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,

(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.

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.

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.”

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

3 which were eventually dropped—and two counts of money laundering pursuant to

. 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.

Defendant Robinson was found not guilty of

one count of prescribing oxycodone.

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.

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.

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

5 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,

(D.D.C. 2003) (quoting United States v. Edmond,

(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,

(D.C. Cir. 1990) (quoting Tibbs v. Florida,

, 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,

. The moving party has “the burden of proof that a new trial is justified.”

6 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

8 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.

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

10 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

11 not suffer prejudice sufficient to warrant a new trial. See United States v. Andrews,

(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.

12 Sixth, Defendant Robinson contends that the Court committed legal error in the definition

for criminal liability under

. Defendant Robinson faults the Court for not giving a

jury instruction on the difference between civil medical malpractice and a violation of

. 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

“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.

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

13 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,

(D.D.C. 2007) (quoting Brady v.

Maryland,

(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),

(D.C. Cir. 1999) (internal quotation

marks omitted) (quoting Strickler v. Green,

(1999)). This interpretation

includes “both the failure to search for Brady material and the failure to produce it.”

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”;

14 (2) that evidence must have been “suppressed by the State, either willfully or inadvertently”; and

(3) “prejudice must have ensued.” Strickler,

; see

(“[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,

(D.C. Cir. 1999) (citing United States v.

Agurs,

(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,

(D.D.C. 2014), aff’d,

(D.C. Cir. 2018) (citing Strickler,

). 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,

(D.D.C. 2013) (quoting United States v.

Blackley,

(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.

17 Kyles v. Whitley,

(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,

(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,

.

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,

(“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.”);

(“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.

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.

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,

(“[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,

(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,

(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.

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,

(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,

. 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.”

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,

(6th Cir. 2007) (quoting Carter v. Bell,

(6th Cir. 2000)); see, e.g., United States v. Davis,

(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,

(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,

(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.”

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.”

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,

(1984). First, the defendant must show that the “counsel’s

representation fell below an objective standard of reasonableness.” Strickland,

.

Second, the defendant must prove that “the deficient performance prejudiced the defense.”

. The defendant “faces a heavy burden in his effort to establish that any of his lawyers were

ineffective.” United States v. Brisbane,

(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,

(“[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,

(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,

(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,

(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

. . . .”); United States v.

Cyrus,

(D.C. Cir. 1989) (same); United States v. Pinkney,

(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,

(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,

(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,

. 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,

(internal citations omitted); see

(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,

(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,

(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.

. 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,

(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,

(1st Cir. 1993) (stating

similar reasoning); Greiner v. Wells,

(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,

, 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

35 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).

36 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,

(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,

. A “reasonable probability is a

probability that is sufficient to undermine confidence in the outcome.”

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,

(2011) (quoting Strickland,

); see also United States v.

37 Newman,

(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,

(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

38 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,

(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,

(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,

(D.C. Cir. 2017).

39 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,

. 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.”

; see

(“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,

, 785-86 (D.C. Cir. 2020); see United States v. Davis,

(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,

(D.C. Cir. 2016) (quoting United States v. Williams,

41

(D.C. Cir. 2015)); see generally, Cyrus,

(“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,

(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,

(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.

42 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

43