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King v. United States

United States District Court, E.D. Virginia, Alexandria Division

May 29, 2018

IRIVINE JOHNSTON KING, and AISHA RASHIDATU KING, Petitioners,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Petitioners Irvine Johnson King and Aisha Rashidatu King's Amended Motions to Vacate, Set Aside, or Correct Sentence and for New Trial Pursuant to 28 U.S.C. § 2255.

         The Petitioners were the subjects of state and federal charges related to their operation of a home health agency called Bright Beginnings. The state charges were brought first, following a Medicaid audit by the Commonwealth of Virginia. Irvine King was detained pending trial on the state charges. On May 31, 2012, a criminal complaint was filed in the Eastern District of Virginia charging the Petitioners with conspiracy to commit healthcare fraud in violation of 18 U.S.C. §§ 1347 and 1349. The complaint alleged that the Petitioners had billed for services that were not actually rendered, and/or were not rendered by the provider listed on the billing forms submitted to the Department of Medical Assistance Services ("DMAS"), the agency that administers the Medicaid program in Virginia.

         On June 28, 2012, a federal grand jury returned a 25-count indictment against the Petitioners, charging them with one count of conspiracy to commit health care fraud, twenty-two substantive counts of health care fraud, and two counts of aggravated identity theft. During the proceedings, the Petitioners retained the services of several attorneys. John Iweanoge represented Irvine in both the federal and state cases. Aisha originally retained Gretchen Taylor in her state case, but fired Ms. Taylor after the federal charges were brought. Aisha then hired and fired several more attorneys, including Abu Kalokoh and Michael Pritchard. Aisha eventually hired Michael Khouri, a criminal defense attorney who specializes in healthcare fraud cases, to represent her at trial.

         The Petitioners' arraignment was originally set for July 6, 2012. The day after the indictment was returned, Aisha's attorney, Mr. Pritchard, filed a motion to withdraw. Mr. Pritchard noted that he was hired to engage in "pre indictment defense of the charges" and "plea negotiations related to those charges, " and that Aisha had not retained him for trial. Mr. Pritchard also stated that Aisha was not adequately assisting in the defense and had not followed his reasonable instructions, thus causing Mr. Pritchard's further representation of Aisha to be combative and counterproductive. The Court held a hearing on the motion to withdraw on July 6, 2012, at which time Aisha informed the Court that she had retained new counsel, Michael Khouri. The Court granted Mr. Pritchard's motion to withdraw. John Iweanoge agreed to serve as local counsel for Aisha.

         Mr. Khouri and Mr. Iweanoge represented Aisha at her arraignment on July 27, 2012. Mr. Iweanoge represented Irvine at his arraignment on July 30, 2012. After a three day trial in January 2013, the jury returned a verdict of guilty on all counts for Irvine and on counts 1 and 11-25 for Aisha. On March 22, 2013, the Court sentenced the Petitioners to 121 months' imprisonment and 3 years of supervised release. In addition to special assessments, the Petitioners were ordered to pay $931, 894.16 in restitution, the actual fraud loss associated with the health care conspiracy.

         The Petitioners appealed, and the Fourth Circuit affirmed the convictions and sentences. The Petitioners filed writs of certiorari which were denied on June 30, 2015.

         On June 24, 2015, the Petitioners filed timely pro se petitions to vacate their convictions and sentences pursuant to 28 U.S.C. § 2255. Subsequently, the Petitioners retained pro bono counsel and filed amended 2255 petitions. These amended petitions alleged that their defense counsel did not advise them about the "strength or weakness of the Government's case" against the Petitioners or inform them about their likelihood of success if they went to trial. They alleged that their defense attorneys did not adequately review the evidence and failed to inform them of the sentences that they might face if they went to trial and were convicted. The Petitioners claimed that they were unaware of the mandatory two-year sentence that they would receive if convicted of aggravated identity theft. They claimed that they would have accepted the government's plea offer if they had been adequately apprised of the "details and strength of the government's case against" them and potential sentencing exposure. A two-day evidentiary hearing on both amended 2255 petitions was held on November 9 and 13, 2017.

         The Petitioners' claims that they were unaware of the nature of the charges and the strength of the government's evidence cannot be reconciled with the various pretrial proceedings in this case, their role in Bright Beginnings and the charged offenses, or the testimony at the evidentiary hearing of the various defense attorneys. Both of the Petitioners were present during a lengthy preliminary hearing in state court and during respective preliminary hearings in the federal case. At these hearings, the Commonwealth of Virginia and the United States presented detailed evidence about the charges, the evidence, and the Petitioners' roles in the charged offenses.

         Furthermore, the evidence adduced at trial demonstrates that the Petitioners were intimately involved in the fabrication and falsification of the billing and supporting documents submitted to DMAS. The primary evidence against them was the fabricated documents that the Petitioners submitted during the audit, as well as records seized from the Petitioners' business. The Petitioners were therefore aware of the majority of the evidence used against them because they created it.

         With regard to Aisha King, the Court had an opportunity to hear her testimony and observe her demeanor at length on direct examination and on cross-examination. Based on her testimony and demeanor, the Court does not credit the claims in her amended 2255 petition that she was not adequately apprised of the strength of the government's case or the evidence against her or that she was not advised of the potential sentence she could receive if she went to trial. The Court instead finds that Aisha was adequately advised during plea negotiations, but nonetheless made an informed decision not to accept any of the plea offers.

         The Court also had the opportunity to observe and hear testimony from Aisha's attorney during the state proceedings, Gretchen Taylor. Ms. Taylor testified that she reviewed the state's evidence extensively and met with Aisha on multiple occasions to discuss the case and the evidence, and that Aisha accompanied her to review evidence on at least one occasion. Multiple witnesses, many of whom later testified at trial, testified at the state preliminary hearing where the Petitioners were present.

         In or around December 2011, a wired plea offer was extended to Aisha and Irvine that would resolve both the state and federal cases. The offer required Aisha to plead guilty to a state misdemeanor embezzlement charge in exchange for her cooperation. The offer remained open for three months, and Aisha at no time advised her counsel to accept it. The government ultimately withdrew the offer. Ms. Taylor testified at the evidentiary hearing that there were several reasons Aisha did not accept the offer, including that: Aisha continued to maintain her innocence; Irvine did not want to plead guilty and the pleas were wired; and Aisha faced immigration consequences. Ms. Taylor testified that she did not remember Aisha ever stating that she was guilty, in contrast to Aisha's claims at the hearing that she openly admitted her guilt to defense counsel.

         Aisha fired Ms. Taylor and hired Abu Kalokoh to represent her in the federal case. A pre-indictment plea for Aisha was emailed to Mr. Kalokoh on April 19, 2012 ("the April 2012 plea"), which required Aisha to plead guilty to one count of conspiracy to commit healthcare fraud, agree to a fraud loss of $400, 000 to $1 million, and receive enhancements for abuse of a ...


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