United States v. Robinson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 16-98 (CKK)
IVAN L. ROBINSON,
Defendant
MEMORANDUM OPINION
(September 17, 2020)
Currently pending before the Court is Defendant Ivan Robinson’s [284] Motion for a
New Trial and [326] Motion for Reconsideration of Motion for Institution of Conditions of
Release Pending Sentencing.1 Both Motions are grounded in the argument that Defendant
Robinson is entitled to a new trial based on two violations of Brady v. Maryland, 373 U.S. 83
(1963) and on a claim of ineffective assistance of counsel. The United States contends that
Defendant Robinson is not entitled to a new trial, and thus should not be released from custody,
because the two withheld pieces of evidence do not constitute violations under Brady and
because Defendant Robinson received effective assistance of counsel.
Upon consideration of the pleadings,2 the relevant legal authorities, and the record for
purposes of this motion, the Court DENIES Defendant Robinson’s [284] Motion for a New Trial
1
Defendant Robinson has also separately filed at least two additional motions for release which
also raise the issue of his request for a new trial as well as other unrelated issues. The Court has
already ruled on these Motions. There is one additional pending motion which the Court will
resolve shortly. The focus of this Memorandum Opinion will be Defendant Robinson’s request
for a new trial which will inform the decision on his request for conditions of release pending
sentencing.
2
The Court’s consideration has focused on the following documents:
• Def.’s Mot. for a New Trial (“Def.’s Mot.”), ECF No. 284;
• Gov.’s Resp. in Opp’n to Def.’s Mot. for a New Trial (“Gov’s Res.”), ECF No. 290;
and therefore also DENIES his [326] Motion for Reconsideration of Motion for Institution of
Conditions of Release Pending Sentencing. The Court concludes that the two pieces of withheld
evidence do not constitute violations under Brady as they do not call into question the fairness of
the ultimate verdict. The Court further concludes that Defendant Robinson’s trial counsel3 were
not ineffective, and that the decision not to call an expert witness was a strategic decision that did
not cause prejudice to Defendant Robinson. Finally, the Court concludes that the myriad
arguments that Defendant Robinson briefly raises are not meritorious.
I. FACTUAL BACKGROUND
Defendant Robinson was a licensed nurse practitioner who maintained a medical practice
in Washington, D.C., with offices in various locations. ECF No. 284, 1. Defendant Robinson’s
practice eventually comprised thousands of patients and he began to specialize in spinal injuries.
Id. Defendant Robinson represents that he treated his patients with a “patented protocol including
• Gov.’s Res. to Def.’s Letter Dated Feb. 13, 2018 (“Gov.’s Res. to Def.’s Letter”), ECF
No. 308;
• Def.’s Mot. for Recons. of Mot. for Inst. of Conditions of Release Pending Sentencing
(“Def.’s Mot. for Recons.”), ECF No. 326;
• Def.’s Reply to the Opp’n to Mot. for New Trial and Suppl. to Def.’s Mot. for New
Trial (“Def.’s Suppl.”), ECF No. 327;
• Gov.’s Omnibus Res. in Opp’n to the Def.’s Pending Mots. (“Gov.’s Omnibus Res.”),
ECF No. 330;
• Def.’s Reply to the Opp’n of the Gov. to Mot. for New Trial and Mot. for Recons. of
Imposition of Conditions of Release Pending Sentencing (“Def.’s Reply”), ECF No. 332;
• Gov.’s Suppl. Opp’n to Def.’s Ineffective Assistance of Counsel Claim (“Gov.’s
Suppl.”), ECF No. 351; and
• Def.’s Reply to Gov.’s Suppl. Opp’n to Def.’s Ineffective Assistance of Counsel Claim
(“Def.’s Reply to Gov.’s Suppl.”), ECF No. 364.
3
“Trial counsel” will be used to reference the collective of attorneys who represented
Defendant during trial, including Mr. Jonathan Jeffress, who is named as the “lead trial counsel.”
2
spinal decompression therapy, medication, exercise, and diet,” which involved “oxycodone in a
dose of 30 milligrams” as part of the medication protocol. Id.
In February 2013, the Drug Enforcement Administration (“DEA”) received reports from
“pharmacists who had noticed suspicious patterns regarding oxycodone prescriptions originating
from the defendant’s practice” and subsequently launched an investigation into Defendant
Robinson’s medical practice. ECF No. 290, 5. In March 2013, undercover officers went to one of
Defendant Robinson’s clinics and posed as patients “in an attempt to purchase oxycodone
prescriptions.” Id. Two of the agents were able to “purchase a prescription for oxycodone from
the defendant in exchange for $370 blank money orders,” while the third agent “was turned
away.” Id. at 5, n.5. The two agents who received prescriptions returned in April 2013, and
obtained additional prescriptions for oxycodone, again in exchange for $370 in blank money
orders and without an adequate physical exam. Id. at 5. On June 19, 2013, search warrants were
executed and conducted at Defendant Robinson’s home and at two of his clinics. Id. at 6.
Following the execution of the search warrants, Defendant Robinson withdrew $108,000 from
his bank account. ECF No. 284, 2.
II. PROCEDURAL BACKGROUND
On June 7, 2016, Defendant Robinson was indicted with fifty-five counts of prescribing
oxycodone “outside the legitimate practice of medicine,” as well as forfeiture allegations with
respect to the $108,000 bank account withdrawal, cash found on him during the execution of the
search warrant, and a vehicle. Id. On April 27, 2017, a superseding indictment was returned,
charging Defendant Robinson with sixty-one counts of prescribing oxycodone—eighteen of
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which were eventually dropped—and two counts of money laundering pursuant to 18 U.S.C. §
1957. ECF No. 290, 4.
On August 10, 2017, following an approximately 20-day trial, Defendant Robinson was
found guilty of forty-two counts of prescribing oxycodone outside the legitimate practice of
medicine and two counts of money laundering. Id. Defendant Robinson was found not guilty of
one count of prescribing oxycodone. Id. Lastly, the jury arrived at a split verdict on the forfeiture
allegations, determining that the $108,000 and the vehicle were “proceeds constituting or derived
from [Defendant’s] prescription of oxycodone and money laundering,” while ten money orders,
totaling $3,330 and $997 in cash, did not constitute such proceeds. Id.
On October 20, 2017, trial counsel for Defendant Robinson moved for a new trial. ECF
No. 284. On December 8, 2017, the United States filed an Opposition to that Motion. ECF No.
290.
Prior to the filing of a Reply by Defendant Robinson, the Court received a motion from
Defendant Robinson to discharge his trial counsel. ECF No. 303. On February 22, 2018, the
Court granted Defendant Robinson’s Motion to discharge his trial counsel. ECF No. 306.
Defendant Robinson was appointed new counsel. During a March 23, 2018 hearing, the Court
allowed Defendant Robinson’s new counsel to have extensive time to review the record of the
case and to accommodate counsel’s schedule. The Court ordered that, following a review of the
case, Defendant Robinson would file a Reply to the United States’ Opposition to Defendant
Robinson’s Motion for a New Trial which would address the arguments in Defendant
Robinson’s original motion as well as any arguments that the new defense counsel sought to
raise. March 23, 2018 Minute Order.
4
On December 31, 2018, Defendant Robinson filed his Reply to the United States’
Opposition. ECF No. 327. He also filed a Motion for Reconsideration of Motion for Institution
of Conditions of Release Pending Sentencing, bringing new arguments relating to two alleged
Brady violations and ineffective assistance of counsel. ECF No. 326. On February 14, 2019, the
United States filed an omnibus response to both of Defendant Robinson’s pending motions. ECF
No. 330. The United States argued that Defendant Robinson had received effective assistance of
counsel but indicated that if the claim was to be pursued additional discovery would be required.
Id. And, on March 8, 2019, Defendant Robinson filed a Reply to the United States’ Opposition.
ECF No. 332.
On April 1, 2019, the Court held a teleconference to discuss Defendants Robinson’s
pending Motions. During the teleconference, the Court indicated that there was overlap between
Defendant Robinson’s ineffective assistance of counsel claim and his other claims. As such, in
order to resolve the pending Motions, Defendant Robinson’s ineffective assistance of counsel
claim would need to be more detailed. Defendant Robinson agreed to waive his attorney client
privilege with his trial counsel so that the United States could conduct discovery and the Court
could address the claim. April 1, 2019 Minute Order.
Due to the high volume of material relating to Defendant Robinson’s claim, discovery
into the materials took some time. Following discovery, the Court set a schedule for
supplemental briefing on Defendant Robinson’s ineffective assistance of counsel claim. On
October 24, 2019, the United States filed its supplemental opposition to Defendant Robinson’s
ineffective assistance of counsel claim. ECF No. 351. And, following multiple motions for
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extensions of time, Defendant Robinson filed his Reply to that Opposition on March 13, 2020.
ECF No. 364.
As the briefing for all of Defendant Robinson’s arguments in support of a new trial are
now complete, the Court shall address each argument.
III. LEGAL STANDARD
Defendant Robinson has filed two Motions—a motion for a new trial and a motion to
reconsider his conditions of confinement. Both Motions are interrelated as Defendant Robinson
requests that he be released from custody in large part because he is entitled to a new trial. As
such, the Court’s analysis shall be conducted pursuant to Federal Rule of Criminal Procedure 33
which governs requests for new trials.
Under Rule 33, upon motion by the defendant, a court “may vacate any judgment and
grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). In order to grant a
new trial, “the evidence must preponderate heavily against the verdict, such that it would be a
miscarriage of justice to let the verdict stand.” United States v. Howard, 245 F. Supp. 2d 24, 30
(D.D.C. 2003) (quoting United States v. Edmond, 765 F. Supp. 1112, 1118 (D.D.C. 1991)). In
making its determination, the district court “weighs the evidence and evaluates the witnesses’
credibility and decides whether ‘a serious miscarriage of justice may have occurred.’” United
States v. Rogers, 918 F.2d 207, 213 (D.C. Cir. 1990) (quoting Tibbs v. Florida, 457 U.S. 31, 38
n.11 (1982)). Notably, this “power should be exercised with caution, and is invoked only in those
exceptional cases in which the evidence weighs heavily against the verdict.” Edmond, 765 F.
Supp. at 1118. The moving party has “the burden of proof that a new trial is justified.” Id.
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IV. DISCUSSION
The Court shall proceed in evaluating Defendant Robinson’s arguments in favor of a new
trial. The Court shall first address the myriad arguments raised in Defendant Robinson’s initial
Motion filed by his trial counsel. The Court shall next address Defendant Robinson’s primary
arguments in support of a new trial—claims of Brady violations and ineffective assistance of
trial.
A. Previously Addressed Arguments
As was previously discussed, Defendant Robinson’s trial counsel filed his initial Motion
requesting a new trial. However, before briefing had completed on that Motion, Defendant
Robinson requested and received new counsel. As such, many of the arguments introduced in
Defendant Robinson’s initial Motion are not pursued in later briefs. Additionally, the majority of
these arguments were raised before and during trial and already decided by the Court. However,
for the purposes of completeness, the Court shall briefly address those primary, initial arguments.
The Court adopts and incorporates and makes a part of this Memorandum Opinion all of the
previous rulings on these issues. See, e.g., ECF Nos. July 6, 2017 Minute Order, 178, 191, 130,
204, 137, 125, 126, 81, 119, 122, 129, 214.
First, Defendant Robinson argues that the testimony of Dr. Mark Romanoff, the United
States’ expert witness, was unreliable and inadmissible. In so far as Defendant Robinson’s
argument concerning Dr. Romanoff is based on trial counsels’ inability to cross-examine Dr.
Romanoff due to Brady violations, such analysis will be addressed below. See Infra Sec. IV.B.
However, Defendant Robinson also argues that Dr. Romanoff’s testimony was improper as he
conducted only a limited chart review and failed to take into account contradictory paper medical
7
files or the testimony from the patients themselves. As such, Defendant Robinson contends that
Dr. Romanoff’s expert testimony was unreliable and inadmissible under Federal Rule of
Evidence 702.
The Court finds, as it previously ruled, that Dr. Romanoff was an appropriate expert
witness. See July 6, 2017 Minute Order (denying motion to exclude Dr. Romanoff following
Daubert hearing). The Court notes that Defendant Robinson had the opportunity to confront Dr.
Romanoff about the existence of any un-reviewed patient records during the July 6, 2017
Daubert hearing and when Dr. Romanoff was presented as a witness. Additionally, trial counsel
was able to—and did in fact—cross-examine Dr. Romanoff as to any un-reviewed medical
records at trial. See e.g. July 31, 2017 Trial Tr. 4140: 1-4144: 25 (portion of cross-examination
of Dr. Romanoff). Moreover, Dr. Romanoff explained that, while he had skimmed some of the
patient testimony, he did not credit it as patients are often not reliable witnesses as to the quality
of the care received. July 28, 2017 Trial Tr. 3827: 20-3838: 20. And, the Court instructed the
jury that they did not have to accept Dr. Romanoff’s opinion. See Aug. 7, 2017 Trial Tr. 5192: 4-
19.
Second, Defendant Robinson argues that the Court erred in admitting evidence of bad
acts without a connection to the charged activities, such as testimony from other pharmacists
who would not fill Defendant Robinson’s prescriptions and testimony about patient volume and
money orders. Defendant Robinson contends that such evidence was irrelevant and prejudicial.
Again, the Court previously ruled as to most of these issues. The Court issued two pre-
trial rulings as to the testimony of the other pharmacists. See ECF Docs. 178, 191. Ultimately,
the Court concluded that the pharmacists could testify “that they refused to fill prescriptions for
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oxycodone issued by the Defendant, and to state their reasons for doing so.” ECF No. 178, 2. As
to the testimony on the use of money orders, the Court previously limited the use of money order
evidence, such as prohibiting evidence on Defendant Robinson’s overall wealth and eliminating
testimony on money orders in denominations other than $370 which had an evidentiary basis.
ECF No. 130, 2; ECF No. 204, 3. The Court allowed evidence as to money orders for $370
because there was a sufficient link between those money orders of that denomination and illegal
prescriptions. ECF No. 204. Defendant Robinson’s post-trial arguments do not alter the Court’s
decisions.
Third, Defendant Robinson contends that the United States improperly relied on the
racial composition of Defendant Robinson’s patient population. Prior to trial, and on Defendant
Robinson’s Motion, the Court ruled that “[t]he jury should not be invited to base its decision in
any way on the race of Defendant’s patients.” ECF No. 137, 2. Defendant Robinson argues that
the United States violated this prohibition by asking multiple witnesses to testify about Dr.
Robinson’s office being on Martin Luth King, Jr. Avenue or near the “Big Chair,” even though
the location of the office was not in dispute. Defendant Robinson contends that this testimony
was designed to draw attention to the fact that the office was in Anacostia, a primarily African-
American Southeast D.C. neighborhood, while the majority of Dr. Robinson’s patients were not
from that neighborhood.
Again, prior to trial, Defendant Robinson moved to exclude testimony about the racial
composition of his patients. The United States conceded that such evidence would not be
probative of any relevant factor, and the court ordered that the United States not introduce any
such evidence. ECF No. 137, 2. During the trial, no witness testified about the racial composition
9
of Defendant Robinson’s patients before the jury. And, testimony as to the location of Defendant
Robinson’s office was not in violation of the Court’s Order. Anacostia was never identified as a
primarily African-American neighborhood. In fact, it was Defendant Robinson’s trial counsel
who first mentioned the neighborhood and landmark in opening statements, saying that
Defendant Robinson “opened a medical practice, eventually locating his clinic right over in
Anacostia by the Big Chair.” July 13, 2017 Trial Tr. 733: 17-18. And, when this issue was raised
during the trial, the Court explained, “I think you’re making an assumption that everybody in
Martin Luther King Avenue, in terms of people that are on the street, are all African-Americans.
That’s not true.” July 14, 2017 Trial Tr. 1223: 18-21. Accordingly, the Court finds that the
United States did not improperly introduce racial evidence.
Fourth, Defendant Robinson contends that the Court erred in admitting statements made
by Defendant Robinson while in the custody of the DEA Task Force. Defendant Robinson
argues that these statements were taken in violation of his Miranda rights and should not have
been permitted.
This issue was previously raised pre-trial in Defendant Robinson’s motion to suppress.
Following a 3-day hearing on the motion, the Court issued a lengthy ruling explaining that law
enforcement “was not required to provide Miranda warnings prior to the interview on June 19,
2013 because Defendant was not in custody.” ECF No. 126, 26. The Court further concluded that
Defendant Robinson’s statements were voluntary. Id. The Court has already considered and
denied this argument, and Defendant Robinson provides no grounds for its reconsideration.
Fifth, Dr. Robinson complains that a new trial should be granted due to various instances
of prosecutorial misconduct. The Court shall address the majority of Defendant Robinson’s
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Brady arguments later in the opinion. See Infra Sec. IV.B. However, the Court will currently
address Defendant Robinson’s argument that the United States violated Brady by failing to
produce a report of an interview with witness Sahr Bockai Jr. prior to his testimony. Defendant
Robinson also argues that the United States failed to properly instruct witness Robert Long about
the scope of his testimony, resulting in prejudicial testimony about the death of one of Defendant
Robinson’s patients, Johnny Jones, Jr.
The Court finds no instances of prosecutorial misconduct which would warrant a new
trial. As to witness Bockai, Defendant Robinson is correct that the United States failed to provide
a report of his interview prior to the completion of his testimony. However, the failure to disclose
was discovered during the trial and considered by the Court. The Court concluded that the lack
of disclosure was a mistake and provided a choice of remedies, including the United States
recalling the witness, defense counsel calling the witness, or defense counsel impeaching the
witness through another witness. July 24, 2017 Trial Tr. 2501: 4-10; 2503: 1-5. Defendant
Robinson’s trial counsel stated, “[a]ll we’re asking of the Government is that if we do want to
call him in our [case], that they not oppose that.” July 24, 2017 Trial Tr. 2502: 20-22. Trial
counsel did not call Mr. Bockai but did attempt to impeach him through another witness, DEA
Investigator Verna Lofton, who was questioned about any discrepancies between Mr. Bockai’s
testimony and the report of his interview regarding the dates, times, and amounts for money
orders. See July 27, 2017 Trial Tr. 3707: 13-3709: 5; July 28, 2017 Trial Tr. 3749 :16-3755: 25.
Defendant Robinson’s trial counsel also highlighted the discrepancies in their closing arguments.
August 7, 2017 Trial Tr. 5144: 13-23. Accordingly, while the failure to produce the report prior
to trial was a mistake, Defendant Robinson was able to cure the mistake during the trial and did
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not suffer prejudice sufficient to warrant a new trial. See United States v. Andrews, 532 F.3d 900,
907 (D.C. Cir. 2008) (“in such circumstances, where disclosure was made but made late, ‘the
defendant must show a reasonable probability that an earlier disclosure would have changed the
trial’s result’ and not just that the evidence was material”).
Similarly, the Court finds that the United States did not commit prosecutorial misconduct
with its examination of witness Mr. Long. Prior to trial, the Court ruled that the United States
could not introduce testimony “of the death or injury of any of Defendant’s patients, or their
acquaintances.” ECF No. 122, 1. During the trial, the United States asked Mr. Long, “[a]bout
how many times did you accompany Johnny R. Jones, Jr., to the Ivan Robinson clinic after the
first time, roughly?” Mr. Long replied, “[w]ell, we went every two weeks in 2012. So he passed
away in 2013.” July 27, 2017 Trial Tr. 3518: 16-20. Notably, Mr. Long did not testify as to the
cause of Mr. Jones’ death. Additionally, the United States could not have anticipated such a
response to their question and had previously instructed Mr. Long that the focus should not be on
Mr. Jones’ death. July 27, 2017 Trial Tr. 3522: 5-7; 3523: 4-5. Even though the Court’s Order
was not violated and the cause of Mr. Jones’ death was not revealed, the Court instructed the
jury, “[a]s part of the testimony, you heard testimony that Johnny R. Jones, Jr., has passed away.
Mr. Jones’ death is unrelated to his experience as a patient of Dr. Robinson. So I would ask that
you not speculate as to the cause of Mr. Jones’ death.” July 27, 2017 Trial Tr. 3567: 13-17. As
such, the Court finds that Defendant Robinson has failed to state a claim of prosecutorial
misconduct where the mention of Mr. Jones’ death was brief, the cause was not discussed, and
the Court issued an instruction remedying any prejudice.
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Sixth, Defendant Robinson contends that the Court committed legal error in the definition
for criminal liability under 21 U.S.C. § 841. Defendant Robinson faults the Court for not giving a
jury instruction on the difference between civil medical malpractice and a violation of 21 U.S.C.
§ 841. Defendant argues that this mistake was furthered by the “good faith” instruction given by
the Court and used by the United States.
As with the majority of Defendant Robinson’s other arguments, this claim was argued
and decided before and during trial. The Court considered Defendant Robinson’s request to
include a civil malpractice instruction and decided that the instruction for 21 U.S.C. § 841 “does
not create any confusion regarding whether the jury should apply a criminal or civil standard”
and that including the civil standard “would itself risk such confusion.” ECF No. 214, 6-7.
Additionally, the Court noted that the jury would already be instructed that the burden for
criminal liability is higher than that for civil liability. Id. at 5 (citing reasonable doubt
instruction). In this same briefing and opinion, the Court also addressed both parties’ arguments
about the inclusion of “good faith” in the instruction. The Court continues to find that such
instruction was permissible. Finally, the Court previously found that the statute under which
Defendant Robinson was convicted is not unconstitutionally vague as applied to Defendant
Robinson. ECF No. 81, 2. Again, Defendant Robinson has provided no new arguments which
would cause the Court to change its determinations on these matters.
B. Brady Arguments
Moving to Defendant Robinson’s primary arguments in favor of a new trial, Defendant
Robinson contends that the United States withheld documents that were material and subject to
Brady. Defendant Robinson asserts the following: (1) the Government “intentionally withheld
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material and favorable evidence in the form of written notes drafted by case agents,” (2) the
agents involved “materially and falsely maintained that they did not create notes that were
clearly exculpatory as to defendant,” (3) the suppressed evidence “would have supported
defendant’s defense that he was properly and legally operating his medical practice,” (4)
Defendant Robinson was “significantly prejudiced by the suppression of the favorable evidence
and was thereby denied his constitutional right to due process of law,” and (5) this Court’s
“rulings would have been affected had it been aware of the existence of the material and
exculpatory suppressed evidence.” ECF No. 326, 7-9. Defendant Robinson’s Brady allegations
center on two law enforcement reports: (1) the DEA-6 reports authored by DEA Special Agent
Lisa Pryor (“Pryor reports”), and (2) an incident report from the Metropolitan Police Department
(“the CCN report”).
Generally speaking, the United States Supreme Court’s decision in Brady established that
the government has an “affirmative duty to disclose material evidence favorable to a criminal
defendant.” United States v. Cook, 526 F. Supp. 2d 10, 14 (D.D.C. 2007) (quoting Brady v.
Maryland, 373 U.S. 83, 87 (1963)). Following the decision in Brady, courts have interpreted a
“Brady violation” to mean a “multitude of prosecutorial sins involving breach of the broad
obligation to disclose exculpatory evidence,” otherwise known as “Brady material.” In re Sealed
Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999) (internal quotation
marks omitted) (quoting Strickler v. Green, 527 U.S. 262, 281 (1999)). This interpretation
includes “both the failure to search for Brady material and the failure to produce it.” Id.
However, a “true Brady violation” is comprised of three components: (1) the evidence at issue
must be “favorable to the accused, either because it is exculpatory, or because it is impeaching”;
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(2) that evidence must have been “suppressed by the State, either willfully or inadvertently”; and
(3) “prejudice must have ensued.” Strickler, 527 U.S. at 281-82; see id. at 281 (“[S]trictly
speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that
there is a reasonable probability that the suppressed evidence would have produced a different
verdict.”). In determining whether or not prejudice ensued, a court has a “responsibility to
evaluate the impact of the undisclosed evidence not in isolation, but in light of the rest of the
record.” United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999) (citing United States v.
Agurs, 427 U.S. 97, 112 (1976)).
1. Pryor Reports
Multiple times during the course of this case, and prior to trial, Defendant Robinson
requested that the United States produce the reports of conversations Defendant Robinson had
with Agent Pryor. ECF No. 308, 2. The documents at issue here are two DEA-6 reports,
authored by Agent Pryor in early 2011, that reflect conversations Defendant Robinson had with
Agent Pryor in January 2011. See ECF No. 308-1; ECF No. 308-2. The first report discusses a
telephone conversation between Defendant Robinson and Agent Pryor, during which Defendant
Robinson claimed that “someone was using his name on fraudulent prescriptions.” ECF No. 308-
1. The second report reflects a meeting that Defendant Robinson had with Agent Pryor and
Agent Mark Embry on January 25, 2011, during which Defendant Robinson reiterated his belief
that some individuals were engaging in prescription fraud and stated that he had lost
approximately 80 patients whom he believed were “pill seekers.” ECF No. 308-2.
Considering the first factor under Brady, the Court finds that the Pryor Reports were
favorable to Defendant Robinson. Under Brady, evidence is “favorable” to the defendant if “it
15
has either exculpatory or impeachment value.” United States v. Sitzmann, 74 F. Supp. 3d 128,
134 (D.D.C. 2014), aff’d, 893 F.3d 811 (D.C. Cir. 2018) (citing Strickler, 527 U.S. at 282). This
includes evidence “could be used to impeach a prosecution witness.” Id. at 135. In addition,
“[e]xculpatory evidence is ‘that which would tend to show freedom from fault, guilt, or blame.’”
United States v. Nelson, 979 F. Supp. 2d 123, 131 (D.D.C. 2013) (quoting United States v.
Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997)).
Here, Defendant Robinson argues that the Pryor reports could have been used to impeach
the Government’s expert witness, Dr. Romanoff, and to impeach Task Force Officer (“TFO”)
Karen Taylor’s4 grand jury testimony. ECF No. 326, 19. Defendant also suggests that the Pryor
reports were “exculpatory” because they “corroborated defendant’s defense at trial that he
reported patients to law enforcement whom he believed to be engaged in criminal activity[.]” Id.
at 7-8. The United States contends that the Pryor reports were not favorable because the reports
merely contain allegations of prescription fraud and claims from Defendant Robinson that pill
seekers were leaving his practice. However, the reports do not show that Defendant Robinson
named these pill seekers or reported them to law enforcement. ECF No. 330, 15.
Despite the United States’ arguments, the Court finds that the Pryor reports were
favorable to Defendant Robinson. While the reports do not have the import that Defendant
Robinson attempts to ascribe to them, as will be discussed below, the reports do show that
Defendant Robinson reported the use of fraudulent prescriptions. ECF Nos. 308-1, 308-2. While
the reports focus on the somewhat tangential allegations of fraudulent prescriptions, they also
4
In the trial transcript, TFO Karen Taylor goes by “Karen Arikpo.” Taylor was her maiden
name. However, as the parties discuss “TFO Taylor,” the Court shall also refer to her by that
name.
16
show that Defendant Robinson told law enforcement that he had lost approximately 80 patients
whom he believed to be “pill seekers.” ECF No. 308-2, 1. In a case in which Defendant
Robinson is accused of illegally providing individuals with medication, such reports can be
considered favorable to him.
The Court also finds that the Pryor reports were suppressed. It is undisputed that during
the course of the case, Defendant Robinson requested the reports from his conversations with
Agent Pryor. The United States contends that it attempted to locate such reports but was
informed by the DEA that no such reports existed. ECF No. 308, 2-3. The United States also
directly contacted Agent Pryor who twice stated that she did not take any notes during her
conversations with Defendant Robinson. Id. During a conversation with Agent Pryor on
February 15, 2018, after the conclusion of Defendant Robinson’s trial, Agent Pryor mentioned
for the first time that Agent Embry was present and may have taken notes. Id. at 6. After
contacting Agent Embry, the United States was eventually able to locate the reports in a general
file, not under Defendant Robinson’s name or case number. It is undisputed that these reports
were not located or provided to Defendant Robinson until after the trial. While the United States
appears to have acted diligently in attempting to locate the reports, the reports were still
suppressed. As such, the Court finds that Defendant Robinson has met the second Brady prong.
However, the Court ultimately concludes that Defendant Robinson has not established a
Brady violation as he has not shown that he was prejudiced by the suppression of the reports.
Even if the disputed evidence is favorable to the defendant and was suppressed or not disclosed
by the government, there is no Brady violation unless the withheld evidence is “material.”
Strickler, 527 U.S. at 281–82. If the undisclosed evidence is material, a new trial is required.
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Kyles v. Whitley, 514 U.S. 419, 421-22 (1995). Relying on the Supreme Court’s previous
decisions, the United States Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) has articulated the materiality standard of a Brady violation as follows:
Our inquiry is confined to a determination of whether “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” The Supreme Court has emphasized that “[t]he question is not
whether the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Therefore, our focus is on the “potential
impact that the undisclosed evidence might have had on the fairness of the proceedings”
rather than on the overall strength of the government’s case. Evidence is material if “the
undisclosed information could have substantially affected the efforts of defense counsel
to impeach the witness, thereby calling into question the fairness of the ultimate verdict.”
United States v. Cuffie, 80 F.3d 514, 517 (D.C. Cir. 1996) (alteration in original) (citations
omitted). The defendant has the burden to show that “the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence in the verdict.”
Kyles, 514 U.S. at 435.
First, the Court will address Defendant Robinson’s argument that the United States
violated his “constitutional right to present a complete defense.” ECF No. 332, 6. Defendant
Robinson claims that the suppression of the Pryor reports prevented him from “putting on a
complete theory of defense,” as he was unable to “challeng[e] the government’s singular expert”
or “present a defense expert with a complete record of all relevant evidence.” Id. at 4-6.
However, Defendant Robinson does not provide legal support for the proposition that a Brady
violation can occur simply when a defendant is not presented with all of the discovery. In fact,
the existence of the materiality prong suggests to the contrary, which the Supreme Court has
previously indicated. See Agurs, 427 U.S. at 108 (“But to reiterate a critical point, the prosecutor
will not have violated his constitutional duty of disclosure unless his omission is of sufficient
18
significance to result in the denial of the defendant’s right to a fair trial.”); id. at 109-10 (“The
mere possibility that an item of undisclosed information might have helped the defense, or might
have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional
sense.”).
Next, Defendant Robinson argues that if he had access to the Pryor reports, he would
have subpoenaed Ms. Traci Cooksey—who is listed in the Pryor reports as the pharmacist
informing Defendant Robinson of suspected fraudulent activities—to “support and corroborate
[his] defense” that he was reporting suspicious individuals to the authorities. ECF No. 326, 18.
Defendant Robinson contends that this testimony “could have been used to rebut the powerfully
incriminating and heavily relied upon testimony of the pharmacists who were called by the
government.” ECF No. 327, 6. However, Defendant Robinson was made aware of Ms.
Cooksey’s identity prior to trial, on September 30, 2016, when Defendant was provided with
police reports from the St. Mary’s County Sheriff’s Office regarding the investigation of Claude
Carpenter. ECF No. 330-2, Attch. B. In one report prepared by the Sheriff’s Office, an
investigator wrote that “contact was made with Pharmacist Traci Cooksey at the Target
Pharmacy in California, Maryland,” and the report then details that fraudulent prescriptions were
being presented at the pharmacy. Id. Defendant Robinson argues that he was provided with Ms.
Cooksey’s name, and not with “documentation concerning the exculpatory nature of her contact
with [him].” ECF No. 332, 21. However, Defendant Robinson’s own quotes from that report
strongly indicate that fraudulent prescriptions were being filled at the Target pharmacy which
would put Defendant Robinson on notice of the potentially exculpatory nature of Ms. Cooksey’s
testimony. Id. Moreover, Defendant Robinson does not assert how this particular information
19
was material; specifically, how the suppression of the document detailing an interaction between
Ms. Cooksey and Defendant Robinson impacted the fairness of the proceedings. Defendant
Robinson simply “reiterates the government cannot pick and choose the evidence it wants to
provide.” Id. at 22. However, as will be discussed further below, even without Ms. Cooksey,
Defendant Robinson was able to introduce multiple pieces of evidence supporting his argument
that he had previously called law enforcement on pill-seeking patients.
Defendant Robinson further argues that the Pryor reports were material because he would
have used them to impeach the testimony of United States’ witness TFO Taylor. However, in
order for impeachment evidence to satisfy the materiality prong, the witness’s testimony itself
must be material to the case. Cuffie, 80 F.3d at 518 (“[Witness’s] testimony was an important
part of the government’ case against [the defendant] because, as [his] counsel argued to the jury,
it established the only direct connection between [the defendant] and the drugs found during the
search of [the witness’s] apartment.”); United States v. Smith, 77 F.3d 511, 517 (D.C. Cir. 1996)
(“Because the Government’s nondisclosures in this case significantly impaired defense counsel’s
ability to impeach the credibility of a principal prosecution witness, we reverse and remand for a
new trial.”); Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009) (supporting “the
principle that evidence insignificantly impacting the degree of impeachment may not be
sufficient to meet the Kyles materiality standard”). And here, TFO Taylor was not a material
witness.
The Court notes that Defendant Robinson attempts to establish materiality by arguing that
the Pryor reports “contradicted the grand jury testimony of material witness M.P.D. [sic] officer
Karen Taylor.” ECF No. 326, 14-15. However, the majority of TFO Taylor’s grand jury
20
testimony was never presented to the jury and, thus, cannot weigh against the fairness of
Defendant Robinson’s trial. TFO Taylor’s testimony during trial constitutes only seven pages in
a trial transcript that is thousands of pages long. See July 25, 2017 Trial Tr. 2896-2903. TFO
Taylor’s testimony did not mention Agent Pryor or the Pryor reports; rather, the testimony was
focused strictly on a statement made by a previous witness, Christi Townsend. Id. As such, the
Pryor reports could not have been used to impeach TFO Taylor as the subject of those reports
was not relevant to her trial testimony.
This case is not like that cited by Defendant Robinson, United States v. Quinn, 537 F.
Supp. 2d 99 (D.D.C. 2008). In Quinn, the defendant’s direct supervisor was labeled as a
“‘critical’ government witness” who was “the only witness who would testify that he warned [the
defendant] of the illegality of indirect shipments.” Quinn, 537 F. Supp. 2d at 109. Therefore, the
court found that the fact that the supervisor had “lied to investigators” concerning the
defendant’s culpability “would surely be material to [the defendant’s] guilt and hence Brady
information.” Id. Here, TFO Taylor was not a material witness to the United States’ case against
Defendant Robinson, as such the reports that could have been used to impeach her testimony was
also not material.
Next, Defendant Robinson argues that the Pryor reports were material as they would have
“supported a theory of defense.” ECF No. 326, 31. Though Defendant Robinson does not
explicitly state what his “theory of defense” was during trial, he does represent that his “primary
defense” was that he was “practic[ing] [medicine] in legitimate good faith.” Id. at 11. The Court
disagrees and finds that the suppression of the Pryor reports did not prevent Defendant Robinson
from putting forth his theory of defense.
21
According to Defendant Robinson, the Pryor reports could have been used to show that
he was practicing medicine in good faith because they provided some evidence that he reported
pill seekers to law enforcement. However, the evidence in the Pryor reports is not as supportive
as Defendant Robinson contends. Each report is only two pages long. The first report recounts
that Defendant Robinson contacted law enforcement to state that at least two people were using
his name on fraudulent prescriptions. Defendant Robinson also made allegations that a police
officer was involved in the illegal distribution of pharmaceuticals. ECF No. 308-1. The second
report recounted an interview with Defendant Robinson again concerning suspected fraudulent
prescriptions. Defendant Robinson alleged that some of his patients, as well as certain police
officers, were involved in a scheme with the fraudulent prescriptions. ECF No. 308-2. He further
stated his belief that some patients who had left his practice were pill seekers. Id.
These reports primarily show Dr. Robinson’s concern with the suspected use of
fraudulent prescriptions made out in his name. The reports do not provide direct evidence of Dr.
Robinson reporting any specific individuals for pill-seeking behavior. Additionally, the reports
are from early 2011, significantly prior to the events at issue in the lawsuit dated mid to late
2013.
Moreover, even absent the Pryor reports, Defendant Robinson was able to introduce
evidence at trial that he reported substance abusers to the authorities. In Defendant Robinson’s
opening and closing statements, trial counsel argued that Defendant Robinson practiced medicine
in good faith. July 13, 2017 Trial Tr. 730: 9-13; Aug. 7, 2017 Trial Tr. 5117: 18-5118: 6.
Defendant Robinson also introduced specific evidence that he reported pill-seekers. DEA
Investigator Shirley Powell testified that Defendant Robinson stated that he “would keep a
22
security file folder on patients that are bad, and if – at times, if they are bad, he will sometime
have them arrested . . . bad people meant that these are people that are not coming in for the right
reasons, and he felt that they were bad, and he would have them arrested . . . if they were doctor
shopping or going to multiple doctors, if he found out, then he would have them arrested.” July
14, 2017, Trial Tr. 968: 20-22; 1062: 10-13; 1062: 16-18. Investigator Powell also testified that
the defendant told her that he had called law enforcement on “bad” patients. July 14, 2017, Trial
Tr. 1062: 5-7. And, Dr. Ericka Brock, testified that when she worked at Defendant Robinson’s
clinic, he would “call the police” when a patient “tried to obtain treatments using a fraudulent
MRI.” August 1, 2017, Trial Tr. 4422: 11-15. Additionally, on undercover video evidence
submitted to the jury, Defendant Robinson can be heard telling patients at his clinic that he
would report pill seekers to law enforcement. Defendant Robinson stated, “I’ve caught two
people trying to come here and take medications and sell medications. I’ve had them arrested. If
I catch anybody else trying to use my practice to do anything at all illegal, I will personally have
you prosecuted.” ECF No. 330, 12 (quoting Gov’t Ex. 54A.7 at timestamp 30- 44). As such, the
Court finds that the lack of the Pryor reports did not prevent Defendant Robinson from
presenting his defense. Therefore, the lack of production of the Pryor reports did not render his
trial unfair.
Finally, Defendant Robinson claims that he could have used the Pryor reports to impeach
the United States’ expert witness, Dr. Romanoff. Defendant Robinson maintains that the
suppression of the Pryor reports prevented him from “impeach[ing] [Dr.] Romanoff and the
reliability and accuracy of his opinions,” and that there were “numerous and material ways in
which [Dr.] Romanoff could have been effectively challenged had [he] been provided with the
23
Pryor reports in a timely manner.” ECF No. 332, 17, 7. Defendant Robinson claims that his trial
Counsel would have “confronted Dr. Romanoff with the Pryor reports and inquired of [Dr.]
Romanoff whether that information refuted part of [his] opinions.” Id. at 8. Defendant Robinson
further emphasizes that the Pryor reports “would have allowed for a complete cross-examination
of [Dr.] Romanoff.” Id. at 24 (emphasis in original).
In presenting this argument, Defendant Robinson speaks largely in generalities, failing to
explain how the inability to cross-examine Dr. Romanoff with the information in the Pryor
reports undermines the confidence of the verdict. Defendant Robinson represents that his trial
Counsel would have used the Pryor reports to “confront[] Dr. Romanoff” and “inquire[] of [Dr.]
Romanoff whether that information refuted part of [his] opinions.” Id. at 8. However, Defendant
Robinson could have impeached Dr. Romanoff with similar evidence, introduced at trial, that
Defendant Robinson had previously reported patients exhibiting drug-seeking behavior.
Additionally, Defendant Robinson does not show how impeachment via the Pryor reports would
have been material to his defense, particularly since Dr. Romanoff was already thoroughly cross-
examined and questioned on his review of patient files in an attempt to discredit his opinion. See
e.g. July 31, 2017 Trial Tr. 4140: 1-4144: 25 (portion of cross-examination of Dr. Romanoff).
Accordingly, the Pryor reports would not have materially aided in Defendant Robinson’s
attempts to impeach Dr. Romanoff.
For the reasons explained above, the Court finds that even though the Pryor reports were
favorable to Defendant Robinson and were suppressed, they do not constitute a violation of
Brady which would warrant a new trial. The Pryor reports were not material evidence and do not
implicate the fairness of Defendant Robinson’s trial.
24
2. CCN Report
The Court will next consider Defendant Robinson’s Brady argument as it relates to the
CCN report which was allegedly suppressed until after the trial. The CCN report concerns an
incident which occurred on March 28, 2013, at Defendant Robinson’s clinic involving an
individual named Tonica Reid. See ECF No. 301-1, 10–12. The report details that Defendant
Robinson received a supposed referral from Ms. Reid. Defendant Robinson had begun treating
her and wrote her “a prescription for oxycodone” when Defendant Robinson was informed that
there was no record of such a referral from the prescribing medical clinic. Id. at 12. Defendant
Robinson then reported Ms. Reid to the authorities, took back his prescription “in the presence of
the reporting officer,” and Ms. Reid was subsequently “detained and transported to the Seventh
District to be interviewed by [TFO] Taylor of check and fraud.” Id.
Both the DEA and the Metropolitan Police Department (“MPD”) wrote reports on this
incident. See ECF No. 301-1, 4-9 (DEA); id. at 10-18 (MPD). Defendant Robinson received the
report of the incident from the DEA prior to trial on October 12, 2016. However, Defendant
Robinson did not receive the CCN report of the incident from the MPD until after trial.
Defendant Robinson contends that the failure to provide him with the CCN report of the incident
from the MPD constitutes a Brady violation. The Court disagrees.
The Court begins by considering the first Brady factor—whether or not the evidence in
the CCN report was favorable to Defendant Robinson. Defendant claims that the CCN report
was “highly exculpatory” because it revealed the existence of “other exculpatory witnesses
whose testimony the jury was deprived of hearing,” and would have demonstrated “his good
faith efforts to run his practice in a legal manner.” ECF No. 326, 20-21. The exculpatory
25
witnesses to which Defendant Robinson refers are Detective Arthur Reed and Officer Taziyah
Mujaahid, the MPD personnel who were associated with the matter involving Ms. Reid. The
Court agrees that the CCN report was likely favorable to Defendant Robinson as it provides
some evidence that he reported at least one patient with a fraudulent referral, supporting his
argument that he was practicing medicine in good faith.
Pursuant to Brady, the Court next considers whether or not the CCN report was
suppressed. It is undisputed that Defendant Robinson did not receive the CCN report made by
the MPD until after the trial. However, the United States contends that this failure did not
constitute a Brady violation because “all of the information contained in the CCN report was
provided to the defendant on October 16, 2016,” when Defendant was given the DEA report that
addressed the March 28, 2013, incident involving Ms. Reid, ECF No. 330, 12. Courts have found
that there is no Brady violation “if the information was available to [the defendant] from another
source.” United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007) (quoting Carter v. Bell, 218
F.3d 581, 601 (6th Cir. 2000)); see, e.g., United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.
1986) (“This court has subsequently held that the Brady rule does not apply if the evidence in
question is available to the defendant from other sources.”); United States v. Zuazo, 243 F.3d
428, 431 (8th Cir. 2001) (“The government does not suppress evidence in violation of Brady by
failing to disclose evidence to which the defendant had access through other channels.”); cf.
Agurs, 427 U.S. at 103 (noting that Brady violations involve discovery of information “which
had been known to the prosecution but unknown to the defense”).
Accordingly, for purposes of the second Brady factor, the question becomes whether or
not Defendant Robinson had access to the information contained in the CCN report. And,
26
Defendant Robinson fails to identify any information in the withheld CCN report which was not
also in the provided report by the DEA. Defendant Robinson focuses on the argument that, if he
had access to the MPD report, he would have called as witnesses MPD personnel Reed and
Mujaahid who were assigned to the matter. However, the names of these two individuals were
known to Defendant Robinson as they were also included in the DEA report. The DEA report
stated that “subject was interviewed by TFO Taylor and Detective Arthur Reed of the Seventh
District’s Detective’s Office.” ECF No. 301-1, 4. The report went on to state that “Office
Mujaahid of the Seventh District was given paperwork from [Defendant Robinson]. The
paperwork was turned over to TFO Taylor as evidence.” ECF No. 1, 6. As such, prior to trial,
Defendant Robinson was aware of the names of these two allegedly exculpatory witnesses.
Having reviewed both the CCN report from the MPD and the DEA report, the Court
concludes that all relevant information from the CCN report was included in the DEA report
which Defendant Robinson had access to before the trial. And, in fact, the DEA report is
considerably more detailed than the CCN report. Moreover, as previously stated, Defendant
Robinson cites to no information contained in the CCN report which was not previously
disclosed in the DEA report. In fact, in his Motion for Reconsideration, Defendant Robinson
appears to confuse the two reports. ECF No. 326. Defendant Robinson writes that “Pryor’s
written Report of the Investigation of April 4, 2013, not disclosed prior to trial, contained the
following information related to Tonica Reid…” ECF No. 236, 25. Defendant Robinson
proceeds to quote from the report and state that “the withheld written report is clearly Brady.” Id.
However, Defendant Robinson’s quote is taken directly from the DEA report, which was
provided to him prior to trial, rather than from the CCN report which was withheld. As such, the
27
information which Defendant Robinson refers to as “clearly Brady” was available to him prior to
trial.
Because the information in the CCN report was not suppressed and was available to
Defendant Robinson prior to trial through the DEA report, such information cannot have been
material. As Defendant Robinson already possessed the substance of the CCN report prior to
trial, the fairness of Defendant Robinson’s trial is not impugned. However, the Court shall
briefly address one of Defendant Robinson’s arguments in favor of materiality.
In support of his Brady argument, Defendant Robinson submitted an affidavit from
Jonathan Jeffress, a member of Defendant Robinson’s trial counsel. In the affidavit, Mr. Jeffress
states that the CCN report was “a significant piece of evidence that could have been used as a
part of Dr. Robinson’s trial defense.” ECF No. 326-6. Mr. Jeffress explains that the CCN report
“would have been powerful evidence for use with the law enforcement witnesses the government
called to testify. It also would have been extremely significant for the cross examination of the
government’s expert witness, Dr. Romanoff.” Id.
The Court finds Mr. Jeffress’ affidavit to be vague and unconvincing. Mr. Jeffress fails to
explain how he would have used the CCN report to cross-examine law enforcement witnesses or
Dr. Romanoff. Without such specifics, the Court is left to speculate as to how the trial would
have been different with the disclosure of the CCN report. Moreover, Mr. Jeffress does not
address that the information in the CCN report was also contained in the DEA report, to which
trial counsel had access significantly prior to the trial.
For the reasons explained above, the Court finds that even though the CCN report was
favorable to Defendant Robinson, it was not suppressed as the information was available to
28
Defendant Robinson’s trial counsel through the DEA report. Moreover, as the information was
available to counsel, the lack of the CCN report does not implicate the fairness of Defendant
Robinson’s trial. As such, Defendant Robinson has failed to state a claim under Brady.
C. Ineffective Assistance of Counsel Argument
Finally, the Court considers Defendant Robinson’s ineffective assistance of counsel
argument. Defendant Robinson contends that he was “prejudiced by the unexplained and
unsound decision not to present expert testimony to rebut the expert testimony of Dr. Romanoff.”
ECF No. 327, 16-17. Defendant Robinson’s ineffective assistance of counsel claim chiefly
hinges on two arguments: first, that trial counsel performed deficiently by failing to call Dr.
Thomas Simopoulos as an expert witness; and second, that “attempt[ing] to introduce another
unqualified physician [Dr. Yolanda Ragland] in substitution for [Dr.] Simopoulos is not
justifiable on the grounds of it being a strategic decision.” ECF No. 332, 32.
A defendant claiming ineffective assistance of counsel, including in the context of a
motion for a new trial, must satisfy the two-prong standard introduced in Strickland v.
Washington, 466 U.S. 668 (1984). First, the defendant must show that the “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
Second, the defendant must prove that “the deficient performance prejudiced the defense.” Id. at
687. The defendant “faces a heavy burden in his effort to establish that any of his lawyers were
ineffective.” United States v. Brisbane, 729 F. Supp. 2d 99, 109 (D.D.C. 2010). Moreover, a
defendant’s failure to make the required showing for either Strickland prong defeats an
ineffective assistance of counsel claim, and a court has the discretion to choose which inquiry to
address first. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an
29
ineffective assistance of counsel claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes an insufficient showing on one.”).
As a preliminary matter, the Court shall address the United States’ argument that
Defendant Robinson’s ineffective assistance of counsel claim is “premature.” ECF No. 330, 17.
In support of its argument, the United States cites to the Supreme Court’s decision in Massaro v.
United States, 538 U.S. 500 (2003), in which the Court held that “an ineffective-assistance-of-
counsel claim may be brought in a collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500,
504 (2003).
The Court finds that Massaro does not stand for the proposition that a collateral
proceeding is the only appropriate venue for an ineffective assistance of counsel claim.
Additionally, courts within this Circuit have allowed ineffective assistance of counsel claims to
be raised in the context of motions for a new trial. See, e.g., United States v. Fennell, 53 F.3d
1296, 1304 (D.C. Cir. 1995) (“When an appellant has not raised a claim of ineffective assistance
of counsel before the district court, either in a motion for a new trial, pursuant to Federal Rule of
Criminal Procedure 33, or in a collateral attack, under 28 U.S.C. § 2255 . . . .”); United States v.
Cyrus, 890 F.2d 1245, 1247 (D.C. Cir. 1989) (same); United States v. Pinkney, 543 F.2d 908,
915 (D.C. Cir. 1976) (“When a claim of ineffective assistance of counsel is contemplated, it
should first be presented to the District Court in a motion for a new trial.”); cf. United States v.
Weaver, 281 F.3d 228, 234 (D.C. Cir. 2002) (noting that D.C. Circuit is “in a minority,” as other
“courts of appeals requires defendants to raise their ineffectiveness claims only in a collateral
proceedings”); United States v. Geraldo, 271 F.3d 1112, 1115-16 (D.C. Cir. 2001) (citing other
30
circuit court cases to demonstrate majority approach). As such, the Court concludes that it can
consider Defendant Robinson’s claim of ineffective assistance of counsel in the context of his
motion for a new trial.
1. Deficient Performance
Under the first Strickland factor, the defendant must “show that counsel’s actions were
not supported by a reasonable strategy . . . .” Massaro, 538 U.S. at 505. When engaging in this
analysis, the Supreme Court cautioned that:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after 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.
A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.
Because of the difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action “might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (internal citations omitted); see id. at 690 (noting that “strategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable”).
Defendant Robinson argues that the failure to call an expert witness was deficient
performance, especially after trial counsel had retained and prepared Dr. Simopoulos. He
contends that “there is no good reason or explanation for not calling [Dr.] Simopoulos as a
defense expert” as a qualified expert could have “offered numerous opinions that would have
bolstered defendant’s defense.” ECF No. 332, 28. Specifically, Defendant Robinson claims that a
defense expert could have (1) opined about the “proper medications and dosages” prescribed by
31
Defendant Robinson, (2) opined about the “differences between a clinic that services a large
volume of uninsured patients as opposed to a well-funded private hospital,” and (3) offered
“opinions about the existence of an appropriate physician/patient relationship based upon the
testimony of defendant’s patients.” Id. at 28-29.
The Court disagrees and finds that trial counsel’s failure to call an expert witness was not
deficient performance and was instead a strategic decision. Rather than simple negligence or
haphazard decision-making, a review of the contemporaneous emails produced by trial counsel
suggests that the defense team came to doubt the benefits of calling Dr. Simopoulos as an expert
witness after thoroughly vetting and preparing him. See ECF No. 351-1, 223 (“Dr. S[imopoulos]
is going to wuss out on us too! I think he just doesn’t like getting crossed.”); id. at 222 (attorney
acknowledging that Dr. Simopoulos “didn’t pan out” as an expert witness); id. at 231 (stating
there was a “Simopoulos issue,” and noting that every medical provider, except for Dr. Ragland,5
“refus[ed] to bless [Defendant Robinson’s] prescribing methods”); id. at 232 (noting that Dr.
Simopoulos can “testify exclusively about general opioid use,” but that he is “vulnerable if asked
about particular records”); id. at 249 (“[A]fter some other discussions about the strength of Dr.
Simopoulos’s testimony at trial, we thought it might make sense to look into the possibility of
putting on another expert.”); id. at 255 (stating “[i]n defense of our judgment in retaining Dr.
S[imopoulos] in the first place, the rant about oxy he went on is very different than how he
presented himself 6 months ago. It has been extremely frustrating to watch him undermine his
original positions”); id. (stating, in reference to Dr. Simopoulos, “I am confident that your
5
Dr. Yolanda Ragland was called as a medical practitioner fact witness and testified in support
of Defendant Robinson’s practice.
32
judgment was unimpeachable. He’s allowed himself to be overtaken by the media coverage”).
Based on the content of the emails, Defendant Robinson’s trial counsel began to have concerns
that Dr. Simopoulos would not testify favorably as to Defendant Robinson’s prescription strategy
and that he would be vulnerable to cross-examination.
These concerns were likely furthered by comments Dr. Simopoulos made to trial counsel
during their preparation sessions. In November 2016, Dr. Simopoulos told trial counsel that “it’s
the uniform nature of the prescription that’s the problem” and that a “higher dose” “requires
medical justification.” ECF No. 351-1, 214, 218-219. He also instructed trial counsel that some
of Defendant Robinson’s patient charts lacked information indicating “medical necessity to
justify starting with a higher dose.” Id. Given these statements, trial counsels’ concerns about
calling Dr. Simopoulos to testify seem justified.
Defendant Robinson goes on to argue that even if Dr. Simopoulos would not have
testified favorably, “there is no defensible reason for not calling another qualified medical expert
the trial team had more confidence in.” ECF No. 364, 7. Defendant Robinson explains that “Trial
counsel was acutely aware, through its discussions with Dr. Simopoulos, that expert was [sic]
testimony was available to opine that defendant’s prescriptions of oxycodone were not outside
acceptable norms of pain medicine practice.” Id. Defendant Robinson supports his arguments by
citing to a post-trial affidavit by Dr. Richard Stieg explaining that, if he had been qualified as an
expert by the Court, he would have testified that Defendant Robinson’s prescribing methods
were medically acceptable. See ECF No. 327-4.
However, Defendant Robinson fails to acknowledge that his trial counsel did consider,
and reject, potential expert witnesses other than Dr. Simopoulos. See, e.g., ECF No. 351-1, 205
33
(noting Baker Botts has an expert in Tennessee); id. at 207 (noting “Dr. Carol Warfield in Boston
is the gold standard” but that she “will say she is too busy”); id. at 208 (“We got a couple of
leads on possible experts. Emily will do some outreach.”); id. at 222 (discussing the possibility
of getting Dr. Warfield or Dr. Karch after Dr. Simopoulos “didn’t pan out”); id. at 231 (“[E]very
medical provider I’ve talked to except for Dr. Ragland refuses to bless [Defendant Robinson’s]
prescribing methods.”); id. at 232 (“I don’t think [Dr.] Emanuel is going to come testify in
support of [Defendant Robinson’s] questionable prescription practices.”); id. at 233 (discussing
the possible benefits of “noticing” Dr. Starr as an expert); id. at 237-247 (listing a spreadsheet of
at least 12 possible experts); id. at 248 (considering as an expert Dr. Frisch, the brother of an
attorney at the firm). Ultimately, despite the use of effort and resources in a thorough search,
Defendant Robinson’s trial counsel were unable to locate an expert that they believed would
benefit Defendant Robinson’s defense. The fact that Defendant Robinson was able to find a more
favorable expert in Dr. Stieg after trial does not mean that trial counsel were ineffective for
failing to locate an expert following a reasonable and thorough investigation before trial.
The D.C. Circuit has recently addressed a case analogous to the present one. In United
States v. Gray-Burriss, 920 F.3d 61 (D.C. Cir. 2019), the defendant asserted a number of grounds
for his ineffective assistance of counsel claim, including that his counsel was “ineffective by
fail[ing] to secure the testimony of an expert witness . . . to support the defense that [the
defendant] acted in good faith . . . .” United States v. Gray-Burriss, 920 F.3d 61, 67 (D.C. Cir.
2019). The D.C. Circuit observed that “given the damaging cross-examination that [the expert
witness] would have endured,” the district court was correct in finding that the counsel’s
performance did not satisfy the first Strickland prong. Id. at 68. Similarly, other circuit courts
34
have stated their reticence to conclude that the failure to call an expert witness is indicative of
deficient performance. See, e.g., United States v. Staples, 410 F.3d 484, 488-89 (8th Cir. 2005)
(noting that the Eighth Circuit consistently finds that a “decision not to call a witness is a
‘virtually unchallengeable’ decision of trial strategy,” in part, because “there is considerable risk
inherent in calling any witness because if the witness does not hold up well on cross-
examination, the jurors may draw unfavorable inferences against the party who called him or
her”) (internal citations omitted); Lema v. United States, 987 F.2d 48, 54 (1st Cir. 1993) (stating
similar reasoning); Greiner v. Wells, 417 F.3d 305, 323 (2nd Cir. 2005) (“The decision not to
call a particular witness is typically a question of trial strategy that [reviewing] courts are ill-
suited to second-guess.”) (citation omitted); cf. Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th
Cir. 2001) (concluding that “trial counsel’s decision not to call the expert witness was not so
patently unreasonable a strategic decision that no competent attorney would have chosen this
strategy”).
Rather than calling an expert witness who could be subject to damaging cross-
examination, Defendant Robinson’s trial counsel elected to follow a different litigation strategy.
Before and during trial, trial counsel filed over 20 motions attempting to limit or exclude the
United States’ evidence. See ECF Nos. 33, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 115, 140,
141, 142, 144, 145, 146, 147, 173, 185, 193. Additionally, trial counsel engaged in rigorous
cross-examination of the United States’ fact witnesses and expert witness. The Court previously
noted that trial counsel “did a thorough job of impeaching the Government’s witnesses.” ECF
No. 316, 5. Additionally, trial counsel called six witnesses who testified in support of Defendant
Robinson. Included in the defense witnesses and the cross-examination of two of the United
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States’ witnesses were four medical professionals who testified favorably about at least some of
Defendant Robinson’s practices. See August 2, 2017 Trial Tr. 4654: 17-18; 4655: 14-15 (Dr.
Ragland testifying that Defendant Robinson’s “patients [] seemed to be doing well” and that she
sometimes oversaw his research); August 1, 2017, Trial Tr. 4408-4422 (Dr. Ericka Brock
testifying as to Defendant Robinson’s treatment protocol and record-keeping); July 17, 2017
Trial Tr. 1302: 9-1308: 9 (Dr. Peter Huynh’s testimony about Defendant Robinson’s spinal
decompression apparatus which was based on scientific ideas); July 17, 2017, Trial Tr. 1343: 17-
24 (Dr. Nesle Clerge testifying that there was nothing suspicious about patients paying by money
order). Accordingly, the Court concludes that trial counsel’s decision not to call an expert to
testify was a reasonable trial strategy.
In addition to complaining about his trial counsels’ failure to call Dr. Simopoulos or
another expert, Defendant Robinson also complains that attempting to “qualify [Dr.] Ragland
was a preposterous and ill-conceived error that was the product on ineffectiveness,” as the
evidence suggested that Dr. Ragland was “defendant’s friend” and there is “no explanation or
justification for attempting to offer an utterly biased witness as your sole defense expert.” ECF
No. 332, 32.
However, the Court notes that Defendant Robinson does not cite to any legal authority
that suggests a “biased witness,” particularly one that is biased towards the defendant, is
sufficient to satisfy the Strickland factors. Moreover, while Dr. Ragland was considered as an
expert, she ultimately testified as a fact witness pursuant to Federal Rule of Evidence 701 as to
her experiences as a medical professional witnessing Defendant Robinson’s practices. See
August 2, 2017 Trial Tr. 4626: 6-8 (withdrawing request to qualify Dr. Ragland as an expert).
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Dr. Ragland’s testimony about Defendant Robinson’s practices was valuable as trial counsel
recounted that “every medical provider I’ve talked to except for Dr. Ragland refuses to bless
[Defendant Robinson’s] prescribing methods.” ECF No. 351-1, 231. Accordingly, the Court
finds no support for Defendant Robinson’s argument that trial counsel’s decision to call Dr.
Ragland as a supporting fact witness was deficient. See Garnett v. Neven, 408 F. App’x 47, 48
(9th Cir. 2011) (finding that counsel’s performance was not deficient for failing to call a specific
expert witness when counsel presented other witnesses and favorable testimony).
For these reasons, the Court finds that Defendant Robinson has not satisfied the first
Strickland factor of deficient performance. Trial counsels’ decision to not call Dr. Simopoulos,
or another expert witness, constituted a reasonable trial strategy.
2. Prejudice
Because the Court has found that Defendant Robinson’s trial counsel was not deficient,
the Court need not assess the second Strickland factor of prejudice. Nevertheless, for purposes of
thoroughness, the Court shall explain why Defendant Robinson was not prejudiced by this trial
counsels’ performance.
To establish prejudice under Strickland, the defendant must show that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability is a
probability that is sufficient to undermine confidence in the outcome.” Id. While this does not
require a “showing that counsel’s actions ‘more likely than not altered the outcome,’” the
“likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 111-12 (2011) (quoting Strickland, 466 U.S. at 693, 697); see also United States v.
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Newman, 805 F.3d 1143, 1147 (D.C. Cir. 2015) (“[T]he burden of establishing prejudice falls
squarely on [the defendant’s] shoulders.”). In addition, if the alleged Strickland violation is based
on a failure to call an expert witness, the defendant must demonstrate what the “scientific expert
would have stated,” and must show “that the testimony would have been favorable to a particular
defense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009) (citation omitted).
Here, Defendant Robinson maintains that he was prejudiced by “the unexplained and
unsound decision not to present expert testimony to rebut the expert testimony of Dr. Romanoff,”
and that such expert testimony “would certainly have aided the jury in reaching a fair and fully
informed decision[.]” ECF No. 327, 16-17. Defendant Robinson contends that the case against
him was only considered “a strong case because just one side of the story was heard.” ECF No.
364, 8. Specifically, Defendant Robinson argues that there were two “essential areas that needed
to be addressed by an expert witness”: (1) whether Defendant Robinson had a “proper
physician/patient relationship,” and (2) whether the “dosages and amounts of oxycodone
prescribed by [Defendant Robinson] were proper and entirely consistent with a legitimate
medical practice.” Id. at 9-14.
However, a review of the record shows that trial counsel did address Defendant
Robinson’s relationship with his patients. Dr. Ragland testified that she discussed Defendant
Robinson’s patients with him and that his “patients [] seemed to be doing well.” See August 2,
2017 Trial Tr. 4654: 17-18; 4655: 14-15. And, Dr. Brock testified about her experience working
with Defendant at his clinic, giving evidence of his treatment protocol, including a physical
examination and testing. See August 1, 2017, Trial Tr. 4408-4422. As for whether or not the
dosages and amounts of oxycodone prescribed by Defendant Robinson were appropriate, the
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Court has already explained that despite a thorough investigation trial counsel were unable to
find an expert that would testify favorably.
Moreover, even if Defendant Robinson had presented an expert witness at trial, he has
failed to show that there is a reasonable probability that the result would have been different. The
United States’ case was not primarily centered around the testimony of Dr. Romanoff. Instead,
the United States presented over 30 witnesses in its case, including law enforcement, medical
professionals who had worked with Defendant Robinson, bank employees, pharmacists,
undercover agents who were prescribed medicine by Defendant Robinson, and eight patients of
Dr. Robinson who explained their interactions with him. Additionally, the United States
presented video footage showing Defendant Robinson’s interactions with his patients as well as
evidence of Defendant Robinson’s admissions given during an interview with the DEA.
Given the weight of the evidence against Defendant Robinson, as well as the breadth of
that evidence, the Court finds that Defendant Robinson has failed to establish prejudice. See, e.g.
United States v. Udo, 795 F.3d 24, 31 (D.C. Cir. 2015) (“This case was not a close call. The
strength of the government's case against [the defendant] leaves us with no concern that the
outcome would have been different had counsel never promised that [the defendant] would
testify. We therefore hold that counsel's unfulfilled promise did not amount to ineffective
assistance of counsel because [the defendant] suffered no prejudice.”); United States v. Moore,
104 F.3d 377, 391 (D.C. Cir. 1997) (explaining that, given the strength of evidence against
defendant, counsel’s failure to call a witness was not prejudicial).
Finally, the Court will address Defendant Robinson’s attempt to show prejudice through
reliance on an allegedly analogous case, United States v. Laureys, 866 F.3d 432 (D.C. Cir. 2017).
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In Laureys, the court found that the defendant had been denied effective assistance of counsel
where his attorney failed to present expert psychiatric testimony. The court first emphasized the
importance of psychiatry in criminal proceedings that turn on the defendant’s mental state,
particularly when it is “necessary to an adequate defense.” Laureys, 866 F.3d at 437-38. The
court then concluded that the “record shows that in pursuing his own idea of a diminished
capacity defense, trial counsel lost sight of how [an expert witness] could have placed his client’s
conduct in a clinical context and mitigated the effects of evidence offered by the government and
by [the defendant] himself.” Id. at 440; see id. (“Counsel admitted that he had never handled an
insanity defense, and yet he appears to have considered himself qualified, as a layperson, to
effectively diagnose his client as an ‘Internet sexual compulsive’ . . . .”). Defendant Robinson
contends that Laureys is “instructive and exactly on point with this case,” noting that “[b]oth
cases involve trial counsel who knew they needed an expert witness to support a specific and
known defense and in both instances trial counsel employed misguided efforts that resulted in the
failure to call an essential expert to ‘mitigate the effects of evidence offered by the
government.’” ECF No. 364, 14, 16.
The Court finds that Defendant Robinson’s reliance on Laureys is misplaced. In the
present case, psychiatry did not play a pivotal role, or any role, in Defendant Robinson’s criminal
proceedings. In addition, the record does not indicate that trial counsel “lost sight” of how Dr.
Simopoulos could have benefited Defendant Robinson during trial. Rather, as discussed at length
above, the evidence suggests that Dr. Simopoulos changed his position into one that would harm
Defendant. See ECF No. 351-1, 255 (“[T]he rant about oxy [Dr. Simopoulos] went on is very
different than how he presented himself 6 months ago. It has been extremely frustrating to watch
40
him undermine his original positions.”). And, despite a thorough search prior to trial, trial
counsel were unable to find an expert witness who would benefit Defendant Robinson and not be
subject to damaging cross-examination. Finally, in Laureys, absent an expert witness, the
defendant was unable to put on any evidence that he lacked the intent to engage in the charged
conduct. Here, even without an expert, Defendant Robinson was able to produce evidence that he
had a true doctor-patient relationship and that he practiced medicine in good faith through the
testimony of non-expert medical practitioners. As a result, the Court concludes that the D.C.
Circuit’s decision in Laureys is not instructive for the present case.
For these reasons, the Court finds that Defendant Robinson has not satisfied the second
Strickland factor of prejudice. Even with the addition of an expert witness, there is not a
reasonable probability that the result of the proceeding would have been different.
3. Evidentiary Hearing
As a final matter, the Court must decide whether or not an evidentiary hearing is
warranted for Defendant Robinson’s claims. The D.C. Circuit has recognized that “the district
court need not hold an evidentiary hearing unless the movant has offered substantial evidence
suggesting his or her right to the underlying relief.” United States v. Gray-Burriss, 801 F. App’x
785, 785-86 (D.C. Cir. 2020); see United States v. Davis, 612 F. Supp. 2d 48, 51 (D.D.C. 2009)
(noting that the decision to hold an evidentiary hearing on a Rule 33 motion “rests within the
sound discretion of the district court”). On the other hand, the D.C. Circuit has stated that it
“do[es] not ‘hesitate to remand [for an evidentiary hearing] when a trial record is insufficient to
assess the full circumstances and rationales informing the strategic decisions of trial counsel.’”
United States v. McGill, 815 F.3d 846, 942 (D.C. Cir. 2016) (quoting United States v. Williams,
41
784 F.3d 798, 804 (D.C. Cir. 2015)); see generally, Cyrus, 890 F.2d at 1247 (“An evidentiary
hearing is critical to our evaluation of most ineffective assistance of counsel claims, since these
frequently concern matters outside the trial record, such as whether counsel properly investigated
the case, considered relevant legal theories, or adequately prepared a defense.”). However, a
motion for a new trial “can ordinarily be decided on the basis of affidavits without an evidentiary
hearing, and a district court’s decision not to hold such a hearing may be reversed only for abuse
of discretion.” United States v. Lam Kwong-Wah, 924 F.2d 298, 308 (D.C. Cir. 1991) (internal
quotation marks and citation omitted). In addition, the D.C. Circuit has rejected ineffective
assistance of counsel claims, without remanding for an evidentiary hearing, where the record
“clearly shows” that the challenged actions by counsel were not deficient or did not result in the
defendant being prejudiced. Sitzmann, 893 F.3d at 831-32 (compiling cases).
Here, Defendant Robinson has not requested an evidentiary hearing. Instead, Defendant
Robinson has submitted affidavits to support his claims. See ECF No. 326-4 (Dr. Stieg’s
affidavit); ECF No. 326-6 (trial counsel’s affidavit). Additionally, both parties have relied on
contemporaneous emails from Defendant Robinson’s trial counsel as evidence of their trial
strategy. See ECF No. 351-1. Moreover, this Court is the same court that presided over
Defendant’s trial, providing the Court with added insight into the happenings at and before trial.
And, Defendant Robinson has not offered substantial evidence that he is entitled to relief on any
of his claims. Consequently, the Court concludes that it can confidently rely on the parties’
filings and the record as a whole to resolve Defendant Robinson’s claims without an evidentiary
hearing.
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V. CONCLUSION
In conclusion, the Court DENIES Defendant Robinson’s [284] Motion for a New Trial
and thus also DENIES his [326] Motion for Reconsideration of Motion for Institution of
Conditions of Release Pending Sentencing. The Court finds that the two pieces of withheld
evidence, the Pryor reports and the CCN report, do not constitute violations under Brady as they
do not call into question the fairness of the ultimate verdict and as the information in the CCN
report was not withheld. The Court further concludes that Defendant Robinson’s trial counsel
were not ineffective as they did not perform deficiently and their actions did not prejudice
Defendant Robinson. Finally, the Court determines that the myriad arguments that Defendant
Robinson briefly raises are not meritorious.
An appropriate Order accompanies this Memorandum Opinion.
/s
COLLEEN KOLLAR-KOTELLY
United States District Judge
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