of legitimate medical purpose ultimately was not a purely legal determination, but rather was going to be a factual issue decided by the jury, with the assistance of expert testimony and his client's testimony. That is precisely why Liotti retained an expert to opine on that standard, and the expert did opine that alleviating pain was a legitimate medical purpose. (See May 8, 2018 Trial Tr. at 1829 ("[One] of the primary goals of a doctor when they see a patient is to relieve patient suffering and treat the patient to the best of their ability."); see also id. at 1829-30 ("So every physician is sort of, you know, has the dilemma of trying to treat someone's pain effectively, relieve suffering which is really part of our responsibility as a physician is to treat, and pain is one of those things we treat without doing harm to the patient.").) In addition, while urging the most advantageous legal instruction on "legitimate medical care," Liotti's proposed jury instructions also recognized that the standard for "legitimate medical purpose" in the context of this case ultimately would be the subject of expert testimony and then decided by the jury. (See Def.’s Proposed Jury Instructions, ECF No. 53-3 at 2 ("Dr. Belfiore has claimed that he has always acted in good faith, for legitimate medical purposes and that he is not responsible for those deaths. He has offered expert and character witnesses and other evidence to support these claims."); see also id. at 4-5 ("[I]n determining whether a defendant acted without a legitimate medical purpose, and outside the usual course of professional practice, you should examine all of the Defendant's actions and the totality of the circumstances surrounding the same, including those circumstances you have heard denoting legitimacy or illegitimacy.").) Therefore, unlike the attorney in Lafler , Liotti was not operating under any mistake of law; rather, if the jury credited the expert's and/or Belfiore's definition of legitimate medical purpose in this context, or concluded that Belfiore reasonably held that understanding (even if mistaken) in good faith, then Belfiore would necessarily prevail on all charges.
The Court notes that, although the defense introduced expert testimony that the alleviation of pain is a legitimate medical purpose, the defense did not argue (and Belfiore did not believe) that such a purpose allowed oxycodone to be legitimately prescribed whenever a patient indicated pain. To the contrary, during the trial, Belfiore repeatedly explained that he would not turn to oxycodone immediately when treating a patient's pain. (See May 2, 2018 Trial Tr. at 1510) ("Q. What was the treatment plan [for Burke]? A. The original treatment plan was to go with muscle relaxers, antiinflammatories and medication to help him sleep. With his persistent prodding, I didn't consider that he'd be drug seeking. I thought that he was trying to communicate to me the medication that worked the best for him. But I tried to explain to him through the visit that it was very, very important that you lean on the anti-inflammatories and the muscle relaxers first before going to the oxycodone."); id. at 1510-11 ("Q. Why would you suggest the anti-inflammatories and the muscle relaxants first? A. Because when you look at, everybody ... Go with the antiinflammatory first because that's more so something that's going to get to the source of the pain. Go to the muscle relaxer in the earlier stages. That's going to get towards the cause of the pain. Sleep is the other, again, the major, I cannot emphasize sleep. Sleep is another thing that's going to help get rid of the cause of pain, and if worse comes to worse then use the oxycodone. I mentioned to him do not go to the oxycodone first."); id. at 1515-16 ("Q. And with respect to all of your other patients for whom you prescribed oxycodone, you indicated the percentage of those in your practice that you prescribed oxycodone for or who were treated for pain management, of those, were you predisposed in any case to prescribe oxycodone ? A. Not as a first line medication. The only time I gave oxycodone for – to a patient was a patient who was already established in some sort of pain program and had success with it. Usually, again, my patients came to me after no fault, Workers’ Comp, surgery cases that failed. They were on it for other periods of time and they had other medical problems and the doctors weren't addressing their medical problems. Because, again, people just look at one part of the disease and not the whole body. So they came to me, it was a continuity of treatment. It wasn't my idea to initially start them. A lot of patients today still say, I was dying and you didn't give me oxycodone. Yes, because it's not my first line. It's something that I would not like to give first line. It can be an ugly medication and I've learned that over the course of years.").
Given the wide range of conduct that can constitute legitimate medical purpose, the Court finds that Liotti's efforts to advocate for the broadest possible definition, while simultaneously highlighting Belfiore's good faith, was reasonable, and he was not ineffective in concluding that it "would be a persuasive argument to make to the jury." See Lafler , 566 U.S. at 174, 132 S.Ct. 1376. Indeed, as noted above, Belfiore's claim of innocence was not so farfetched on its face that no defense lawyer could explain it, especially when the lawyer had the additional support of a well-credentialed medical professional like Dr. Olsen. Thus, the advice that Liotti provided to Belfiore, regarding Belfiore's belief that he prescribed the medication in good faith in the usual course of professional practice, was not unreasonable, and was clearly distinguishable from Lafler where the parties stipulated that counsel's advice regarding the chances of trial was deficient because his defense relied in its entirety upon an erroneous understanding of the law.
In sum, given his awareness of the plea offers, the strength of government's case, the difference in sentencing options should he proceed to trial, his insistence on his innocence, and his lawyer's reasonable trial strategy, the Court concludes that Liotti's advice to proceed to trial, and his belief that the case was winnable, "[fell] within the range of reasonable competence under the circumstances." United States v. Cronic , 466 U.S. 648, 656 n.19, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
2. Prejudice Prong
Even assuming arguendo that Liotti's overly optimistic view regarding Belfiore's chances at trial satisfied the first prong of Strickland , this claim regarding the plea offer would still fail because Belfiore cannot demonstrate prejudice as required under the second prong of Strickland. As noted above, "[t]o show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Frye , 566 U.S. at 147, 132 S.Ct. 1399. In his affidavit, Belfiore states, "Had I been told by Mr.[ ] Liotti that my chances of prevailing at trial were actually slim and that the proof against me was overwhelming, (the very advice Mr. Gann gave me) I would have certainly taken a plea." (Belfiore Aff. ¶ 11.) The Court finds this sworn statement, and similar testimony at the evidentiary hearing, entirely lacking in credibility in light of the record and the undersigned's assessment of Belfiore's demeanor throughout this case, including during his testimony at trial and the evidentiary hearing.
As proof that he would have accepted the plea offer had he been adequately counseled, Belfiore points to the disparity between the estimated 30- to 37-month Sentencing Guidelines range set forth in the plea agreement (see Jan. 7, 2015 Plea Agreement ¶ 2), and the mandatory statutory minimum of 240 months’ imprisonment if convicted of all counts at trial. He argues that but for Liotti's advice, he would have pled guilty.
It is true that the estimated sentence range offered in the plea agreement is significantly less than the sentence he now faces, and in some cases, such a disparity "is sufficient to support a prejudice finding." Pham , 317 F.3d at 182. However, such a conclusion is not mandated where, as here, the Court determines that Belfiore's assertions that he would have accepted the plea are not credible. See, e.g. , Frederick , 526 F. App'x at 93 (finding that despite significant sentencing disparity, the defendant failed to show that he was prejudiced by his attorney's allegedly ineffective advice because the court did not believe that he would have accepted the plea, given that he was adamant that he wanted to go to trial). After considering the hearing testimony, the parties’ submissions, and the Court's own observations of Belfiore's demeanor during his testimony (including his extensive testimony at trial and at the evidentiary hearing), as well as during the trial as a whole, the Court concludes that Belfiore's assertion that he was willing to plead guilty pursuant to the plea agreement had he been properly advised by Liotti is not credible. Instead, this Court concludes that there was no reasonable probability that Belfiore would have accepted the government's plea offer, even if Liotti had advised him (as Gann did) that the case was not winnable. The evidence in the record set forth below (including, inter alia , Belfiore's own sworn statements at various stages of this criminal proceeding) clearly demonstrates that Belfiore was insisting that he was innocent and was intent on going to trial. Cullen v. United States , 194 F.3d 401, 407 (2d Cir. 1999) (stating that the defendant's "insistence on his innocence is a factor relevant to any conclusion as to whether he has shown a reasonable probability that he would have pled guilty"). Moreover, even if he was somehow persuaded to plead guilty by the advice of his attorney regarding the high likelihood of conviction, this Court concludes based upon the record (including Belfiore's testimony at the evidentiary hearing) that he would have been unable to allocute to the charged crime.
First, the circumstances surrounding Belfiore's interactions with Gann and his actions following his waiver of indictment firmly indicate that he did not want to plead guilty and consistently maintained his innocence, Prior to Liotti taking the case, Belfiore had already been aware of the proposed plea agreement for nine months and was aware of the charges for the two deaths that the government would present to the Grand Jury if he rejected the plea agreement. (ECF No. 215, Ex. C. at 7.) Even after the First Superseding Indictment was returned, the government reiterated that the plea agreement was still open. Nevertheless, Belfiore still delayed taking the plea and fired Gann (the lawyer who said Belfiore could not win) for Liotti (the one who said that he could).
Although Belfiore attributed this delay to his efforts to sell his medical practice and Gann's impression was that Belfiore wanted to take a plea, the record strongly suggests that this inordinate nine-month delay in considering the plea offer reflected that other larger barriers to a guilty plea existed – namely, Belfiore's concern about his livelihood and freedom, as well as his steadfast position that the government was wrongfully prosecuting him. For example, at a key meeting, Gann recalled Belfiore's wife "expressing concern about his medical practice, and his ability to earn a living and support the family if he took a plea." (Hr. Tr. at 16.) Gann also acknowledged that, over these many months, Belfiore never got to that point where he ever said, "I'm taking the plea." (Id. at 17.) Similarly, although Gann told Belfiore that he would have to admit that he prescribed oxycodone without having a proper medical purpose, the discussions never got to the point where Belfiore said that he was prepared to say that. (Id. at 28-29.) Interestingly, in his affidavit, Belfiore never even states that he had decided to take a guilty plea, but rather weakly refers to "considering accepting the plea" during the period of Gann's representation. (Belfiore Aff. ¶ 4 (emphasis added).) Moreover, at the evidentiary hearing, Belfiore's testimony, while now ostensibly suggesting that he was prepared to plead guilty during Gann's representation, more subtly revealed that he still maintained his innocence, but felt like he had no choice except to plead. In particular, Belfiore acknowledged that, when Gann advised him to plead guilty, he was initially disappointed. (Hr. Tr. at 34.) He further explained that, as time moved on, it was something he "had to accept" because "from what Mr. Gann represented to me, there was really no way to really fight this." (Id. at 35.) In the Court's view, this testimony tellingly reflects a defendant who is being advised by his attorney that he is going to be convicted by overwhelming evidence, but still wanted to proclaim his innocence. That ongoing view by Belfiore perhaps was not articulated to Gann, who admitted he was "certainly ... aggressive in indicating that [he] did not think this was a triable case." (Id. at 21.) However, with hindsight, it is more than clear that the nine-month delay in finalizing the plea was based, in substantial part, on Belfiore's ongoing objective to fight the charges, proclaim his innocence, and keep his medical practice and his freedom.
Second, any doubt about Belfiore's mindset at that point was eliminated during his conversations with Liotti. In his affidavit, Liotti stated:
Dr. Belfiore was adamant about his desire to get the case dismissed or to proceed to trial if it was not. He stated that his marriage was "on the rocks", that his kids were getting older and that he was estranged from his wife in that he was living with his father-in-law. He stated that his practice was his life; that he had to fight for it and that even if he lost and faced 20 or more years in jail that he had to do it, go to trial.
(Liotti Aff. ¶ 8.) Later in the affidavit, Liotti reiterated: "He told me that his medical practice was his life and that if he couldn't practice that his life may as well be over. He told me that he wanted to take his chances in a trial because he would have no life if he pled guilty. He said he might as well go to jail if he couldn't practice medicine." (Id. ¶ 10.) At the evidentiary hearing, Belfiore attempted to downplay his concern about his medical license by stating that "[t]here was a good possibility ... that I would be able to practice once this whole situation was resolved" and his insistence that maintaining his medical license "wasn't the priority." (Hr. Tr. at 68.) This testimony was not credible in light of his demeanor and the other credible evidence to the contrary in the record. Gann testified at the same hearing that he told Belfiore that it was his expectation that Belfiore would lose his medical license from the guilty plea. In fact, Belfiore's hearing testimony on this issue contradicted his own pre-hearing affidavit where he stated (consistent with Liotti's affidavit) that he hired Liotti as trial counsel in part because he was "faced with prison, the loss of [his] medical license and financial ruin." (Belfiore Aff. ¶ 7.)
Third, the most compelling proof of Belfiore's adamant belief in his innocence (and corresponding determination to go to trial) consists of his own statements during the course of the criminal proceedings, including testimony under oath in the Grand Jury and at trial, as well as statements on social media and television.
During his three days of testimony before the Grand Jury, Belfiore repeatedly and emphatically asserted that all of his oxycodone prescriptions were issued for a legitimate medical purpose. For example, Belfiore explained, with respect to his oxycodone prescriptions: "You have to give the patient some sort of trust, you have to give the patient some sort of benefit of the doubt. I wrote these prescriptions for a legitimate medical purpose. I did not write these prescriptions for any other reason." (Aug. 4, 2016 Tr. at 25.) As it related to visits from law enforcement to his office, Belfiore testified: "I never thought that we were doing anything wrong." (May 12, 2016 Tr. at 123.) In addition, in his testimony about his prescriptions for Ubaghs, Belfiore stated: "From what [Ubaghs] was complaining about and from what he was doing, again, at the time I thought it was medically necessary that he receive the medication." (Aug. 4, 2016 Tr. at 51; see also id. at 85 ("Every prescription I tried to give him had a legitimate medical purpose.").) Similarly, during his extensive trial testimony, Belfiore stated that he was tricked by the undercover officer (Burke) to issue the prescriptions, he issued all the oxycodone prescriptions to his patients for a legitimate medical purpose, and he was not at fault for Martin's and Ubaghs's deaths. The following testimony is illustrative of his repeated, animated insistence on his innocence to the jury:
Q. Did you take steps to warn your patients and to tell them that they had to conform to your treatment plan and also the dosages that you had prescribed?
A. I tried to show almost -- every patient I tried to explain what the medication is for. So this way at least they knew I had a legitimate medical purpose for writing the prescription. What this prescription was used for. You saw on the undercover tapes I told the patient to use the antiinflammatory muscle relaxer first and lean on them versus going to the oxycodone first.
Q. So when you saw these movies [from the oxycodone manufacturer] and so on, did they indicate to you that oxycodone could be prescribed in certain circumstances for a legitimate medical purpose?
A. Well, oxycodone is only to be prescribed for a legitimate medical purpose, just like any other medication.
Q. And is that the only way that which I [sic] prescribed it, for legitimate medical purpose?
A. I would only write it for a legitimate medical purpose.
(May 3, 2018 Trial Tr. at 1604; see also May 2, 2018 Trial Tr. at 1484 ("Q. Did you ever prescribe Oxycodone or any other medication without a legitimate medical purpose? A. Every medication I write, whether it's for any medical condition, it is for a specific legitimate medical purpose ....").)
While presenting his case in the courtroom, Belfiore also posted his thoughts about the trial on social media. Those posts reflect not only his own views about the government's wrongful prosecution of him and his strong desire to go to trial to proudly tell the community about his innocence, but also reflect his own contemporary assessment of the compelling nature of Liotti's performance and his defense case. Liotti may have shared those views, but he certainly did not create them. Those posts, which are remarkably inconsistent with Belfiore's current assertion that he would have taken a guilty plea with better legal advice, included the following:
Day 10 of trial. Today I finally get to testify. I get to tell my side of the story for once. 4 years of hell. Please come to courthouse [sic] and keep [ ] me in your prayers. With much love and thanks for everyone who's been there for me!!! Time to rock this joint!!! (Gov. Ex. MB-6.)
Day 11 of trial, day 2 of testimony. Hit them with the truth is all I can do. Another pass through the gauntlet. I'm still standing. Gonna rock this joint!!! (Gov. Ex. MB-7.)
My first expert, Dr. Dean Olsen from NUMC presented today. I hope the jury was at least half as impressed as I was. (Gov. Ex. MB-8.)
Day 2 of our expert testimony, It's amazing how medical opinions differ and the government's interpretation of it all clouds the pool. Dr. Blum ( [ ]St. Francis hospital) did one helluva job in my opinion[.] (Gov. Ex. MB-9.)
The defense rests. Dr. Mark Taff did a spectacular job just as all of my experts did presenting the facts. I need everyone at courthouse monday [sic] 930 sharp. We have to show the government
that doctors shouldn't have to be afraid to treat patients with compassion and respect. Love you all. This is a fight that will benefit you all in the long run. (Gov. Ex. MB-10.)
Getting ready to go back in. Truth will prevail!!! Doctors, patients, caretakers, drug manufacturers, legislators to name a few, TAKE A STAND!!! WE'RE ALL IN THIS TOGETHER!!! Don't lose your right to give and receive compassionate and competent care. Let's rock this joint!! (Gov. Ex, MB-13.)
Getting ready to walk in yet again. Walking in with my head held up so high I think my neck is going to snap!! With thanks and love to my family, staff, friends, my great lawyer, and most of all my patients. Remember YOUR DOCTOR IS YOUR ADVOCATE!!! Let's rock .... (Gov. Ex. MB-14.)
In addition, Belfiore gave several interviews to News 12 about the case. In one interview, he asserted, "I would never give anything recklessly. I would never give anything that would intentionally endanger anybody." (ECF No. 227, Gov. Ex. K.) In another News 12 interview, after the Second Superseding Indictment, Belfiore angrily stated:
I didn't cause the death of anybody. An overdose – if they would have followed the medication as directed, they would still be here today. Overdoses are a direct violation of what is written on the prescription.
This is the part where I get inflamed and I really get angry because, how are we supposed to practice? I can't trust – we can't trust our patients anymore, we can't trust the pharmacists, we can't trust the drugs reps, and most of all, I can't trust the government.
(Id. ) Moreover, Belfiore appeared on an episode of Crime Watch Daily, in which he maintained that he "could not admit to doing something that [he] didn't do." (Id. , Crime Watch Daily Part 3 at 6:22-6:30.)
Belfiore's emphatic and vocal insistence on his innocence in the pre-trial and trial stages of this case completely undermines his attempt to now argue that he would have accepted a plea. See, e.g. , Shi Yong Wei v. United States , No. 11 CIV. 6961 RMB, 2013 WL 980151, at *5 (S.D.N.Y. Mar. 12, 2013) (rejecting the petitioner's contention that he would have accepted a plea offer, as it was "squarely contradicted" by his attorney's testimony that his client was "adamant ... that he would not plead guilty" (quoting attorney's declaration)); Muyet , 2009 WL 2568430, at *5 (concluding that the defendant had not shown prejudice where the record contained "no indication that [the defendant] would have admitted guilt, as he maintained his innocence throughout the trial," even though the defendant submitted an affidavit swearing that he would have accepted a 20-year plea offer had counsel properly informed him that his sentence exposure if convicted was eight life sentences plus 130 years); Kagan v. United States , No. 02 CIV. 3886(DLC), 2003 WL 21991585, at *4 (S.D.N.Y. Aug. 20, 2003) (finding that the defendant's inability to indicate an "unequivocal willingness to plead guilty" was incompatible with his suggestion that he would have pled guilty (quoting United States v. Feyrer , 333 F.3d 110, 120 (2d Cir. 2003) )).
Belfiore responds that all of these statements – to the Grand Jury, on television, on social media, and during the trial – were made after Liotti began representing Belfiore and based upon Liotti's erroneous advice and trial strategy. (Def.’s Reply at 7-8.) However, even if Liotti encouraged Belfiore to speak out, the Court is quite confident (having heard Belfiore's testimony and observed his demeanor in the courtroom) that this desire to go to trial and to aggressively protest his innocence did not originate with Liotti; rather, the detailed nature of his statements and the manner of his testimony unequivocally demonstrated that Belfiore independently held these extremely strong views about the lawfulness of his conduct and the government's grossly unfair criminal prosecution. Liotti supported Belfiore in the strategy that he always wanted to pursue – proclaim his innocence, go to trial, and attempt to save his career as a doctor and avoid financial ruin. (See, e.g. , Liotti Aff. ¶ 8 (stating that Belfiore would rather risk "20 or more years jail" than lose his medical practice); Belfiore Aff. ¶ 7 (acknowledging that he faced "prison, the loss of [his] medical license and financial ruin").) It is incredibly rare to observe a defendant who, notwithstanding the compelling evidence of his guilt, so consistently, vocally, and aggressively proclaims his innocence in a criminal proceeding. The record (including his testimony and demeanor, as well as the devastating collateral consequences of a guilty plea) speaks volumes of a defendant who, regardless of Liotti's advice, was extremely unlikely to accept any guilty plea. See, e.g. , Pierre v. United States , No. 06-CV-1573 (NGG), 2008 WL 3992152, at *8 (E.D.N.Y. Aug. 22, 2008) (concluding that the petitioner had not shown that he would have pled guilty where he insisted on going to trial, even after being warned of his sentencing exposure after conviction); United States v. Crisci , No. 00 CR. 253 (DC), 2003 WL 22845669, at *3 (S.D.N.Y. Dec. 1, 2003) (refusing to credit the defendant's assertion that he would have accepted guilty plea where he was insistent on going to trial and was adamant that he was innocent), aff'd , 108 F. App'x 25 (2d Cir. 2004) ; United States v. Peterson , 233 F. Supp. 2d 475, 493 (E.D.N.Y. 2002) (finding that the defendant could not prove that he would have accepted a plea offer involving incarceration where he was "resolved to go to trial," despite the fact that he was aware of the weaknesses in his defense and his potentially significant sentence upon conviction); see also Herzog v. United States , 38 F. App'x 672, 675 (2d Cir. 2002) (holding that the district court's conclusion that the defendant would not have accepted plea offer was not clearly erroneous where the defendant, inter alia , "never showed any inclination toward accepting a plea").
In fact, even during the evidentiary hearing, conducted for Belfiore to establish that he would have accepted a guilty plea with better legal advice from Liotti, Belfiore was still reluctant to admit wrongdoing. For example, when he was asked at the hearing about the false entries he wrote in his medical files for Burke, he had trouble admitting that he knowingly falsified those records:
Q. Did you make any notations in his medical file that weren't true?
A. Not so much not true but to my estimations, but my – what I had written in the chart was not a whole truth.
Q. Which part of it was false, or not whole truth?
A. Well, it was my interpretation of what he would be doing, why he would come back for the practice. It was a sloppy move on my – my part.
(Hr. Tr. at 63.)
Belfiore's inability, even at this stage of the case, to admit the obvious – that is, that he knowingly falsified medical records (rather than being "sloppy") – is emblematic of his complete inability to admit to any wrongdoing. In fact, Belfiore's new counsel faults Liotti for allowing him to testify at trial without being able to explain these obviously fraudulent medical records. (See Def.’s Mem. at 8 n.5 ("While Dr. Belfiore did testify at trial, he utterly failed to explain why he falsified the [undercover officer's] medical charts to indicate that he performed examinations that were never done, diagnosed conditions that the [undercover officer] did not have, and reflected that the [undercover officer] had reported problems that, in actuality, he never reported.").) Thus, if Belfiore was not even willing to admit to creating false entries while testifying at the July 8, 2019 post-trial hearing, the Court is incredulous that he would have pled guilty to prescribing oxycodone without a legitimate medical purpose, but for Liotti's advice.
The Court's skepticism about Belfiore's ability to admit guilt was further confirmed during his testimony at the evidentiary hearing on an issue that was at the core of this criminal case and the issue of guilt – namely, whether he believed that he had a legitimate medical purpose for prescribing oxycodone to his patients, including the undercover officer, Ubaghs, and Martin. At the evidentiary hearing, the deep-rooted state of denial that Belfiore still possesses (even after trial) regarding his criminal wrongdoing was reflected as he was questioned about this issue. Belfiore sought to blame Liotti for his repeated insistence in the Grand Jury and at trial, and to anyone else who would listen, that all his oxycodone prescriptions were for a legitimate medical purpose. In particular, Belfiore told this Court at the hearing that he only thought it was for a legitimate medical purpose because Liotti wrongly defined that term to mean that "as long as somebody was complaining about pain, it was a legitimate medical purpose." (Hr. Tr. at 62.)
That testimony by Belfiore, which implicitly suggests that (with a new understanding of the definition of legitimate medical purpose) he would have allocuted to the crime, overlooks an important legal obstacle that would have remained for his guilty plea even based upon his new testimony. Because of the good faith defense, it is not what Belfiore now believes about whether his conduct had a legitimate medical purpose, but rather what he believed at the time of his conduct. And on that critical issue, Belfiore continued to testify at the evidentiary hearing (as he did in the Grand Jury and at trial) that, at the time he prescribed the oxycodone to his patients (long before he ever met Liotti) he genuinely believed it was always being prescribed for a legitimate medical purpose:
Q. ... I am going back to the time that you issued the prescriptions as a doctor, when you issued them which [prescriptions] did you believe were not for a legitimate medical purpose?
A. I can't say.
Q. Did you believe that they were all issued for legitimate medical purpose when you issued them?
A. Yes.
(Hr. Tr. at 50.) In other words, it is the Court's view that, given that testimony at the evidentiary hearing, Belfiore could not properly allocute to any crime in the Second Superseding Indictment because he continued to posit that he prescribed the oxycodone based on a good faith belief that it had a legitimate medical purpose. This should not be surprising because there is no evidence that Belfiore ever told anyone that he was willing to admit he knew at the time he issued the prescription, with respect to the undercover officer or any other patient, that the oxycodone was not for a legitimate medical purpose. Indeed, Gann testified that he explained to Belfiore what was required for an allocution, but Belfiore merely responded "okay" and never said he was willing to admit to the crime. (Hr. Tr. at 29.)
Accordingly, for all these reasons, the Court finds Belfiore's sworn statement that he would have pled guilty if Liotti had advised him to take the plea is completely lacking in credibility. Instead, the Court finds that Belfiore still would have never agreed to plead guilty and, even if he agreed to plead guilty, would have never been able to sufficiently allocute to the charged crime that was the subject of the plea agreement. See, e.g. , Logiudice v. United States , No. 01CV88(SJ), 2008 WL 835714, at *10 (E.D.N.Y. Mar. 28, 2008) (concluding that the defendant's claim that he would have pled guilty if he had known of plea offer was not credible given that he consistently maintained his innocence, and, even during a hearing before the court, where the "primary purpose was to convince the court that he would have pled guilty had his counsel advised him appropriately," he was "evasive about his guilt"); Vargas , 951 F. Supp. 2d at 553 ("[The defendant's] claim of prejudice is further undermined by the fact that he asserted his innocence through his trial and sentencing, and continued to proclaim innocence at the evidentiary hearing."); Gluzman , 124 F. Supp. 2d at 177 (observing that "it is difficult to see how [the defendant] could pleaded [sic] guilty since her persistent claims of innocence would have rendered highly problematic her ability adequately to allocute"); Kagan , 2003 WL 21991585, at *4 (stating that the defendant's inability to indicate an "unequivocal willingness to plead guilty" was incompatible with his suggestion that he would have pled guilty (quoting Feyrer , 333 F.3d at 120 )); Batista v. United States , No. 14-CV-895 (DLI), 2018 WL 1556880, at *11 (E.D.N.Y. Mar. 30, 2018) (finding that the defendant failed to establish prejudice when his "self-serving assertions that he would have accepted the plea offer are contradicted by both the sworn testimony of his counsel and his own numerous statements professing his innocence"), aff'd, 792 F. App'x 134 (2d Cir. 2020).
Given those findings, Belfiore has failed to demonstrate prejudice even assuming arguendo that Liotti provided objectively unreasonable advice to Belfiore about his chances at trial and about whether he should plead guilty. Accordingly, his ineffective assistance of counsel claim regarding the plea negotiations is denied.
D. Liotti's Trial Strategy
Belfiore also argues that Liotti's strategic decisions at trial were constitutionally defective. Specifically, he claims that Liotti: (1) pursued unsuccessful defenses involving Big Pharma and entrapment; (2) failed to request a jury charge on actual and proximate cause; and (3) based trial decisions on the advice he received from a psychic. For the reasons set forth below, the Court concludes that there is no basis for a new trial under Rule 33 on these grounds.
As a threshold matter, the Court considered whether an evidentiary hearing was warranted on this portion of the motion and concluded that it was not. The Second Circuit has made clear that "[t]o warrant a hearing on an ineffective assistance of counsel claim, the defendant need establish only that he has a ‘plausible’ claim of ineffective assistance of counsel, not that ‘he will necessarily succeed on the claim.’ " Puglisi v. United States , 586 F.3d 209, 213 (2d Cir. 2009) (quoting Armienti v. United States , 234 F.3d 820, 823 (2d Cir. 2000) ). Here, given the affidavits and the fact that the Court presided over the trial at which Belfiore claims Liotti was ineffective, no further factual development is necessary because the claims are implausible. See Raysor , 647 F.3d at 494 ("[W]hen the judge who tried the underlying proceedings also presides over a § 2255 motion, a full-blown evidentiary hearing may not be necessary."). First, with respect to the defense strategies relating to entrapment and Big Pharma, the Court observed the implementation of these strategies at trial and an evidentiary hearing would not assist the Court in determining whether those strategies were unreasonable or prejudicial. Similarly, the jury instruction argument raises legal issues that need no further factual development. Finally, with respect to the issue regarding conversations with the psychic, the Court is fully able to determine the lack of any impact those conversations had on Liotti's performance or the outcome of the trial from the affidavits submitted on that issue, the record evidence of Liotti's strategies before and after those conversations, and the Court's own observations at trial. Accordingly, in its discretion, the Court determined that no evidentiary issue was warranted on this portion of the motion.
Although the Second Circuit articulated this standard in connection with a Section 2255 motion for an ineffective assistance of counsel claim, the Court applies that same standard here for an identical claim asserted under Rule 33.
1. Defenses at Trial
Belfiore asserts that Liotti was ineffective in connection with his decision to highlight the role of Purdue Pharma in promoting oxycodone as a safe treatment for pain and his attempt to place blame on the oxycodone manufacturers. For this defense, Liotti showed to the jury a video produced by an oxycodone manufacturer, depicting the benefits of oxycodone and how it can be safe and effective for pain treatment. (May 3, 2018 Trial Tr. at 1614-16, 1618-19.) In his motion, Belfiore argues that this defense was constitutionally defective because it opened the door to questions about Purdue Pharma's 2007 guilty plea and fine for improperly branding oxycodone. (Def.’s Mem. at 19-20; see also May 3, 2018 Trial Tr. at 1646-48.) Moreover, Belfiore argues that his belief that the medication was safe was undermined by the videotaped statements he made to Burke's purported girlfriend, in which Belfiore warned her of the dangers of oxycodone.
To demonstrate the weakness of this defense, Belfiore highlights this Court's statement that "the fact that someone else may be responsible because they manufactured a dangerous substance doesn't mean [Belfiore] is not guilty." (Apr. 24, 2018 Trial Tr. at 675.) However, this observation by the Court – highlighting that blaming the oxycodone manufacturers was not a defense to the crime if the government proved all the elements of the charged crime – does not mean it was ineffective for Liotti to incorporate that theme into a broader defense.
Belfiore's criticism regarding Liotti's Big Pharma defense overlooks the important point that this strategy was not the main defense at the trial; rather, the core of Liotti's strategy, which was consistent with Belfiore's testimony, was to present a robust defense of Belfiore's conduct through the testimony of well-credentialed experts who would disagree with the government's experts on the critical elements of the case, including whether Belfiore had a legitimate medical purpose for the oxycodone prescriptions for the patients at issue, and whether the oxycodone prescribed by Belfiore caused the death of Ubaghs and Martin. And that it is exactly what Liotti did in utilizing the expert testimony of three medical professionals – Dr. Olsen, Dr. Blum, and Dr. Taff.
Dr. Olsen, an emergency room physician, testified that, based upon his review of Belfiore's medical files, he believed that "the medication prescribed [by Belfiore] did in fact have a legitimate medical purpose." (May 8, 2018 Trial Tr. at 1827; see also id. at 1863 ("Q. Now, in your opinion to a reasonable degree of medical certainty did Dr. Belfiore in his practice conform to good and accepted medical practices?" A. Yes. Q. Did he act with legitimate medical purposes in your view? A. Yes, in my opinion he did.").) Dr. Olsen made clear that, in reaching these conclusions, he had reviewed the medical files of all the patients at issue in the charges against Belfiore, including those of the undercover officer, Ubaghs, and Martin. (See id. at 1825.) With respect to the undercover officer, Dr. Olsen noted that he had not only reviewed the medical records but also the transcript of the video visits, and reached the same conclusion. (See id. at 1848 ("Q. And did you find that Dr. Belfiore to a reasonable degree of medical certainty had utilized appropriate medical standards at the time for a legitimate medical purpose? A. Yes, I did.").) Dr. Olsen also attempted to specifically support Belfiore's good faith in prescribing the medication based upon his review of the files. (See id. at 1829, 1830 (testifying, with respect to Ubaghs's records, that it was "all indicating to [Dr. Olsen] that Dr. Belfiore had in good faith tried to alleviate the patient's suffering with medication that was prescribed" and "Dr. Belfiore honestly was trying to get the patient better at the same time as prescribing enough pain medication so that the patient could function").)
The other two experts presented testimony that attempted to undermine the government's experts regarding the cause of death of Ubaghs and Martin. Dr. Blum opined that Martin actually died from pulmonary edema, bronchopneumonia, and congestive heart failure. (May 9, 2018 Trial Tr. at 1948-49.) He also testified that the cause of death for Ubaghs was sudden cardiac death, not a narcotic-induced fatality. (Id. at 1967.) Dr. Taff testified that Martin's cause of death was lung disease and heart disease. (May 10, 2018 Trial Tr. at 2059.) He stated that Ubaghs's cause of death could not be determined due to his heart disease and the presence of drugs in his system. (Id. at 2073-74.)
Therefore, Liotti's use of the Big Pharma argument was only meant to supplement the testimony of his client and his experts, especially on the good faith issue. For example, Liotti introduced a video from an oxycodone manufacturer that Belfiore had seen when he was practicing, and Belfiore explained how this video made him comfortable prescribing oxycodone to relieve pain. (See May 3, 2018 Trial Tr. at 1602-03 ("[The video] gave me a modality where I normally – I wouldn't be predisposed to go to it first. But they're saying here it was okay to use it. Don't be afraid of it. Use it. Go after that patient's pain, don't let the patient leave your office in pain. There's no reason for your patients to be in pain.").) The expert echoed that in the relevant time frame, medical organizations that were paid by oxycodone manufacturers were promoting the safe and effective use of opioids to doctors. (See May 8, 2018 Trial Tr. at 1851-52 ("[The organizations] are actually paid by pharmaceutical companies to provide educational content to physicians about how we're under-treating pain which I don't think was the case at the time but they claimed that, and they also claimed that addiction to opioids was not clinically significant and not not [sic] something to be worried about, and actually came up with a slogan which is ‘pain is the fifth vital sign.’ What that really suggested is that a doctor should treat pain with the same aggressiveness they treat somebody with a low blood pressure or heart rate, as though they should address it if it was a vital sign.").)
Belfiore now argues that this strategy of suggesting Belfiore was a victim of the deception of Big Pharma was completely undermined by the government's ability to introduce the 2007 guilty plea by Purdue Pharma for misbranding oxycodone, as well as by Belfiore's own statements on video about the dangerous and addictive qualities of the drug. However, Belfiore did not claim in his testimony that he was not aware of the addictive qualities of oxycodone; rather, he claimed that the manufacturers’ efforts, even after the guilty plea by Purdue Pharma, helped persuade him that the benefits outweighed the risks, and that the drug could be administered in a safe and effective manner when used as directed. (See May 3, 2018 Trial Tr. at 1603-04 ("[O]xycodone is not a dangerous drug when taken as directed. My intention, and my thoughts always with every prescription that I wrote, all my pain patients who received oxycodone they were going to take it as directed.").) The defense expert similarly asserted that the benefit/risk analysis in the medical profession was different at the time that Belfiore prescribed the medications at issue. (See May 8, 2018 Trial Tr. at 1853 ("We now know in 2018 which I don't think we knew at this time period, that some patients are better off left in pain than being addicted to opioids. It's unfortunate it took us this long to figure that out but that's what I preach in my practice today.").) The expert further noted that this lack of understanding existed even after Purdue Pharma's guilty plea. (See id. at 1855 ("So the standards were that no one should be in pain, and we're talking about 2009 to 2013 and peoples’ [sic] pain should be treated aggressively but there is this risk of addiction you have to watch out for and it's real.... It was something in that time period we were learning about it and we really didn't fully understand it and we still probably don't fully understand it.").)
Having fully analyzed this strategy in the context of the proof at trial and the entirety of the defense case, the Court concludes that Liotti's utilization of the Big Pharma argument, in conjunction with the core defense based upon the expert testimony, was not an unreasonable strategy. The government's ability to undermine some portion of that defense does not render its value meaningless. Not only were Belfiore and the defense experts able to rely upon it to try to explain their thinking, but Liotti was hoping that the role of Big Pharma might more generally deflect blame and perhaps provide some level of jury nullification. (Liotti Aff. ¶ 21.) Moreover, from the defense standpoint, there was virtually no downside to pointing to the role of the manufacturers in the opioid crisis as part of a more particularized defense strategy. Thus, Belfiore has failed to satisfy the first prong of Strickland as it relates to the Big Pharma component of Liotti's defense strategy.
With respect to entrapment, Belfiore principally claims that the defense was constitutionally defective because it permitted the government to introduce evidence showing that Belfiore was predisposed to prescribing oxycodone. See United States v. Taylor , 475 F.3d 65, 69 (2d Cir. 2007) ("[T]he government may defeat the defense of entrapment with proof of predisposition to commit the crime."). Specifically, the Court allowed the government to present Belfiore's overall prescription data demonstrating that Belfiore had prescribed oxycodone thousands of times to patients. The government also was then able to introduce evidence that cash-only prescriptions for oxycodone constituted an increasing percentage of his practice. (Apr. 30, 2018 Trial Tr. at 1143, 1160, 1173-74; Gov. Exs. 361, 3180 I.) This evidence, according to Belfiore, fit within the government's narrative that Belfiore was a drug dealer rather than a doctor. (Def.’s Reply at 16.) Moreover, Belfiore claims that Liotti erroneously believed that he would be able to prevent certain evidence from coming in that demonstrated Belfiore's predisposition to prescribing oxycodone. (See Apr. 25, 2018 Trial Tr. at 854-55).
The Court concludes that the use of the entrapment defense as it related to the prescribing of oxycodone to the undercover officer, again as a supplement to the legitimate medical purpose/good faith issue, was not an unreasonable strategy in the context of this case. In the videos, the undercover officer is observed requesting oxycodone, thereby satisfying the initiation element of an entrapment defense. More importantly, when the undercover officer introduced a second undercover officer posing as a patient, and that undercover officer also sought an oxycodone prescription, Belfiore refused to issue such a prescription. Thus, there was certainly evidence in the record from which a viable entrapment defense could be asserted and, in fact, the Court determined that an entrapment instruction should be given to the jury.
Liotti was well aware that this defense could potentially open the door for the government to introduce Belfiore's overall oxycodone prescription numbers in an attempt to demonstrate his predisposition to prescribe this medication. However, that was not an unreasonable risk for several reasons. First, notwithstanding that Belfiore's expert opined that the prescriptions to the undercover officer were for a legitimate medical purpose, the persuasiveness of that opinion was far from clear, especially in light of the contrary opinion of the government's expert and the failure of Belfiore to conduct a proper medical examination of the undercover officer and falsification of medical records relating to these visits. Thus, it was more than rational to believe that an alternative defense theory regarding the transactions with the undercover officer would be necessary, even if it resulted in the government introducing Belfiore's prescription data. Second, Liotti did attempt to argue in a competent fashion that the Court should still not allow the government to introduce the prescription data as a discretionary manner even with the assertion of the entrapment defense. Although that evidentiary argument was unsuccessful in light of the particular facts of this case, it was a fact-specific determination that was not foreclosed by binding precedent (but rather was still subject to a balancing test under Rule 403 of the Federal Rules of Evidence ) and was not frivolous. Third, because Belfiore was a pain-management doctor and this was not a case where Belfiore was denying that he regularly issued oxycodone to patients with pain, Liotti was not left in a position where he could not attempt to rebut that prescription data. In other words, Liotti could argue that such evidence aligns with Belfiore's testimony that he regularly prescribed oxycodone based upon his belief that it was safe for treating chronic pain, if used as directed. (See, e.g. , May 3, 2018 Trial Tr. at 1601.) In addition, this Court provided a limiting instruction on this evidence, admonishing the jury that it was only to be used for deciding whether Belfiore was predisposed to prescribe oxycodone. (Jury Instructions at 34-35.)
Finally, Belfiore claims that this defense was flawed because it only pertained to the counts involving the undercover officer. (Def.’s Mem. at 21.) However, attempting to defend six of the counts is not necessarily an ineffective strategy especially where, as noted, the government's proof with respect to the undercover officer's videos was extremely strong. See United States v. Vegas , 27 F.3d 773, 778 (2d Cir. 1994) (finding entrapment defense reasonable due to the tape-recorded evidence of the defendant's participation in a drug transaction); United States v. Leslie , 103 F.3d 1093, 1099 (2d Cir. 1997) (holding entrapment defense was "a strategy that at the time seemed to be a viable defense for [the defendant] in light of the overwhelming evidence against him"); see also Gaines v. United States , No. 03CV430S, 2006 WL 2301857, at *4 (W.D.N.Y. Aug. 7, 2006) (finding counsel was not ineffective when "entrapment may have been the only defense in Petitioner's criminal case" in light of the video evidence presented by the government).
That the jury chose not to accept Belfiore's entrapment theory based upon the evidence presented by the government does not render Liotti's performance constitutionally defective. See Eze v. Senkowski , 321 F.3d 110, 125 (2d Cir. 2003) ("Our scrutiny of counsel's performance is ‘highly deferential’ because ‘[i]t is all too tempting for a defendant to second-guess counsel's assistance after a conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.’ " (alteration in original) (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 )); Cuevas v. Henderson , 801 F.2d 586, 590 (2d Cir. 1986) ("[W]e have repeatedly noted our reluctance to second-guess matters of trial strategy simply because the chosen strategy was not successful." (quotation marks omitted)). In short, the Court concludes that Liotti's decision to employ the entrapment defense, like the Big Pharma defense, was a reasonable strategy as a supplement to his client's testimony and the testimony of the three defense experts.
In any event, even assuming arguendo that one or both of these strategies was unreasonable, Belfiore has not demonstrated prejudice. The government's ability to introduce Belfiore's prescription data and the guilty plea of Purdue Pharma could not possibly have impacted the outcome of the trial given (1) the minor role such evidence played in the case, and (2) the compelling nature of the other proof of Belfiore's guilt that was the foundation of the government's case. Here, Belfiore was recorded on video prescribing oxycodone to Burke without a legitimate medical purpose. In addition, the government's medical expert testified that in light of the multiple red flags that Belfiore's patients displayed, the prescriptions were not issued for a legitimate medical purpose. (Apr. 23, 2018 Trial Tr. at 377-78.) With respect to the two deaths, a Forensic Pathologist and Chief Toxicologist at the Nassau County Medical Examiner's Office testified that oxycodone was the "but for cause" of the deaths of Belfiore's patients. (Apr. 30, 2018 Trial Tr. at 1124, 1131.) With respect to Martin, he was found in bed with a bottle of prescription oxycodone pills that were issued by Belfiore, and inside a drawer next to the bed was a straw with oxycodone residue. (Apr. 26, 2018 Trial Tr. at 889; Apr. 30, 2018 Trial Tr. at 1016; Gov Exs. 308E, 3500-DB2, S7.) In Ubaghs's case, he had no medical documentation of injury requiring prescription pain medication, and his drug tests established that he had been using marijuana and other controlled substances while he had failed to take other controlled substances that he was actually prescribed. (Apr. 24, 2018 Trial Tr. at 635-37.) His girlfriend, Melissa McConnell, also testified that she observed him use oxycodone on the day that he died. (May 1, 2018 Trial Tr. at 1358.) Therefore, even if Liotti had never presented any evidence regarding Big Pharma and did not assert an entrapment defense, it is abundantly clear that the outcome of the trial would have been exactly the same. Accordingly, Belfiore's argument regarding the trial defense also fails to satisfy the second prong of Strickland. 2. Jury Instructions
Belfiore also contends that Liotti was ineffective because he failed to request a jury instruction on actual and proximate causation with respect to the deaths of Martin and Ubaghs. Belfiore emphasizes that there was expert testimony that the cause of death for each victim was a combination of oxycodone and other factors. For example, Dr. Taff highlighted Martin's preexisting heart disease and lung disease. (May 10, 2018 Trial Tr, at 2059.) Moreover, with respect to Ubaghs, the government's expert testified that the cause of death was "mixed drug intoxication." (Apr. 30, 2018 Trial Tr. at 1030, 1056). Given this testimony, Belfiore asserts that the jury may have acquitted on the death counts if it had been instructed that the death must " ‘result from’ use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed." (Def.’s Mem. at 25-26 (quoting Burrage v. United States , 571 U.S. 204, 216, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014) ).)
At the trial, this Court instructed the jury as follows:
In order to establish that the oxycodone distributed by the defendant resulted in the death of Edward Martin, the government must prove that Edward Martin died as a consequence of his use of the oxycodone that the defendant distributed on or about the dates alleged in this count of the indictment, that is, on or about and between February 28, 2013 and March 5, 2013. This means that the government must prove beyond a reasonable doubt that but for the use of the oxycodone that the defendant distributed, Edward Martin would not have died. The government is not required to prove that the defendant intended to cause the death of Edward Martin or that his death was foreseeable by the defendant or by others.
(Jury Instructions at 53-54.) The same instruction was provided regarding Ubaghs's death. (Id. at 56-57.)
Belfiore argues that Liotti failed to request a charge on actual causation, which he asserts is required in light of the Supreme Court's decision in Burrage v. United States. Specifically, Belfiore asserts that Liotti should have requested that actual causation "cannot be satisfied by expert testimony showing that defendant's act merely ‘contribute[d] to an aggregate force ... that is itself a but-for cause of death.’ " (Def.’s Mem, at 25 (quoting Burrage , 571 U.S. at 214, 134 S.Ct. 881 ).) Belfiore also claims that Burrage ’s dicta suggests that proximate cause may well be a necessary element, and, at a minimum, "it did not affirmatively hold that proof of this element was unnecessary – as the Court's charge here implied." (Def.’s Reply at 20.)
As an initial matter, the Court notes that Liotti did request that proximate cause be included in his written proposed instructions to the Court prior to trial. (See ECF No. 97 at 10-11 ("[Y]ou must determine whether Dr. Belfiore's actions proximately caused those deaths or did they result from other factors beyond his control and because the patients themselves, unbeknownst to Dr. Belfiore, were addicts or abusers of oxycodone.").) To the extent that Belfiore faults Liotti for not objecting to the Court's exclusion of that language, the Court concludes that Liotti's decision was not unreasonable given that the Court's instruction was proper under applicable law. In any event, there is no prejudice because, if Liotti had objected, the objection would have been overruled.
In Burrage , the Supreme Court explained that actual causation "requires proof that the harm would not have occurred in the absence of—that is, but for—the defendant's conduct." 571 U.S. at 211, 134 S.Ct. 881 (quotation marks omitted). In other words, the drugs actually caused the victim's death if they "combine[ ] with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, [they were] the straw that broke the camel's back." Id. at 211, 134 S.Ct. 881. In that case, the victim died with multiple narcotics and prescription medications in his system, including the heroin sold by the defendant. Id. at 207, 134 S.Ct. 881. A forensic toxicologist testified that although the defendant's heroin was a contributing factor to the death, he could not state that the victim would not have died if he had not taken the heroin. Id. The Supreme Court reversed the defendant's conviction, holding that 21 U.S.C. § 841(b)(1)(C) requires that the drug use constitute a but-for cause of the death. Id. at 218, 134 S.Ct. 881. It explained that, "at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury." Id. at 218-19, 134 S.Ct. 881.
Because the Court concluded that the government had failed to prove "but for" causation, it did not reach the question of proximate causation. Id. at 210, 218-19, 134 S.Ct. 881. Since Burrage , courts have held that the "death results" sentencing enhancement under § 841(b) only requires that the government prove that "but for" a defendant's distribution of a drug, an individual would not have died. Indeed, at the time of Belfiore's trial, the Second Circuit (in a non-precedential summary order) stated that Burrage "supports the penalty enhancement for § 841(b)(1) crimes" when "the narcotics sold by [a defendant] were essential to the victims’ deaths, and therefore a but-for cause." United States v. Sica , 676 F. App'x 81, 84 (2d Cir. 2017). Although the Second Circuit did not explicitly determine whether the government must prove proximate causation, it noted that every appeals court to reach this issue has held that the "death results" enhancement in § 841(b) does not require proximate causation. Id. (citing cases); see also United States v. Jeffries , 958 F.3d 517, 521 (6th Cir. 2020) ; United States v. Harden , 893 F.3d 434, 447-48 (7th Cir.) (citing cases), cert. denied , ––– U.S. ––––, 139 S. Ct. 394, 202 L.Ed.2d 300 (2018).
In this case, the instruction explained that in order to find Belfiore guilty, the jury must find that "but for the use of the oxycodone," Martin and Ubaghs would not have died. (Jury Instructions at 53, 56.) Although current defense counsel suggests that the instruction is somehow lacking, the Court finds that it is proper, based upon a review of the case law. Moreover, Liotti vigorously argued to the jury during summation regarding the other potential causes of death for Martin and Ubaghs.
Therefore, the Court finds that the instruction provided to the jury was proper and adequately presented the applicable law. Liotti was therefore not required to raise what would have been an unsuccessful argument. See United States v. Frampton , 382 F.3d 213, 222 n.8 (2d Cir. 2004) ("Having found no error in [the district court's] instruction, we hold [the defendant's] claim [of ineffective assistance] must fail."). Accordingly, it was not ineffective for him to decline to request a jury instruction on actual and proximate cause.
For the same reason, the Court finds that there is no prejudice for failing to seek this instruction. As discussed above, the jury instructions at trial comport with Burrage and with the analysis of appellate courts post- Burrage and, if Liotti had raised this issue, the Court would have rejected it. It is clear that "[a] trial counsel's failure to object to legally correct jury instructions does not constitute ineffective assistance." Bogan v. Bradt , No. 11CV1550MKBLB, 2017 WL 2913465, at *10 (E.D.N.Y. July 6, 2017) (citing United States v. D'Agostino , 638 F. App'x 51, 54-55 (2d Cir. 2016) ). Moreover, even if the instruction were given as Belfiore now asserts, there is no reasonable probability that the jury would have reached a different verdict in light of the proof in this case. Accordingly, Belfiore also fails to satisfy the second prong of Strickland as it relates to this jury instruction issue.
3. Consultations with a Psychic
Belfiore argues that Liotti's performance was constitutionally ineffective because he relied on a psychic's advice to make decisions during the trial. In particular, the psychic stated in his affidavit that he spoke with Liotti during the trial "nearly every day" and sometimes "twice a day," and that Liotti asked questions about trial strategy. (Tiemann Aff. ¶¶ 4, 7.) Liotti also billed Belfiore for these conversations with Tiemann (Belfiore Aff. ¶ 14), and would tell Belfiore that based upon the conversations, the psychic believed the trial was "going well" (id. ¶ 15). Belfiore asserts that, when counsel's decisions at trial are not the result of " ‘thorough investigation of law and facts relevant to plausible options’ ... but are, rather, based on the advice of a psychic, they are, at minimum, highly suspect." (Def.’s Reply at 21 (quoting Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ).) As set forth below, the Court concludes that these discussions with the psychic do not constitute ineffective assistance of counsel because Belfiore has failed to put forth any evidence that those discussions had any impact on Liotti's trial strategy or on the outcome of the trial, and the lack of any such impact is clear from the record.
As an initial matter, it is important to note that Liotti stated in his affidavit that he contacted the psychic at the request of Belfiore whom had already been consulting with the psychic:
[Tiemann] was introduced to me by Dr. Belfiore as a "psychic" with whom, unbeknownst to me, Dr. Belfiore had been conferring throughout the case and even before that time. I had never before or since had any interaction with a "psychic" on any of my cases, I interacted with him in this case at Dr. Belfiore's request.
(Liotti Aff. ¶ 11.) This fact was further confirmed by the psychic's affidavit, submitted by Belfiore as part of his motion, in which the psychic stated:
Early in this year I spoke to a client by the name of Dr. Michael Belfiore. When he first contacted me he was facing a federal trial. My conversations with Dr. Belfiore continued after the trial began. At one point, Dr. Belfiore introduced me to his Lawyer, Thomas Liotti. At times [b]oth Dr. Belfiore and Mr. Liotti would call me together.
(Tiemann Aff. ¶¶ 2-3.) In his own affidavit, Belfiore also acknowledged that the psychic "was an individual I foolishly turned to out of desperation and stopped consulting shortly after the trial began." (Belfiore Aff. ¶ 12; see also id. at ¶ 14 ("As I look back I realize how ridiculous and desperate I was in ever consulting this person at all ....").)
Although Belfiore (with additional support from the psychic's affidavit) also asserts that Liotti became independently motivated to speak to the psychic and did so during the trial on his own, Liotti insisted in his affidavit that he only spoke to the psychic to placate his client, and emphasized that those conversations had no impact whatsoever on his trial strategy:
When I spoke with [the psychic] from the courthouse during the trial, I did so
because Dr. Belfiore did not have access to a cellphone from inside the courthouse. I would usually parrot questions posed by Dr. Belfiore. It is important to note that no part of the strategies or trial techniques which I deployed in this case were the by-product or in any way influenced by the "psychic's" comments. In fact, my recollection is that I was made aware of his existence very late in the process and well after the themes for our defense and strategies were mapped out. Mostly his comments were post facto meaning that they related to his so-called reading of how he believed the jurors were receiving our defense after it had already been administered. While his comments were curious and confirmed our actions, I did not and would not rely on them to any extent. I reluctantly spoke with him at the behest of Dr. Belfiore and as a courtesy to him. Dr. Belfiore would ask: "What did Charles have to say?" and I would report that to him.
(Liotti Aff. ¶ 11.)
The Court need not resolve this factual dispute between Liotti and Belfiore on whether Liotti developed his own curiosity about the psychic and began independently speaking with him about the case because it is ultimately immaterial to the ineffective assistance claim given the other uncontroverted facts in the record. In other words, even assuming arguendo that Liotti did start speaking to the psychic about the trial on his own volition, it is still uncontroverted that Liotti did not alter his trial strategy in any way. Belfiore does not assert in his affidavit that the defense strategy was altered in any way as a result of any conversation that Liotti had with the psychic. Indeed, although the psychic asserted that Liotti asked him questions about trial strategy, the psychic (noting that he is "not trained nor qualified to give legal advice") insisted that he resisted any such efforts:
In order for me to give my impressions of the trial and the perspective of the jurors I needed information about the jurors. I was given their juror numbers only. I told both Dr. Belfiore and Mr. Liotti that I did not think I would be able to get a very good sense of the jury as a whole under these circumstances. I did not speak with the jurors. There was a group, not a single person and the person I was speaking to did not know the jurors either.
(Tiemann Aff. ¶¶ 1, 5-6.) Thus, the psychic does not assert that he actually gave Liotti any advice regarding trial strategy, nor does he point to any strategy that was impacted by their discussions.
The lack of any evidence (or even allegation) of an impact on trial strategy is not only apparent from the silence on that issue in the affidavits of Belfiore and the psychic, but is further confirmed by the pre-trial and trial record. Liotti noted that he only learned of the psychic "well after the themes for our defense and strategies were mapped out" (Liotti Aff. ¶ 11), and the record unequivocally supports that statement. The psychic states that Liotti only began consulting with him during the trial, and Liotti's billing records support that fact. In particular, the billing records indicate that Liotti began speaking with the psychic on May 2, 2018, which is long after the trial started on April 18, 2018, and was the day that the defense case began. (Liotti Aff., Ex. C.) Between May 2, 2018 and May 22, 2018, there are three entries regarding telephone calls with the psychic, two entries regarding telephone calls with a "Charles Thieman," and six entries regarding telephone calls with an individual named "Charles." (Id. ) Assuming that these latter six entries all refer to telephone calls with the psychic, the records demonstrate that these conversations took place long after Belfiore's defense strategy – including the entrapment defense, the use of expert testimony, and the blame on Big Pharma — had been planned in great detail for many months. In fact, by May 2, 2018, the details of those strategies had already been previewed in the defense's opening and developed during extensive questioning of the government witnesses. Thus, those strategies – and Liotti's approach to the questioning, arguments, and the case as whole – were already entrenched when he first spoke to the psychic, and remained entirely consistent before and after he spoke to the psychic. Having presided over the trial, the Court concludes that these conversations (to the extent Liotti, whether to placate his client or not, was looking for an indication about how this defense strategy might be going) could not have possibly had an impact on this case.
For instance, with respect to the Big Pharma defense, Liotti asserted in his August 14, 2017 Motion to Dismiss (over eight months before the trial) that "Dr. Belfiore is being scapegoated by the Government so that its own negligence in not prosecuting ‘Big Pharma’ for its misleading marketing campaigns, will be hidden from the public's scrutiny." (ECF No. 82.) On October 25, 2017, Liotti's proposed jury instructions included reference to Belfiore's anticipated testimony at trial. (ECF No, 97 at 7.) In addition, by letter dated November 7, 2017, Liotti requested that the Court include a jury instruction on entrapment. (ECF No. 111.)
By May 2, 2018, Liotti had already made clear that he would call three experts during the defense case, and also indicated his client would be testifying. (See, e.g. , Apr. 30, 2018 Trial Tr. at 1058-59 ("I'm definitely going to call [Dr. Taff]."); see also May 1, 2018 Trial Tr. at 1363-64 (discussing the scheduling of the three defense experts and Belfiore's testimony).)
In sum, Belfiore has failed to demonstrate that any conversations with the psychic by Liotti impacted his performance, or the result of the trial, in any way whatsoever. Accordingly, because neither prong of Strickland is satisfied, this ineffective assistance of counsel claim fails.
III. CONCLUSION
For the foregoing reasons, the Court denies Belfiore's motion pursuant to Rule 33 in its entirety.
SO ORDERED.