Opinion
Case No. 03-3009-JWL, Case No. 98-20030-01-JWL
March 25, 2004
MEMORANDUM AND ORDER
On April 5, 1999, a jury convicted defendant/movant Dan Anderson of one count of conspiracy, 18 U.S.C. § 371, and one count of violating the Medicare Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), because of his involvement as chief executive officer of Baptist Medical Center in a so-called pay-for-patient-referral arrangement with Blue Valley Medical Group. This matter is before the court on Mr. Anderson's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 774). On July 2, 2003, the court issued a memorandum and order that summarily denied most of Mr. Anderson's § 2255 motion, but ruled that the court would hold an evidentiary hearing regarding his claim that the government violated his Fifth Amendment due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the fact that a government witness, Sarah Grim, had a prior relationship with federal officials. See generally United States v. Anderson, Nos. 03-3009 98-20030-01, 2003 WL 21544241, at *1-*9 (D. Kan. July 2, 2003); see also United States v. Anderson, Nos. 03-3009 98-20030-01, 2003 WL 22436270, at *1-*10 (D. Kan. Oct. 22, 2003) (ruling on related motions).
The court held that evidentiary hearing on January 5, 2004, and the parties subsequently submitted post-hearing briefs. The court has thoroughly considered the evidence and arguments presented at that evidentiary hearing, along with the parties' briefs and memoranda regarding the issue of Ms. Grim's prior relationship with federal officials, and the court is now prepared to issue its ruling. For the reasons set forth below, the court will deny the remaining aspect of Mr. Anderson's § 2255 motion.
FACTUAL BACKGROUND
Ms. Grim testified at trial on February 3, 1999. Trial Tr. for Feb. 3, 1999 (Doc. 329) at 1583. At that time, she was the chief executive officer of the Missouri Patient Care Review Foundation ("MOPRO"). Id. Ms. Grim testified that MOPRO was the dedicated Medicare peer review organization in Missouri. Id. at 1583-84. In that capacity, MOPRO worked to improve the quality of care to Medicare beneficiaries in Missouri. Id. at 1584. MOPRO also performed case or chart reviews for Medicare beneficiaries who complained about the quality of care they received. Id. In addition, MOPRO performed beneficiary outreach services to make sure the elderly understood their rights under the Medicare program. Id. Also, Ms. Grim testified that MOPRO "respond[ed] to requests for assistance from state and federal authorities typically related to fraud and abuse investigations." Id. MOPRO employed approximately fifty clinical staff, physicians, nurses, and social workers. Id. at 1584-85. Ms. Grim was responsible for supervising those employees, and for maintaining and abiding by MOPRO's contract with the Health Care Financing Administration ("HCFA"). Id. at 1585.
Years prior, Ms. Grim was employed at Baptist Medical Center from early 1984 to late 1985. Id. She was hired to do system-wide, long-range planning to develop elderly services and programs for the hospital's primary and secondary service market. Id. at 1587. She met with Mr. Anderson almost daily. Id. She testified that Mr. Anderson told her that Baptist's relationship with Blue Valley Medical Group was a "private deal" that was not going to be a part of her plan. Id. at 1590-91. Based on her conversations with Mr. Anderson, she understood the Baptist/Blue Valley relationship to be "[f]inancial" insofar as it was a "business deal" whereby the hospital would receive patients in exchange for money. Id. at 1591. She was concerned about the relationship because it did not appear to be legitimate, and also because it went against the long-range plan she was developing that was targeted toward keeping the healthy elderly out of institutions and providing programs and services specifically for them. Id. at 1591-92. She testified that Mr. Anderson was protective of the Baptist/Blue Valley relationship because Baptist was "going to get patients. It was about occupancy." Id. at 1593. On one occasion, Ms. Grim and Ruth Lehr, who was the hospital's attorney and a friend of Ms. Grim, met with Mr. Anderson to express their concern regarding the Baptist/Blue Valley relationship. Id. at 1607. Ms. Lehr told Mr. Anderson that they "wouldn't look good in stripes," referring to prison. Id. at 1607-08. After that, Mr. Anderson did not discuss the Baptist/Blue Valley relationship with Ms. Grim. Id. at 1610.
Ms. Lehr was also one of Mr. Anderson's co-defendants at trial. The court, however, granted Ms. Lehr's motion for a judgment of acquittal.
Precisely, Ms. Grim testified that she thought it was "probably" Ms. Lehr who conveyed this to Mr. Anderson. Id. at 1608.
In sum, Ms. Grim's testimony was detrimental to Mr. Anderson on the issue of his subjective intent. Mr. Anderson now contends the government should have disclosed certain evidence so that defense counsel could have used that evidence to impeach Ms. Grim.
LEGAL STANDARD
A prisoner in federal custody may move to vacate, set aside, or correct his sentence upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack. 28 U.S.C. § 2255. In order to obtain relief under § 2255 on the basis of constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Brady v. Maryland, 373 U.S. 83 (1963), recognized that a criminal defendant's right to a fair trial under the Due Process Clause requires the prosecution to disclose "`evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.'" Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting Brady, 373 U.S. at 87). In order to establish a Brady violation, a defendant must demonstrate: (1) that the prosecution suppressed evidence (2) that was favorable to the accused and (3) prejudice ensued, i.e., because the suppressed evidence was material. Banks v. Dretke, 124 So. Ct. 1256, 1272 (2004); United States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003). The Brady materiality standard is met when "`the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Banks, 124 S.Ct. at 1276 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). The defendant "must show a `reasonable probability of a different result.'" Id. (quoting Kyles, 514 U.S. at 434).
"When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule." Giglio v. United States, 405 U.S. 150, 154 (1972) (quotation omitted). Thus, the duty to disclose exculpatory evidence "encompasses impeachment evidence as well as exculpatory evidence." Strickler, 527 U.S. at 280. Nonetheless, as with any other exculpatory evidence, "impeachment Brady material will only require a new trial `if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.'" Scott v. Mullin, 303 F.3d 1222, 1231-32 (10th Cir. 2002) (quoting Giglio, 405 U.S. at 154).
ANALYSIS
Mr. Anderson contends the prosecution should have disclosed a multitude of evidence, all of which counsel for Mr. Anderson would have used to impeach Ms. Grim's credibility. For the reasons explained below, the court concludes that none of this evidence is Brady material, and therefore no constitutional error affected the jury's verdict against Mr. Anderson. Accordingly, Mr. Anderson is not entitled to relief under § 2255.
A. South Florida Business Journal Articles
Beginning in June of 2000, the South Florida Business Journal published a series of articles discussing corruption in the Medicaid bidding procedures in Florida. The articles indicate that Ms. Grim was approached by a lobbyist and offered a $24 million contract involving the Florida Agency for Health Care Administration in exchange for a fee. They describe Ms. Grim's history in exposing fraud, including her efforts in the early 1990s to investigate an offshore insurance company that was missing $10 million. The articles report that Ms. Grim terminated that investigation and moved from Florida to Missouri when a pipe bomb exploded outside the guest bedroom window of her condominium. One of the articles also reports that Ms. Grim was called back to Florida on April 28, 2000, to be questioned about the Florida healthcare contract. The article claims that "[w]hen Grim travels to Florida on business, she is met by FBI agents and accompanied by them wherever she goes."
According to Ms. Grim's deposition testimony, the report about FBI escorts was a reporter's misstatement. More importantly, though, the instances when the FBI picked up Ms. Grim (presumably from the airport) "did not occur before March of 1999." Grim Dep. at 78:9-21. The fact that the FBI may have picked up Ms. Grim from the airport after March of 1999 is not Brady material. This case was submitted to the jury on March 31, 1999. See Min. Sheet (Doc. 403). Therefore, the government could not possibly have suppressed this evidence because it did not exist at the time of trial.
The pipe bomb explosion occurred during the early morning hours of July 6, 1992. Ms. Grim reported the explosion to the FBI, but the FBI did not investigate the incident. Rather, it was handled by Metro-Dade police. Neither the FBI nor the ATF interviewed Ms. Grim regarding the incident. Ms. Grim testified in her deposition that no relationship arose between her and the FBI by virtue of her reporting this criminal activity to the FBI. Grim Dep. at 116:20-25. This information is not Brady material because it would not have been favorable to Mr. Anderson. No relationship between Ms. Grim and the FBI arose out of this incident, and therefore there would have been no basis for the jury to have inferred that Ms. Grim would have had a motive to shade her testimony in favor of the prosecution because she was in some manner beholden to the FBI for its assistance and/or protection associated with the July 1992 pipe bomb incident. Thus, this evidence was not exculpatory because it could not have been used to effectively impeach Ms. Grim. Further, this evidence was not material because there is not a reasonable probability that Mr. Anderson would have been acquitted simply because Ms. Grim was the victim of this pipe bomb incident seven years prior to trial.
B. Ms. Grim's Conversations with FBI Agent Waterman
Ms. Grim informed FBI agent John Timmerberg, who was a member of the prosecution team in this case, that she might possess information that would assist in a Columbia/HCA investigation in South Florida. Agent Timmerberg put Ms. Grim in touch with FBI special agent Brian L. Waterman, who was located in Miami. Ms. Grim spoke with Agent Waterman by telephone on two or three occasions between approximately November of 1997 and January of 1998 regarding the Columbia/HCA investigation in South Florida. Ms. Grim, however, did not possess any information that was relevant to the investigation that Agent Waterman was conducting. Ms. Grim was never a witness, informant, confidential source, expert, or consultant to the FBI with respect to the Columbia/HCA investigation in South Florida. Agent Waterman testified at the evidentiary hearing that he would not characterize his few contacts with Ms. Grim as having given rise to a relationship with Ms. Grim. Tr. of Proceedings on Jan. 5, 2004 (Doc. 835), at 58:17-21.
The fact that Ms. Grim had these conversations with Agent Waterman regarding the Columbia/HCA investigation in South Florida is not Brady material. This evidence is not favorable to the defense because it does not give rise to an inference that Ms. Grim might have had a motive to shade her testimony because of her conversations with Agent Waterman regarding the investigation. Ms. Grim simply offered to provide Agent Waterman with assistance in another investigation. This evidence is not material because there is not a reasonable probability that such a mere offer of assistance in an unrelated investigation would have affected the outcome of the trial.
C. Communications With Agent Timmerberg Regarding the Children's Trust Fund
Ms. Grim communicated with Agent Timmerberg three or four times in late 1997 or early 1998 regarding her concerns over issues that developed while she was employed with the Children's Trust Fund ("CTF"). Ms. Grim told Agent Timmerberg what she believed was an unusual situation, which was the fact that an audit had revealed $50,000 in unaccounted-for public monies. Agent Timmerberg did not encourage Ms. Grim to give him information about the matter. He advised Ms. Grim that the situation "didn't sound kosher and [she] should be careful." Grim Dep. at 34:14-20. "He basically just said [Ms. Grim] needed to do the right thing." Id. at 36:9-17. Ms. Grim did not rely on Agent Timmerberg as an advisor in connection with the CTF matter. She spoke to several people regarding this issue including Ms. Lehr, Judy Lewis, who was another FBI agent, Claire McCaskill, who was a friend of Ms. Grim and who was also the state auditor, Greg Lear, who was the deputy administrator for the Kansas City regional HCFA office, and Terry Edelman, who was with the Office of the Inspector General of the Department of Health and Human Services ("HHS-OIG").
Ms. Grim's communications with Agent Timmerberg regarding the CTF matter are not Brady material. There is no evidence that Agent Timmerberg assisted Ms. Grim with her dilemma with the CTF in such a manner that Ms. Grim would have felt beholden to him. Thus, the court is unpersuaded that this evidence would have undercut Ms. Grim's credibility. Further, the court is unpersuaded that this evidence is material because there is not a reasonable probability that it would have affected the outcome of the trial.
D. Ms. Grim's Concerns that Her Cooperation Would Negatively Impact Her Employment
On October 1, 1998, Ms. Grim sent a fax to Agent Timmerberg and FBI agent Gary Violanti, who was also a member of the prosecution team. The second to last paragraph begins: "CONFIDENTIAL — PLEASE DO NOT RELEASE THIS PORTION." The fax then states Ms. Grim's belief that groups such as the state medical and osteopathic societies think that all fraud investigations are bogus and that the Department of Justice, the FBI, and the United States Attorney's offices were out of control. Ms. Grim then expressed concern that being a witness in this case "will not be helpful with me keeping the job." Mr. Anderson argues this fax was Brady material and also should have been produced pursuant to the Jencks Act, 18 U.S.C. § 3500.
Ms. Grim's October 1, 1998, fax is not Brady material. The fact that Ms. Grim was willing to testify against Mr. Anderson despite the fact that she believed she might lose her job because of her testimony bolsters, rather than undercuts, her credibility. Thus, this fax was not impeachment material. Further, this fax certainly does not satisfy the Brady standard of materiality because there is not a reasonable probability that it would have resulted in the jury acquitting Mr. Anderson.
Nor was this fax a statement for which production might have been required under the Jencks Act. The Jencks Act requires the government, on motion of a defendant, to produce any "statement" of a witness it has called that relates to the subject matter to which the witness has testified. Id. § 3500(b). The type of "statement" contemplated by the Jencks Act is a factual narrative. Goldberg v. United States, 425 U.S. 94, 114 (1976) (stating that a Jencks Act statement "must . . . be the kind of factual narrative by the witness that is usable for impeachment"); see also United States v. Gamhino, 835 F. Supp. 74, 92-93 (E.D.N.Y. 1993) (reasoning that a witness's notes did not reflect the type of factual narrative contemplated by the Jencks Act); Lovern v. United States, 689 F. Supp. 569, 586 (E.D. Va. 1988) (holding letters were not Jencks Act material because they were not narratives concerning past events). In this case, the complained-of statement pertains to Ms. Grim's concerns regarding how her testimony at trial might impact her job. This is not the type of factual narrative that falls within the purview of the Jencks Act.
Further, violations of the Jencks Act are subject to harmless error analysis. Goldherg, 425 U.S. at 111 n. 21; United States v. Chanthadara, 230 F.3d 1237, 1254 (10th Cir. 2000); United States v. Woodlee, 136 F.3d 1399, 1412 (10th Cir. 1998). Even if Ms. Grim's October 1, 1998, fax was Jencks Act material, the prosecution's failure to disclose the fax to defense counsel was harmless because, as explained above, the fax did not tend to exculpate Mr. Anderson.
E. Ms. Grim Cooperated with the Government in Order to Please HCFA
At the time of trial, MOPRO operated pursuant to a contract with HCFA, and ninety-nine percent of MOPRO's funding came from HCFA. Mr. Anderson contends Ms. Grim's testimony was motivated by a desire to please HCFA. In support of this argument, Mr. Anderson directs the court's attention to several pieces of evidence. On September 22, 1998, HCFA sent a communication to state agency directors regarding regulatory scrutiny for poorly performing nursing home chains. Also, Mr. Anderson contends that a March 18, 1999, press release from HCFA confirms HCFA's new emphasis and focus on health care fraud investigations. Mr. Anderson contends that "[w]hile this memo was dated March 1999, it is undisputed that Grim and others in the health care community [k]new that the government was engaged in this emphasis on investigation of health care fraud long before a memo was provided to Ms. Grim."
Mr. Anderson contends HCFA was part of the prosecution team and therefore Ms. Grim's position as CEO of MOPRO would have been impeachment evidence. No evidence, however, was produced to support the contention that HCFA was part of the prosecution team. Jimmy Frisbie, an individual who was affiliated with HCFA, did testify as an expert witness at trial. But, the government's representation that his participation in the case did not go beyond that of a traditional testifying expert was unrefuted by Mr. Anderson.
In reality, however, both of these documents focus on patient quality-of-care issues, not Medicare and Medicaid fraud issues. The September 22, 1998, HCFA communication discusses strategies to address patterns of poor performance seen in nursing homes that are part of a chain, and says nothing about cracking down on Medicare and Medicaid fraud and abuse. Further, the March 18, 1999, press release focuses on "steps [HCFA] is taking to ensure high quality nursing home care and mak[ing] better consumer information available to residents and their families." It discusses a new HCFA regulation regarding tougher fines for health and safety violations, HCFA's strengthening of complaint investigation requirements, HCFA's launching of a national education campaign to help detect and prevent neglect and abuse, a new internet website, and additional budgetary and legislative proposals. The article does not suggest that HCFA was intending to focus on cracking down on Medicare and Medicaid fraud and abuse. Rather, it clearly focuses on patient quality-of-care issues.
Mr. Anderson also directs the court's attention to a variety of evidence indicating that, at the time of trial, Ms. Grim was concerned that HCFA might not renew MOPRO's contract. In an e-mail dated November 11, 1998, Ms. Grim wrote: "HCFA has released our new contract deliverables for the Year 2000 contract period. PROs are to do LOTS more in health care fraud and investigation analysis." HCFA told MOPRO in a meeting just before Thanksgiving of 1998 that HCFA did not expect MOPRO to pass the evaluation process. In a December 6, 1998, e-mail, Ms. Grim expressed concern regarding her "tenuous job situation" in light of the upcoming HCFA contract renewal. She stated: "I will be out of a job in January 2000 if we do not regain or keep our HCFA contract." In Ms. Grim's deposition, she testified that the "evaluation process was based on relationships with HCFA — with the folks in Kansas City from what [she] could tell." She testified that if those HCFA people had not given MOPRO a favorable evaluation, MOPRO's contract could have potentially not been renewed. Ms. Grim testified that she was "very concerned" about "how tenuous the organization was in terms of passing the evaluation." Grim Dep. at 93:3-8. She also testified that as of at least December of 1998, she had in mind that HCFA was wanting more involvement in healthcare fraud and abuse issues, and also the evaluation process was going on with respect to renewal of MOPRO's contract. She testified that she "probably shared [with the prosecution in this case] the fact that HCFA was not certain we were going to keep our contract." Id. at 94:25-95:5. She also "probably told them that [MOPRO getting more involved in healthcare fraud and abuse] was part of the next contract cycle." Id. at 95:6-20.
Ms. Grim, however, further explained that her reference to "health care fraud and investigation analysis" in the November 11, 1998, e-mail was not connecting the two in the sense that what she really meant was (1) healthcare and (2) fraud investigation analysis. Grim Dep. at 93:23-94:9. She further explained that the evaluation process HCFA was conducting did not have anything to do with MOPRO evaluating fraud and abuse cases because MOPRO did not have a role in fraud and abuse other than conducting medical reviews and case reviews. According to Ms. Grim, "MOPRO traditionally ran from any connotation of doing fraud and abuse. And, like I said, the HCFA regional office did not like that aspect of the PRO work, so we were not — they were not encouraged to do anything in that arena." Id. at 93:9-22. To the extent that MOPRO was involved in healthcare fraud investigations, it simply provided technical assistance in the form of medical review; it did not actually conduct investigations. Id. at 105:6-21. Ms. Grim further testified that her concerns about renewal of MOPRO's contract did not have any effect on her testimony in this case. Id. at 104:11-105:5.
The court is unpersuaded that any of this evidence is Brady material because, when viewed in its entirety, it was not favorable to the defense. Certainly, the evidence reflects that Ms. Grim was concerned about the possibility that she might be out of a job if HCFA did not renew MOPRO's contract, but there is no evidence from which it can be inferred that Ms. Grim perceived her testimony in this case would have strengthened MOPRO's chances of having its HCFA contract renewed. This evidence reflects that, if anything, HCFA wanted MOPRO to become increasingly involved in patient quality-of-care issues, not Medicare and Medicaid fraud and abuse issues. The nature of MOPRO's responsibilities encompassed medical case review functions, not Medicare and Medicaid fraud and abuse functions. Also, according to Ms. Grim, the regional HCFA office did not like the fraud and abuse aspect. Thus, the evidence does not establish that HCFA was particularly interested in Ms. Grim or MOPRO becoming involved in Medicare and Medicaid fraud and abuse cases such as this one. If anything, the opposite inference is more readily drawn from the evidence-that is, HCFA would not have wanted to have been associated with an entity whose CEO was testifying in a fraud and abuse case.
Even assuming arguendo that some inference could be drawn that Ms. Grim believed her testimony in this case would please HCFA, the evidence nevertheless reflects that Ms. Grim still believed she would not benefit from testifying in this case. She testified in her deposition that MOPRO typically ran from any connotation of doing fraud and abuse. Further, in her October 1, 1998, fax to Agents Timmerberg and Violanti discussed in section (D), supra, she expressed concern that her testimony in this case would not help her to keep her job. Thus, Ms. Grim faced the risk of losing her job by virtue of testifying in this case regardless of whether HCFA wanted MOPRO to become increasingly involved in such cases. In other words, it would have made little sense for Ms. Grim to placate HCFA so that MOPRO could get its HCFA contract renewed if she was going to get fired by MOPRO anyway.
Further, this evidence certainly does not meet the Brady materiality standard. " Brady does not elevate . . . sporting theories of justice to constitutional principles." United States v. Buchanan, 891 F.2d 1436, 1445 (10th Cir. 1989). As discussed previously, the evidence is Brady material only if in any reasonable likelihood it could have affected the jury's judgment. The court does not view the alleged Brady material in isolation, but rather "in relation to the record as a whole." United States v. Hughes, 33 F.3d 1248, 1252 (10th Cir. 1994). Here, Ms. Grim's testimony was perhaps the most blatant evidence regarding Mr. Anderson's subjective intent with respect to the pay-for-patient-referral arrangement, but ample additional evidence at trial was consistent with Ms. Grim's testimony on this issue. See United States v. Anderson, 85 F. Supp.2d 1047, 1065 (D. Kan. 1999) (discussing other evidence that showed "Mr. Anderson knew the payments he directed were more than fair market value for consulting services, that the services specified ultimately proved to be not entirely bona fide, and that the services specified were not sufficiently being performed"), aff'd in part, United States v. LaHue, 261 F.3d 993 (10th Cir. 2001), rev'd in part on other grounds, United States v. McClatchey, 217 F.3d 823 (10th Cir. 2000). Thus, the court is unpersuaded that evidence suggesting that Ms. Grim may have been concerned about the renewal of MOPRO's contract with HCFA, combined with the possibility that HCFA may have been anticipating that MOPRO would conduct more case review functions in the upcoming contract cycle, could in any reasonable probability have resulted in the jury acquitting Mr. Anderson.
F. Ms. Grim Marketed Herself as a Government Informant/Witness/Consultant
The court hereby overrules the government's relevance objections with respect to Exhibits 29, 30, 31, and 32. Although the court is of the opinion that these documents are only marginally relevant, they do provide additional context for Mr. Andersen's somewhat related argument that Ms. Grim was motivated to please her employers by cooperating with the government.
Mr. Anderson also directs the court's attention to a series of correspondence in 1997 in which Ms. Grim repeatedly attempted to offer assistance with the FBI's investigation of Columbia/HCA in South Florida. On June 13, 1997, she sent a letter to Agent Timmerberg in which she offered to be of assistance to the FBI in other matters relating to the South Florida investigation. On August 18, 1997, she sent a letter to FBI agent David Tubbs in Kansas City, Missouri, in which she stated she would appreciate the opportunity to help Mr. Tubbs' colleagues in South Florida with any investigations into Columbia Hospital Corporation or hospital fraud and abuse. On August 24, 1997, she sent a fax to Joe Ford, who is a federal agent in the Tampa, Florida, FBI office, in which she offered to be of assistance to Agent Ford in his investigation of the Columbia/HCA matter. On October 12, 1997, she sent a letter to the FBI special agent in charge of health care fraud and abuse in Miami in which she offered to be of assistance with healthcare fraud and abuse investigations in South Florida.
On November 6, 1997, Angel Cortinas with the United States Attorney's office in the Southern District of Florida sent a letter to Ms. Grim's attorney requesting an interview with her regarding "a civil and criminal investigation being conducted in this District." According to Ms. Grim, this interview "amounted to nothing" because the FBI was only interested in a particular component of Columbia Hospital Corporation.
Mr. Anderson contends that these documents, combined with the evidence concerning Ms. Grim's efforts to provide assistance to Agent Waterman in South Florida, "[t]aken in total . . . paint the clear picture of a cooperating government witness, whom members of the prosecution team knew was providing information of what she knew about the Baptist/Blue Valley relationship at the same time she was repeatedly offering to assist the government in other health care fraud matters in South Florida, Jefferson City and elsewhere, if the agents thought she could be of help to them. It is also reasonable to conclude, given Ms. Grim's extensive experience as a health care executive, and the level of detailed analysis she regularly provided regarding these matters in her various correspondence and communications with the government . . . that her offers to be a government witness elsewhere were not motivated solely by good citizenship, but due also to her interest in assisting and consulting with government investigations to advance the agenda of her employer (and HCFA) and further her employment opportunities."
The court disagrees. This evidence collectively reveals nothing more than the fact that Ms. Grim was eager to provide assistance with the Columbia/HCA investigation in South Florida. This, however, has no bearing on her credibility in this case. As explained above, the record does not support an inference that the impetus for Ms. Grim's testimony in this case against Mr. Anderson was a motivation to boost MOPRO's chances of having its contract with HCFA renewed. The fact that Ms. Grim may have sought to assist federal authorities with yet another fraud-and-abuse investigation is immaterial to her credibility, and therefore the court is unpersuaded that this information was Brady material.
In addition, the court wishes to observe that Ms. Grim's interest in the Columbia/HCA investigation is understandable given her history in South Florida. Ms. Grim was president of the South Florida Hospital Association. She testified in her deposition that she believed she was the target of the pipe bomb incident because of some activities she was pursuing as the president of the South Florida Hospital Association. Grim Dep. at 15:5-15. She stated that the Metro-Dade police believed the pipe bomb explosion was deliberate, not random. Id. at 15: 17-16:1. According to the South Florida Business Journal articles, Ms. Grim moved from Florida to Missouri shortly thereafter. Thus, it appears Ms. Grim's interest in the Columbia/HCA investigation in South Florida was attributable to her experiences in South Florida, and was completely unrelated to her testimony in this case.
G. MOPRO Provided Assistance to the Government in a Nursing Home Investigation
Commencing in 1998 and early 1999, MOPRO provided assistance in connection with an investigation of substandard care at a nursing home, National Healthcare Center of Joplin ("NHC Joplin"). Brian Holt with HHS-OIG was the lead investigator in the NHC Joplin matter. Mr. Holt met with Cynthia Austin at HCFA because he was looking for someone to perform a medical review regarding some patients at NHC Joplin. Ms. Austin suggested that Mr. Holt contact MOPRO to conduct the medical review. Mr. Holt did so, and MOPRO requested a letter for its records.
In January of 1999, HHS-OIG sent a letter to Ms. Grim requesting MOPRO's assistance in conducting the medical review. The letter states that MOPRO "must conduct review only as directed by HCFA and the OIG," and "[n]o further case development or intervention action should be pursued unless so directed by the OIG or HCFA." This letter from HHS-OIG was consistent with MOPRO's contract with HCFA, which stated: "The PRO must conduct review only as directed by HCFA and the OIG. No further case development or intervention action should be pursued unless so directed by the OIG or HCFA."
In conducting the medical review, MOPRO provided assistance to Andy Lay, an assistant United States attorney in the Western District of Missouri, who was the government prosecutor in the civil case against NHC Joplin. Ms. Grim testified in her deposition that MOPRO provided technical assistance in the form of medical review, not investigation. Ms. Grim served as the liaison who facilitated this medical review, but her involvement was purely administrative. Other MOPRO personnel actually performed the review. Ms. Grim communicated with Mr. Lay on a fairly regular basis concerning the Joplin matter in late 1998 through March 18, 1999.
HHS-OIG was not a part of the investigation or prosecutorial team in this case. Further, neither the FBI nor the prosecutor in this case were involved in the NHC Joplin investigation. There is no evidence that the prosecution team in this case was aware of the details of Ms. Grim's involvement in the NHC Joplin investigation, and therefore the prosecution is not responsible for failing to disclose much of this information. The prosecution did, however, suppress the January 1999 letter from HHS-OIG requesting MOPRO's assistance in conducting the medical review.
This letter is not Brady material because it would not have been favorable to the defense nor material to the verdict because it would not have undercut Ms. Grim's credibility. Ms. Grim already testified at trial that MOPRO performed case reviews for Medicare beneficiaries and "responded to requests for assistance from state and federal authorities typically related to fraud and abuse investigations." Trial Tr. for Feb. 3, 1999 (Doc. 329), at 1584. The fact that HHS-OIG requested MOPRO's assistance in performing case review functions in the NHC Joplin investigation would have simply exemplified the manner in which MOPRO performed these functions. Ms. Grim was performing her job for MOPRO, and there is no evidence that in doing so she worked with any of the members of the prosecution team in this case. No plausible conclusion can be drawn that there is a reasonable probability the jury might have acquitted Mr. Anderson if they had only known that MOPRO performed these case review functions in the NHC Joplin investigation-a fact that was completely unrelated to this case and was consistent with Ms. Grim's testimony regarding the nature of MOPRO's work.
CONCLUSION
When the court issued its initial ruling on Mr. Anderson's § 2255 motion on July 2, 2003, the court could envision, based on the South Florida Business Journal articles, at least a possibility that Ms. Grim could have developed a relationship with federal officials in which she depended on them, perhaps for her own personal security. The court, therefore, originally allowed discovery and an evidentiary hearing on this issue because the court believed it was important to explore the nature of Ms. Grim's relationships with those federal officials, especially the FBI. After considering the evidence, however, the court concludes that Mr. Anderson has absolutely failed to show that Ms. Grim had any type of undisclosed relationship with federal officials that would have allowed counsel to effectively cross-examine Ms. Grim and discredit her testimony against Mr. Anderson. Accordingly, no Brady violation occurred and Mr. Anderson is not entitled to relief under § 2255.
IT IS THEREFORE ORDERED BY THE COURT that the remaining aspect of Mr. Anderson's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 774) is denied. IT IS SO ORDERED.