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At a Glance:
Title:
Bieganowski v. U.S.
Date:
August 4, 2006
Citation:
EP-04-CA-180-DB
Status:
Unpublished Opinion

Bieganowski v. U.S.

Editor’s Note: Additions are indicated by Text and deletions by Text.

United States District Court,

W.D. Texas,

El Paso Division.

Arthur C. BIEGANOWSKI, Petitioner,

v.

UNITED STATES of America, Respondent.

Nos. EP-04-CA-180-DB, EP-98-CR-959-DB.

|

Aug. 4, 2006.

MEMORANDUM OPINION & ORDER

DAVID BRIONES, District Judge.

TABLE OF CONTENTS

I. BACKGROUND

6

A. Criminal Cause No. EP-98-CR-959-DB

6

B. Bieganowski’s Amended Motion to Vacate

9

II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255

10

III. THE MERITS OF BIEGANOWSKI’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

12

A. Legal Standard-Ineffective Assistance of Counsel Claims

12

B. Counsel Did Not Establish Which HCPCS Levels and Codes Insurance Carriers Required

15

C. Counsel Did Not Object to the Court’s Restitution Order

16

D. Counsel Did Not File Any Defense Motions Between January 1999 and July 2, 1999, Only Visited Bieganowski Four Times Between June 8, 1999 and July 20, 1999, and Were Dilatory in Preparing for Trial

19

E. Counsel’s Medical Condition Affected the Trial’s Outcome

21

F. Counsel Did Not Index or Read Jencks Act Material or Printouts From Bieganowski’s Computer

22

G. Counsel Did Not Review Tapes or Transcripts Made During an Undercover Investigation of Bieganowski’s Medical Practice

24

H. Counsel Did Not Effectively Cross-Examine Agent Lopez Regarding the Fictitious Accident Report

26

I. Counsel Did Not Listen to or Edit Tapes of the FBI’s Undercover Investigation

28

J. Counsel Did Not Examine the Medical File Bieganowski and His Staff Maintained Regarding Undercover Agent Garcia

31

K. Counsel Did Not Review Sign-In Sheets Before Witness Sandra Olivares Testified

34

1. Olivares’s Trial Testimony

35

2. Discussion

40

L. Counsel Attempted to Subpoena FBI Agent James Griego to Testify

43

M. Counsel Did Not Attend the Government’s Preview of Its Case

44

N. Counsel Did Not Review Fee Tickets

45

O. Counsel Did Not Effectively Cross-Examine Witness Elizabeth Cedillos

45

P. Counsel Did Not Effectively Cross-Examine Witness Maximo Arroyo

48

Q. Counsel’s Comment Regarding the Volume of Discovery in the Case

50

R. Counsel Did Not Cross-Examine Government Witness Rene Moreno

51

1. Moreno’s Trial Testimony

52

2. Castillo’s De Novo Bond Hearing Testimony

52

3. Duarte’s Proffer Statement

54

4. Grace Castro’s Affidavit

54

5. Discussion

55

S. Counsel Moved to Admit Doris Provencio’s Medical Chart Without First Reviewing It

56

T. Counsel Did Not Effectively Cross-examine Government Witness Rosa Maribel Mata-Cordova

57

1. Mata’s Trial Testimony

57

2. Discussion

60

U. Counsel Did Not Effectively Cross-Examine Witness Lisa Hannusch

61

V. Counsel Did Not Call El Paso Doctors, El Paso Attorneys, or Larry Gibbs to Testify on Bieganowski’s Behalf

63

W. Counsel Did Not Call Rosa Maria Garcia in his Case-in-Chief and Did Not Effectively Cross-Examine Her During the Government’s Case-in-Chief

66

1. The Parties’ Arguments

66

2. Discussion

67

X. Counsel Did Not Call Carlos Cervantes to Dispute the Government’s Allegations in Count Seven

69

Y. Counsel Did Not Review a Letter Bieganowski Sent to Former Counsel Concerning Maria Romero and Did Not Enter the Letter Into Evidence at Trial

70

1. The Charges

70

2. Bieganowski’s claim

72

3. Discussion

76

Z. Counsel Did Not Call Witnesses to Discredit Lucy Campos’s Testimony

77

1. Campos’s Testimony

78

2. Angela McKinley’s Trial Testimony

84

3. Angela McKinley’s Affidavit

93

4. Tammy Diaz’s Trial Testimony

95

5. Tammy Diaz’s Affidavit

96

3. Grace Castro’s Affidavit

97

4. Bonnie Cortez’s Affidavit

97

5. Cecile Fowler’s Affidavit

98

6. Discussion

99

AA. Counsel Did Not Call Witnesses to Discredit George Lozano’s Testimony

101

1. George Lozano’s Testimony

101

2. Angela McKinley’s Trial Testimony and Affidavit

117

3. Tammy Diaz’s Trial Testimony and Affidavit

118

3. Bonnie Cortez’s Affidavit

118

4. Itzel Grandos’s Affidavit

118

5. Discussion

119

BB. Counsel Did Not Discredit Yvette Renteria’s Trial Testimony

122

CC. Counsel Did Not Discredit Chris Valdespino’s and Danny Ramirez’s Trial Testimony

122

DD. Counsel Did Not Discredit Rose Goodlow’s Testimony

123

EE. Counsel Did Not Discredit Gina Macias’s Testimony

123

1. Gina Macias’s Trial Testimony

123

2. Sandra Ramos’s Affidavit & Supplemental Affidavit

146

3. Discussion

149

FF. Counsel Did Not Effectively Cross-Examine Angela McKinley

151

1. McKinley’s Affidavit

153

2. Discussion

154

GG. Counsel Did Not Effectively Examine Witness Burhmann Gilbert

154

1. Gilbert’s Trial Testimony

155

2. Gilbert’s Affidavit

159

3. Discussion

160

HH. Counsel Did Not Call Colleen Alexander or Enriqueta Saenz to Testify

160

II. Counsel Did Not Call Patients to Testify That No One Forced Them to Have Block Injections

161

JJ. Counsel Did Not Properly Prepare Patients to Testify

164

1. The Affiants’ Trial Testimony

165

2. Discussion

168

KK. Counsel Should Have Called Additional Patients to Testify on Bieganowski’s Behalf

171

LL. Counsel Did Not Require Insurance Company Representatives to State Which HCPCS Levels and Codes Their Companies Required

172

MM. Counsel Did Not Show That Some HCFCAs Were Hand-Delivered Rather Than Mailed to Insurance Carriers

172

NN. Counsel Did Not Read Chris Valdespino’s Form 302 Report

17 3

OO. Counsel Did Not Move the Undersigned Judge to Recuse Himself or Move for a Change of Venue

174

PP. Counsel Was Ineffective Because He Did Not Attempt to Compel Attorney Luis Islas to Withdraw from Representing Lucy Campos or to Compel Attorney Gary Weiser to Withdraw from Representing Victor Bieganowski

175

QQ. Counsel Did Not Seek FBI Agents’ Interview Notes

176

1. Federal Rule of Criminal Procedure 16(a)(1)(A)

177

2. The Jencks Act

179

3. Brady v. Washington

180

RR. Counsel Did Not Pursue Evidence That the Rene Moreno and Raymond Espinoza Received Undisclosed Incentives to Testify Against Bieganowski

182

1. Raymond Espinoza

182

2. Rene Moreno

185

SS. Counsel Did Not Challenge the Chain of Custody for Bieganowski’s Billing and Travel Records, or Texas Worker’s Compensation Fund Records

185

TT. Counsel Did Not File an Interlocutory Appeal Challenging the Court’s Orders Denying the Release of Funds to Hire Expert Witnesses

186

UU. Counsel Did Not Request Further Voir Dire or a Supplemental Instruction Regarding a Local Newspaper Article

187

VV. Counsel Did Not Seek a Specific Unanimity Instruction Regarding the Money Laundering Count

188

WW. Counsel Did Not Challenge the Government’s Alleged Failure to Prove the Concealment Element of the Money Laundering

189

XX. Counsel Did Not Show the Jury That the Government’s Alleged Intimidation of Witness Linda Howard Adversely Affected Howard’s Testimony

190

IV. BIEGANOWSKI’S PROSECUTORIAL MISCONDUCT CLAIMS ARE NOT ENTITLED TO COLLATERAL REVIEW

190

A. The Government Committed Forum Shopping

192

1. The Parties’ Arguments

192

2. Discussion

193

B. The Government Violated Its Duties Under Brady and Giglio

1 94

1. The Parties’ Arguments

194

2. The Applicable Legal Standard

195

3. Discussion

197

C. The Government Failed to Disclose Jencks Act Materials

200

1. The Parties’ Arguments

200

2. Discussion

201

D. Agent Griego Coerced Government Witnesses Elizabeth Cedillos and Angela McKinley Into Giving False Testimony at Trial

203

1. The Parties’ Arguments

203

2. Discussion

203

E. Agent Griego Intimidated Defense Witnesses

205

1. The Parties’ Arguments

205

2. Legal Standard

206

3. Discussion

206

a. Bonnie Cortez

206

b. Tony Duarte

208

c. Howard Lee

208

d. Diana Rodriquez

209

e. Unnamed Individuals

210

F. Special Agent James Griego Threatened Bieganowski

211

G. The Government Intended to Influence the Outcome of the Trial Through the Use of Witchcraft

212

H. National Insurance Crime Bureau Special Agent J.C. Rhodes and FBI Agent James Griego Arranged for Attorney Charles Roberts to Be Hit By a Car Before Bieganowski’s Trial

213

I. Two Federal Agents, Various Government Witnesses, and Assistant United States Attorney Debra Kanof Lied Before the Grand Jury and at Trial

215

V. CERTIFICATE OF APPEALABILITY

215

VI. CONCLUSION & ORDER

216

MEMORANDUM OPINION & ORDER

*1 Before the Court is Petitioner Arthur C. Bieganowski’s (“Bieganowski”) pro se “Amended Memorandum and Brief in Support of Motion § 2255” (“Amended Motion to Vacate”) [Docket No. 616], filed in the above-captioned cause on January 11, 2005. Therein, Bieganowski moves the Court for relief from his conviction for mail fraud and money laundering, on the grounds of ineffective assistance of counsel and prosecutorial misconduct. After carefully considering the Parties’ pleadings and the trial record, the Court finds that Bieganowski’s prosecutorial misconduct claims are not properly before it. As to Bieganowski’s ineffective assistance of counsel claims, the Court concludes that Bieganowski has not shown that he is entitled to relief on the merits. The Court will accordingly deny Bieganowski relief and dismiss his Amended Motion to Vacate with prejudice. The Court will additionally decline to certify Bieganowski’s issues for appeal.

I. BACKGROUND

A. Criminal Cause No. EP-98-CR-959-DB

In its opinion rejecting Bieganowski’s direct appeal, the Fifth Circuit Court of Appeals summarized the Government’s case against Bieganowski and his co-defendants thusly:

As reflected by the trial evidence, physicians and medical service providers typically bill insurance companies by means of a standardized form known as a Healthcare Finance Administration (HCFA) Form No. 1500, the actual service for which a bill is submitted being designated on the HCFA Form by a Current Procedural Terminology (CPT) code, a numerical code that represents a specific service or procedure for which an insurance company will pay on behalf of an insured. On August 4, 1998, [Gustavo] Diaz, [Richard J.] Goldberg, [Jesse Jaime] Lopez, Bieganowski, and five others were charged in a twenty-three-count indictment with a series of offenses arising from a complex scheme to use these forms to defraud insurance companies. The essence of the scheme involved a conspiracy to submit bills for services that were either never performed, were known to be unneeded, or contained CPT codes that reflected a higher level of service than was actually provided.

Dr. Bieganowski began practicing medicine in Texas in 1979. By the time of his arrest in 1996, he owned five medical clinics in El Paso: El Paso Pain & Stress Clinic (EPPSC), a clinic specializing in pain management and the center of Dr. Bieganowski’s medical practice; El Paso Institute of Physical Medicine & Rehabilitation (EPIPMR), a physical therapy clinic; El Paso Doctors Medical Center (EPDMC), a chiropracty clinic; and El Paso Radiology Services (EPRS), a radiology clinic. As a licensed physician and owner of the various clinics, Dr. Bieganowski was the central figure in the conspiracy, with Diaz, Lopez, and Goldberg fulfilling secondary roles. Diaz worked as a physician’s assistant in Dr. Bieganowski’s primary clinic, while Lopez worked as a physical therapist at the El Paso Institute of Physical Medicine & Rehabilitation. Goldberg was nominally Dr. Bieganowski’s outside accountant, but actually served as the de facto business manager for the various businesses.

*2 The operation of the conspiracy, as charged in the indictment, covered the period between 1989 and 1996, and can be divided into three operational stages, the first of which involved the solicitation of patients. To obtain patients, Dr. Bieganowski initially engaged a self-styled telemarketer, [Robert] Griego, to solicit patients for the El Paso Pain & Stress Clinic. To avoid the appearance that he was soliciting directly for Dr. Bieganowski, Griego was later employed through EPDMC, Dr. Bieganowski’s chiropracty clinic. The connection, however, was only thinly veiled, as both Dr. Bieganowski and Goldberg met periodically with Griego to monitor his work, prepare scripts, and set quotas. Griego would obtain automobile accident reports from the El Paso Police Department and then use those reports to contact the accident victims by telephone. Once Griego contacted victims and referred them to EPDMC for chiropractic care, they would then be referred again to Dr. Bieganowski for further medical treatment.

The second stage of the scheme was the heart of the conspiracy and involved the creation and submission of fraudulent bills and HCFA Forms to medical insurance companies for reimbursement. The Government presented evidence of a number of fraudulent acts, including double billing, billing for services performed by Dr. Bieganowski on days when he was not in El Paso, billing for treatments known to be unneeded, billing for treatments performed by a non-physician at a physician’s rate, double billing, and billing for the use of equipment that the clinic never possessed. Lopez, for example, was convicted of billing for therapy provided in a device called a Hubbard Tank, when none of Dr. Bieganowski’s clinics actually possessed such a device.

The third aspect of the conspiracy involved money laundering, and the movement of the funds derived from the submission of the fraudulent HCFA Forms. In the early stages of the conspiracy, before 1994, payments from insurance companies were deposited directly into bank accounts maintained in the names of the various clinics at Norwest Bank in El Paso. After November 1994, the scheme increased in complexity and the billing operations for the various clinics were consolidated through Servicio de Facturacion y Cobranza, S.A. de C.V. (Servicio), a Mexican corporation established by Goldberg and located in Ciudad Juarez, Mexico. Under the direction of Lucy Campos, Dr. Bieganowski’s nominal office manager and a named co-conspirator, Servicio assumed the role of submitting bills for the clinics for reimbursement from various insurance companies. Insurance company reimbursements were then deposited into accounts held in the clinics’ names at the Bank of the West in El Paso. From there Campos, the sole signator on the Servicio account, would transfer the entire amount of the reimbursements into an account held in the name of Servicio, also at the Bank of the West. Once the funds were consolidated in the Servicio account, Campos shifted those amounts necessary to cover the clinics’ operating expenses back to the original clinic accounts maintained at Norwest Bank. The excess funds that remained in the Servicio account then followed the below described routes from the Bank of the West to Dr. Bieganowski’s pocket.

*3 A certain amount of the surplus funds held in the Servicio account was delivered directly to Dr. Bieganowski. The remainder, however, was transferred to UTM Professional Management (UTM), a shell corporation established under Goldberg’s guidance, whose nominal owner and sole officer was a young college student and former nanny to Dr. Bieganowski’s children. Under Goldberg’s direction, the funds deposited in UTM’s name were moved by means of wire transfers from UTM’s account in El Paso to Barclays Bank in New York. From New York, the funds were transferred to a Barclays account held by International Medical Management, a limited partnership in the Cayman Islands, where they eventually became available for Dr. Bieganowski’s personal use. In 1994, the Federal Bureau of Investigation (FBI) along with the Internal Revenue Service (IRS) began to investigate Dr. Bieganowski’s medical practice. An undercover investigation soon followed, which, together with the results of a search executed in 1996, led to the appellants’ arrest in August of 1998. Shortly after his arrest, Dr. Bieganowski was diagnosed with cancer. Although incarcerated in El Paso, he began treatment and was briefly transferred to New York for medical attention. As a result of Dr. Bieganowski’s condition and the volume of discovery, the case was considerably delayed, and did not proceed to trial until March 13, 2000.

A jury returned a guilty verdict on at least some counts for [Diaz, Lopez, Goldberg, and Bieganowski]. Goldberg was found guilty on two counts, conspiracy to commit mail fraud in violation of 18 U.S.C. §§ 1341 and 371, and conspiracy to money launder in violation of 18 U.S.C. § 1956(a)(1)(B)(I), (a)(2)(B)(I), and (h). A third count against Goldberg was dismissed on the government’s motion. [Goldberg] was sentenced to one hundred months’ imprisonment on the conspiracy to money launder count and to a sixty month concurrent term on the mail fraud conspiracy count. Lopez was charged in five counts of the indictment, was convicted on two counts of mail fraud, and was acquitted on the other three counts. He was sentenced to concurrent terms of forty-one months’ imprisonment and a two-year period of supervised release. Diaz was charged in two counts of the indictment. He was convicted of one count of conspiracy to commit mail fraud, and sentenced to a term of fifty-one months’ imprisonment. He was acquitted on the other count. Bieganowski, the central participant in the conspiracy, was charged in fifteen of the twenty-three counts of the indictment. The jury returned a guilty verdict on ten of those counts, including nine counts of mail fraud and conspiracy to commit mail fraud, and one count of conspiracy to money launder. He was acquitted on five counts. Bieganowski was sentenced to 168 months’ imprisonment.1

The Court additionally required Bieganowski to pay restitution in the amount of $23,049,853.00 and to forfeit $11,000,000.00, based on the jury’s forfeiture verdict.

*4 As mentioned above, Bieganowski timely challenged his judgment and conviction in a direct appeal. The Fifth Circuit Court of Appeals affirmed Bieganowski’s judgment and sentence in a published opinion filed on November 22, 2002.2 The Supreme Court of the United States denied Bieganowski’s petition for certiorari in an order dated May 5, 2003.3

B. Bieganowski’s Amended Motion to Vacate

The District Clerk received Bieganowski’s original Motion to Vacate, Set Aside, or Correct Sentence (“Original Motion to Vacate”) on May 10, 2004.4 His Amended Motion to Vacate followed on January 11, 2005.5 The Government filed its “Response to Petitioner’s Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Section 2255 and Motion for Evidentiary Hearing” (“Response”) on September 15, 2005. Bieganowski submitted a “Reply to Government’s Response to Petitioner’s Amended Motion to Vacate, Set Aside or Correct Sentence Filed Pursuant to § 2255 and Motion for Evidentiary Hearing” (“Reply”) on October 13, 2005.

Bieganowski raises two multifaceted claims in his Amended Motion to Vacate. In Ground One, Bieganowski alleges that his defense attorneys, Charles Louis Roberts (“Roberts”) and H. Davidson Smith, III (“Smith”) rendered ineffective assistance. In Ground Two, Bieganowski accuses Federal Bureau of Investigations Special Agent James Griego (“Agent Griego”) and other government agents of various misdeeds. Bieganowski also contends that the lead prosecutor in this case, Assistant United States Debra Kanof (“Kanof”), is guilty of misconduct. Before evaluating Bieganowski’s claims, the Court will first consider the scope and purpose of motions pursuant to 28 U.S.C. § 2255.

II. MOTIONS TO VACATE PURSUANT TO 28 U.S.C. § 2255

After a defendant has been convicted and exhausted or waived any right to appeal, a court is normally “entitled to presume that [he] stands fairly and finally convicted.”6 Accordingly, “relief under 28 U.S.C. §§ 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.”7 A criminal defendant seeking relief from his conviction or sentence in a Motion to Vacate pursuant to 28 U.S.C. § 2255 must therefore establish one of the following: (1) his sentence was imposed in violation of the Constitution or federal law; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence imposed exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.8

It is well settled that, absent countervailing equitable considerations, a district court will refuse to adjudicate claims that were previously raised and rejected on direct review.9 It is similarly well settled that a collateral challenge may not take the place of a direct appeal.10 If a petitioner challenging his conviction and sentence pursuant to 28 U.S.C. § 2255 could have raised his constitutional or jurisdictional issues on direct appeal, he may not raise them for the first time on collateral review unless he shows either cause for his procedural default and actual prejudice resulting from the error, or demonstrates that the alleged constitutional violation probably resulted in the conviction of one who is actually innocent.11

*5 To satisfy the “cause” standard, a petitioner must “show that some objective factor external to the defense prevented him from raising on direct appeal the claim he now advances.12 The procedural bar does not apply, however, to claims which could not have been raised on direct appeal, such as those alleging ineffective assistance of counsel.13 To establish “actual innocence” sufficient to overcome the procedural bar to review of his claims, a petitioner must present new evidence which, when considered with all the evidence presented at trial, makes it more likely than not that no reasonable juror would have convicted the petitioner.14

With the principles articulated above in mind, the Court now turns to the merits of Bieganowski’s specific ineffective assistance claims. Afterward, the Court will discuss Bieganowski’s prosecutorial misconduct allegations and whether those claims are properly before the Court.15

III. THE MERITS OF BIEGANOWSKI’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

In Ground One of his Amended Motion to Vacate, Bieganowski argues that his defense team rendered ineffective assistance before and during trial. The Court will first set forth the legal standard governing ineffective assistance of counsel claims. The Court will afterward consider whether Bieganowski has carried his burden under the applicable legal test regarding any of his allegations against Roberts and Smith.

A. Legal Standard-Ineffective Assistance of Counsel Claims

An ineffective assistance of counsel claim has two components.16 First, the petitioner must show that counsel performed deficiently.17 To establish deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of reasonableness.”18 The Supreme Court has “declined to articulate specific guidelines for appropriate attorney conduct and instead ha[s] emphasized that ‘the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.’ ”19

To establish that counsel’s representation fell below an objective standard of reasonableness, a petitioner must overcome a strong presumption that his attorney’s conduct fell within a wide range of reasonable professional assistance.20 Reviewing courts are extremely deferential in scrutinizing counsel’s performance, making every effort to eliminate the distorting effects of hindsight.21 It is strongly presumed that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions.22 An attorney’s strategic choices, usually based on information supplied by the defendant and from a thorough investigation of relevant facts and law, are virtually unchallengeable.23 Counsel is neither required to advance every non-frivolous argument, nor to investigate every conceivable matter, nor to assert patently frivolous arguments.24 Defense counsel is similarly not required to exercise clairvoyance during the course of a criminal trial.25

*6 Furthermore, even if counsel’s performance falls below an objective standard of reasonableness, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”26 Accordingly, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”27 More specifically, a 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”28

Because a convicted defendant must satisfy both Strickland’s prongs, his failure to establish either deficient performance or prejudice under that standard makes it unnecessary for a court to examine whether the petitioner has satisfied the other prong.29 Therefore, a convicted defendant’s failure to establish that his counsel’s performance fell below an objective standard of reasonableness avoids the need to consider the issue of prejudice.30 Similarly, it is also unnecessary to consider whether counsel’s performance was deficient where there is an insufficient showing of prejudice.31 Moreover, mere conclusory allegations in support of ineffective assistance claims are insufficient, as a matter of law, to raise a constitutional issue.32

B. Counsel Did Not Establish Which HCPCS Levels and Codes Insurance Carriers Required

Bieganowski states that, at trial, Government witness Linda McGlothin (“McGlothin”) testified that insurance companies use different Health Care Common Procedure Coding System (“HCPCS”) levels and Current Procedural Terminology (“CPT”) codes to identify the medical procedures provided.33 According to Bieganowski, McGlothin also testified that there are two HCPCS code levels, “Level 1” and Level 2,” and that different insurance carriers and workers compensation funds require different code levels.34 Bieganowski asserts that

in a case where the defendant is charged with fraudulently billing under these HCPCS levels and codes, it is only logical to first identify which codes were required by the commercial insurance carriers, by workers compensation, or the United States Department of Labor. Only then could a jury determine whether the wrong HCPCS levels and codes were fraudulently billed. However, that never happened in the instant case because counsel failed to avail himself of the information needed to properly understand the HCPCS levels and codes. Therefore, counsel never required the Government to establish which HCPCS levels and codes were required by which companies or agencies involved. Therefore, since that critical information was never presented to the jury, the)ury could not logically have determined the wrong levels and codes were billed.35

*7 The Court finds Bieganowski’s argument unavailing. First, the record does not support Bieganowski’s conclusory allegation that his attorneys were unfamiliar with HPCPS levels or CPS codes. Second, Bieganowski stood accused, among other things, of not actually providing the services for which he billed the various insurance carriers. The particular codes the insurance carriers required were thus irrelevant to the charges against him. Counsel cannot be said to have performed deficiently by declining to establish a point that was not essential to Bieganowski’s defense. Lastly, Bieganowski has not demonstrated prejudice, because he has failed to show that his attorneys were unable to effectively weaken the impact of McGlothin’s testimony through cross-examination.

C. Counsel Did Not Object to the Court’s Restitution Order

Bieganowski asserts that counsel did not investigate the case law relevant to the restitution statute, 18 U.S.C. § 3663A.36 As a preliminary matter, Bieganowski avers that the Court applied the Mandatory Victims Restitution Act (“MVRA”) to Bieganowski’s conduct occurring before April 24, 1996, the MVRA’s enactment date, as well as to Bieganowski’s conduct occurring after the statute’s enactment date.37 Bieganowski argues that the Court’s alleged retroactive application of the MVRA constituted error under United States v. Richards, 204 F.3d 177, 212-13 (5th Cir.2000). In Richards, Bieganowski asserts, the Fifth Circuit Court of Appeals concluded that the Ex Post Facto Clause of the United States Constitution precludes a district court from applying the MVRA to conduct predating the statute’s enactment date.38 Bieganowski claims that counsel did not read Richards, or alternatively, did not understand the case’s proposition, and therefore failed to raise a viable objection to the Court’s restitution order.39 The Court additionally understands Bieganowski to argue that, under United States v. Corn, 836 F.2d 889, 896 (5th Cir.1988), the Court could not lawfully assess any amount of restitution for acts predating April 24, 1996.40

After due consideration, the Court finds that Bieganowski entirely misreads Corn and Richards. On January 1, 1983, Congress enacted the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. §§ 3663-3664.41 With the VWPA’s enactment, Congress specifically authorized restitution as part of federal sentencing.42 Corn established that the VWPA does not apply retroactively to losses resulting from criminal acts committed before January 1, 1983.43 Under Corn, a district court may, as a part of a defendant’s sentence, only order a defendant to compensate a victim or witness for losses resulting from criminal acts committed after January 1, 1983.44

The VWPA required a district court to consider a defendant’s ability to pay in setting the amount of any restitution order.45 On April 24, 1996, however, Congress enacted the MVRA, which amended the VWPA. “As amended, the statute provides that ‘the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.’ ”46 Richards clarified that a district court would violate the Ex Post Facto Clause of the United States Constitution if it retroactively applied the MVRA’s less-forgiving standard to criminal acts a defendant committed before April 14, 1996.47 Richards therefore instructs district courts to apply the VWPA’s abilityto-pay standard when setting the amount of restitution for criminal acts predating the MPVA’s enactment date.48

*8 Under Corn and Richards, it is clear that the Court possessed the authority to order Bieganowski to compensate his victims. As to Bieganowski’s criminal acts occurring before April 24, 1996, it was only incumbent upon the Court to consider Bieganowski’s ability to pay such restitution.49 Nothing in the record before the Court suggests that it applied the MVRA, rather than the VWPA, to Bieganowski’s acts predating April 24, 1996. The Court adopted the Presentence Report, which included specific findings concerning Bieganowski’s ability to pay. The Court’s adoption of the Presentence Report represents sufficient evidence that the district court considered the defendant’s financial resources in ordering restitution under the pre-amendment VWPA.50 Because the Court did not retroactively apply the MVRA to Bieganowski’s criminal acts committed before April 24, 1996, counsel were not deficient when they declined to object on this basis.

D. Counsel Did Not File Any Defense Motions Between January 1999 and July 2, 1999, Only Visited Bieganowski Four Times Between June 8, 1999 and July 20, 1999, and Were Dilatory in Preparing for Trial

Bieganowski states that Roberts and Smith took over the case from Bieganowski’s former counsel, James O. Darnell (“Darnell”), in early December 1998.51 Bieganowski also relates that the Court sent Bieganowski to New York for medical treatment in mid-January 1999 and that he returned to El Paso on June 8, 1999.52 Bieganowski alleges that his attorneys were ineffective because they did not file any defense motions between January 1999 to July 2, 1999.53 Bieganowski also complains that counsel only visited him four times between June 8, 1999 to July 20, 1999.54 Bieganowski additionally faults his defense team for their allegedly dilatory trial preparation.55

The Government responds that Bieganowski’s assertions are factually inaccurate, as well as disingenuous.56 First, the Government notes that defense counsel filed numerous substantive pre-trial motions between January 1999 and July 1999.57 The Government further argues that Bieganowski has not identified what type of pretrial motion his attorneys could have filed to affect the proceeding’s outcome.58 Second, insofar as Bieganowski complains about the number of times counsel visited him between June and July 1999, once Bieganowski returned to El Paso, the Government observes that Bieganowski’s pretrial pleadings in this cause indicate Bieganowski was initially too weak to engage in meaningful consultations with counsel.59 Furthermore, the Government asserts, mere brevity of consultation time between a defendant and his counsel, without more, cannot support a claim of ineffective assistance.60 Third, to the extent Bieganowski complains that his attorneys did not diligently prepare for trial, the Government states that the United States Marshals Service transferred Bieganowski to a federal medical facility for cancer treatment just as the Government began releasing hundreds of thousands of pages of discovery.61 The Government argues that the discovery was of little use to defense counsel until their client was physically present in El Paso and in sufficiently good physical and mental condition to review the documents.62 In view of these circumstances, the Government asserts, Bieganowski has not overcome Strickland’s strong presumption that his attorneys performed in a constitutionally adequate manner.63

*9 After carefully reviewing the record in this cause and the Parties’ pleadings, the Court concludes that Respondent is correct. There is no factual basis for Bieganowski’s claim that defense counsel failed to file substantive pre-trial motions. More importantly, Bieganowski has not identified what pre-trial motions he believes his defense team should have filed and how their failure to file them prejudiced Bieganowski’s defense. To the extent Bieganowski complains about the number of visits defense counsel paid him between Bieganowski’s return to El Paso and July 20, 1999, Bieganowski fails to show how an attorney performs deficiently per se by personally visiting his client four times in fifty-three days.64 Bieganowski has further failed to show how his defense suffered by his attorneys personally visiting Bieganowski only four times during this period. As to Bieganowski’s assertion that counsel were dilatory in preparing for trial, the Court finds that Bieganowski has failed to show that his attorneys performed in a professionally unreasonable manner under the circumstances or how their inadequacies, if any, directly prejudiced Bieganowski’s defense. The Court accordingly finds that Bieganowski has not carried his burden under the applicable legal test for ineffective assistance of counsel.

E. Counsel’s Medical Condition Affected the Trial’s Outcome

The record shows that a car struck Roberts in El Paso on June 17, 1999.65 Roberts suffered significant physical injuries.66 On the accident date, Bieganowski’s trial was set to commence on August 23, 1999, approximately one month later.67 Bieganowski contends that, due to Roberts’s injuries and the effects of eye surgery which Roberts underwent shortly before trial, Roberts labored under a conflict of interest which rendered him ineffective.68 The Government answers that, after the accident in question, Roberts requested and received a 120-day continuance of the trial date.69 In addition, the Government asserts, the trial did not actually commence until March 13, 2000, some two hundred and ten days after Roberts’s accident.70 Lastly, the Government notes, Roberts was not Bieganowski’s only attorney.71

The Court has reviewed the record in this cause and it confirms the Court’s independent recollection of the proceedings. The Court finds that, immediately before and during trial, Roberts experienced some lingering physical discomfort as a result of his injuries. However, the Court finds that Roberts was certainly not impaired to a degree rendering him constitutionally ineffective. In any event, Smith also represented Bieganowski during his trial and sentencing and was available to assist Roberts with Bieganowski’s defense. More importantly, Bieganowski has failed to show that Roberts performed deficiently in any regard, or that his shortcomings, if any, directly prejudiced Bieganowski’s defense. For these reasons, the Court finds that Bieganowski has failed to carry his burden under Strickland regarding this aspect of his ineffective assistance claim.

F. Counsel Did Not Index or Read Jencks Act Material or Printouts From Bieganowski’s Computer

*10 Bieganowski alleges that his attorneys were ineffective at trial for the following reasons. First, Bieganowski asserts, defense counsel had Jencks Act material for three days before trial began, but had neither indexed nor read the material.72 Additionally, says Bieganowski, his attorneys had “specific printouts from Dr. Bieganowski’s computer and had not even looked at them.”73 After due consideration, the Court concludes that Bieganowski’s allegations are without merit.

On Monday, March 13, 2000, before voir dire began, the Court held a status conference. During that conference, Roberts argued his previously-filed Motion for Continuance of the trial.74 As one of several reasons for requesting a continuance of the trial, Roberts informed that Court that:

we were given 2- or 3,000 sheets of paper around 5:00 Friday, which is Jencks material and other significant documents of this case. As of yet, we have not indexed it. And we’ve gotten some portions to our client who, of course, is incarcerated, makes it more difficult [sic ].75

The Government responded that, first, it had no duty to give defense counsel Jencks Act materials relating to a particular witness before the witness testified.76 Second, the Government noted that it had already provided the material to defense counsel in an electronic form.77 On the Friday in question, the Government explained, it had merely given defense counsel paper copies of certain particularly relevant documents, as a courtesy.78 The Government also informed the Court that it did not intend to use the documents or to call any of the pertinent witnesses for another two weeks.79

In the Court’s independent recollection, which the record supports, Roberts clearly but mistakenly believed that the material the Government provided to him on the Friday before voir dire represented entirely new documents. Alternatively, Roberts, in an abundance of caution, merely sought additional time to verify that the Government had not also included new discovery material with the previously provided documents. As noted, during the hearing the Government clarified that the paper copies of documents it had given to Roberts on the Friday before voir dire did not represent new discovery material.

On this record, the Court finds that Bieganowski has failed to show either deficient performance or prejudice. Bieganowski has not demonstrated that, on the eve of an extremely complex and document-intensive trial, Roberts’s misunderstanding or concern over the nature of the documents were the product of anything more than a miscommunication with the prosecution. Bieganowski has presented no evidence that his defense team had not reviewed the discovery already provided to them in electronic form, or that they did not do so before the documents became relevant at trial, some two weeks in the future by the Government’s contemporaneous estimate. Moreover, given the volume of documents the Government provided to the defense on the Friday before voir dire, it would not have been unreasonable for his counsel not to have entirely reviewed and indexed the material by the following Monday morning. Accordingly, the Court finds that Bieganowski has failed to overcome the strong presumption that counsel acted in a professionally reasonable manner in defending Bieganowski from the charges against him. Because Bieganowski has not shown that his attorneys did not, in fact, review the documents before they became relevant at trial, he has additionally failed to demonstrate prejudice to his defense from their alleged failure to have reviewed the documents in question before voir dire began.

G. Counsel Did Not Review Tapes or Transcripts Made During an Undercover Investigation of Bieganowski’s Medical Practice

*11 At trial, FBI Special Agent Rolando R. Lopez (“Agent Lopez”) testified about his participation in an undercover investigation of Bieganowski and his various clinics.80 As part of that investigation, Agent Lopez and his partner, Special Agent Luz Sanabria-Garcia (“Agent Garcia”), posed as Richard Diaz and Laura Salinas Diaz, respectively, a husband and wife who had been in an automobile accident in El Paso, Texas.81 Agent Lopez testified that he and Agent Garcia tape recorded their interactions with Bieganowski and his associates, notably Robert Griego, Jesse Lopez, and Gustavo Diaz.82 Bieganowski alleges that, before preparing to cross-examine Agent Lopez, Roberts complained to the Court that the Government had not given him copies of the audio cassettes made by Agents Lopez and Garcia or copies of transcripts prepared from the tapes.83 Roberts’s request, according to Bieganowski, proves that Roberts had not listened to the tapes or reviewed the transcripts made from them.84

Upon review, the Court find that Bieganowski misrepresents the record. Roberts did not assert that he lacked copies of the transcripts or that he had not had an opportunity to review them.85 Rather, Roberts specifically claimed that the Government had not provided him with copies of the audio tapes themselves.86 To the extent Bieganowski alleges that Roberts was ineffective because Roberts did not listen to the audiotapes before trial, the Court finds that he has not met either prong of Strickland. First, Bieganowski has not identified any discrepancies between the audio tapes and the transcription made of their contents.87 Bieganowski has therefore failed to show how Roberts performed deficiently by reviewing the transcripts rather than listening to the tapes. Second, Bieganowski has not demonstrated prejudice. Roberts’s cross-examination of Agent Lopez demonstrates that Roberts was familiar with the transcripts in question.88 More importantly, the jury subsequently acquitted Bieganowski of Count Fourteen, in which the Government alleged that Bieganowski sent HCFA Form 1500s falsely representing that Agents Lopez and Garcia complained of pain and suffered physical impairment.

H. Counsel Did Not Effectively Cross-Examine Agent Lopez Regarding the Fictitious Accident Report

Bieganowski claims that Roberts’s eyesight was so poor that he could not read Government’s Exhibit 11, which was a fictitious accident report prepared as part of the FBI’s aforementioned undercover investigation of Bieganowski’s clinics.89 Bieganowski claims that Roberts also lost the exhibit during cross examination and was completely unable to cross examine Agent Lopez regarding it.90 Most especially, Bieganowski contends, Roberts could not emphasize that the accident report left some doubt regarding whether Agents Lopez and Garcia were injured.91 This doubt, Bieganowski argues, would have shown the jury that it was reasonable for Bieganowski and his staff members to have examined and treated the undercover agents.92 Bieganowski contends that the Government claimed the report indicated that the undercover agents were not actually injured.93 Bieganowski asserts that if Roberts had properly cross-examined Agent Lopez, Roberts could have shown that the report stated there was more than $500 damage to the vehicle and noted “possible injuries” to the occupants.94 Bieganowski also claims that Roberts could have shown that any responsible doctor reading the report would have concluded that the individuals involved in the accident should be examined for injury.95

*12 After reviewing the record in this cause, the Court finds that Bieganowski’s arguments are without merit. On cross-examination, Roberts showed Agent Lopez a copy of Government’s Exhibit 11, and asked Lopez to tell the jury what injury code had been marked on the accident report.96 Lopez responded that he could not see the injury code.97 Roberts then indicated that the copy of the exhibit he had given to Lopez appeared to be missing a page.98 Roberts requested permission to confer with co-counsel Smith and subsequently located the missing page.99 Roberts remarked to the Court that he was having difficulty finding the injury code on the report because his eyesight was poor, he was looking at a photocopy of the report rather than the original, and the injury code itself was written in very fine print.100 Roberts, however, quickly found the injury code on the report and marked it on the exhibit for the witness’s reference.101 Roberts proceeded to question Agent Lopez about the fact that it was not clear from the accident report whether the agents were injured or not, pointing out that, according to the report, the agents were taken to a hospital after the accident to be checked for injuries.102

It is evident from the record that, at most, Roberts had some trouble reading a portion of fine print contained on a photocopy of the accident report. However, Roberts was ultimately able to find and show Agent Lopez where the injury code was located. Further, at most, Roberts temporarily misplaced one page of his copy of the accident report. Neither incident rises to the level of deficient performance.

Bieganowski also fails to demonstrate prejudice. Contrary to Bieganowski’s assertion, Roberts ably brought the report’s ambiguity to the jury’s attention during Agent Lopez’s crossexamination.103 In addition, John Mummert, a detective with the El Paso Police Department, testified at trial immediately before Agent Lopez took the stand.104 Mummert participated in the undercover investigation by preparing the fictitious traffic accident report and entering it into the El Paso Police Department’s system.105 Smith, Bieganowski’s co-counsel, cross-examined Mummert.106 Smith specifically noted that the report stated that the vehicle sustained over $500 worth of damage, which by the report’s own terms, was not “minor,” and that the injury code indicated possible injuries.107 Further, when Roberts cross-examined Robert Griego, Bieganowski’s telemarketer, Roberts again drove this same point home to the jury.108 The jury apparently found Roberts’s and Smith’s cross-examination of Lopez, Mummert, and Griego effective, as it acquitted Bieganowski of Count Fourteen, the Count relevant to their testimony.

I. Counsel Did Not Listen to or Edit Tapes of the FBI’s Undercover Investigation

In another claim closely related to the allegations the Court has discussed in Part III. G and H, supra, of this Memorandum Opinion, Bieganowski asserts that Roberts did not listen to or edit tapes made during the FBI’s previously mentioned undercover operation, so that he might effectively cross examine the pertinent witnesses.109 When Roberts asked the Court for time to review the tapes, Bieganowski asserts, the Court denied the request.110 Therefore, Bieganowski argues, Roberts lost any advantage that could have been gained through cross-examination.111

*13 Bieganowski once again mischaracterizes the record. When the Government finished its redirect examination of Agent Lopez, it passed the witness for Roberts to begin his recrossexamination.112 Roberts informed the Court that he wished to play the audio tape which included the recording Agent Lopez made when Bieganowski initially examined him and Agent Garcia.113 The Government explained that it had not made excerpts of that particular audio tape, and thus, the tape reflected all the conversations and dead time from that particular date.114 Roberts acknowledged that the transcript of Bieganowski’s initial interview with Agents Lopez and Garcia had already been admitted into evidence.115 Roberts explained, however, that he wanted the jury to hear the actual language and evaluate for themselves whether Bieganowski and other staff members had pressured Agents Lopez and Garcia to continue treatment, despite Agent Lopez’s assertion that the agents repeatedly told everyone who examined them that they were not experiencing pain or discomfort.116 Roberts asked for permission to edit the audio tape so that the Court and jury would not have to listen to irrelevant material.117 Roberts explained that he did not know at the start of Agent Lopez’s cross-examination which part of the tape he would need to play and which part would be irrelevant, but now, after cross-examination, he believed that he needed to play only the portion of the tape containing Bieganowski’s interview.118 The Court indicated that it would not adjourn the proceedings to allow Roberts to edit the tapes, but told Roberts that he might do so during a break.119 Roberts indicated that he would edit the tapes and recall Agent Lopez to the stand.120 Attorney Randolph J. Ortega (“Ortega”), counsel for one of Bieganowski’s co-defendants, briefly recross-examined Agent Lopez.121 The Government then called Agent Garcia, Agent Lopez’s partner, to testify.122 After her testimony and cross-examination, Roberts recalled Agent Lopez to the stand.123 Roberts played the excerpt of the tape and then cross-examined Agent Lopez regarding it.124 Agent Lopez admitted that, despite his earlier testimony that the Defendants had constantly pressured the agents to continue treatment, Bieganowski had not pressured him, in that particular examination, to continue treatment.125

After review, the Court concludes that there is no factual basis for Bieganowski’s allegation that Roberts did not listen to or edit the audio tape capturing Bieganowski’s examination of Agents Lopez and Garcia. Nor is there any factual basis for Bieganowski’s claim that Roberts was unable to cross-examine Agent Lopez on this issue. Accordingly, the Court concludes that Bieganowski has failed to demonstrate that Roberts performed deficiently. As the jury acquitted Bieganowski of Count Fourteen, the Court also finds that Bieganowski has failed to show prejudice.

J. Counsel Did Not Examine the Medical File Bieganowski and His Staff Maintained Regarding Undercover Agent Garcia

*14 Bieganowski alleges that Roberts was ineffective because he requested a recess to examine medical records Bieganowski kept regarding Agent Garcia, in her undercover capacity.126 Bieganowski argues that it is obvious from the trial record that Roberts had never taken the time to examine Agent Garcia’s records.127 Because Roberts had not examined the records, says Bieganowski, Roberts did not ask Agent Garcia any questions on crossexamination.128 If Roberts had questioned Agent Garcia, Bieganowski states, Agent Garcia would have testified that, when Bieganowski examined her, she told Bieganowski that she was injured.129 Bieganowski avers that such testimony would have refuted the Government’s claim that Bieganowski treated patients unnecessarily.130 An effective cross-examination would also have shown that Agent Garcia declined to discontinue treatment after the second visit, although Bieganowski offered her this option, because he believed that she was not injured.131 Lastly, in an effective cross-examination, Bieganowski argues, Roberts could have emphasized that Bieganowski did not diagnose Agent Garcia with Temporo-Mandibular Joint (“TMJ”) syndrome.132 According to Bieganowski, this would have contradicted the Government’s allegation that Bieganowski diagnosed all his automobile accident patients with TMJ syndrome.133

The record shows that, during the Government’s direct examination of Agent Garcia, it sought to admit Government’s Exhibit 23, which represented the medical files of Laura Salinas Diaz, Agent Garcia’s fictitious persona.134 Roberts asked the Court for a recess in which to examine the exhibit.135 The Government stated that it would be willing to re-offer the exhibit, after giving Roberts an opportunity to review it.136 The Government shortly thereafter re-offered Exhibit 23.137 Roberts not only did not object to the files’s admission, but stated that he “would like it in.”138 It is clear that Roberts felt the file conferred some strategic benefit to Bieganowski’s case, and Bieganowski has failed to show how Roberts’s implicit conclusion in this regard was professionally unreasonable.

Moreover, as to not asking Agent Garcia any questions, especially any questions regarding the fact that the agents declined to discontinue treatment after Bieganowski offered them that option, and the fact that Bieganowski did not diagnose Agent Garcia with TMJ syndrome, Bieganowski has failed to show deficient performance or prejudice. Roberts had already sought and received a running objection to Agent Garcia’s testimony as cumulative of evidence already presented by Agent Lopez.139 Bieganowski has failed to demonstrate how Roberts’s decision not to draw out Agent Garcia’s testimony any further when he had already cross-examined Agent Lopez on the same issues was professionally unreasonable. Further, since Agent Garcia’s testimony mirrored Agent Lopez’s testimony in all important respects, it is unclear what additional benefit Roberts could have gained by asking her the same questions that he asked Agent Lopez.

*15 Bieganowski’s statement that the Government alleged that he diagnosed all automobile accident victims who came to see him with TMJ syndrome apparently refers to a portion of the Government’s opening statement. Therein, the Government described its theory of the case, alleging that Bieganowski directed his administrative and nursing staff to fabricate patients’ progress notes, using basic scripts:

You know, every-you’ll see every patient was diagnosed with the same injuries. Every patient had the psych consult. Every patient had-that was in an automobile accident has, you know, TMJ, they had this jaw problem. Every patient that was in a certain kind of accident had cervical, thoracic, lumbar pain in their back. But [Bieganowski and his staff] had little scripts that they followed.140

Although, at trial, the Government presented some testimony that Bieganowski diagnosed most of his automobile accident patients with cervical thoracic lumbar strain and TMJ syndrome,141 the Government did not indict Bieganowski for diagnosing every automobile accident patient with TMJ syndrome. It indicted him for, among other things, billing for unnecessary services (i.e., ostensibly “treating” patients who were not actually injured) and for billing for services he did not actually render. The Government’s generalization that Bieganowski diagnosed every automobile accident victim who came to see him with TMJ syndrome was not particularly relevant to the elements of the specific charges against Bieganowski at trial. In addition, co-counsel Smith expressly brought out during Bieganowski’s testimony that Bieganowski had not, in fact, diagnosed every automobile accident patient with TMJ syndrome.142 Smith further elicited testimony designed to show the jury that Bieganowski’s diagnoses of automobile accident patients were not as cookie-cutter as the Government alleged them to be.143 In addition, Roberts, in his opening statement, told the jury that the defense witnesses would show that Bieganowski did not diagnose every one of his patients with TMJ syndrome.144 For the patients Bieganowski did diagnose with TMJ syndrome, Roberts continued, the diagnoses were frequently independently corroborated as proper.145 Therefore, Bieganowski has failed to show how Roberts performed deficiently in choosing not to question Agent Garcia about her ultimate diagnosis. Roberts’s evident strategy, shown by his cross-examination of Agent Lopez, was to show that there were reasonable grounds for Bieganowski to conclude that the agents were actually or possibly injured, and that continued treatment was therefore medically appropriate.

K. Counsel Did Not Review Sign-In Sheets Before Witness Sandra Olivares Testified

Bieganowski alleges that Roberts did not know that the Government had provided him with sign-in sheets which were relevant to his cross-examination of Government witness Sandra Olivares (“Olivares”).146 Bieganowski also alleges that Roberts did not review the sign-in sheets before Olivares testified.147 Had Roberts reviewed the sign-in sheets, interviewed the individuals identified by Olivares as signing in and later leaving Bieganowski’s clinic without treatment, and subsequently called these witnesses to testify, Bieganowski contends, the patients would have refuted Olivares’s testimony.148 Bieganowski specifically alleges that Roberts should have called Robert Cardoza, Ron Dillow, Al Franco, Loretta Franco, Yolanda Gonzalez, Ubaldo Granados, Roberto Macias, Martin Ramirez, Cruz Sanchez, and Mary Helen Walton to testify to rebut Olivares’s testimony that these individuals signed in at Bieganowski’s clinic but subsequently left without receiving treatment.149 Bieganowski offers affidavits from these individuals in support of his claim.150 Bieganowski also contends that Roberts should have called Itzel Granados, Bieganowski’s former emplyee, to rebut Olivares’s testimony about the preparation of fraudulent fee tickets.151

1. Olivares’s Trial Testimony

*16 Olivares testified that she began working for Bieganowski as a receptionist in January 1994.152 Her employment with him terminated on August 5, 1998, the date of Bieganowski’s arrest.153 Olivares stated that her main duty was to schedule appointments for patients who claimed they had sustained injuries in the workplace.154

During Olivares’s testimony, the Government showed her Government’s Exhibit 112, which the Government subsequently admitted into evidence.155 Olivares identified Exhibit 112 as her list of Bieganowski’s scheduled workers’ compensation appointments for October 2, 1995.156 Olivares explained that, at the end of each work day, she would type a list of Bieganowski’s appointments for the following day.157 The Government asked Olivares to explain the meaning of highlighted entries, crossed-out names, and check marks appearing on the appointment list.158 Olivares responded that, when patients arrived at the clinic, they were supposed to write their names on the clinic’s sign-in sheet.159 If a patient arrived and signed in, or alternatively, called to cancel the appointment, Olivares would highlight the person’s name on her typed schedule.160 A highlighted entry plus a check mark meant that the patient had arrived, signed in, and actually entered the clinic’s treatment area to be seen by medical personnel.161 A highlighted entry with a line through it, Olivares said, meant that the patient canceled the appointment.162

After a patient signed in at the reception desk, Olivares’s job was to manually prepare the top portion of the patient’s fee ticket.163 The top portion of the fee ticket, when completed, would include basic information such as the patient’s name, address, and date of birth, the date of the services rendered, the patient’s arrival time, and the patient’s account number.164 After Olivares placed the latter information on the patient’s fee ticket, she would take or send the fee ticket to the clinic’s treatment area.165

Olivares testified that sometimes, Bieganowski’s workers’ compensation patients would sign in but afterward leave the clinic.166 Some patients who left would inform Olivares that they were merely leaving for a short time, intended to return to keep their appointments, and actually returned to the clinic for treatment. Other patients, however, would inform Olivares that they were tired of waiting to see Bieganowski, indicate their intent not to return, and leave the clinic without receiving treatment.167 Other patients would become angry, leave the clinic without telling Olivares, and never return.168 Olivares stated that, when a patient left the clinic and did not return, she would retrieve the fee ticket from the clinic’s treatment area and void it.169 Olivares told the jury that Bieganowski and her supervisor, Guadalupe Morales, each reprimanded her for voiding fee tickets in such circumstances and instructed her to prepare new fee ticket for the patients who had left the clinic without treatment.170 To accomplish this, Olivares explained that she had to sign the patient in again on the sign in list.171

*17 After reviewing sign-in lists seized during the 1996 search of Bieganowski’s clinic, Olivares testified that the following patients arrived at the clinic, signed in, and later departed without seeing Bieganowski: (1) Tim Maiden;172 (2) Robert Cardoza;173 (3) Fernando Dominguez;174 (4) Marco Herrera;175 (5) Richard DeSalle;176 (6) Martin Ramirez;177 (7) Joaquin Gutierrez;178 (8) Luis Ortega;179 (9) Cruz Sanchez;180 (10) Nata Moreno;181 (11) Connie Mayes;182 (12) Jose Guevara;183 (13) Richard Gasca;184 (14) Raul Godoy;185 (15) Corina Favela;186 (16) Petra Jacquez;187 (17) Rosa Rivera;188 (18) Martin Sanchez;189 (19) Teresa Sealey;190 (20) Joaquin Rodriguez;191 (21) Maria Saenz;192 (22) Max Skinner;193 (23) Jesus Solis;194 (24) Irma Morales;195 (25) Andrea Castro;196 (26) Willie Williams;197 (27) Francisco Celis;198 (28) Reyna Hernandez;199 (29) Mary Walton;200 (30) Ruben Avila;201 (31) Lou Ann Pragner;202 (32) Guillermo Martinez;203 (33) Moises Alvarez;204 (34) Loretta Franco;205 (35) Blanca Flores;206 (36) Dolores Alferez;207 (37) Usbaldo Granados;208 (38) Joel Benitez;209 (39) Anastacio Mendoza;210 (40) Raquel Mata;211 (41) Francisca Ponce;212 (42) Maria Quintero;213 and (43) Juanita Shapley.214 Olivares testified that Bieganowski directed her to sign these patients back in on the sign in list and generate fake fee tickets for them.215

2. Discussion

The Court has carefully examined the trial record and the affidavits presented by Bieganowski in support of his instant claim. After review, the Court finds that Bieganowski has failed to carry his burden under Strickland for proving ineffective assistance of counsel.

Bieganowski is correct that Olivares identified Robert Cardoza, Usbaldo Granados, Martin Ramirez, and Cruz Sanchez as patients who signed in to Bieganowski’s clinic but later left without treatment. However, after examining Cardoza’s, Usbaldo Granados’s, Ramirez’s, and Sanchez’s affidavits, the Court finds that their proposed testimony would not have been particularly helpful to Bieganowski’s defense. Each affiant admits that he occasionally left the clinic after signing in to see Bieganowski.216 Although each affiant also attests that he returned to the clinic and received treatment, their admissions would have essentially corroborated testimony of Government witnesses and evidence developed at trial. Thus, the affiants’ proposed testimony would just as likely have hurt Bieganowski’s defense as aided it. Under such circumstances, the Court finds that Bieganowski has not overcome the strong presumption that defense counsel’s decision not to call Cardoza, Granados, Ramirez, or Sanchez to testify was the result of professionally reasonable judgment.

*18 The Court has carefully examined the trial record of Olivares’s testimony and can find no instance in which Olivares mentioned Ron Dillow, much less any instance in which Olivares testified that Dillow signed in at the clinic but left without receiving treatment. The same is true regarding Yolanda Gonzalez and Roberto Macias. As Olivares did not testify that Dillow, Gonzalez or Macias signed in but later left the clinic without receiving treatment, there was no reason for Roberts to call Dillow, Gonzalez, or Macias to the stand to rebut Olivares’s statements.

The record shows that Alfonso Franco testified on Bieganowski’s behalf at trial.217 There is thus no factual basis for Bieganowski’s allegation that Roberts was ineffective for failing to call Alfonso Franco to testify. In addition, as with Dillow, Gonzalez, and Macias, the Court has scoured the trial record to find any instance in which Olivares testified that Alfonso Franco signed in to the clinic, but subsequently left the facility without being treated. The Court cannot locate any such testimony, and Bieganowski has not directed the Court to a specific portion of the record supporting his claim. Therefore, to the extent Bieganowski can be understood to argue that counsel performed deficiently because they did not question Alfonso Franco regarding Olivares’s testimony, his argument is unavailing. Because Olivares did not testify that Alfonso Franco left the clinic without being treated, there was no reason for counsel to question Alfonso Franco on this irrelevant topic.

Contrary to Bieganowski’s contention that Roberts failed to call Loretta Franco or Mary Helen Walton to testify at Bieganowski’s trial, the record shows that the defense did call Ms. Franco and Walton as witnesses and that they testified on Bieganowski’s behalf218 On cross-examination, Ms. Franco insisted that she always signed herself in and stated that there were instances in which she left the clinic because she had something else to do.219 If she returned later, Ms. Franco asserted, she would always sign herself back in.220 When shown Government’s Exhibit 514, a sign-in sheet for the clinic, Ms. Franco acknowledged that she saw her name on the document but admitted that she did not recognize the handwriting as her own.221 Furthermore, Ms. Franco testified that, despite notations in her patient file to the contrary, Bieganowski was out of town and did not examine her on October 6, 1995, nor did Bieganowski give her psychological counseling or prescribe psychiatric medications for her on that date.222

Although Olivares identified Walton as a patient who had signed in at the clinic but later left without treatment, the defense did not question Walton on this topic. Walton asserts in her affidavit that she would have told the jury that she occasionally left the clinic after signing in, but always returned and received treatment.223 The Court observes that Loretta Franco had testified minutes before Walton took the stand, and the Government had forced Franco to acknowledge that someone else had signed Franco in at the clinic, exactly as Olivares had testified.224 Given Franco’s admission, it is hardly surprising that the defense chose not to foray into this potentially dangerous territory with Walton. The Court finds that Bieganowski has failed to show that counsel’s strategy in this regard was unreasonable. The fact that six of the forty-three individuals whom Olivares identified as signing in at the clinic and thereafter leaving without treatment would have been willing to testify that they returned for treatment would have been of questionable value, when Olivares’s testimony as to the thirty-seven remaining patients remained unchallenged.

*19 To the extent Bieganowski alleges that counsel was ineffective for not calling Itzel Granados to rebut Olivares’s testimony, the Court finds his argument unpersuasive. In her affidavit, Granados characterizes herself as a “secretary-clerical worker” whose work station was located in the center of the clinic and surrounded by patient rooms.225 Although Granados strenuously asserts that no fraudulent fee tickets were ever created for patients who were not treated, the Court finds that Granados’s duties and lack of first-hand knowledge give her no basis for insight into whether fee tickets generated by Bieganowski and his medical staff fraudulently charged insurance carriers. Granados’s proposed testimony would therefore have done little to undermine Olivares’s testimony on this issue.

Lastly, the Court notes that, contrary to Bieganowski’s assertion, counsel certainly attempted to undermine Olivares’s testimony, although they used a witness other than Granados and the patients Bieganowski names in his present claim to do so. In the defense’s case-in-chief, Roberts elicited testimony from Tammy Diaz regarding Olivares’s motives to testify adversely to Bieganowski.226 Diaz stated that Olivares was angry at Bieganowski because Bieganowski told her that she should not try to carry a child to term, given an injury to her back.227

L. Counsel Attempted to Subpoena FBI Agent James Griego to Testify

Bieganowski asserts that his attorneys were ineffective because they attempted to use a subpoena to secure Agent James Griego’s testimony at Bieganowski’s trial.228 The prosecution successfully objected that the Code of Federal Regulations sets forth a specific procedure for securing government agents’ testimony.229 Roberts defended his use of a subpoena, arguing that, in his legal opinion, after researching the issue, he believed that the Code of Federal Regulations provision at issue did not apply to trial subpoenas.230 Although the Court disagreed with Roberts’s conclusion, a mere adverse ruling on a point of procedure does not mean that counsel performed deficiently in a constitutional sense. In addition, Bieganowski cannot show prejudice, as Roberts’s error was harmless. The defense’s unsuccessful attempt to subpoena Agent Griego did not prevent Roberts from calling Agent Griego to testifying during the defense’s case-in-chief.231

M. Counsel Did Not Attend the Government’s Preview of Its Case

Bieganowski states that Roberts was ineffective because he did not avail himself of the Government’s invitation to preview the Government’s case, as set forth in a Powerpoint presentation.232 Bieganowski asserts that it was per se unreasonable of Roberts not to take advantage of this opportunity and that Roberts’s failure to do so prejudiced Bieganowski’s entire defense.233

The Court disagrees. First, the Government stated that every defense attorney except Roberts attended its presentation.234 Presumably, therefore, although Roberts did not attend the presentation, Bieganowski’s co-counsel Smith was present. However, even if Smith did not attend in Roberts’s stead, the Court finds that Bieganowski has failed to show prejudice. The Government had already provided the discovery materials it displayed during its presentation. In the Court’s view, Bieganowski’s allegation of prejudice is too speculative to establish a claim of constitutionally ineffective assistance.

N. Counsel Did Not Review Fee Tickets

*20 Wendy Murillo, who worked for Bieganowski as a medical assistant, testified for the Government.235 Among other things, Murillo testified regarding the creation of fake fee tickets at the clinic. Bieganowski cites to the Government’s re-direct examination of Murillo in support of his claim that Roberts did not know that the Government had provided him with copies of fee tickets, and therefore, had not reviewed them.236 However, the record does not support Bieganowski’s argument. During its redirect examination of Murillo, the Government moved to admit Government’s Exhibit 520, a collection of fee tickets.237 Roberts did not object to the admission, but merely sought confirmation regarding the exhibit’s specific contents and verification that the Government had fulfilled its disclosure duty by providing him with copies.238 When the prosecutor strongly asserted that she had provided the documents, Roberts explained, “I’m just asking. We have lots of fee tickets, Your Honor. I just want to make sure.”239

O. Counsel Did Not Effectively Cross-Examine Witness Elizabeth Cedillos

Bieganowski contends that Roberts did not interview and therefore did not effectively cross-examine witness Elizabeth Cedillos (“Cedillos”), Bieganowski’s former medical assistant.240 Bieganowski asserts that Cedillos had critical information regarding whether Bieganowski and his staff falsified fee tickets.241 According to Bieganowski, Cedillos could have testified that witnesses Sandra Olivares and Wendy Murillo lied when they claimed Bieganowski falsified fee tickets and charged patients for telephone calls.242 Bieganowski also claims that Cedillos could have testified that witnesses Maximo Arroyo and Lei Zhang, Bieganowski’s accupuncturists, lied when they stated that they never examined the patients for whom Bieganowski submitted HCFA 1500s.243 Cedillos could also have testified that witness and co-conspirator Lucy Campos (“Campos”) operated the clinic in an unprofessional manner and took advantage of Bieganowski, and that Cedillos quit the clinic as a result.244 Bieganowski claims that Roberts failed to elicit this information on cross-examination and passed the witness with only one question.245

In support of his claim, Bieganowski offers Cedillos’ affidavit.246 Therein, Cedillos flatly contradicts Bieganowski’s assertion that Roberts did not interview her before trial. Cedillos in fact attests that she “was talked to by one of Dr. Bieganowski’s investigators, who worked for his attorneys.”247 There is thus no evidence in the record, even that furnished by Bieganowski himself, to support his claim that Roberts was ineffective because he did not interview Cedillos.

To the extent Bieganowski alleges that Roberts was ineffective because he did not cross-examine Cedillos, her damaging trial testimony undermines Bieganowski’s claim and negates Bieganowski’s allegations of prejudice purportedly flowing from Roberts’s decision not to cross-examine this witness. To summarize, at trial, Cedillos testified that she actively participated in the fraud that pervaded Bieganowski’s medical practice. Cedillos stated that, if a patient reported that he was not experiencing any pain, Cedillos would not record the patient’s actual comment on the fee ticket.248 Instead, at the instruction of Guadalupe Morales, her supervisor and Bieganowski’s co-defendant, Cedillos would leave the designated portion of the fee ticket blank.249 Cedillos explained that “there had to be some pain” reported on the ticket.250 Cedillos stated that Morales, who had not actually seen the patient, would subsequently complete the “Chief Complaint” portion of the fee ticket.251 In addition, Cedillos testified, other medical assistants would help complete fee tickets at the end of the day, adding in future orders and psychological evaluations on patients that they had not personally seen.252 Cedillos also told the jury that Morales and Murillo taught her how to perform cupping, an acupuncture technique, on patients, and that she performed this procedure on patients.253 Cedillos additionally testified that Bieganowski was not present while she performed the procedure and that no one remained with patients after she inserted the needles.254 Cedillos also testified that Bieganowski would see established patients for only two or three minutes and spend ten to fifteen minutes with new patients.255 Cedillos also unequivocally stated that she never saw doctors Lee, Zolfoghary, Perez, and Vasquez, who were supposedly in charge of the clinic during Bieganowski’s absences, set foot in the clinic.256 Defense counsel did not cross-examine Cedillos.

*21 Cedillos’s trial testimony essentially corroborated Olivares’s and Murillo’s testimony, and Cedillos’s statements in her affidavit do not purport to recant her testimony.257 Given Cedillos’s damaging testimony during the Government’s case-in-chief, it is hardly surprising that the defense chose not to risk exposing Bieganowski to potentially more harmful testimony by cross-examining Cedillos, and declined to call her during its own case-in-chief. Accordingly, the Court finds that Bieganowski has failed to demonstrate either deficient performance by counsel in this regard or prejudice flowing from their alleged shortcomings.

P. Counsel Did Not Effectively Cross-Examine Witness Maximo Arroyo

Bieganowski states that it is obvious from Roberts’s cross-examination of Government witness Maximo Arroyo, an acupuncturist formerly employed by Bieganowski, that Roberts had not examined former counsel’s notes.258 Those notes, according to Bieganowski, contained a statement from Lei Zhang, another acupuncturist employed by Bieganowski, to Darnell dated March 19, 1997, alleging that Arroyo tried to blackmail Zhang.259 Bieganowski asserts that this information would have undermined Arroyo’s motives and veracity before the jury.260

Bieganowski’s assertion that Roberts did not examine former counsel’s notes is conclusory and therefore cannot establish a claim for constitutionally ineffective assistance of counsel.261 In addition, as the Court discusses below, Roberts’s cross-examination of Zhang demonstrates a familiarity with the details of Arroyo’s and Zheng’s professional relationship which belies Bieganowski’s allegation.

The attorney notes to which Bieganowski refers and presents as Exhibit W to his Amended Motion to Vacate represent hearsay within hearsay and would have been inadmissible at trial. The notes furthermore contain nothing indicating that Arroyo attempted to “blackmail” Zheng. At most, the notes support a finding that, after Bieganowski fired Arroyo, Arroyo prevailed upon Zheng to leave Bieganowski’s employ. Arroyo appears to have done so by appealing to their friendship, history of professional association with one another, and Zheng’s sense of loyalty, reminding Zheng that Arroyo had sponsored his visa application.262 Moreover, Zheng’s reasons for leaving Bieganowski’s employ were not particularly relevant to the charges at Bieganowski’s trial. Lastly, Zheng also testified at trial. To the extent Bieganowski contends that Zheng had an incentive not to contradict Arroyo’s testimony because Arroyo sponsored Zheng’s visa, Roberts brought this issue to the jury’s attention when he cross-examined Zheng.263 Roberts additionally emphasized this point in his closing argument.264 Roberts also attacked Arroyo’s work habits, getting Zheng to agree that Arroyo had “problems working hard.”265 Roberts also questioned Arroyo’s credibility and characterized Arroyo as “lazy” during his closing statement.266 For these reasons, the Court finds that Bieganowski has failed to establish either deficient performance by his attorneys or prejudice flowing from their alleged errors.

Q. Counsel’s Comment Regarding the Volume of Discovery in the Case

*22 Bieganowski alleges that Roberts was ineffective because Roberts commented that he was overwhelmed by the sheer volume of discovery in Bieganowski’s case and, at trial, had to rely on the Government’s copies of certain documents, even though the Government had provided Roberts with the pertinent documents well beforehand.267 The record excerpt to which Bieganowski cites is consistent with the Court’s independent recollection and is inconsistent with Bieganowski’s contention. In the portion of the record at issue, Roberts voiced legitimate concerns regarding the peculiar burdens under which he labored, due to the massive volume of discovery in Bieganowski’s case and the fact that his client was in the United States Marshal Service’s custody during trial.268 In recognition of these burdens, the Court directed the Government, on each morning of trial, to provide Roberts with a copy of any exhibits it planned to introduce that day.269 Accordingly, the Court finds that Bieganowski has failed to show either deficient performance or prejudice regarding this aspect of his ineffective assistance claim against counsel.

R. Counsel Did Not Cross-Examine Government Witness Rene Moreno or Call Witnesses to Discredit His Testimony

Bieganowski argues that counsel was ineffective for not cross-examining and discrediting Government witness Rene Moreno (“Moreno”) at trial.270 During trial, Bieganowski says, Moreno testified that Bieganowski and Gustavo Diaz directed him to make up pre-certification letters.271 Bieganowski notes that, at Bieganowski’s de novo bond hearing, Bieganowski’s former counsel, James Darnell, presented witness Mary Castillo (“Castillo”), one of Bieganowkski’s former employees.272 According to Bieganowski, Castillo testified that Moreno was an irresponsible worker who lied about completing certain assignments.273 At the same bond hearing, Bieganowski says, Darnell also provided a proffer statement by Tony Duarte (“Duarte”), another of Bieganowski’s former employees.274 Darnell told the Court that Duarte would testify that Moreno was a liar, threatened Duarte, prepared false pre-certification letters without anyone’s knowledge, and bragged that he was able to do more work than anyone else in Bieganowski’s office because Moreno fabricated pre-certification letters.275 Although counsel was aware of Castillo’s and Duarte’s damaging allegations against Moreno, Bieganowski argues, counsel nevertheless did not cross-examine Moreno.276 Bieganowski faults counsel for not calling Castillo and Duarte in the defense’s case in chief, and additionally asserts that counsel should have called another employee, Grace Castro, to discredit Moreno.277 Bieganowski presents an affidavits from Castro in support of his argument.278 The Court first considers Moreno’s testimony.

1. Moreno’s Trial Testimony

The Government used Rene Moreno’s testimony to establish that Bieganowski’s codefendant, Richard Goldberg, directed Moreno and Moreno’s predecessor to book a certain number of patients per week for facet injections.279 According to Moreno, Goldberg insisted that Moreno schedule patients for the injections, even if the patients did not want them.280 Goldberg required Moreno to report to him twice weekly regarding the number of patients Moreno had booked for facet injections.281 If Moreno did not make his quota of patients, Goldberg and Bieganowski would grow angry with him.282 If the patients hesitated or refused to have the injections, Goldberg told Moreno to pressure the patients by threatening to report them as not complying with Bieganowski’s rehabilitation plan.283

2. Castillo’s De Novo Bond Hearing Testimony

*23 As the Court has previously noted, Mary Castillo, Moreno’s former supervisor, testified at Bieganowski’s de novo bond hearing.284 Castillo stated that, while Moreno worked under her supervision, he was responsible for obtaining insurance companies’ preauthorization for patients to undergo spinal block injections.285 Castillo told the Court that most of the precertifications Moreno claimed to have obtained subsequently turned out to be false.286 That is, Castillo said, the authorization numbers Moreno provided did not match any numbers the insurance companies had issued.287 Castillo acknowledged during direct questioning that, despite Moreno’s alleged misdeeds, he was not fired from the clinic.288 Castillo admitted during cross-examination that she did not have direct knowledge that Moreno fabricated authorization numbers; Castillo acknowledged that Lucy Campos had merely informed her that an insurance company had billed Bieganowski for certain injections, because the company insisted that Bieganowski had not obtained a precertification.289 Castillo also admitted on cross-examination that she did not know whether Moreno had been untruthful in any of his statements to the authorities regarding the case.290 On cross-examination, the Government effectively attacked Castillo’s judgment and credibility.291 The Government additionally emphasized Castillo’s strong motives for testifying favorably on Bieganowski’s behalf, as well as her lack of direct knowledge about the events in question.292

3. Duarte’s Proffer Statement

At the de novo bond hearing, Darnell offered a proffer statement by Tony Duarte (“Duarte”), in which Duarte attacked Moreno’s character for truthfulness.293 Bieganowski resubmits this proffer as Exhibit X to his Amended Motion to Vacate. In pertinent part, Duarte’s proffer reads:

I know Rene Moreno. I believe him to be a liar. I have heard him paint himself bigger than he really was.... It was Rene Moreno’s job to get blocks approved before Dr. Bieganowski did the procedures. He would send the letters off to the insurance companies himself without the approval or knowledge of Dr. Bieganowski. He bragged that he was doing these pre-certification letters on his own without anyone knowing. He bragged that he was able to do more than anyone else because he just made them up.”294

4. Grace Castro’s Affidavit

In her affidavit, Castro states that she worked for Bieganowski between September 1995 until 1998.295 Castro reports that she “is aware that Rene Moreno lied to Dr. Bieganowski that he was pre-certifying blocks.”296 Castro further asserts that she “is aware that Rene Moreno made up false histories and physical exams for patients going to [the] hospital for blocks” but is “not aware of Dr. Bieganowski or Mr. Diaz ever telling Rene Moreno to do this.”297 Castro also states that she was not aware of a quota system for block injections and that no one ever told her to threaten patients into having the procedure.298

5. Discussion

*24 After review, the Court finds that Bieganowski has failed to overcome the strong presumption that counsel exercised reasonable professional judgment by choosing not to cross-examine Moreno. First and foremost, Moreno’s testimony most directly implicated Goldberg rather than Bieganowski. The most damaging part of Moreno’s testimony as to Bieganowski was that Bieganowski would become angry if Moreno did not schedule a certain number of injections. However, that testimony was minimal, especially when compared to Moreno’s account of Goldberg’s role. Cross-examining Moreno could have easily resulted in Moreno revealing that Bieganowski played as active a role as Goldberg in setting the quotas and demanding updates on the number of scheduled blocks. Secondly, neither Castillo’s, Duarte’s, nor Castro’s proposed testimony would have been relevant at trial. As noted, the gravamen of Moreno’s trial testimony was that Goldberg pressured him to schedule patients for block injections and that Goldberg and Bieganowski would become angry if Moreno missed his quota. Nothing Castillo testified to at the de novo hearing implicated the veracity of Moreno’s statements in this regard or indicated that Castillo had any direct knowledge of the quota system in place for spinal block injections. Duarte’s proffered testimony suffers from the same inherent weaknesses. Also, although Castillo’s direct testimony at the de novo bond hearing did not present a flattering portrait of Moreno, the Government handily undermined its value, demonstrating that Castillo lacked direct knowledge of Moreno’s alleged activities and that she had significant incentive to testify in a manner that would benefit Bieganowski. Duarte’s proffer could easily have been attacked in a similar manner. Castro’s proposed testimony would have similarly been of little value. Moreno testified that he precertified block injections between 1994 and January 1995.299 As the Government notes in its Response, Moreno’s work precertifying block injections thus preceded Castro’s employment with Bieganowski, which according to Castro, ran from September 1995 until 1998.300 Castro’s testimony would therefore have been irrelevant. Lastly, much of Moreno’s testimony was later corroborated by witness Rosa Maribel Mata-Cordova, who was Moreno’s predecessor in the position.301 For the reasons discussed above, the Court concludes that Bieganowski has not met the Strickland standard for ineffective assistance claims.

S. Counsel Moved to Admit Doris Provencio’s Medical Chart Without First Reviewing It

Bieganowski states that Roberts was ineffective because he moved to admit the medical chart of patient Doris Provencio, even though Roberts admitted he had not read the chart in question and knew nothing of it.302 After due consideration, for the reasons discussed below, the Court concludes that Bieganowski has not carried his burden under Strickland.

The record shows that Doris Provencio testified at trial regarding the care she received as Bieganowski’s patient.303 At the end of his cross-examination, Roberts moved to admit Provencio’s medical file into evidence as Defense Exhibit B-10.304 In a sidebar, the Government complained that it had not previously seen the exhibit.305 Roberts attempted to allay the prosecutor’s concerns, stating “to be honest, Ms. Kanof, I haven’t even read this. You know, I’m just putting it in because it appears to be [the witness’s] file, you know.”306

*25 After review, the Court finds that Bieganowski has failed to establish a claim of ineffective assistance of counsel. Assuming purely for the sake of argument that Roberts performed deficiently by moving to admit Provencio’s medical file without first reading it, Bieganowski has nonetheless failed to show that any prejudice ensued from the file’s admission.

T. Counsel Did Not Effectively Cross-examine Government Witness Rosa Maribel Mata-Cordova

Bieganowski argues that Roberts did not effectively cross-examine Rosa Maribel MataCordova (“Mata”) because Roberts did not ask her whether the Texas Medical Practices Act (“TMPA”) and Administrative Codes authorize a physician’s assistant (“PA”) to bill under the licensure of a physician for treatment the PA performs in the physician’s absence.307 Bieganowski asserts that other doctors were present to supervise Diaz even when Bieganowski himself was absent and that, therefore, Bieganowski could not have been guilty of fraudulently billing for services under the TMPA and Administrative Codes.308

1. Mata’s Trial Testimony

Mata testified that she worked for Bieganowski from August 1994 to October 1995.309 Initially, Mata stated, her job was to obtain authorizations for spinal block injections.310 Later, when Lucy Campos, Bieganowski’s business manager, left to open a Bieganowski’s office in Juarez, Mexico, Mata took over as an office manager.311 Mata told the jury that, as part of her duties while working as Bieganowski’s office manager, she would prepare medical charts for purposes of depositions.312 To do that, Mata printed an itemized bill, reviewed the patient’s medical chart, and insured that all progress notes or fee tickets Bieganowski had billed for were in the file.313 If the progress notes or fee tickets were not in the file, Mata would give Bieganowski the patient’s chart and the appropriate number of blank fee tickets.314 Bieganowski would take the chart and blank fee tickets home.315 When Bieganowski returned the chart to Mata, all the previously missing fee tickets were backdated, filled out, and in the file.316 Bieganowski would pull whatever documents from the file that he did not want attorneys at the depositions to see and direct Mata to keep the documents in a safe place in her office until the deposition was over.317 Mata also testified that Bieganowski’s co-defendant, Guadalupe Morales, instructed her that Bieganowski wanted the staff to complete the “Chief Complaint” area of the fee ticket in a certain way.318 That is, even if a patient stated that he felt fine or that he had no pain, Mata should write that the patient’s pain was decreasing or that the treatments prescribed by Bieganowski were helping.319 Mata stated that Bieganowski ordered all his patients to receive the “around the world” treatment, meaning all the therapies available at his clinics.320

Mata told the jury that, while training her to obtain preauthorization for spinal block injections, Bieganowski’s co-defendant, Gustavo Diaz, told her never to tell an insurance company that Bieganowski was not on the premises, because Bieganowski was supposed to be there at all times when patients were being seen.321 Mata stated that she left Bieganowski’s employ after Bieganowski asked her to work on “Specific and Subsequent Medical Evaluation” forms, which must be submitted every sixty days in workers compensation cases.322 Mata explained that there was a backlog of these forms that needed to go out on patients and Bieganowski wanted her to complete the forms.323 Mata was supposed to examine the patient’s chart and diagnosis, determine how the patient had been doing at the particular time in question, and complete the form based on her review.324 Mata stated that she was very uncomfortable with Bieganowski’s request, because she was not a doctor and there was no way that she could know what was wrong with the patients.325 Bieganowski’s request was “the straw that broke the camel’s back,” Mata said.326 Mata called in sick for a week, trying to find a way to get out of doing the reports.327 When she returned to work, Mata discovered that Bieganowski had transferred her to work in the office of Dr. Untersee, Bieganowski’s chiropracter.328

*26 On cross-examination, Roberts had Mata review several fee tickets for which she prepared the Chief Complaint section. Roberts’s clear strategy was to show that the comments Mata wrote in that section were not cookie-cutter reports, and that Mata did, in fact, sometimes report that a patient was not experiencing pain.329 Randy Ortega, Gustavo Diaz’s counsel, then cross-examined Mata.330 Over the Government’s unsuccessful objection that Ortega misstated the law and regulations under the CPT, Ortega asked Mata whether she knew that Bieganowski could remotely supervise Diaz and whether she knew that other physicians could supervise Diaz while Bieganowski was out of town.331 Mata answered both questions in the negative.332 On redirect, the Government elicited testimony that no other doctors would be on the premises when Bieganowski was out of town, and, while Mata was the office manager, no one ever told her that a doctor was supervising in Bieganowski’s absence or identified the physician.333

2. Discussion

As Mata stressed during her testimony, she was not a doctor. Nor did she profess to have any knowledge of the Texas Medical Practices Act or Administrative Codes. She listed no professional qualifications that would lead one to expect her to be familiar with this legislation. The defense therefore could not reasonably have expected Mata to provide the jury with any information on this topic. Bieganowski has thus not shown that Roberts performed deficiently by declining to question Mata on this subject. Moreover, to the extent Bieganowski faults Roberts for not raising the issue as to whether Bieganowski had to be physically present for Diaz to perform examinations or whether a doctor other than Bieganowski could supervise Diaz, Bieganowski has failed to show prejudice. Ortega’s cross-examination of Mata raised this point to the jury. In addition, Roberts called FBI Agent G. Clayton Grigg in the defense’s case-in chief.334 On cross-examination, Ortega questioned Grigg on this issue.335 Roberts also addressed the issue when he questioned Grigg on re-direct examination.336 Moreover, Bieganowski himself testified that the medical board had advised him that he could supervise Diaz without being physically present, as long as Bieganowski was available by telephone or other communication device.337 Further, Bieganowski testified, he had been told that other doctors could supervise Diaz while he was out of town and that those doctors did not need to be physically present.338 However, as the Government repeatedly argued during trial, the issue of proper supervision or delegation by a physician was essentially a red-herring presented by the defense. The question at trial was not whether Bieganowski properly delegated responsibility under his medical license to Diaz, Lopez, and various other medical services providers in Bieganowski’s employ, but whether Bieganowski properly billed insurance carriers for services he rendered. For the reasons discussed above, the Court finds that Bieganowski has not established that counsel performed deficiently or that prejudice to his defense resulted from counsel’s alleged shortcomings.

U. Counsel Did Not Effectively Cross-Examine Witness Lisa Hannusch

*27 Bieganowski alleges that Roberts was ineffective because, on cross-examination, he did not ask witness Lisa Hannusch about HCPCS Levels 1 and 2 and their corresponding codes.339 Bieganowski believes that Hannusch’s answer would have established which specific HCPCS Levels and Codes the Texas Workers’ Compensation Fund requires doctors to submit and therefore would have established whether or not Bieganowski used the appropriate codes when billing for his services.340

As the Government notes, the trial record establishes that Roberts’s strategy was to portray Bieganowski as a doctor who cared deeply for his patients, fell victim to his own lack of business knowledge, and never intentionally defrauded insurance companies.341 Part of that strategy was to convince the jury that Bieganowski lacked the intent to commit any crimes, to establish that Bieganowski and his staff actually provided all the services for which they billed, and to show that, if perchance, Bieganowski or his staff on occasion billed incorrectly, it was not Bieganowski’s fault or intent to defraud.342

Roberts’s treatment of Hannusch was completely consistent with the strategy described above. Hannusch testified as an expert in the area of Texas Workers’ Compensation Medical Fee Guidelines, Rules, and Regulations.343 In his cross-examination, which accounts for forty-seven pages of the trial transcript, Roberts questioned Hannusch in a manner designed to show the jury that the billing rules relating to workers’ compensation claims were arcane and left ample room for good-faith interpretation.344 Roberts’s questions also implied that the type of billing errors of which Bieganowski stood accused should have subjected him, at most, to agency sanctions for administrative violations, rather than indictment on criminal charges.345 After due consideration, the Court finds that Bieganowski has not shown that Roberts was unable to effectively weaken the impact of Hannusch’s testimony through this defensive strategy, which was, in any event, well within the ambit of reasonable professional judgment.

V. Counsel Did Not Call El Paso Doctors, El Paso Attorneys, or Larry Gibbs to Testify on Bieganowski’s Behalf346

Bieganowski faults Roberts for not calling the following doctors to testify that Bieganowski’s billing practices met El Paso medical community standards: (1) Howard Lee; (2) Lynn Neil; (3) Hugo Isuani; and (4) John Jackson.347 Bieganowski similarly faults Roberts for not calling the following El Paso lawyers to testify: (1) James S. Scherr; (2) David J. Ellis; (3) Enrique Ramirez; and (4) Sam Legate.348 According to Bieganowski, Scherr, Ellis, Ramirez, and Legate would have testified “to the treatment given to numerous of [their] clients by Dr. Bieganowski.”349 Bieganowski further contends that Roberts should have interviewed and called attorneys from the Vinson & Elkins law firm to explain the law regarding physician advertising and patient solicitation.350 Bieganowski asserts that Vinson & Elkins attorneys could have also testified that Bieganowski retained their services to research and advise him on these topics, and from that testimony, inferred that Bieganowski intended to follow the law.351 Lastly, Bieganowski argues that Roberts should have called Larry Gibbs as a witness.352 According to Bieganowski, Gibbs “was instrumental in setting up Dr. Bieganowski’s foreign and offshore corporations and trusts, as tax shelters and assets protection.”353 Bieganowski argues that, if Roberts had interviewed Gibbs, Roberts “would have been made aware of critical information to defend against the Government’s charge of money laundering, as charged in Count 22. Specifically, Mr. Roberts could have effectively defended against the intent and concealment elements of money laundering.”354

*28 The law does not favor ineffective assistance of counsel claims based on complaints of uncalled witnesses.355 “The presentation of witness testimony is essentially strategy and thus within trial counsel’s domain.”356 Mere “speculation as to what these witnesses would have testified is too uncertain.”357 To show prejudice under Strickland, the petitioner must show not only that the uncalled witness’s testimony would have been favorable, but he must also show that the witness would have testified at trial.358 “In the case of an uncalled witness, ... at the very least the petitioner must submit an affidavit from the uncalled witness stating the testimony he or she would have given had they been called at trial.”359 “A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.”360

Here, Bieganowski has not come forward with any evidence, other than his own assertions, to show what that the individuals named above would have testified at trial and that their testimony would have favored his defense.361 Bieganowski has therefore failed to meet his burden of proof under Strickland.

W. Counsel Did Not Call Rosa Maria Garcia in his Case-in-Chief and Did Not Effectively Cross-Examine Her During the Government’s Case-in-Chief

1. The Parties’ Arguments

Bieganowski argues that Roberts should have called Rosa Maria Garcia (“Garcia”) in his defense case-in-chief, and should have, at a minimum, cross-examined her when the Government called her to testify during its case-in-chief.362 Bieganowski alleges that the Government called Garcia to support the allegations contained in Count Six of the Indictment.363 Therein, the Government charged Bieganowski with double-billing insurance carriers, when, in fact, he performed only one medical procedure.364 Bieganowski complains that the Government did not question Garcia about her treatment on the day in question, because her answers would have shown that two different practitioners-Bieganowski and Bieganowski’s acupuncturist, Baltazar Rincones-treated Garcia at separate times that day, and thus Bieganowski properly billed for two separate visits.365 According to Bieganowski, if Roberts had cross-examined Garcia on this point, her answers would have shown the allegations contained in Count Six of the Indictment were baseless.366 Bieganowski offers an affidavit from Garcia to support his claim.367 Bieganowski additionally faults Roberts for allegedly interviewing Garcia after she testified for the Government, arranging for Garcia to come to Court during the defense’s case-in-chief, but not calling Garcia to testify.368 Bieganowski concludes that Roberts did not call Garcia to testify because he forgot about her.369

The Government responds that it had no reason to question Garcia about double-billing, because that was not the purpose for which it called Garcia.370 It asserts that the Assistant United States Attorney representing the Government became confused as to which Count of the Indictment Garcia’s testimony related, and erroneously informed the Court that it had called Garcia to support the allegations in Count Six, which concerned double-billing.371 In actuality and as reflected by the Government’s line of questioning, the Government contends, it called Garcia to buttress the allegations contained in Count Four.372 That is, the Government argues that it used Garcia’s testimony to establish that Bieganowski and Lopez were fraudulently billing for treatment administered in a Hubbard Tank, when Bieganowski did not own or lease this specialized piece of equipment.373 The Government asserts that, in any event, Bieganowski has failed to show prejudice, as the jury acquitted him of both Count Four and Count Six.374

2. Discussion

*29 After review, the Court concludes that Bieganowski has failed to carry his burden under Strickland. Count Four of the Indictment concerns the time period of August 12, 22, and 29, 1994, and September 1,8,19, and 26, 1994. Therein, the Government alleged that Bieganowski and Lopez billed the Texas Workers’ Compensation Fund for treating patient “R.G.” in a Hubbard Tank, when Bieganowski’s facilities did not possess such an apparatus. In questioning Garcia, the Government established that Bieganowski and his staff had treated Garcia during the times alleged in Count Four.375 The Government subsequently asked Garcia whether clinic staff ever placed her by herself in a big metal tank.376 Garcia replied that no one had placed her by herself in such a tank.377 Garcia recalled that she had only used a sauna and that clinic staff had put her in a jacuzzi or whirlpool, along with two or three other people.378 The Government also questioned Garcia about the length of time Bieganowski and other providers spent with her during her medical visits.379 None of the Government’s questions related to double-billing. Although it is clear that the Assistant United States Attorney misspoke regarding which count of the Indictment Garcia’s testimony concerned, it is equally clear from the record that, as the Government now clarifies, the Government intended to use Garcia’s testimony to prove Count Four rather than Count Six of the Indictment. More significantly, the Court would not have allowed Roberts to cross-examine Garcia about double-billing, because any such questions would have exceeded the scope of the Government’s direct examination. Roberts therefore did not perform deficiently by declining to pursue this line of questioning during the Government’s case in chief. Moreover, as the Government plainly did not use Garcia to support its double-billing allegation in Count Six, it would have been pointless for Roberts to call Garcia to testify about double-billing during his case-in-chief, especially when the Court had limited the defense to a finite number of patient-witnesses.380 To the extent Bieganowski alleges that Roberts did not call Garcia because Roberts simply forgot about her, Bieganowski’s allegation is conclusory and insufficient to overcome the strong presumption that Roberts exercised reasonable professional judgment in deciding which witnesses to call to testify on his client’s behalf.381 Further, as the Government notes, Bieganowski has not demonstrated prejudice, because the jury acquitted him of both Count Four and Count Six.

X. Counsel Did Not Call Carlos Cervantes to Dispute the Government’s Allegations in Count Seven

Bieganowski argues that Roberts should have called Carlos Cervantes in his defense casein-chief to rebut the allegations contained in Count Seven of the Indictment.382 In Count Seven, the Government alleged that Bieganowski submitted two separate HCFA Form 1500s to the TWCC, requesting payment.383 In both HCFAs, according to the Indictment, Bieganowski represented that he had personally provided extended or comprehensive out-patient treatment for an established patient, “C.C.” (or Carlos Cervantes) on certain dates.384 Bieganowski alleges that Cervantes, if called to testify, would have told the jury that he, in fact, received two treatments on the date in issue-one from Bieganowski and one from Bieganowski’s acupuncturist, Baltazar Rincones.385

*30 As the Court has previously discussed, complaints of uncalled witnesses are disfavored, and must at a minimum be supported by an affidavit stating that the witness would have been available and willing to testify at trial and summarizing the content of such testimony.386 Here, Bieganowski offers nothing but his own self-serving account of what Cervantes would have said, which is insufficient to establish a viable claim of ineffective assistance. Furthermore, Bieganowski’s argument is without merit. The point of Count Seven is that Bieganowski falsely represented that he personally rendered the services for which he billed. By Bieganowski’s own admission, Rincones actually performed one of the treatments. Even if Cervantes had testified and told the jury that he received one treatment from Bieganowski and one treatment from Rincones, such testimony would not have exonerated Bieganowski, but inculpated him. Under the circumstances, Roberts did not perform deficiently by declining to call a witness whose testimony would have damaged his client’s defense.

Y. Counsel Did Not Review a Letter Bieganowski Sent to Former Counsel Concerning Maria Romero and Did Not Enter the Letter Into Evidence at Trial

1. The Charges

In Count Thirteen of the Indictment, the Government alleged that, beginning on or about March 21, 1991, Maria Romero, also known as Concepcion Monrreal, colluded with Bieganowski to commit mail fraud.387 In support of the charge, the Government asserted that Romero, using the name “Maria Romero” and social security number XXX-XX-XXXX, began treatment with Bieganowski for a work-related injury she sustained while working at Wal-Mart on March 21, 1991.388 Between March 21, 1991 and August 4, 1998, Bieganowski repeatedly provided medical opinions to insurance carriers in which he stated that Romero was incapable of working due to the injuries Romero had sustained at Wal-Mart.389 In the fall of 1995, however, Romero completed college and began working at the El Paso Independent School District, using the name Concepcion Monrreal.390 Despite the fact that Romero had completed class work and begun working for EPISD, Bieganowski continued to represent to insurance carriers that Romero was still incapable of working as a result of her 1991 injury.391 In fact, according to the Indictment, on September 28, 1995 and other dates, Bieganowski stated that Romero would never be able to return to work full time.392 On several occasions during 1996 and 1997, including after the date of the injury discussed below, Romero, for her part, advised her insurance carrier that she had not worked since her 1991 injury.393

On or about February 27, 1997, the Government alleged, Romero filed a second workers’ compensation claim, stating that she had been injured while on the job at an EPISD school.394 However, Romero presented her claim under the name of “Concepcion Monrreal” and used another social security number, XXX-XX-XXXX.395 On May 30, 1997, the Government asserted, Romero, also known as Monrreal, asked the TWCC to allow her to change her treating physician for the February 1997 injury from another doctor to Bieganowski.396 On April 30, 1997, Bieganowski mailed an HCFA 1500 to TWCC, seeking payment for services rendered to Romero for her 1991 injury.397 On June 15, 1997, Bieganowski mailed two HCFA1500s to two separate insurance carriers.398 In one HCFA, Bieganowski requested payment from private insurance carrier Lindsey & Morden for services he rendered to “Monrreal” for the injury she purportedly sustained in February 1997.399 In the other HCFA, Bieganowski sought payment from Alexis Insurance, Inc. for services rendered to Maria Romero, for Romero’s 1991 injury.400 The Government contended that Bieganowski and Romero’s actions violated 18 U.S.C. § 1341.401

2. Bieganowski’s claim

*31 Bieganowski claims that when Romero visited him on April 30, 1997, Romero did not reveal that she had a new injury or that she was seeing another doctor for it.402 When Romero came to see him again in June 1997, Bieganowski says, she came to see him as “Concepcion Monrreal” and for a separate injury, the one Romero purportedly sustained while working for EPISD.403 In the HCFA 1500 he sent for the June 1997 visit, Bieganowski explains, he put a note indicating that “Monrreal” had been treated by him for another injury under the name “Romero” and a different social security number.404 Bieganowski states that he also wrote to his former counsel, James Darnell, concerning the incident.405 The letter, which Bieganowski includes as Exhibit F to his Amended Motion to Vacate, is dated June 25, 1997.406 In pertinent part, it reads:

Dear Jim,

A couple of incidents have occurred in my clinic over the past two weeks which I think I need to make you aware of and that you need to check on. I feel that these two incidents are connected and are somehow aimed at undermining my practice.

Approximately two weeks ago, an old patient of mine, Maria Romero, whom I have seen for multiple years for an on-the job injury in the low back, came to see me for a new injury. The patient had completed her training at UTEP and had become capable of work in the classroom and was doing so when she was injured. When she came to see me for the second injury, she came to see me under her maiden name, which was Concepcion Monrreal. She came to see me under this name with a different social security number. The patient explained to me that in some manner, she had gotten her degree under her maiden name and that she had not changed it when she got married and she did not want any confusion when she went to look for a job, etc. I accepted this lady as a patient and thought about what to do. I finally told the patient that I would have to report having to use her maiden name as the name on the chart, but I would have to notify the insurance company that I had treated her for a previous injury under her old name. Thus, I felt I could take care of my patient as requested, but at the same time I would fulfill my responsibility to the insurance [sic ] by informing them that she had been previously treated under a different name.

One of my employees, Rose Goodlow, whom the FBI had previously talked to, picked this chart up for some unknown reason and went to Lucy Campos, my business manager, and told her that this was fraud and I that I [sic ] was taking this patient with two different names. When I heard what she had done, I brought Ms. Goodlow in front of Ms. Campos and Tony Duarte, my medical records supervisor, and I explained to her and in front of them that what I had done was respect the patient’s right to come and see me but I had fulfilled my obligations to the insurance company by reporting that she had previously been treated by me under a different name for a different injury. I requested that Ms. Goodlow, Ms. Campos, and Mr. Duarte sign a statement in front of me saying that they recognized that I had sent a report concerning Maria Romero and Concepcion Monrreal notifying them that she had seen me previously for another injury under a different name. I further made them sign that this had been sent to our medical records department and the report had been sent out to the insurance company notifying everyone. I even made the medical records person sign a statement that this had indeed been mailed out. Thus, I felt that I had put this situation to rest and fulfilled my obligations to all concerned parties, including the patient and the insurance company, and no deception was involved on my part in terms of either party. The insurance company and the patient was [sic] notified that I was notifying the insurance company that I had been treating her previously for a different injury under a different name.407

*32 The letter represented in Exhibit F ends with Bieganowski asking Darnell to contact Assistant United States Attorney Debra Kanof, the lead prosecutor in this case, and Agent James Griego.408 Attached to the letter is an “Initial Medical Report” for Concepcion Monrreal.409 Paragraph 18, the portion of the Initial Medical Report designated for stating significant past medical history, states “The patient has had a previous workman’s [sic ] comp [sic ] injury to the low back region under Maria Romero.”410 Also attached to the letter is a one page statement on Bieganowski’s letterhead, dated June 19, 1997.411 It reads: “I acknowledge giving this chart and corrected initial medical report to Ms. Tammy Diaz to be sent out immediately to the insurance company. Signed: /s/ Rose Goodlow; /s/ Tammy R. Diaz; /s/ Tony Duarte, Medical Record Supervisor.”412 As proof that Darnell sent Bieganowski’s letter to Kanof and Agent Griego, Bieganowski presents Exhibit BB.413 On its face, Exhibit BB is a letter from Darnell to Bieganowski, dated April 7, 2004. The one-paragraph letter reads,

Dear Dr. B.:

I did present this information regarding Maria Romero/Concepcion Monrreal to Debra Kanof and/or Agent James Griego. The number you saw on the document is not a government exhibit number. It is a Bates stamp number that we placed on all of your documents early in the investigative process.

Sincerely,

/s/ Jim Darnell By LAD

Jim Darnell414

Bieganowski alleges that his attorneys were ineffective because they did not review Darnell’s notes.415 If they had reviewed Darnell’s notes, Bieganowski asserts, counsel would have been aware of Bieganowski’s letter to Darnell, which indicated that it was Bieganowski himself who recognized and alerted the insurance companies and the Government to the RomeroMonrreal problem.416 Bieganowski argues that counsel could have entered the letter into evidence when Kathleen Amparan, a representative from Lindsey-Morden, the defrauded insurance company, testified during the Government’s case-in-chief.417 In addition, Bieganowski argues that counsel were ineffective because they did not contact Romero’s attorney, Sergio Coronado, to arrange to interview Romero or to obtain a statement that Bieganowski did not know that Romero had graduated from college and had returned to work.418 Bieganowski also contends that his attorneys were ineffective because, when Bieganowski’s former employee Tammy Diaz testified on Bieganowski’s behalf, they did not ask her about conversations she had with insurance carriers, informing them of Romero’s dual identity and social security numbers, despite the fact that Diaz gave the attorneys her notes of these conversations.419 Bieganowski believes that Diaz’s testimony on this subject would have exonerated Bieganowski of the mail fraud offense charged in Count 13.420

3. Discussion

After review, the Court concludes that Bieganowski has failed to carry his burden under Strickland. As a threshold matter, Bieganowski ignores the nature of the fraud the Government alleged. The trial evidence showed that Bieganowski learned that Romero had managed to complete a college degree and was actually employed. It was therefore entirely inconsistent for Bieganowski to assert to Romero’s insurance carrier, without qualification, that Romero could never return to work. The fact that Bieganowski may have made some feeble attempt to notify the insurance carrier that its insured, “Concepcion Monrreal,” was being seen by Bieganowski under a different name was not especially relevant or exculpating. In addition, Bieganowski presents no evidence whatsoever that Roberts and Smith did not review Darnell’s notes or that they were unaware of the letter or its import. Smith’s cross-examination of Amparan indicates a familiarity with Bieganowski’s claim that Bieganowski attempted to alert the insurance carrier to the fact that Bieganowski had previously treated “Concepcion Monrreal” under another name.421 Further, Amparan could not authenticate a letter from Bieganowski to his former counsel, and thus her testimony could not lay a foundation for the letter’s admission. More significantly, the letter would have been inadmissable if for no other reason than it contained hearsay and multiple hearsay. Lastly, Bieganowski testified at trial and addressed the points which he contends the letter would have emphasized to the jury. During cross-examination, for example, Bieganowski asserted that, by stating in his reports to insurance carriers that Maria Romero could “never” return to work, he meant that Romero could not return to her Wal-Mart job, which required manual labor.422 Bieganowski also explained, albeit not very convincingly, why he had not suspected that Romero was doing anything fraudulent, even though Romero was using two different names, two different social security numbers, and according to various employees who testified at trial, seemed to being trying to disguise her appearance when she visited the clinic as “Monrreal” by donning a wig and sunglasses.423 Insofar as Bieganowski alleges that counsel were ineffective for not contacting Romero’s attorney and obtaining a statement from Romero, there is no evidence that counsel did not make such an attempt or that Romero, who pleaded guilty to Count 13, would have been willing to provide the desired statement. For the foregoing reasons, the Court concludes that Bieganowski has not carried his burden under Strickland.

Z. Counsel Did Not Call Witnesses to Discredit Lucy Campos’s Testimony424

*33 The Government named Lucy Campos (“Campos”), Bieganowski’s nominal business manager, in Counts One and Twenty-Two of the Indictment (i.e., the conspiracy to commit mail fraud and money laundering charges).425 Campos pleaded guilty to Count One of the Indictment pursuant to a plea agreement and testified for the Government at Bieganowski’s trial.426 Bieganowski argues that counsel could have discredited Campos’s testimony with the testimony of Tammy Diaz, Angela McKinley, Elizabeth Cedillos, Grace Castro, Bonnie Cortez, Cecile Fowler, and Itzel Granados.427 The Court first considers Campos’s testimony, which it summarizes below. The Court will subsequently examine Diaz’s and McKinley’s trial testimony and the affidavits Bieganowski offers in support of his claim.

1. Campos’s Testimony

As part of her testimony, Campos acknowledged the terms of her plea agreement, including the Government’s promise to move for a sentencing reduction if she substantially assisted it with the prosecution of her remaining co-defendants.428 Campos also acknowledged that she never entered into an overt agreement with Bieganowski to commit fraud.429

Campos related that she first worked on workers’ compensation claims, verifying that patients had a compensable injury and would thus be covered by workers’ compensation insurance.430 Campos said that she became Bieganowski’s office manager in 1989.431 Campos recalled that her duties remained essentially the same, except that she began to supervise the collections and data processing departments, administered vacation requests, and implemented pay raises.432 Although she supervised certain personnel, Campos said that she never had the authority to hire and fire employees.433 Bieganowski retained this power, and later, Goldberg appeared to have a voice in employment decisions.434 In addition, Campos stated that Bieganowski directly supervised his medical staff.435

Campos told the jury that she began to supervise the medical records department in addition to the collections and data processing departments when Bieganowski moved his clinic to the Trowbridge location.436 By 1993, Campos stated, she was responsible for accounting, payables, payroll, accounts receivable, collections, and personnel.437 Campos also was responsible for Bieganowski’s travel arrangements, and through her testimony, the Government laid a foundation for the admission of Bieganowski’s travel records.438 In 1992, Campos also acquired primary responsibility for the office computer system, and provided the Government with backup tapes of the office computer’s hard drive, which were also admitted into evidence.439 The backup tapes included billing records for Bieganowski’s various medical enterprises.440

As part of her work with the medical records department, Campos stated, she sent medical records to insurance carriers.441 Campos additionally supervised the billing department, which at that time comprised two employees, Gloria Morales and Daniel Ramirez.442 Campos explained that personnel at Bieganowski’s medical clinic and Lopez’s physical therapy facility generated fee tickets, corresponding to the services rendered, and delivered the tickets to the billing department.443 Billing department staff subsequently entered the information reported on the fee tickets into the computer.444

*34 Campos remembered that the fee ticket’s design evolved over time, as Bieganowski and Lopez instructed staff to include new billing (i.e., CPT) codes on the form to reflect new services and procedures they were performing.445 Campos testified that she never decided what CPT codes to add or change on the fee ticket.446 Campos asserted that Bieganowski and Lopez were always interested in knowing the corresponding amount of money that insurance carriers would reimburse for a particular code.447 Campos also told the jury that whenever Bieganowski had the choice of billing under more than one code, he would choose the code that paid the higher amount of money.448 Campos recalled that Goldberg had his own copy of the manual listing CPT codes.449

Campos testified that, after she assumed billing responsibilities, she had daily contact with Goldberg.450 Beginning approximately in 1993 or 1994, Goldberg would call her daily to learn the amount of money Bieganowski’s clinics had collected.451 Goldberg instructed Campos that she had to collect a minimum of $10,000 per day.452 Bieganowski additionally required Campos to report the day’s intake at the end of business every day.453 Campos told the jury that she and her collections staff were under enormous pressure from Goldberg and Bieganowski to collect the requisite amount of funds.454 When her staff, which consisted of Danny Ramirez, Gloria Garcia, and Angela McKinley, were unable to collect the requisite amount, Bieganowski would grow angry and ask Campos which of his employees he must terminate due to the shortfall.455 Campos believed that her job was in jeopardy if she didn’t manage to collect $10,000 per day.456

The checks that the accounts receivables department received from insurance carriers were made payable to Bieganowski’s various medical businesses.457 Campos would separate the checks according to Bieganowski’s corresponding business.458 She would subsequently deposit the checks into corresponding accounts held at Norwest Bank.459 Bieganowski was the signatory on all of these accounts.460 Campos maintained a tally of all her deposits, which she would communicate to Goldberg and Bieganowski daily.461

Campos stated that, after a local television news station ran an exposé about the solicitation practices of certain El Paso medical providers, including Bieganowski, Bieganowski, Goldberg, Victor Bieganowski, Robert Griego, and she met to discuss how to proceed in the broadcast’s wake.462 They specifically discussed creating El Paso Doctors Medical Center, ostensibly a separate chiropractic clinic, as a vehicle for continuing Bieganowski’s previous automobile-accident solicitation practices.463

After the television broadcast, Campos said, Bieganowski employed a woman named Linda Howard, a certified CPT code specialist, to audit Bieganowski’s billing procedures and code designations.464 Howard gave Campos different CPT codes to use for certain procedures and examinations and created a new fee ticket for use in Bieganowski’s clinics.465 Howard also told Campos that the documentation supporting the fee tickets needed to be more precise.466 Campos testified that the new codes Howard advised her to use reimbursed less than the ones they were then using.467 The $10,000 dollar daily quota became harder to make as a result.468 Despite the fact that Howard’s recommendations made it more difficult to meet even the $10,000 total, Campos said, after Howard’s audit, Goldberg subsequently encouraged Campos to bring in $15,000 per day.469

*35 During a certain period of time, Campos recalled, her collectors were having difficulty collecting $10,000 per day, because insurance carriers were denying claims.470 Campos told the jury that carriers were denying claims due to insufficient corroborating documentation, or because the carrier had determined that the number of treatments were excessive, the billed procedure was unnecessary, or the service was not actually provided by the treating physician.471 On one particular day, when her staff had only collected $2,000, Campos explained to Bieganowski that part of the problem was that he was habitually extremely behind on his patient progress notes, which the insurance carriers required to corroborate payment requests.472 Bieganowski, who Campos described as upset, told Campos to “Just do it” and walked out.473 Campos understood Bieganowski to mean that she should complete the progress notes.474 Campos returned to her collections staff, including Angela McKinley, and told them to “Just do it.” Campos’s collections staff then began to create the missing progress notes, based on previous progress notes for the particular patient.475

Campos testified that Bieganowski and Goldberg also began to track the number of block injections Bieganowski administered to his patients.476 Goldberg demanded that each employee precertifying blocks precertify a minimum of ten blocks per week.477 Campos testified that these block injections paid Bieganowski well, between $900 and $1700 each.478

In approximately March 1994, Goldberg informed Campos that Bieganowski had decided to move his billing operations to Ciudad Juarez.479 Goldberg told her that Bieganowski wanted Campos to coordinate the move and to act as the administrator of the soon-to-be created Servicio de Facturacion, a Mexican company, once the billing department was established in Juarez.480 Campos agreed.481 Goldberg told her that she would need to bill as much as possible and to submit “re-bills,” that is, re-submit billing requests that insurance carriers had previously denied.482 Campos stated that it was understood that she and her staff were to use the old CPT codes, rather than the ones Linda Howard had advised them to use.483 Campos stated that in March 1997, they sent billing statements to Bieganowski’s workers’ compensation patients that were not coded properly.484 When Bieganowski learned that workers’ compensation patients had received billing statements, he told her in no uncertain terms that he did not want his workers’ compensation patients to receive billing statements.485 The remainder of Campos’s testimony concerned the establishment and administration of Servicio and the transfer of funds among Bieganowski’s various business entities, including UTM Professional Management, Inc.486

2. Angela McKinley’s Trial Testimony

Angela McKinley testified against Bieganowski and his co-defendants.487 McKinley stated that she began working for Bieganowski in 1989 or 1990 as a file clerk, when Bieganowski located his practice on Trowbridge.488 McKinley recalled that she worked in the file room for approximately three years.489 Her main responsibilities were to file reports, progress notes, and miscellaneous documents into patients’ medical files.490 McKinley stated that, while working in the file room, she noticed that several patients had more than one file, reflecting more than one workplace injury or injury sustained in an automobile accident.491 McKinley also remembered that there would sometimes be more than one progress note for the same patient for the same day.492 McKinley testified that she eventually moved from the file room and began working in Bieganowski’s collections department.493 As part of her duties in the collections department, McKinley said, she responded to letters from insurance carriers indicating that the carrier required additional documentation before paying a claim or that the carrier was denying a claim.494 For example, when the clinic received correspondence from an insurance carrier denying a claim, McKinley said, her job was to call the carrier to find out why it had denied the claim and what the carrier needed in order to pay.495 McKinley explained that she would then try to provide the carrier with the missing documentation.496 If the patient’s file lacked a progress note, McKinley said, she would look for it to determine that the note had not been misplaced.497 If McKinley could not find the missing progress note, McKinley testified that she would notify Lucy Campos.498 McKinley stated that after she told Campos that she did not have the necessary progress note, nothing would happen.499 McKinley explained that “we wouldn’t send anything, because we didn’t have anything.”500 McKinley stated that Bieganowski paid her and the two other employees in the collections department an hourly wage, plus a commission, based on the monthly amount of money they brought into the clinic.501

*36 About a year after she began working in the collections department, McKinley recalled, she started preparing patient files for Bieganowski, in anticipation of depositions and affidavits Bieganowski would give in his patients’ lawsuits.502 To prepare a patient’s file for deposition, McKinley stated, she would generate an itemized bill from the clinic’s computer.503 She would then examine the physical file to make sure that it contained progress notes and patient reports for each date billed.504 McKinley explained that the progress notes and reports had to match the billing dates exactly.505 If the patient lacked a necessary progress note, McKinley said, she would get a blank progress note, put the patient’s name on it, back date the form to the relevant date, place the blank progress note in the front of the patient’s file, and give the file to Lucy Campos or Bieganowski, so that Bieganowski could dictate the progress note.506 McKinley remembered that sometimes Bieganowski would return the file without having dictated the missing progress note. On those occasions, McKinley said that Lucy Campos instructed her to make up the progress note herself and sign Bieganowski’s initials at the bottom.507 McKinley said that she would determine what to put on the missing progress note based on what the previous progress note in the patient’s file reported.508 McKinley stated that Bieganowski took patient files containing falsified progress notes with him to use during depositions.509 McKinley stated that she believed Bieganowski knew the progress notes were falsified because he would have recognized that someone else had signed his initials.510 McKinley also stated that she would have to make up progress notes every time Bieganowski gave a deposition for a patient, because the patient’s files would usually be lacking at least one progress note.511

McKinley said that she assisted Bieganowski’s employee, Pauline Tope, with billing.512 McKinley recalled that Tope worked in the billing department and would send HCFA 1500 forms by mail to insurance carriers, requesting payment.513 McKinley stated that Tope had to attach progress notes to the HCFA 1500s that she mailed to carriers.514 There were occasions on which neither she nor Tope could locate the progress note that matched the HCFA 1500 form that Tope was preparing to mail.515 McKinley stated that Tope would often have a two-inch thick stack of single-sheet HCFA 1500s forms waiting to go out, for which Tope could not locate progress notes.516 If they could not locate a progress note matching the specific treatment date listed on the HCFA 1500, McKinley said, Tope would fabricate a progress note.517 McKinley stated that, in some instances, she would help Tope create progress notes for this purpose.518 McKinley stated that she and Tope would use previous progress notes for the patient to get an idea of what to put on the false progress note.519

McKinley stated that she also prepared documents called TWCC-64s, TWCC 69s, and TWCC 61s for mailing to the Texas Workers’ Compensation Commission (“TWCC”).520 McKinley recalled that these documents represented reports the TWCC required Bieganowski to submit regarding his workers’ compensation patients.521 McKinley told the jury that her job was to gather patient files needing these forms sent to the TWCC. She would give the patient files to Bieganowski for him to dictate what should go onto the forms.522 McKinley stated that Bieganowski would return the box of patient files together with a small cassette tape representing his dictation.523 McKinley would send the cassette tape and forms to be transcribed; thereafter, the forms would be mailed to the TWCC.524

*37 McKinley testified that, several times, she was assigned to drive Bieganowski home from the clinic.525 Bieganowski would use the travel time to dictate medical reports for patients that visited the clinic on that particular day.526 During these drives, McKinley had an opportunity to observe how Bieganowski conducted his dictation.527 Bieganowski had a list of names reflecting the patients who had visited the clinic that day.528 Bieganowski would dictate off this form and scratch off the patients’ names after he dictated their notes, despite the fact that Bieganowski did not have the patients’ files in the car with him or any other notes.529 McKinley noticed that the patients’ treatments, diagnoses, symptoms, and injuries she heard Bieganowski dictating all sounded similar.530 According to McKinley, Bieganowski would sometimes state a patient’s name, and instead of dictating a full report, would merely say, “Same as this other patient.”531

McKinley testified that when Bieganowski went on vacation or was otherwise absent from the office, he left Gustavo Diaz in charge of the clinic.532 McKinley said that Diaz would dictate reports on auto accident patients, and towards the end of the time that McKinley worked there, would also dictate TWCC 64 reports for workers’ compensation patients.533 When Diaz dictated for Bieganowski, McKinley stated, Diaz would not sign the transcribed reports but would use Bieganowski’s signature stamp.534

McKinley testified that Bieganowski employed Robert Griego to bring in new automobile accident patients to the clinic.535 McKinley stated that, per Robert Griego’s instructions, she would pick up these patients, bring them to the clinic for treatment, and later take the patients home.536 McKinley stated that some of these patients would see Victor Bieganowski as well as receive treatment at Bieganowski’s clinic.537

During Roberts’s cross-examination, McKinley acknowledged that when she worked for Bieganowski, she had not worked in a medical office before and did not really know what might be usual or unusual medical practice.538 McKinley stated that when she worked in the file room, there was approximately a one-week backlog of papers, including progress notes, waiting to be filed.539 McKinley denied that this backlog could have been as much as a month.540 She also stated that the progress notes that were awaiting filing were alphabetized, and thus were not in random order.541 Roberts suggested that McKinley could not say with certainty why a patient’s file might be missing a progress note.542 McKinley agreed.543 Roberts asked whether a delay in transcribing dictation could be the reason that a file did not have a progress note in a given situation. McKinley agreed that a transcription delay could explain a lack of a progress note.544 Roberts also questioned McKinley about her direct testimony concerning Bieganowski’s manner of dictation.545 When Roberts suggested that Bieganowski was a very intelligent man with an excellent memory, McKinley answered that she supposed so, but she did not really know since she did not talk to the doctor much.546 McKinley emphasized that she merely listened to what Bieganowski dictated and observed how he did it.547 McKinley admitted that she did not know whether Bieganowski’s dictation practices were unusual or not, as she had no basis for comparison.548 McKinley agreed with Roberts that, since approximately ninety per cent of Bieganowski’s practice consisted of patients with work-related injuries, it was not necessarily unexpected that the patients would have similar medical complaints.549 McKinley testified that she did not recall telling Agent Griego that, no matter what a patient’s injury was, Bieganowski ordered the same treatments.550 Regarding her direct testimony that certain patients had several files, in response to Roberts’s questioning, McKinley stated that she did not know why a patient would have multiple files.551

*38 Randy Ortega (“Ortega”), Gustavo Diaz’s attorney, also cross-examined McKinley.552 Under Ortega’s questioning, McKinley maintained her earlier testimony that Diaz dictated information for TWCC-64 forms and certain reports.553 McKinley acknowledged that she never saw Diaz dictate notes without a patient’s chart on front of him for reference.554 Despite Ortega’s suggestion that Bieganowski presumably reviewed and approved Diaz’s dictated notes, McKinley insisted that after the notes were transcribed, they were returned directly to the file room, at which point McKinley and other file room employees would affix Bieganowski’s signature stamp.555 McKinley agreed that, although Diaz dictated the reports, he did not sign them.556 McKinley also agreed that Diaz could not have given his provider number on the forms, because Diaz did not have one.557 McKinley similarly agreed that for HCFA 1500s and other reports, the person whose provider number is on the form is the person responsible for the information contained therein.558 McKinley further conceded that Pauline Tope, rather than Diaz, sent the HCFA 1500s to insurance carriers.559

The Government briefly redirect-examined McKinley.560 After asking the Court for a moment to confer with Bieganowski, Roberts announced that he had no further questions for McKinley.561

3. Angela McKinley’s Affidavit

In the portion of her affidavit concerning Lucy Campos, Bieganowski’s dictation practices, and the falsification of progress notes, McKinley states:

1. I, Angie [sic] McKinley [,] was an employee of Dr. Arthur Bieganowski from approximately 1992-1993 until 1996. I had various job capacities, but spent most of my time in medical records, collections, and then medical records again. I also, during my entire time at Dr. Bieganowski’s clinic, [and] performed functions related to his personal affairs.

2. That many times I drove Dr. Bieganowski to various destinations, as well as to his home. That during these times, Dr. Bieganowski would invariably dictate.

3. That Dr. Bieganowski was known to have an excellent memory by all his employees. That Dr. Bieganowski was capable of remembering each patient that was treated each day, and at the end of the day would dictate. That these dictations would be on patients who had similar complaints and examinations and on other patients whose complaints and physical exams were different.

4. That when I worked in medical records, the department was always in chaos. Paper came in constantly from progress notes, lab work, x-rays [sic ], dictations, consultations, blocks, insurance mail among others and used to pile up for weeks, without being appropriately filed. Many times, I was the only person in medical records and between doing Dr. Bieganowski’s personal business and pulling charts on patients who were being seen in the clinic each day, I would fall behind in my filing work. This hindered the overall business function of the clinic, as insurance mail could not be answered timely, collection was held back because documentation (such as progress notes) was not in the chart, and dictation to the TWCC was behind. I attempted to talk to Lucy Campos about these problems, in order to get me help and to have Lucy Campos help me organize the file room-to give us a system. She just said no and offered no solutions. Lucy Campos just let the chaos continue. Lucy Campos was continuously told of the medical records problem but she acted as if she didn’t believe me. I wanted to go to Dr. Bieganowski with these problems but I was afraid to go to Dr. Bieganowski because I had been warned by Lucy Campos never to do that-to go to her first.

*39 5. That when I worked in collections, I would also help Pauline Tope with the progress notes, so that billing could go out.

6. That there were many progress notes missing when I would work with Pauline Tope and I would take the chart with a list of missing notes to Dr. Bieganowski to be done. There came a time when the problem of missing notes became acute and billing was held up. It was during this time that Lucy Campos told us (Pauline Tope & myself) to make up progress notes, so we did this. We knew it was crazy to do this, and we never felt good about it. Lucy Campos never said that Dr. Bieganowski said to make up the progress notes. She told us to do it.

7. That I did not believe that Dr. Bieganowski would do anything wrong like this, and I wanted to to [sic ] talk to him. I hesitated however, because Dr. Bieganowski really trusted in Lucy Campos and if I told him about the false progress notes he might not believe it and that would have bad consequences for me. That I would have the wrath of Lucy Campos as well, if I went to DR. [sic ] Bieganowski about this problem.

8. That Dr. Bieganowski had terrible trouble with his outside transcription when I first started working there. There was an outside service run by someone named Kathy, ? I believe [sic ]. This service would never be on time with our dictation and when we did receive the dictation, there was always dictation missing. We constantly had to call them to review tapes to find missed dictation. It was a constant battle.

9. That transcription improved markedly when Sandra arrived on the scene. She would be on time and would always be in contact with Dr. Bieganowski about missing or unclear dictation. Sandra, unlike us, went straight to Dr. Bieganowski. That problems with our progress notes cleared up a lot and we had to do much fewer.

10. That it became clear that our problems with progress notes not being found were probably related to poor transcription services, as well as filing, which was very behind.

11. That, it was clear that Dr. Bieganowski had a good working relationship with Sandra, and he did not mind clarifying or redictating when necessary.

12. That Dr. Bieganowski always dictated progress note [sic ], letters to insurance companies, TWCC and all his consultations and his required monthly or bimonthly dictations. That Dr. Bieganowski dictated night and day and did not complain about it. That Dr. Bieganowski would take boxes and boxes on his vacation to dictate and even called sometimes from his vacation location, to send him more. That Dr. Bieganowski always dictated, so I wondered why he would consent to have progress notes made up. Dr. Bieganowski was not the kind of man that would do anything wrong and probably did not know of the false progress notes.562

The Court now summarizes Tammy Diaz’s trial testimony.

4. Tammy Diaz’s Trial Testimony

At trial, Tammy Diaz testified on Bieganowski’s behalf.563 On direct examination, Diaz stated that she worked for Bieganowski in various capacities from 1994 to 1996, left his employ for approximately a year, and returned to work for him in either 1997 or 1998.564 Diaz told the jury that she would periodically type progress notes based on information Bieganowski dictated or otherwise provided.565 Diaz also stated that she never personally prepared false fee tickets, nor did she witness anyone else doing so.566 Smith specifically questioned Diaz about Sandra Olivares.567 Diaz said that she had worked with Olivares and that Olivares felt anger towards Bieganowski because Bieganowski advised Olivares that her back injury would make it difficult to carry a child to term.568 Smith also questioned Diaz about her work as Bieganowski’s receptionist.569 Diaz told him that sometimes patients would leave, but most of the time, they would return.570 Diaz conceded, however, that patients would not always tell her when they were leaving, and that sometimes patients would not return.571

*40 On cross-examination, Diaz admitted that she had testified on Bieganowski’s behalf before and that she liked him.572 Diaz also admitted that Bieganowski’s co-defendant, Gustavo Diaz, was her uncle by marriage.573 Diaz further conceded that she had worked in the same office with Angela McKinley, Rene Moreno, Wendy Murillo, Maribel Cordova-Mata, Lucy Campos Annica Chavez, David Duron, and Pauline Tope, all of whom had testified adversely to Bieganowski in the Government’s case-in chief.574 Diaz stated that, when she had occasion to prepare bills and send them to insurance adjusters, she did not have problems with missing progress notes.575

5. Tammy Diaz’s Affidavit

In the part of her affidavit that is relevant to Lucy Campos, Diaz accuses Campos of being secretive about her management of Bieganowski’s clinic and refusing to answer Diaz’s questions.576 Diaz also asserts that Campos attempted to keep Bieganowski ignorant of what was happening in the clinic’s business side.577 Diaz insinuates that Campos discarded documents, including progress notes, that were awaiting filing, so that Bieganowski would not see that Campos’s staff was behind in that task. Diaz states that:

dictation was constantly backed up. We would not get Dr. Bieganowski’s dictation back for weeks on end. When it did come in, it would come in bulk and not be filed for weeks. As a result, all needed documentation for billing and running the clinic was chronically behind. The answering of insurance mail fell behind in the same way. It would just pile up and not be answered.578

3. Grace Castro’s Affidavit

In the portion of Castro’s affidavit concerning Lucy Campos, Castro essentially repeats Diaz’s allegations. That is, Castro asserts that Campos was secretive about clinic operations, managed the business operations poorly, and attempted to keep Bieganowski ignorant regarding problems.579

4. Bonnie Cortez’s Affidavit

Cortez states that she worked for Bieganowski from 1993 to 1996.580 Cortez also asserts that she worked closely with Campos as an accounting assistant, doing payables, payroll and other accounting functions such as deposits.581 Like Diaz and Castro, Cortez implies that Campos was responsible for any criminal activity occurring at Bieganowski’s clinics, claiming that Campos made almost all the decisions in the office concerning fee tickets, CPT codes, charging and billing, computer inputting and retrieval, medical records, including the transcription and production of progress notes, and personnel.582 Cortez additionally contends that Campos tried to hide her mistakes to avoid or diminish Bieganowski’s anger when he learned of errors.583 Cortez states that Campos kept a bundle of checks in her desk drawer to cover days when her collectors brought in less than $10,000.584 Like Diaz and Castro, Cortez states that Campos managed the business operations poorly, and attempted to keep Bieganowski ignorant regarding problems.585 Cortez disputes Campos’s testimony that Bieganowski took $500 to $1,000 dollars a week beyond his regular paycheck.586 Cortez insists that the amount Bieganowski took actually ranged from $100 to $150, and there were weeks in which he took nothing at all in addition to his paycheck.587 Cortez also reports that Grace Castro was jealous of Campos, and that the conflict between Castro and Campos prompted Cortez to leave her job with Bieganowski.588 According to Cortez, Campos did not like what Linda Howard advised regarding CPT codes and did not like having Howard around.589

5. Cecile Fowler’s Affidavit

*41 In her affidavit, Cecile Fowler states that she is a retired registered nurse who began working for Bieganowski in late 1996.590 Fowler says that Bieganowski originally hired her as a transcriptionist, but that she later worked in the medical records departments, conducted disability evaluations, and precertified blocks.591 When she worked as a transcriptionist, Fowler recalls, she dealt with medical records and found the department in disarray, with a multiple month backlog in filing documents, including progress notes.592 According to Fowler, Campos was completely in charge of operations but was a poor manager.593 Fowler says that Campos and Castro constantly fought.594 Fowler also maintains that Campos tried to hide the state of the office from Bieganowski.595

6. Discussion

None of the aforementioned affidavits positively depict Campos’s management ability. However, the affidavits do not contradict Campos’s essential testimony, and in certain respects, their affidavits actually corroborate Campos’s account of events.

The Court first discusses McKinley’s affidavit. Her statements therein do not materially vary from her trial testimony. That is, in her affidavit, McKinley confirms her trial testimony that patient files often lacked progress notes which were necessary if Bieganowski wished insurance carriers to pay him for his purported services. McKinley further maintains, as she did at trial, that Lucy Campos directed McKinley and Pauline Tope to fabricate the missing progress notes for billing and reporting purposes. McKinley’s affidavit is thus not only consistent with her trial testimony, but corroborates Campos’s trial testimony that, after speaking with Bieganowski about billing difficulties, Campos told her collections staff, including McKinley, to falsify progress notes. McKinley’s opinion regarding why patient files lacked progress notes (i.e., a backlog in filing or transcribing Bieganowski’s dictation) was only tangentially relevant to this central point, if at all.596 The additional information McKinley says she could have provided on cross-examination would either have been inadmissible or subject to exclusion as irrelevant, cumulative, speculative, or beyond the scope of direct examination. In addition, on cross-examination, Roberts tried to limit the most damaging inference to be gleaned from McKinley’s direct testimony, specifically, the implication that the files lacked progress notes because Bieganowski was attempting to bill carriers for patients he had not actually treated.

Turning to the remaining affidavits Bieganowski offers in support of his present claim, the Court notes that both Cortez and Fowler mention that acrimony existed between Campos and Castro. Their account of Castro’s hostility toward Campos renders Castro’s criticisms of Campos suspect and unreliable. Moreover, Campos’s alleged secretiveness supports the inference that Campos, a confessed co-conspirator, was attempting to prevent a close inspection of the clinic’s financial operations, which would reveal fiscal irregularities. Cortez’s testimony about Campos keeping checks in her desk drawer to cover collection shortfalls supports Campos’s testimony that Goldberg and Bieganowski required and exerted considerable pressure on her staff to collect at least $10,000 per day. Under these circumstances and given the fact that the Court limited the number of employees Roberts could call in the defense case-in-chief to twenty-eight,597 the Court concludes that Bieganowski has not shown that counsel acted in a professionally unreasonable manner by declining to call Castro, Cortez, and Fowler as witnesses, to directly examine Diaz about Campos’s testimony rather than choosing to focus on Sandra Olivares’s testimony, or to cross-examine McKinley at greater length. Further, Roberts aggressively cross-examined Campos about her purportedly inconsistent testimony, so much so that it prompted the Government to object on the basis of argumentativeness.598 Moreover, it is clear from Roberts’s opening statement in Bieganowski’s case-in-chief that he intended to rely on Bieganowski’s expert witness, Linda Howard, to rebut Campos’s testimony concerning fee codes.599 In addition, Richard Goldberg’s attorney, Robert Ramos, spent considerable time in his closing argument attacking Campos’s credibility.600 For the reasons discussed above, the Court concludes that Bieganowski is not entitled to relief regarding this aspect of his multifaceted ineffective assistance claim.

AA. Counsel Did Not Call Witnesses to Discredit George Lozano’s Testimony.

*42 George Lozano testified on the Government’s behalf.601 Bieganowski asserts that, if counsel had properly questioned Tammy Diaz, her testimony would have undermined Lozano’s.602 According to Bieganowski, Bonnie Cortez, Itzel Granados, and Angela McKinley could have also discredited Lozano.603

1. George Lozano’s Testimony

On direct examination, Lozano stated that Bieganowski hired him to interview automobile accident patients at Bieganowski’s clinic.604 Bieganowski later promoted him to a supervisorial position with Dr. Untersee, the chiropractor at Bieganowski’s chiropracty office.605 Through a friend of Untersee’s, Lozano, who was frustrated with matters at the clinic, met Agent Griego and became a cooperating witness, code-named “Cosmo.”606 Lozano stated that he provided Agent Griego with much of the information constituting the basis for the Government’s 1996 search warrant.607 Lozano said that Griego eventually paid him $5,000 for his assistance in the investigation.608 Lozano denied that Griego or the assistant United States Attorneys assigned to the case ever promised him immunity from prosecution.609

Lozano stated that when he first began working for Bieganowski, the fee ticket was a separate document from the progress notes.610 The two were later combined, so that the progress notes became part of the fee ticket.611 The combined fee ticket also listed CPT codes.612 Lozano stated that he never checked off a CPT code.613

Lozano recounted how he was trained to handle new automobile accident patients.614 Robert Griego would bring new automobile accident patients to Lozano or meet with the new patients first in Lozano’s office before Lozano spoke with the patient.615 Lozano stated that he overhead Griego’s conversations with new patients.616 According to Lozano, Griego told prospective patients that “they were injured, they had been hit by some heavy metal, and they needed to see a doctor. And it was no charge to them, that the other person’s insurance would be responsible.”617 After patients spoke with Griego and agreed to see Bieganowski, the patients would sign in on the sign-in sheet in the reception area.618 Lozano reported that the sign-in sheet for automobile accident patients differed from the sign-in sheet for workers’ compensation patients.619 Lozano elaborated that the sign-in sheet for automobile accident patients had a space for the patient to provide the name of the patient’s attorney, if the patient already had counsel.620 Staff members also did not have to put the serial number for the corresponding fee ticket on the automobile clinic sign-in sheet.621 Lozano stated that if a patient did not already have an attorney, he and other staff members were to encourage the patient to retain Victor Bieganowski.622 Lozano said that he personally escorted new patients upstairs to Victor Bieganowski’s law office on the second floor of the building.623

After new patients met with Griego, agreed to see Bieganowski, and signed in, Lozano would have the patient complete a patient information form.624 On the form, the patient would provide his name, address, the name of his insurance provider, if any, and relevant telephone numbers.625 Lozano would next have the patient complete what he described as a “lien” form.626 According to Lozano, the lien form authorized the clinic to send the patient’s information to the patient’s attorney.627 Lozano would also have the patient sign an HCFA 1500 form.628 This original HCFA form would remain in the patient’s file as evidence the patient had consented to treatment.629 Lozano would afterward place the new chart and fee ticket in the designated area of the clinic.630

*43 Although charts for workers compensation patients and automobile accident patients went to the same area of the clinic and each represented a patient who was waiting to see Bieganowski, Lozano stated, automobile accident patients took priority.631 The prioritization came about, Lozano said, because many automobile accident patients tired of waiting for Bieganowski to examine them and left.632 Lozano explained that Bieganowski pressured him to keep automobile accident patients at the clinic.633 Lozano stated that, when an established automobile accident patient did not show up for an appointment, Bieganowski would ask Lozano for an explanation or would send Guadalupe Morales and Gustavo Diaz to Lozano for an explanation.634 Lozano remembered that, when Bieganowski spoke to him directly about the lack of automobile patients, Lozano found Bieganowski’s tone intimidating.635 Lozano said that he discussed the problem of patient waiting times with Bieganowski and Guadalupe Morales, and afterwards, automobile accident patients took priority.636

Lozano stated that he was responsible for tracking the number of automobile accident patients Griego brought to the clinic.637 Lozano recalled that Griego had a quota of ten new automobile accident patients per week.638 Lozano stated that Rosa Maribel Mata-Cordova took over Lozano’s position and also tracked Griego’s progress.639 Lozano explained that he tracked Griego’s numbers because, at the end of each week, Bieganowski would want to know which of the patients Bieganowski had examined were patients Griego had brought to the clinic.640 Lozano asserted that he had personal knowledge that Bieganowski wanted to know this figure, because the answer determined Griego’s compensation.641 A patient had to visit Bieganowski a certain number of times for Griego to be paid for bringing the patient to Bieganowski.642 Lozano said that he had observed Bieganowski deducting patients from Griego’s pay, because the patients had only seen Bieganowski once or twice.643 Lozano acknowledged that Griego had once paid Lozano $50, when Lozano referred a walk-in automobile patient at the clinic to Griego.644

Lozano told the jury that on a regular-length day, the clinic would have forty to fifty new automobile accident patients scheduled for appointments.645 Lozano testified that Gustavo Diaz, Bieganowski’s PA, saw all the new automobile accident patients when Bieganowski was out of town.646 When Bieganowski was in town, Diaz would see the new patient first and ascertain details about the accident and the patient’s chief complaint.647 Diaz would also examine the patient.648 Lozano estimated that Diaz spent fifteen minutes in the treatment room with a new patient.649 Bieganowski would enter the treatment room after Diaz finished with the patient.650 Lozano estimated that Bieganowski spent an average of fifteen minutes with each new patient as well, for a total average treatment time of thirty minutes.651 Lozano testified that Bieganowski would spend about five minutes with established patients, and perhaps ten minutes if the patient was receiving acupuncture.652 Lozano recalled that Bieganowski’s medical assistants would usually record Bieganowski’s initial orders for new patients, that is, Bieganowski’s diagnosis and instructions for further treatments and tests.653 However, Lozano said that he, too, would also occasionally record Bieganowski’s orders, although he did not have any medical training.654 Lozano said that he heard Bieganowski order “the around the world treatment,” which meant Bieganowski wanted the patient to receive every therapy available in the building.655 Lozano noticed that Bieganowski diagnosed all automobile accident patients with the same complaint, a cervical thoracic lumbar sprain or strain and TMJ syndrome.656

*44 Once Lozano received Bieganowski’s orders for a new patient, Lozano said, Lozano would take the patient back to his office to complete “prescriptions” or referrals for the patient.657 Specifically, Lozano stated that he had referral forms in his office which Bieganowski had presigned.658 These forms referred the patient to physical therapy, biofeedback, X-rays, for MRI testing, and other services provided by Bieganowski’s various businesses.659 If Bieganowski or Diaz ordered X-rays, which they usually did, Lozano testified, the X-rays were to be taken on the same day Bieganowski or Diaz saw the patient.660 Lozano said that he would escort the patient to the X-ray department.661 After the patient finished in the X-ray department, the patient would return to Lozano’s office.662 Lozano would then take the patient to Jesse Lopez’s physical therapy clinic and have the patient sign in.663 After the patient finished with Lopez, Lozano stated, the patient would return to Lozano’s office.664 If time permitted, Lozano would take the patient to biofeedback.665 After the patient received biofeedback or the last treatment of the day, Lozano said, Bieganowski required and pressured Lozano to schedule the patient for a follow up visit, because the doctor’s orders specified that the patient needed to see Bieganowski a certain number of times.666

Lozano testified that he also prepared patients’ medical charts for depositions Bieganowski would give in related lawsuits.667 Lozano stated that, in preparing the file, he had to reconcile the number of patient visits billed with the number of fee tickets actually in the file.668 Every patient visit needed a corresponding progress note, fee ticket, and bill.669 Lozano recalled that, frequently, the patient’s medical chart did not contain progress notes or the combined progress note/fee ticket.670 On those occasion, Lozano testified, he would obtain a blank fee ticket and give the ticket and chart to Bieganowski.671 Bieganowski would return the chart with a completed progress note.672 Lozano stated that Lozano would then backdate the progress note to match the billing date.673

Lozano also told the jury that when he would go back to the clinic’s treatment area at the end of the work day, he would see Bieganowski’s medical assistants, specifically, Wendy Herrera, Lupe Morales, Laura Tovar, and a few others, using scripts to write down patients’ prognoses on the designated portion of the fee ticket.674 Lozano stated that he would observe nurses writing patient prognoses whether or not Bieganowski happened to be in town on that particular day.675

Lozano remembered attending a meeting called by Gustavo Diaz.676 The attendees included Bieganowski’s medical assistants and Liz Martinez, whom Lozano described as his counterpart in Bieganowski’s workers’ compensation department.677 During the meeting, Diaz instructed the attendees how to question patients about the patients’ pain level and how to subsequently write a chief complaint, such as by stating that a particular patient was experiencing “cervical pain radiating to the shoulder or causing numbness.”678

*45 Lozano recalled that, after a local television station broadcast an expose of Bieganowski’s solicitation practices, a woman named Linda Howard came to the clinic.679 Lozano remembered that Howard visited each department, including physical therapy and workers’ compensation, and that he saw her interview Bieganowski’s employees regarding their jobs, although Lozano said that Howard did not visit his department or talk to him.680

Lozano stated that patients would occasionally report that they had no pain and that they did not want to be treated.681 When Lozano relayed this information to Bieganowski, Bieganowski did not automatically release the patient.682 Instead, Bieganowski required the patient to return one or two more times.683

Lozano asserted that he never saw a patient arrive at the automobile department, sign in and later leave without being treated, because Bieganowski either saw automobile accident patients quickly, or alternatively, the patients chose to leave without Bieganowski examining them.684 Lozano told the jury that he did not witness Bieganowski giving Sandra Olivares instructions under those circumstances.685 Lozano stated that he did, however, observe Bieganowski instructing Olivares to prepare fee tickets when patients called merely to talk to Bieganowski, even though Bieganowski did not treat the patient.686 Lozano said that he also witnessed the staff creating fee tickets for patients who came to the clinic just to ask a question or to pick up a prescription, but were not treated.687 Lozano stated that he did not see the staff generate fee tickets for patients who signed in but left without receiving treatment.688 Lozano did remember being asked to issue a fee ticket for children Bieganowski had not treated.689 Lozano said that he discussed the latter situation with Guadalupe Morales and Gustavo Diaz, separately.690 According to Lozano, Diaz acknowledged that Bieganowski had not treated the child, but said that Bieganowski still wanted the fee ticket.691 Morales responded similarly.692 Lozano stated that he refused to prepare the chief complaint section of the fee ticket for these children, telling Morales and Diaz that they would have to do it.693 According to Lozano, Morales and Diaz did so.694 Lozano said that he had separate conversations with Morales and Diaz later, during which Lozano complained that it was wrong to complete fee tickets for children that Bieganowski had not treated.695 Morales and Diaz agreed that it was wrong, but Diaz again said that Bieganowski still needed the fee ticket.696

After the television broadcast aired, Bieganowski promoted Lozano to supervisor in Dr. Untersee’s chiropractic clinic.697 Lozano oversaw Eva Torres, Untersee’s secretary, and Robert Griego, who ostensibly began drawing a salary and working for the chiropractic clinic after the broadcast.698 Lozano said that he observed Griego use a police scanner, and that Griego made his solicitations from Untersee’s offices.699 Lozano said that Bieganowski based Griego’s salary on the number of new patients Griego generated, although Lozano did not know exactly how many patients Bieganowski expected Griego to bring to the clinic.700 Bieganowski constantly told Lozano to determine where Griego’s patients were.701 Lozano stated that he would frequently see Richard Goldberg speaking with Griego downstairs in Bieganowski’s clinic.702

*46 Lozano said that, after he moved to Dr. Untersee’s office, his job remained the same, except that Griego would bring new automobile accident patients to see Untersee first.703 By the terms of a pre-existing agreement, Lozano said, Untersee would subsequently refer the patient for X-rays and to Bieganowski for further treatment.704 When Untersee was not in the clinic, Diaz would see his patients, although Diaz was not a chiropractor.705 Like Untersee, Diaz would refer new chiropractic patients to Bieganowski.706 Lozano stated that he stopped working for Bieganowski in June 1996.707

During cross-examination, Roberts questioned Lozano about his stated lack of contact with Linda Howard.708 Lozano insisted that he had never said so much as hello or goodbye to Howard.709 Roberts also questioned Lozano about Bieganowski’s treatment of children, asking whether Bieganowski actually treated any children in his practice.710 Lozano acknowledged that Bieganowski did sometimes treat children who had been injured in automobile accidents, but stated that Bieganowski did not treat very many.711 Lozano also conceded that there were times when Bieganowski did not treat a child accompanying a parent and did not ask Lozano to create a fake fee ticket.712 Although Lozano admitted that he was busy and did not devote all of his attention to determining whether Bieganowski treated a child or not, Lozano insisted that he was not mistaken about the ten to fifteen incidents in which Bieganowski asked him to issue fake fee bills.713 Lozano elaborated that he spoke to the parents and child in question on these occasions and specifically asked the parents whether Bieganowski had treated the child.714 From the parents’s responses, Lozano asserted, he was absolutely confident that Bieganowski had not treated the child.715 Lozano told Roberts that he could not remember the names of these patients.716 When Roberts suggested that Lozano had a selective memory, Lozano replied that, if Roberts were to show him the files of child patients, Lozano could identify them.717

Roberts subsequently questioned Lozano about the statements he allegedly made to Agent Griego. In response to Roberts’s query, Lozano denied that he tended to exaggerate the situation at Bieganowski’s clinic to Agent Griego.718 Lozano confirmed that he told Agent Griego that approximately two hundred patients visited Bieganowski’s clinic on some days.719 Lozano also agreed that he told Agent Griego that the best way to determine the number of workers’ compensation patients Bieganowski or his staff actually saw on a given day would be to review the handwritten patient lists prepared by Bieganowski’s medical assistants.720 Lozano further agreed that he told Agent Griego that the medical assistants prepared the handwritten lists based on fee tickets that the staff created when the patients arrived for their appointments, and that Lozano felt that the list was more reliable than the waiting area sign-in sheets.721 Lozano explained that the medical assistants’ list included the number of the examination room into which the assistants had placed the patient and the initials of the practitioner who had been designated to treat the patient.722 Roberts then questioned Lozano on what Roberts implied were discrepancies between Lozano’s direct testimony and statements made during interviews with Agent Griego.723 Roberts accused Lozano of nitpicking and attempting to find anything wrong at Bieganowski’s clinics, no matter how small.724 Lozano denied that he was nitpicking or that there was any need to for him to do so, because the irregularities in Bieganowski’s operation were obvious.725

*47 On redirect examination, the prosecutor questioned Lozano so at to emphasize the consistency of his direct testimony and his statements to Agent Griego and to allow Lozano to explain any alleged discrepancies.726 The prosecutor next questioned Lozano in a manner designed to rebut Roberts’s suggestion that Lozano exaggerated when he spoke with Agent Griego, that Lozano took pains to find or disclose damaging information about Bieganowski and Bieganowski’s co-defendants, or that the FBI accorded Lozano special treatment when it investigated potential wrongdoing at Bieganowski’s businesses.727 For example, the prosecutor showed Lozano Government’s Exhibit No. 126, a handwritten list of patients prepared by Bieganowski’s medical assistants for January 26, 1995.728 Lozano stated that he worked for Bieganowski on that date.729 After reviewing the document, Lozano told the jury that it was four pages long.730 In response to the prosecutor’s query, Lozano stated that he would not be surprised to learn that the list contained two hundred and twenty-eight names.731 Lozano also responded that he would not be surprised to learn that there were days on which the medical assistants’ list contained nearly three hundred patients’ names.732 Lozano also testified that he did not call Agent Griego with information; rather, Lozano stated, Agent Griego would make appointments with Lozano.733 Lozano told the jury that he would give Agent Griego very specific information.734 For example, Lozano recalled telling Griego about a conversation he overheard between Richard Goldberg and Cecilia Rodriguez, one of Bieganowski’s employees.735 Lozano stated that he heard Goldberg tell Rodriguez to schedule twenty facet injections for a particular day, and direct her to go through old workers’ compensation medical files to find patients to sign up for injections.736 Lozano insisted that he was not estimating about the number of facet injections he heard Goldberg tell Rodriguez to schedule; Lozano insisted that he was in the same room with Goldberg and Rodriguez at the time and was certain that he heard Goldberg told Rodriguez to schedule twenty injections for the day in question.737 Lozano also agreed that he had told Agent Griego that he believed Guadalupe Morales, Bieganowski’s co-defendant and head medical assistant, was honest and would be willing to talk to Agent Griego about Bieganowski’s operations.738 However, Lozano stated that he also told Agent Griego that it would probably benefit Agent Griego’s investigation more if Agent Griego first interviewed Wendy Murillo.739 Lozano stated that he frequently gave Agent Griego the names of people that Lozano believed would be willing to talk to the FBI.740 Lozano acknowledged that, during the FBI’s 1996 undercover operation involving fictitious patients Laura Salinas Diaz and Ricardo Diaz, the FBI taped Lozano speaking with the undercover agents.741

Lozano additionally testified that he told Bieganowski that Robert Griego was lying to patients and promising things that the clinic could not deliver.742 According to Lozano, Bieganowski did not respond, as if it did not matter that Griego was lying.743 Moreover, Lozano stated, Bieganowski apparently took no corrective action, because Griego continued to lie after Lozano told Bieganowski about Griego’s conduct.744

2. Angela McKinley’s Trial Testimony and

*48 It is unnecessary for the Court to set forth McKinley’s trial testimony, as it has done so elsewhere in this Memorandum Opinion.745 The portion of McKinley’s affidavit concerning George Lozano is quite brief: “I knew George Lozano when he worked at Dr. Bieganowski’s clinic.... I was aware that George Lozano abused drugs.... I was aware that George Lozano took a leave of absence but I did not know why even after he returned to work.”746

3. Tammy Diaz’s Trial Testimony and Affidavit

As with McKinley’s trial testimony, the Court has previously summarized Tammy Diaz’s testimony in the defense’s case-in-chief and will not now repeat it.747 The portion of Tammy Diaz’s affidavit that is relevant to George Lozano reads as follows:

That I was associated with George Lozano during the time I worked for Dr. Bieganowski. That I was aware that George was taking kickbacks from attorneys who had patients at Dr. Bieganowski’s office and that Dr. Bieganowski knew nothing about it. That one Christmas, I saw Victor Bieganowski coming out of George Lozano’s office and then George Lozano came out and said not to tell anyone about it but Victor Bieganowski had just given George Lozano a large bonus. I knew there was another lawyer as well, who gave George Lozano kickbacks.748

3. Bonnie Cortez’s Affidavit

Below, the Court sets forth the section of Cortez’s affidavit pertaining to Lozano:

That a large business problem and criminal problem arose at Dr. Bieganowski’s clinic in the mid 1990’s. Richard Gay, a homosexual friend of George Lozano, was hired to be a driver, on the advice of George Lozano. Apparently, Richard Gay stole a bunch of unsigned checks, supposedly, Richard Gay did this, and used George Lozano’s signature stamp of Dr. Bieganowski to attempt to cash the checks. The checks were cashed at a finance company where George Lozano’s mother had an account. Dr. Bieganowski was made aware of this problem as Lucy Campos told me that she told Dr. Bieganowski.749

4. Itzel Grandos’s Affidavit

Only the last paragraph of Granados’s affidavit pertains to Lozano. It reads: “That George Lozano did not go into Dr. Bieganowski’s treatment rooms and Robert Griego hardly ever came into the clinic area. He never even got close to the examination rooms.”750

5. Discussion

After due consideration, the Court finds that Bieganowski has failed to carry his burden under the applicable legal test for ineffective assistance of counsel claims. Counsels’ strategy, as evidenced by Roberts’s opening statement, was to use Linda Howard’s testimony “to show that Lozano [was] a liar.”751 Counsel in fact executed this strategy, with Roberts questioning Howard at length about her interactions with Lozano.752 Roberts showed Howard Defense Exhibit B-32, which Howard stated were notes she took while attending three patient interviews Lozano conducted beginning at 9:30 a.m. on May 16, 2006.753 According to Howard, the notes recorded the questions that Lozano asked the patients and the patients’ answers.754 Howard stated that her notes also memorialized the details of a contemporaneous conversation she had with Lozano.755 Howard said that, according to her notes, Lozano told her that Guadalupe Morales had trained him, and Howard and Lozano discussed Lozano’s function within Bieganowski’s office.756 On cross-examination, Howard admitted that she worked as a consultant in Bieganowski’s clinic for six months before speaking with Lozano and never knew that Lozano headed the automobile department.757 As the Court discusses below, nothing in McKinley’s, Tammy Diaz’s, Cortez’s, or Granados’s affidavits persuade the Court that counsel’s reliance on Howard to undermine Lozano’s testimony was professionally unreasonable, especially in light of the fact that the Court limited the defense to a finite number of employee-witnesses.758

*49 McKinley’s assertion that Lozano “abused drugs” is conclusory, vague, and entirely unsubstantiated. McKinley does not explain how she knows that Lozano allegedly abused drugs, when he supposedly did so, or how Lozano’s purported drug use affected the truthfulness of his testimony. Bieganowski has further failed to show that McKinley’s proposed testimony concerning Lozano’s alleged drug use would have been relevant and admissible at trial under the Federal Rules of Evidence.

Diaz’s affidavit is entirely conclusory to the extent she alleges that attorneys whose patients frequented Bieganowski’s clinic paid Lozano kickbacks. First, Diaz does not identify anyone other than Victor Bieganowski who purportedly gave Lozano money. Further, Diaz does not establish that she has any direct knowledge that Lozano received kickbacks. Rather, Diaz offers only an inadmissible hearsay statement, allegedly made by Lozano, in support of her assertion. Moreover, even if the Court were to take Lozano’s inadmissible hearsay statement at face value, the statement shows only that Victor Bieganowski gave Lozano a Christmas bonus. If the Court were to alternatively accept the implication that Victor Bieganowski’s payment was not a bonus above Lozano’s regular salary, but some sort of kickback, Diaz’s testimony in this regard would have inculpated Bieganowski. That is, evidence suggesting that Victor Bieganowski gave Lozano a kickback for referring new patients to Arthur Bieganowski would have bolstered the Government’s theory of a conspiracy among Bieganowski and his co-defendants. In addition, the Court notes that Lozano admitted during direct examination that he had accepted a kickback from Robert Griego. With Lozano’s admission already before the jury, questioning Diaz on the topic of kickbacks would have not only been dangerous to Bieganowski’s interests, but cumulative of other testimony. Under the circumstances, the Court concludes that counsel did not perform below objectively reasonable professional standards by declining to engage Diaz in a line of questioning which would have proven disadvantageous to their client.

Bonnie Cortez’s and Itzel Granados’s affidavits suffer from similar weaknesses. Cortez’s statements are based on inadmissible hearsay and are entirely unsubstantiated. In addition, Cortez admits that she has no direct knowledge that the alleged check-stealing incident ever actually occurred. Further, Cortez’s statements, which smack of bigotry, tend to implicate Gay rather than Lozano, although Cortez implies that she believes Lozano was somehow involved in the alleged incident.759 The Court has previously discussed the deficiencies in Itzel Granados’s affidavit.760 The Court again notes that, as a clerical assistant stationed in the busy waiting area of the clinic, Granados was not in a position to monitor Lozano’s movements in and around the clinic. The prosecution would therefore have easily undermined the value of Granados’s testimony.

*50 Further, the Court finds that Bieganowski has failed to show prejudice. Pauline Tope’s trial testimony corroborated Lozano’s testimony, insofar as Lozano testified that he observed medical assistants completing progress notes at the end of the business day.761 Tope additionally testified that Angela McKinley assisted her in falsifying progress notes.762 McKinley testified similarly at trial and makes an identical assertion in her affidavit submitted in support of Bieganowski’s Amended Motion to Vacate.763 Thus, even if Cortez and Granados had testified, the jury could nevertheless still have determined, based on McKinley and Tope’s testimony, that Bieganowski’s staff falsified progress notes.

BB. Counsel Did Not Discredit Yvette Renteria’s Trial Testimony

Bieganowski contends that Tammy Diaz, Angela McKinley, Elizabeth Cedillos, Bonnie Cortez, and Tony Duarte could have discredited Yvette Renteria’s trial testimony.764 The Court has reviewed the record in this cause and finds that Yvette Renteria, Bieganowski’s former employee, did not testify at trial. The Court therefore concludes that Bieganowski has not shown that counsel performed deficiently by declining to directly examine Diaz, Cortez, and Duarte, or to cross-examine McKinley and Cedillos about Renteria’s non-existent testimony.

CC. Counsel Did Not Discredit Chris Valdespino’s and Danny Ramirez’s Trial Testimony

Bieganowski claims that counsel could have called defense witnesses to undermine trial testimony offered by Chris Valdespino and Danny Ramirez, two of Bieganowski’s employees.765 Bieganowski also argues that counsel could have cross-examined Government witnesses in a manner that would have similarly discredited Valdespino’s and Ramirez’s trial testimony.766 The Court has reviewed the record in this cause and finds that neither Valdespino nor Ramirez testified at trial. The Court therefore concludes that Bieganowski has not shown that counsel performed deficiently by declining to directly examine or cross-examine witnesses about Valdespino’s and Ramirez’s non-existent trial testimony.

DD. Counsel Did Not Discredit Rose Goodlow’s Testimony

Bieganowski claims that counsel could have called defense witnesses to undermine trial testimony offered by Rose Goodlow, Bieganowski’s former employee.767 Bieganowski also argues that counsel could have cross-examined Government witnesses in a manner that would have similarly discredited Goodlow’s trial testimony.768 The Court has reviewed the record in this cause and finds that Goodlow did not testify at Bieganowski’s trial. The Court therefore concludes that Bieganowski has not shown that counsel performed deficiently by declining to directly examine or cross-examine witnesses about Goodlow’s non-existent trial testimony.

EE. Counsel Did Not Discredit Gina Macias’s Testimony

Gina Macias testified against Bieganowski.769 Bieganowski asserts that counsel should have called Sandra Ramos, Bieganowski’s wife, to discredit Macias’s testimony.770 The Court first considers Macias’s trial testimony.

1. Gina Macias’s Trial Testimony

*51 Gina Macias testified on Wednesday, March 15, 2000.771 Before the trial resumed that day, the Court took up miscellaneous matters outside of the jury’s presence.772 The Court noted that the Government had indicated that it wished to place a certain matter on the record.773 Assistant United States Attorney Kanof explained that the Government needed to give the defense oral rather than written notice, pursuant to Giglio, that the Government had conferred a benefit on Macias the previous night.774 According to Kanof, Macias had informed the Government that she had received a death threat via telephone on the immediately preceding Monday.775 Kanof told the Court that the threat ran, “If you go to court, you will wake up dead.”776 Kanof additionally informed the Court that the FBI had investigated Macias’s claim, found her assertion credible, and had moved Macias and her family to a safe location at Government expense.777 Macias took the stand later that day.778

Macias testified that she graduated from community college as a registered medical assistant in November 1982.779 Macias recalled that, after graduation, she worked for a year as a medical assistant to Dr. Alfonso Chavez, a nephrologist. While working for Dr. Chavez, Macias stated, she put patients into examination rooms and took their blood pressure, temperature, and weight.780 Macias said that she also assisted Dr. Chavez with taking chest X-rays and during patient examinations.781 Macias recalled that she additionally transcribed Dr. Chavez’s dictation.782 Macias explained that Chavez would dictate his progress notes immediately after seeing each patient.783 Macias said that she would transcribe the notes the same day or by the following morning.784 Macias stated that she would have to transcribe notes for eight to ten patients a day, as that was the number of patients that Chavez saw daily.785

Macias stated that she began working for Bieganowski in November 1987, when his office was located on Arizona Avenue in El Paso.786 Macias recalled that Rosemary Calatayud was the clinic receptionist.787 Macias said that Calatayud’s job was to make appointments, answer the telephone, and fill out fee tickets.788 Macias explained that patients signed in upon arrival.789 Calatayud would take the patient’s name from the sign in list and place it on a fee ticket.790 Macias stated that she saw Calatayud following this procedure.791 Calatayud then put the fee tickets on the counter in the order that the patients had signed in. Macias stated that she, Macias, would then pick up the fee tickets and take them into the treatment area.792

At the Arizona Avenue location, Macias recalled, Bieganowski was under one roof with Marie McIntosh and Ann Salo, who provided psychological and social services, as well as under the same roof with Cindy Harris, a massage therapist, and Stephen Untersee, a chiropractor.793 Bieganowski’s physical and occupational therapy clinic was in a building in the same medical complex; Jessie Lopez and Theresa Huber worked out of that building, along with their assistants.794 Bieganowski’s biofeedback clinic was similarly located in the same medical complex.795 Macias recalled that Lucy Campos was already working for Bieganowski, doing his billing.796

*52 Macias said that when she was hired, she understood that her medical assistant job for Bieganowski would consist of putting patients into exam rooms and taking patients’ blood pressure and weight.797 However, Macias said that she never took patients’ blood pressures.798 Instead, during Macias’s first two weeks on the job, Debbie Salazar, her supervisor, trained Macias to put patients into a room by taking the appropriate fee ticket from the counter next to Rose Catalayud, taking the patient to the treatment room, and asking the patient to undress and put on a gown.799 Salazar also taught Macias to place ventosas on patients and to remove the cups.800 Bieganowski later corrected Macias’s technique.801 Macias said that she additionally inserted and removed acupuncture needles from patients.802

Macias described what would happen when a new patient arrived at the clinic for treatment.803 Macias would put the new patient into the room the massage therapist used, because the room was nicer than the regular treatment rooms.804 She would place the patient’s newly-created chart, with fee ticket, in a receptacle outside the door.805 Bieganowski would enter the patient’s room alone, close the door, and remain there for fifteen to twenty minutes.806 When Bieganowski left the room, he would ask Macias to tell the patient to undress, even if the patient had carpal tunnel syndrome in the wrist.807 Macias would give the patient a gown to wear and leave the room.808 After the patient undressed and put on a gown, Bieganowski and Macias would enter the patient’s room.809 Macias said that Bieganowski would ask the patient a few questions about their parents’s health, then test the patient’s reflexes with a hammer and look into the patient’s eyes with an otoscope.810 Bieganowski would then instruct the patient to lie down and to lift the patient’s arms or legs, depending on the nature of the patient’s complaint.811 Macias said that the entire process took five minutes.812 Afterward, Bieganowski would tell Macias to give the patient what Bieganowski called “the routine.”813 Macias testified that the majority of Bieganowski’s workers’ compensation patients complained of lower back injuries.814 For these patients, “the routine” consisted of physical therapy, X-rays, biofeedback, and thermography.815 If the patient also happened to be overweight, then Bieganowski would additionally send the patient to his weight management clinic.816 If the patient’s complaint was something such as carpal tunnel syndrome in the wrist, Macias explained, “the routine” would be a wrist X-ray, physical therapy, occupational therapy, biofeedback, and referral to the weight management clinic if the patient was overweight.817 Macias agreed that the only difference in the routine for patients who did not complain of lower back injuries would be the body part Xrayed.818 Macias stated that she would send the patient to Debbie Salazar, who scheduled the patient for all the various services.819

*53 Macias remembered that established patients visited the clinic for treatment on a Monday-Wednesday-Friday or Tuesday-Thursday schedule, depending on the days that the patients received physical therapy.820 Macias stated that the patients would sign in at Bieganowski’s clinic and then go to physical therapy at Lopez’s clinic and biofeedback in nearby buildings.821 Patients who were supposed to go to weight management would also go there before seeing Bieganowski.822 According to Macias, by the time the patients returned from these other services, “they would be barely seen by Dr. Bieganowski.”823

Macias elaborated that the average number of patients Bieganowski saw at the Arizona Avenue clinic was in the hundreds.824 On a busy day, Macias said, one hundred and twenty patients would come through the clinic.825 On a slow day, she said, ninety-five or ninety-eight patients would visit the clinic.826 Macias said that, in the treatment area, she had a copy of the appointment schedule for each day.827 Macias explained that she knew the number of patients who visited the clinic because, every time a patient signed in at the reception desk, Macias would verify that the patient was on the appointment list for the day.828 If so, Macias said, she wrote the patient’s name on a separate list that the medical assistants maintained in the treatment area of the clinic.829 Macias stated that she had to count the number of patient names on the list kept in the treatment area at the end of each work day, so that she could tell Bieganowski when he inquired.830 Macias said that Bieganowski would ask for the patient count right before he left each day.831 Jesse Lopez also asked for Bieganowski’s patient count at the end of the day.832 Lopez would come to the back door of Bieganowski’s clinic at the end of each work day and give Bieganowski a tally of the patients he had treated.833 If Bieganowski’s and Lopez’s numbers did not match, Macias stated that she would add fee tickets to Bieganowski’s tally or that Lopez would add fee tickets to his total.834 Macias explained that Bieganowski’s and Lopez’s patient counts were sometimes different because Bieganowski often asked his staff to create more than one fee ticket per patient examination.835 Macias said that Bieganowski also requested fee tickets for unscheduled patients whom he talked to at the back door of the clinic, or who he saw walking between the buildings to attend biofeedback and physical therapy.836 Bieganowski similarly required fee tickets for patients who telephoned him, seeking prescriptions or hospital admission.837

Macias stated that the fee tickets had CPT codes on them.838 For talking to a patient at the back door, watching a patient walk between buildings to various medical services, or talking to a patient over the telephone, Macias said, Bieganowski would check off a CPT code for either an initial visit or routine visit.839 Macias stated that, when Bieganowski spoke to patients about prescriptions, Bieganowski either wrote the prescription himself or told Macias to give the patient a prescription for a certain medication.840 Macias would carry out Bieganowski’s instructions using Bieganowski’s pre-signed but otherwise blank prescription pads that she had for this purpose.841

*54 Even though patients signed in to Bieganowski’s clinic first, patients would leave to go to other services rather than wait for to Bieganowski to see them.842 Macias explained that there were always twenty to thirty people in the waiting area and no empty seats available.843 Macias stated that, if she called a patient’s name once and the patient did not respond, she would continue to call the patient’s name every fifteen to twenty minutes until the patient returned from having other services.844 Catalayud, the receptionist, would create a fee ticket when an established patient arrived for an appointment.845 Catalayud would put the patient’s name, account number, and date on the ticket.846 Established patients with more than one injury had separate account numbers for each injury.847 When an established patient with more than one injury arrived at the clinic for treatment, Catalayud would create a separate fee ticket for each account number rather than creating one fee ticket with all the account numbers on it.848 For example, if a patient had five separate injuries and account numbers, Catalayud would issue five separate fee tickets for the visit, although the patient saw Bieganowski only once on that particular date.849 Macias would take the multiple fee tickets and place them at the door of the patient’s treatment room.850 If separate fee tickets for all the patient’s injuries were not awaiting Bieganowski at the treatment room door, Bieganowski would ask Macias to have Catalayud create a fee ticket for the omitted injury.851 After Catalayud issued an additional fee ticket, Macias would put the fee ticket at the treatment room door.852

Macias stated that only the fee tickets were at an established patient’s door.853 That is, after a patient’s first visit, the medical assistants did not place the patient’s chart at the treatment room door.854 Thus, after the patient’s first visit, Bieganowski did not review the patient’s chart before seeing the patient.855

Macias said that established patients knew to undress, put on a gown, and sit on the examination table until Bieganowski arrived.856 Macias stated that patients waited approximately ten to fifteen minutes in the examination rooms before Bieganowski arrived.857 Macias recalled that, for established patients, she sometimes entered the room with Bieganowski and sometimes did not.858 When she was present with Bieganowski while he examined an established patient, Macias said that Bieganowski would ask the patient if the patient still hurt, but would not elicit any other medical information.859 Macias also observed Bieganowski tapping the patient’s knee with a reflex hammer and putting ventosas on the patient or placing acupuncture needles in the patient. Macias said that, in either case, the entire process took Bieganowski five minutes.860 Bieganowski and Macias left the patient alone with the ventosas for two to five minutes or, with patients with needles in them, for no more than twenty minutes.861 Macias said that Bieganowski did not see the patient again during the visit.862

*55 Macias described the way that Bieganowski prepared progress notes, which she said were notes a physician writes regarding his observations during the patient’s treatment.863 Macias stated that Bieganowski only did his progress notes at the same time he saw a patient if he had time in between patients.864 Otherwise, Bieganowski would take material home with him at night to do progress notes.865 If a patient’s file lacked a progress note and Bieganowski needed it for a deposition or for an insurance carrier, Macias said, he would ask her to bring him a stack of blank progress notes.866 Bieganowski would then complete the missing progress note in Macias’s presence, without referring to the patient’s file.867 Macias stated that Bieganowski did not really need the file because the progress notes were all the same.868

Macias said that she and Bieganowski eventually developed a friendship, and when she told Bieganowski that she was getting overwhelmed in the clinic, he allowed Macias to hire an assistant.869 Macias said that she hired Sandra Ramos to help her in the clinic.870 Ramos later became Bieganowski’s wife.871 Macias stated that she trained Ramos, and that the two of them worked side-by-side, except that Macias would leave in the afternoons to help Bieganowski with his side businesses, including a bottled water company and winery.872 After Ramos began working at the clinic, Bieganowski moved his offices to 5801 Trowbridge Drive in El Paso.873 Macias said that Bieganowski eventually purchased the three-story building.874 All of Bieganowski’s medical businesses were located in the Trowbridge building.875 Once Bieganowski’s clinic was built out, it included fourteen to fifteen treatment rooms.876 The building had two back doors, Macias said, and Bieganowski permitted certain patients to come through the rear entrance to receive priority treatment.877 Macias said that, at Bieganowski’s direction, she and Ramos gave these particular patients VIP cards.878 Macias said that the VIP patients were people with jobs or money.879 Macias stated that Bieganowski would still talk to patients at the back door, as he had at the Arizona Avenue location, and generate fee tickets for those conversations.880 Macias stated that Bieganowski’s clinic was not open on the weekends.881

Macias stated that Jesse Lopez’s clinic at the Trowbridge location operated similarly to Bieganowski’s clinic, in that patients signed in and Lopez’s receptionist generated a fee ticket.882 Macias said that she had an opportunity to observe Lopez’s fee tickets when she delivered or picked up material from Lopez’s clinic on the way to the billing office.883 Lopez’s fee tickets had preprinted CPT codes on them.884 Macias said that she observed Lopez choose which code to check off for a particular patient visit.885 Macias said that she was also present when Lopez and Lucy Campos discussed CPT coding for new services.886 Macias said that Campos would not know what CPT code to use for a new service, and so Lopez would look up codes in a manual and tell Campos which CPT code he wanted to use.887 Macias stated that Lopez and Campos would sometimes come to her for help in using a diagnostic book, called an ICD-9.888 The diagnostic book listed a matching CPT code.889 If more than one diagnostic code could apply to the service, Lopez would choose the diagnostic code with a CPT code that paid more.890 Macias stated that Lopez reviewed the fee tickets before they went out, because Lopez completed his own fee tickets.891 If an insurance company would not reimburse Lopez for a particular CPT code, then Lopez would change the code he used.892

*56 Macias said that she witnessed Bieganowski and Lopez arguing about the amount Bieganowski paid Lopez.893 Macias said that, while Bieganowski’s clinic was located on Arizona Avenue, Bieganowski paid Lopez a commission based on the number of patients Lopez saw per day.894 After the clinic moved to the Trowbridge building, Macias stated, Bieganowski paid Lopez according to the terms of a contract.895 Macias was not aware of the contract’s specific terms.896

Macias stated that she had a child in December 1990. She took two weeks of maternity leave, returned to work, but had to leave work for another six weeks due to a herniated incision.897 Sandra Ramos helped Bieganowski in the clinic during Macias’s absence.898 Macias returned to work for a few days in January 1991, but left for another six weeks due to illness.899 Macias returned to the clinic as a medical assistant and continued to help Bieganowski with his bottled water company and winery, but not to the same degree, because she could not walk as much as she could previously.900 Sandra Ramos took over running Bieganowski’s personal errands.901 Macias stated that she returned to school and quit working in the clinic in September 1991, and quit working for Bieganowski entirely in December 1991.902

Roberts engaged Macias in a lengthy cross-examination.903 Roberts pressed Macias about her direct testimony that she saw Bieganowski speak with patients at the Arizona Avenue clinic’s back door, asking Macias to name the first time that she ever saw it happen.904 Macias replied that she first saw Bieganowski talk to a patient at the clinic’s back door and then ask for a fee ticket about two weeks after she started working for him.905 Macias said that she saw this same behavior about once a day for the rest of the time she worked for Bieganowski.906 Macias agreed with Roberts that the events she testified about in the clinic occurred before September 1991.907 Macias explained that she continued to visit the clinic’s treatment area approximately three times a week, for fifteen to twenty minutes each time, between September 1991 and November 1991 as part of working for Bieganowski’s winery.908

Roberts also questioned Macias about her testimony concerning Jesse Lopez’s compensation.909 Roberts asked Macias to identify the approximate date on which she heard Bieganowski and Lopez arguing about Lopez’s compensation.910 Macias stated that she overheard the men arguing around September 1991, when they were negotiating contracts, right before Macias resigned from the clinic to attend school.911 Macias explained that Bieganowski negotiated contracts with all his employees immediately before and during the time he moved his offices to the Trowbridge building.912

Roberts asked Macias about her testimony regarding Lucy Campos’s efforts to find CPT codes and Macias’s testimony regarding Bieganowski’s mode of billing for patient telephone calls.913 Macias reiterated that Campos attempted to verify which CPT code would pay more to the clinic, and that Macias occasionally helped Campos in this task.914 Macias stated that she knew due to her paraprofessional education that there was a specific CPT code that physicians should use to bill for time they spent speaking with patients over the telephone.915 Macias acknowledged that, regardless of the CPT code Bieganowski used, she did not know what Bieganowski actually charged insurance carriers for patient telephone calls.916

*57 In response to Roberts’s query about the number of patients Bieganowski saw a day, Macias maintained that approximately one hundred and ten or one hundred and twenty patients visited the clinic per day.917 Macias also reiterated that Bieganowski diagnosed most of his patients with lower back pain, specifically, “LBS, or “low back, sacral pain.”918 Macias conceded that there was not necessarily anything wrong with Bieganowski giving a diagnosis that corresponded to the patients’ common complaint.919

Roberts attacked Macias’s direct testimony concerning Bieganowski’s taking of patients’ medical histories.920 Roberts noted Macias had testified that, during a patient’s initial visit to the clinic, Bieganowski spent fifteen to twenty minutes with the patient without Macias being present. Roberts suggested that Macias therefore really could not say whether the brief medical history questions she heard Bieganowski ask patients in her presence were the only such questions Bieganowski asked.921 Macias insisted that the time Bieganowski spent alone with patients was not sufficient to gather a complete medical history.922 Roberts likewise challenged Macias’s ability to see what Catalayud did with fee tickets at the reception desk, given Macias’s duties in the clinic’s treatment area.923 Macias asserted that Catalayud remained within her view throughout any particular work day.924

Roberts asked Macias about Bieganowski’s dictation of progress notes.925 As to Macias’s testimony that Bieganowski dictated progress notes at his home in the evenings, Roberts challenged Macias’s ability to know what Bieganowski did at home.926 Macias explained that, although she was not with Bieganowski in his home, she would occasionally drive him home.927 During the drive, she said, Bieganowski would dictate progress notes.928

Roberts questioned Macias about her testimony that she witnessed Bieganowski and Lopez meeting at the end of each work day to match their patient tallys.929 Macias said that she observed these end-of-the-day meetings from the time she started working at the clinic in 1986 to the time she left.930 Macias stated that Bieganowski’s clinic would have five to ten fee tickets more than Lopez had on any particular day, due to Bieganowski’s requests for separate or extra fee tickets.931

Roberts noted that Macias had testified that Bieganowski did not use a patient’s file after the patient’s first visit.932 Roberts asked Macias whether she were present during patients’ second, third, and fourth visits to the clinic.933 Macias confirmed that she was typically present.934 Macias acknowledged that, despite the fact that he did not use patients’ charts, Bieganowski seemed to be familiar with his patients’ medical complaints.935

In response to Roberts’s inquiry, Macias agreed that FBI Agent James Griego had interviewed her during the agency’s investigation of Bieganowski’s practice.936 Macias also agreed that she told Agent Griego that Bieganowski was billing insurance companies for initial patient visits lasting thirty minutes or more.937 Macias insisted that she could tell the amount of time Bieganowski billed due to her paraprofessional education and the CPT codes Bieganowski checked on the fee tickets.938 Macias further agreed that Bieganowski received referrals from many attorneys besides Victor Bieganowski.939

*58 Lopez’s attorney, Mary Stillinger, aggressively cross-examined Macias.940 Under Stillinger’s questioning, Macias conceded that she did not work in Bieganowski’s billing department and that her only association with Bieganowski’s billing was through her handling of fee tickets in the clinic’s treatment area.941 Macias similarly acknowledged that she had no official responsibilities at Lopez’s physical therapy clinic.942 Macias maintained that she wrote medication prescriptions for patients, but acknowledged that Debbie Salazar handled Bieganowski’s prescriptions for physical therapy.943 Stillinger suggested that the discrepancy between Bieganowski’s and Lopez’s fee tickets might be due to physical therapy prescriptions of which Macias had no knowledge.944 Macias conceded that she might not know about all the physical therapy that Bieganowski prescribed.945 Macias also agreed that there was nothing necessarily inappropriate about Lucy Campos and Lopez discussing which billing code to use for a new service.946 Macias insisted that although she had no duties in Lopez’s clinic, every day, Bieganowski and Lopez would send her to Lopez’s clinic to give Lopez blank fee tickets so Lopez could make his fee tickets match Bieganowski’s totals for the day.947

Stillinger challenged the reliability of Macias’s direct testimony that Bieganowski paid Lopez a commission.948 Macias insisted that she knew Lopez received additional checks from Bieganowski, apart from Lopez’s weekly paycheck, because she took the checks to Lopez.949 Macias conceded that she did not actually know that the extra checks represented a commission, but only that she had heard that they were.950

Stillinger also probed Macias’s reasons for testifying against Bieganowski.951 Macias agreed that she had once been “pretty good friends” with Bieganowski and his close business associate, and that Bieganowski had paid for her to attend school even when she wasn’t working for him.952 Macias answered that Bieganowski had been like a father to her.953 Macias denied that she and Bieganowski had experienced a falling out, but averred that they merely went their own separate ways after she left his employ.954 Macias said that the Government had not promised that it would not prosecute her, and that she had not thought about whether the Government would file charges against her.955

After Stillinger passed the witness, the Court recessed for an afternoon break.956 When the proceedings reconvened, but before the jury was seated, Kanof and Stillinger brought a dispute to the Court’s attention.957 Kanof stated that Stillinger wanted to know whether Macias had mental problems or had ever been hospitalized for mental illness.958 According to Kanof, Stillinger considered such information to be Brady material, but Kanof disagreed.959 Kanof also stated that Kanof had not previously discussed the issue with Macias, but after Stillinger’s request, had asked Macias about her mental health history.960 According to Kanof, Macias stated that she had been hospitalized as a teenager for depression.961 Kanof requested a Motion in Limine on this subject, for two reasons.962 First, Kanof argued that Macias’s mental health history was irrelevant.963 Second, Kanof stated that she was concerned because Macias was “obviously, frightened on the stand. And everybody in this room knows why except the jury,” referring to the death threat brought to the Court’s attention that same morning.964 Kanof asserted that, if the Court permitted Stillinger to question Macias about Macias’s mental health, then the prosecution should be allowed to bring the death threat to the jury’s attention.965

*59 Stillinger clarified that she had also wanted to know if Macias was presently on any medication that might affect her memory.966 Kanof stated that she also had asked Macias about medication, and that Macias had replied that she was not on any such medication.967 Stillinger nonetheless objected to the Motion in Limine because, although Stillinger did not intend to imply that Macias had mental problems, Stillinger believed that it was important to stress Macias’s demeanor to the jury.968 Kanof replied that Maciasks demeanor on the stand resulted from the death threat and being moved out of her home by the FBI.969 After considering the arguments, the Court granted the Government’s Motion in Limine and ordered that the Parties not ask Macias about her mental condition or prior hospitalizations.

After the jury was seated, Joe Spencer, Guadalupe Morales’s attorney, cross-examined Macias.970 Spencer elicited testimony that the events Macias discussed during direct examination all occurred before his client worked for Bieganowski.971 Spencer also asked Macias whether Macias had, without permission, placed Agent James Griego’s name as a reference in a recent job application.972 Macias admitted that she had named Agent Griego as a reference without asking him first, and that when she asked Agent Griego afterward whether it was okay, Agent Griego had replied that it was not.973

On re-direct examination, the Government attempted to rehabilitate Macias. Macias explained that it was not easy to find a job once employers learned that she worked for Bieganowski.974 Macias stated that she had actually been fired from a job after her employer learned that she had worked for Bieganowski.975 Macias explained that she named Agent Griego in a job application in hopes that her prospective employer would contact Agent Griego and that he would explain what Macias’s role had been at Bieganowski’s clinic.976 In other words, Macias hoped that Agent Griego would give her a good reference.977

Kanof then questioned Macias about Government’s Exhibit 603, her extern confirmation sheet, which had been in her employment file at Bieganowski’s office.978 Macias explained that she was an extern when she first started to work for Bieganowski, and that Bieganowski had to complete the aforementioned document.979 Macias, who said that she recognized Bieganowski’s handwriting, confirmed that the document, dated March 11, 1987, was in Bieganowski’s hand.980 The Government, over Roberts’s objection, successfully moved for the exhibit’s admission into evidence.981 Therein, Bieganowski described Macias as the best paraprofessional that had worked for him and rated Macias’s proficiency very highly in all listed categories.982

Roberts briefly recross-examined Macias.983 Through his questioning, Roberts suggested that Macias’s testimony about assisting Campos with billing codes was not credible, because Macias’s paraprofessional training was actually fairly limited and therefore Campos would not have turned to Macias for help.984

2. Sandra Ramos’s Affidavit & Supplemental Affidavit

*60 After reviewing Ramos’s affidavits, the Court deems that their character and value to Bieganowski’s defense is best demonstrated by setting them forth in their entirety, with the exception of the affidavits’ preliminaries. In her first affidavit, Ramos states:

I worked as a medical assistant with Dr. Arthur C. Bieganowski from 1988 to 1992.

During those years, I worked in Dr. Bieganowski’s medical clinic at 1501 Arizona and at 5801 Trowbridge, in El Paso, Texas.

I worked closely with Dr. Bieganowski and Gina Macias during those years.

I have first hand knowledge of Dr. Bieganowski’s medical practice.

I have reviewed the trial transcript of Gina Macias’ [sic] testimony in the above styled and numbered cause. It is beyond me, how Ms. Macias could be everywhere at one time, that she could know everything that was going on at the clinics. It is impossible. Especially, since Ms. Macias spent about 75% of her time outside the clinic, gossiping and spying on people, and left me alone with Dr. Bieganowski.

As for her life being threatened, this is the biggest bold face lie I have ever heard. Someone definitely put her up to say this.

Ms. Macias is not being honest about the clinic’s routine, with regards to all patients and their treatment. She just told a boldface lie about everything.

I have first hand knowledge that all patients did not receive the same orders. In addition, she is also lying when she stated that patients would go to the side door at the Arizona location, or at the Trowbridge location, and be charged for medical assistance. That never happened. Some people from other clinics, or from Dr. Bieganowski’s brother, Victor, would sometimes come to the side door, but never any of Dr. Bieganowski’s patients.

Dr. Bieganowski never looked out the window and saw patients walking outside and said to add them to the patient list and have fake fee tickets made out on them. Ms. Macias stating that happened was a preposterous lie.

Dr. Bieganowski never had any fee tickets made out to reflect patients being charged for telephone calls. Ms. Macias stating so was a lie to the Court.

Dr. Bieganowski always made it a point to go and see his patients, once they were finished with their treatment. This was one of the reasons the clinic got backed up! He would spend the same amount of time with all his patients, if not more, than all doctors do with their patients.

Dr. Bieganowski never talked about patients at the end of the day with Jessie [sic ] Lopez, from physical therapy, in order to make sure the two patient lists matched. Ms. Macias stating so was a lie. Dr. Bieganowski was simply too busy to do that. Once he finished his clinic duties, he was gone to do a host of other things. Ms. Macias stating otherwise was another complete fabrication.

I met Ms. Macias before I began working at the clinic. My mother and her aunt were very good friends, up until recently, when her aunt died.

*61 I had first hand knowledge of Ms. Macias’ [sic ] deceptions and lies. Because of her deceptions and lies, many good employees were fired from the clinic and other businesses that were owned by the doctor at that time. Dr. Bieganowski valued Ms. Macias as an employee, but was blinded by her lies until it was too late to see her for what she is. Even her own family acknowledges that she is a pathological liar!

At one time, Ms. Macias tried to get me in trouble with the doctor, but unlike some of the other employees, I was not intimidated by her. In fact, I challenged her and told her that we both should go and speak to the doctor regarding that matter. At this, she backed down.

Ms. Macias had a fantasy regarding the doctor, and when it didn’t come true, and the opportunity presented itself for her to cause him harm, she did. You can clearly see, by reading Ms. Macias’ [sic ] testimony, that she is not very bright, and I will stress again, someone put her up to that disgusting lie that her life had been threatened. That was simply another of her many fabrications to this Court.985

In Ramos’s Supplemental Affidavit, which is dated May 16, 2004, she states:

3. That Gina Macias stated she never took vital signs in the clinic. This is a lie.

4. That Gina Macias testified she would go into the room while Dr. Bieganowski did exams. This is a lie. Dr. Bieganowski always insisted on being alone. Everyone knew this.

5. That Gina Macias testified that Dr. Bieganowski was seeing an average of 120 patients per day while on 1501 Arizona, from December of 1986 onward. This is a lie. While on 1501 Arizona, we would usually see 60-70 patients a day, except on our two busy days, Mondays and Thursdays, in which we saw 80-90 patients. Maybe on a couple of occasions, we saw 95-100 patients but this was rare.

6. That Gina Macias stated Dr. Bieganowski would never ask for the medical charts on patients. This was a lie, as Dr. Bieganowski frequently consulted the chart of the patients when he was in the clinic.

7. That Gina Macias stated that Dr. Bieganowski had VIP passes on 1501 Arizona. This is a lie because VIP passes never came on line until we were at 5801 Trowbridge.

8. That Gina Macias stated that I would make up missing progress notes at the clinic on 1501 Arizona.986 That Dr. Bieganowski would just get a stack of blank progress notes and make them up in front of her without the chart. That Gina Macias stated that the progress notes were always the same. This is a big lie. That never occurred in the entire time I was at 1501 Arizona and at 5801 Trowbridge. To the best of my knowledge and recollection, the charts always came when missing progress notes were needed to be done.

9. That Gina Macias stated that we did Trigger Point Injections on patients in the clinic, and this is accurate. Dr. Bieganowski used Marcaine and Vitamin B 12, Marcaine ans Celestone Soluspan, and Marcaine and Serapin. Dr. Bieganowski did this frequently and this practice continued at 1501 Arizona and was also done at 5801 Trowbridge until 1990 or 1991. Dr. Bieganowski stopped using the procedure because one of the patients had syncope with the injection and Dr. Bieganowski said he would no longer do injections.

*62 10. That Gina Macias stated that Dr. Bieganowski would give VIP cards to patients who worked and to people with money. I am familiar with the former reason but I know the second reason is a lie.

11. That Gina Macias said she had her baby in December of 1990 and returned to the clinic 2 weeks later and then left for another 6 weeks and came back to work until September of 1991. This is a huge lie. Gina did return back to work in a couple of weeks, but left and never came back for almost 9 months. Dr. Bieganowski had found out that Gina Macias was a liar and vengeful [sic ] had done a lot of damage to people in the clinic. So Dr. Bieganowski continued her leave indefinitely, hoping she would leave. When Gina Macias did return, she was no longer the clinic head medical assistant and after a short while, she quit. This is when she developed her anger and jealousy toward me and Dr. Bieganowski and she made it known.

12. That Gina Macias said that Debbie Salazar left the clinic after Gina came to work for Dr. Bieganowski in 1986. This was a lie. Debbie continued to work for Dr. Bieganowski at 5801 Trowbridge until late 1989. This is an obvious lie.987

3. Discussion

The Court has carefully reviewed Macias’s trial testimony and Sandra Ramos’s proposed testimony, represented in her affidavits. After due consideration, the Court finds that Bieganowski has fallen far short of establishing either deficient performance or prejudice, insofar as he argues that counsel was ineffective for not calling Ramos to testify.

The Court turns first to the deficient performance prong of the Strickland test. As there are with any witness who is closely related to a defendant by blood or marriage, there were a myriad compelling reasons which could have led counsel to decide that vigorously cross-examining Macias or calling other witnesses to undermine Macias’s testimony would better serve his client’s interests than calling Bieganowski’s wife. The most notable of those considerations is that, as Bieganowski’s wife, Ramos’s testimony would have been immediately subject to withering attack for bias. Indeed, the statements contained in Ramos’s affidavits come across as a character assassination mounted by a jealous spouse against a perceived rival for Bieganowski’s affections. As such, it is not reasonably likely that Ramos’s testimony would have carried significant weight with the jury. Another considerations in this case is the fact that many of the events Macias testified about occurred in the years before Ramos even began working at Bieganowski’s clinic. Ramos would have been in no position to comment on what occurred at Bieganowski’s clinic before Ramos worked there. As to the period during which Macias and Ramos overlapped at the clinic, Ramos’s assertions are conclusory and, with certain exceptions, extremely non-specific. Ramos’s allegations in this regard are similarly subject to attack on the basis that Ramos was not in a position to know what occurred when Ramos was not actually present. At most, Ramos could have testified to her own interactions with Bieganowski and his patients. However, as the Court has discussed, the prosecution could have easily undermined Ramos’s testimony in that regard by pointing out Ramos’s marital relationship with Bieganowski. Further, Ramos’s proposed testimony about the handing out of VIP cards or Victor Bieganowski’s clients coming to the clinic’s back door to see Bieganowski does not materially contradict Macias’s testimony on these points and actually supports certain aspect of the Government’s theory of the conspiracy.988 Lastly, the Court notes that Roberts and the other defense attorneys in this case had to tread carefully in cross-examining Macias or attacking her testimony through other witnesses, due to the Court’s ruling granting the Government’s Motion in Limine. An attack on Macias’s credibility or demeanor, if not approached properly, could have resulted in evidence of the death threat coming before the jury, an event which would likely have been adverse to Bieganowski and his co-defendants. Under these circumstances, the Court concludes that Bieganowski has not shown, as it is his burden to do, that counsel performed deficiently by not calling Ramos to testify.

*63 Because Bieganowski has not established that counsel performed deficiently, it is unnecessary for the Court to consider whether Bieganowski has demonstrated prejudice. However, in the interest of thoroughness, the Court concludes that Bieganowski has also failed to meet the second prong of Strickland. The gravamen of Ramos’s affidavit is that Macias was untruthful at trial regarding the events at Bieganowski’s clinic and receiving a death threat. However, Bieganowski testified in his own defense at trial and disputed the accuracy of Macias’s testimony, stating, “I think Gina Macias makes a lot of mistakes.”989 Moreover, Stillinger, Jesse Lopez’s attorney, argued during her closing argument that Macias “was a shifty witness”990 and that the Government had provided no corroboration for much of her testimony.991 Thus, the defense was able to attack Macias’s testimony through other means than by calling Ramos to the stand. As to the death threat against Macias, the jury did not hear any evidence that Macias had been threatened.

For the reasons discussed above, the Court finds that Bieganowski has failed to establish that counsel performed in an objectively unreasonable manner by not calling Ramos to testify or that Bieganowski suffered prejudice as a result.

FF. Counsel Did Not Effectively Cross-Examine Angela McKinley

Bieganowski characterizes Roberts’s cross-examination of McKinley as “brief and unproductive.”992 Bieganowski argues that if Roberts had properly cross-examined McKinley, he could have elicited testimony: (1) about the reasons progress notes were missing; (2) that Lucy Campos, rather than Bieganowski, told McKinley to falsify progress notes; (3) that McKinley did not feel good about falsifying progress notes; (4) that McKinley did not believe Bieganowski would authorize his staff to falsify progress notes; (5) that Bieganowski’s good memory meant there was nothing wrong with Bieganowski dictating his progress notes at the end of the day rather than immediately after he saw a patient; (6) that Bieganowski had a good memory and there was thus nothing inappropriate about his not using patients’ chart after the initial visit; (7) that Lucy Campos knew the clinic’s medical records were in poor condition and nevertheless did nothing to change the situation; (8) that Yvette Renteria, Bieganowski’s employee was “mentally unbalanced and untruthful”; (9) that Rosa Maribel Mata-Cordova left Bieganowski’s employ not because Bieganowski asked her to prepare his TWCC-64 reports, but because MataCordova moved to Las Cruces to be with her husband; (10) that Rosa Maribel Mata-Cordova “was involved in a stolen automobile scam while working for Dr. Bieganowski and unbeknownst to Dr. Bieganowski himself”; (11) that Government witness George Lozano was “a drug abuser and was arrested and jailed in Juarez, Mexico under suspicious circumstances”;993 and lastly, (11) that FBI Agent James Griego harassed her into testifying against Bieganowski at trial.994

*64 The Court has previously discussed Bieganowski’s first, second, third, fourth, fifth, sixth, seventh, and eighth, allegations and thus will not repeat its conclusions.995 The Court addresses Bieganowski’s eleventh allegation in Part IV.D., ante, of this Memorandum Opinion. The Court accordingly turns to Bieganowski’s remaining allegations concerning Mata-Cordova’s reasons for leaving the clinic and her alleged involvement in an automobile theft scam. The Court first examines the relevant portions of McKinley’s affidavit.

1. McKinley’s Affidavit

In the section of her affidavit concerning Mata-Cordova. McKinley states:

14. That I knew Maribel Mata while she worked with Dr. Bieganowski. That I am aware that Maribel Mata testified that she left Dr. Bieganowski’s office because Dr. Bieganowski wanted her to do TWCC-64s on patients and not Dr. Bieganowski. That is a lie because Dr. Bieganowski would not let anyone dictate his TWCC-64s except himself and Mr. Diaz. I was the one who pulled the charts and made boxes for them. I never, ever heard any talk of Maribel Mata or anyone else doing anything like that.

15. That, in truth, Maribel Mata left the clinic because her husband was moving to Las Cruces and Maribel Mata wanted to move there to be with him. That is why she resigned.

16. That Maribel Mata was not seen by myself and the other clinic workers as knowing what she was doing. She did little constructive work and pushed much of her work off on others. When she was made office manager, we could not understand why.

17. That while Maribel Mata was at the clinic, she was involved in an automobile scam. Maribel Mata had purchased a fancy car, which she could not afford and was having trouble making the payments. Then one day, she parked her car on the side of the building at 5801 Trowbridge. This was a change, because she always parked it in the employees parking section. All day long, Maribel Mata would come from her desk on the first floor, to upstairs where I worked and look out the window to see if her car was still there. Maribell [sic ] Mata did this at least 4-5 times. Then, all of a sudden, it was gone and she reported it stolen. I believe that Maribel Mata set this theft up, so that she did not have to give her car up and suffer loss of her credit standing.996

2. Discussion

After due consideration, the Court finds that Bieganowski has failed to satisfy the Strickland standard for ineffective assistance claims. Nothing in McKinley’s statements suggest that McKinley was in a position to know whether or not Bieganowski asked Mata to prepare TWCC-64 reports or her reasons for leaving the clinic. McKinley’s statements, at most, represent McKinley’s belief that Bieganowski did not ask Mata to work on the reports. Similarly, McKinley’s allegations regarding the disappearance of Mata’s automobile constitute nothing more than unsubstantiated suspicions. Without direct knowledge of the events in question, it is extremely unlikely that McKinley’s proposed testimony on the aforementioned topics would have been admissible at trial. Counsel cannot be deemed ineffective by declining to elicit inadmissible testimony at trial. Nor can Bieganowski show prejudice, as the Court would not have permitted McKinley to answer.

GG. Counsel Did Not Effectively Examine Witness Burhmann Gilbert

*65 Bieganowski avers that his attorneys were ineffective because they did not interview Burhmann Gilbert, a radiology technician, before calling Gilbert to testify on Bieganowski’s behalf and because they did not prepare Gilbert beforehand or discuss trial strategy with him.997 Bieganowski asserts that Gilbert’s testimony was crucial to his defense, because it would have shown that Bieganowski did not force patients to have facet injections.998

The Court first considers Gilbert’s testimony.

1. Gilbert’s Trial Testimony

Smith directly examined Gilbert.999 Smith began by asking Gilbert about Gilbert’s employment and association with Bieganowski.1000 Gilbert replied that he was a self-employed radiologic technician, who provided staff for ultrasound and X-ray procedures.1001 Gilbert stated that he additionally taught radiology and ultrasound courses at El Paso Community College.1002 Gilbert recalled that he met Bieganowski at the Surgical Center of El Paso.1003 Gilbert explained that Gilbert contracted with the Surgical Center of El Paso to assist physicians with procedures utilizing a fluoroscope.1004 Gilbert said that Bieganowski was a doctor who used the Surgical Center to administer such procedures to patients, specifically, facet injections to the lower back.1005 Gilbert testified that he assisted Bieganowski with all the facet injections Bieganowski performed at the Surgical Center.1006 Gilbert stated that he later assisted Bieganowski with similar procedures at Southwestern General Hospital.1007 At Smith’s urging, Gilbert explained what facet injections are and how a radiologist assists during the procedure.1008 Smith also elicited testimony that Bieganowski used a thinner gauge needle than many physicians, which caused less trauma to the patients.1009 Gilbert explained that a larger gauge needle typically gives a physician more control, but despite using a thinner gauge needle, Bieganowski was always able to hit the proper spot inside the patient’s back.1010 Gilbert testified some patients were noticeably uncomfortable during the procedure and requested sedation.1011 For those patients, Gilbert said, a registered nurse anesthetist was always present to perform the sedation and monitor the patient.1012

On cross-examination, the prosecutor challenged Gilbert’s assertion that Gilbert or Gilbert’s employees were present every time Bieganowski administered a facet injection.1013 Gilbert responded that Bieganowski exclusively used Gilbert’s company when Bieganowski needed assistance with the injections.1014 Gilbert later conceded, however, that Bieganowski did not start using Gilbert’s company until 1994 or 1995, and that Gilbert did not know who Bieganowski used from 1986 to 1994 or 1995.1015 The prosecutor also attacked the value of Gilbert’s opinion regarding Bieganowski’s skills, prompting Gilbert to acknowledge that he was not a medical doctor, but rather, a medical technician.1016

In response to the prosecutor’s questioning, Gilbert stated that Bieganowski administered facet injections on Tuesday afternoons and Friday mornings.1017 Gilbert estimated that, at most, Bieganowski administered twelve facet injections on a given Tuesday or Friday, with the average being six or seven facet injections.1018 Gilbert stated that several other El Paso physicians administered facet injections, and insisted that about half of those doctors, who were either anesthesiologists or orthopedic surgeons, administered more than twelve to twenty-four facet injections weekly.1019 Gilbert conceded that none of the aforementioned doctors were psychiatrists, and that Gilbert had only assisted only one neurologist with one facet injection.1020

*66 Gilbert stated that, when Bieganowski performed injections at the El Paso Surgical Center, Gilbert billed the Surgical Center, rather than Bieganowski.1021 Once Bieganowski began administering injections at Southwestern General Hospital, Gilbert billed Bieganowski directly.1022 Although, Gilbert stated that he billed either the Surgical Center or Bieganowski for the injections, Gilbert insisted that he did not know whether the injections were expensive.1023

Gilbert admitted that he did not have any independent conversations with Bieganowski’s patients.1024 If Gilbert spoke to Bieganowski’s patients, he said, it was only as Gilbert worked with Bieganowski during the procedure.1025 Gilbert stated that there were times when patients cancelled appointments for facet injections, but he said that he could not recall how many cancellations there were per week.1026

Gilbert elaborated on the medical personnel who would be present when Bieganowski administered a fact injection.1027 Gilbert stated that besides himself and Bieganowski, a surgical technician, a nurse, and a nurse anesthetist would be present.1028

The prosecutor asked Gilbert about trigger point injections that Bieganowski administered to patients.1029 Gilbert agreed that some physicians also perform trigger point injections when they administer facet injections.1030 Gilbert adamantly asserted that, most of the time, Bieganowski did not perform trigger point injections.1031 When the prosecutor suggested that Bieganowski’s billing showed that most of his facet injections were, in fact, accompanied by trigger point injections, Gilbert retreated from his original assertion.1032 Gilbert stated that he would not necessarily have noticed whether Bieganowski gave patients trigger point injections in addition to facet injections, because trigger point injections did not require fluoroscopy.1033 Gilbert speculated that he may have used the time in which Bieganowski was giving a trigger point injection to reposition the patient.1034 Gilbert stated that he definitely did remember a few occasions on which Bieganowski gave trigger point injections.1035

On redirect examination, Smith elicited testimony that, in Gilbert’s experience, Bieganowski’s technique was as good as that of anyone he had seen performing the procedure.1036 On recross-examination, the prosecutor suggested through her questioning that Bieganowski’s technique should be good, given the number of injections he administered.1037 On re-direct examination, Smith elicited testimony that practice is not necessarily a bad thing and that all physicians perfect their skills through repetition.1038

The Court now considers Gilbert’s affidavit.

2. Gilbert’s Affidavit

In his affidavit, Gilbert complains that neither Bieganowski’s defense attorneys nor their representatives interviewed Gilbert before he testified to determine his qualifications and what he could contribute to Bieganowski’s defense.1039 Gilbert additionally faults Bieganowski’s defense team because they did not tell him what would happen in the court room.1040 Gilbert says that he could have testified that: (1) he worked with Bieganowski for many years and that Bieganowski was very skilled at performing facet injections;1041 (2) Bieganowski gave his block injection patients good care;1042 (3) Bieganowski had a good relationship with his patients who received block injections;1043 (4) Gilbert set up and ran Bieganowski’s on-site X-ray facility;1044 and (5) Bieganowski did not order an unusual number of X-rays compared to other doctors Gilbert had worked for and who saw the same types of patients.1045

3. Discussion

*67 The Court has carefully reviewed Gilbert’s trial testimony and affidavit. After due consideration, the Court concludes that Bieganowski has failed to demonstrate either deficient performance or prejudice. Although defense counsel has a duty to investigate and prepare an adequate defense, defense counsel’s failure to interview a witness before trial does not constitute ineffective assistance when the witness’s account is otherwise fairly known to the attorney.1046 Here, it is clear from the questions Smith asked Gilbert on direct examination that Smith knew the major points Gilbert could add to Bieganowski’s defense. As the Court has noted, Smith, in fact, elicited testimony on all the subjects Gilberts raises in his affidavit, with the exception of Gilbert’s statements about the number of X-rays Bieganowski ordered. The Court further finds that there is no reasonable probability that, but for Gilbert’s proposed testimony about the number of X-rays Bieganowski ordered, the trial’s result would have been different.1047

HH. Counsel Did Not Call Colleen Alexander or Enriqueta Saenz to Testify

Bieganowski argues that Roberts should have called Colleen Alexander, an operating room supervisor at Southwestern General Hospital, to testify.1048 According to Bieganowski, Alexander would have testified that Bieganowski’s practice was well-organized and efficient, his patients never had severe reactions to facet injections, and that none of Bieganowski’s patients ever told her that they were forced into receiving the injections.1049 Bieganowski also alleges that Roberts was ineffective because he did not call Enriqueta Saenz, an operating room charge nurse at Southwestern General Hospital.1050 Bieganowski asserts that Saenz would have testified that Bieganowski performed facet injections quickly and efficiently and that Saenz never witnessed Bieganowski’s patients experience a severe adverse reaction.1051 Saenz also would have testified that Bieganowski’s patients did not experience a great deal of anxiety or pain.1052 Saenz additionally would have told the jury that no patient ever complained to her about the procedure, that Saenz never heard of any patients refusing to submit to the procedure or having to be convinced to undergo it, and that Bieganowski taught other doctors how to do the injections.1053

The Court finds that Alexander’s and Saenz’s proposed testimony would have been cumulative of the testimony Gilbert had already offered, and as easily undermined as Gilbert’s statements to the jury. Under such circumstances, the Court finds that Bieganowski has failed to establish either deficient performance or prejudice.

II. Counsel Did Not Call Patients to Testify That No One Forced Them to Have Block Injections

Bieganowski argues that Roberts should have called patients Don Bemis, Ross Bramblett, Robert Cardoza, Luz Carlos, Lucilla De Alba, Ron Dillow, Loretta Franco, Rosa M. Garcia, Yolanda Gonzalez, Rita Hecker, John Jessel, Jose Maese, Rose Mediola, Jose Paniagua, Inez Rodriguez, Jesus Rubulcava, and Mary Walton to testify that they were not forced to have facet injections.1054 Bieganowski claims that these patients’ testimony would have rebutted the Government’s claim that Bieganowski pressured workers’ compensation patients to have facet injections and that Bieganowski threatened to report that reluctant patients were not complying with Bieganowski’s treatment plan.1055 In support of his claim, Bieganowski has offered affidavits from each of the aforementioned patients.1056

*68 The Court has carefully examined the affidavits. Each affiant states that the affiant received facet injections, that the affiant found the injections helpful, that Bieganowski performed the injections in a professional manner after reviewing the affiant’s medical history, and that no one compelled the affiant to have the injections.1057 After due consideration, the Court concludes that the affiants’ statements are insufficient to establish a viable ineffective assistance claim.

First, the Court notes that Bieganowski’s defense team did call Don Bemis, Ross Bramblett, Luz Carlos, Loretta Franco, Rita Hecker, John Jessel, Jose Maese, Inez Rodriguez, Jesus Rubulcava, and Mary Helen Walton to testify and, with the exception of Jose Maese, their testimony covered the subject of block injections.1058 Second, the decision regarding which witnesses to call and what to ask them lies uniquely within defense counsel’s reasonable professional discretion. Given the Courtks admonition that it would limit the number of patients that defense counsel could call as witnesses,1059 the Court finds that Bieganowski has not overcome the strong presumption that counsel’s choice of witnesses and questions to ask them fell within the broad discretion afforded counsel. Furthermore, the Court finds that there is no reasonable probability that the aforementioned patients’ testimony would have affected the trial’s outcome. Thus, Bieganowski has failed to show prejudice. The Government’s theory of the case was not that Bieganowski’s staff, at Bieganowski’s direction, pressured all patients for whom Bieganowski had prescribed injections to undergo the procedure. Rather, the Government posited that Bieganowski’s staff subtly threatened only those patients who were reluctant to have the injections. The testimony of patients who evidently had no misgivings about the procedure either before or after having undergone it would thus not have been particularly probative on the issue one way or the other. In addition, Bieganowski’s own witness, Burhmann Gilbert, testified that, at a minimum, Bieganowski administered twelve facet injections per week to different patients. Even adjusting the yearly total of injections to compensate for patients who received multiple injections, one may reasonably infer that the number of Bieganowski’s patients who received facet injections ranked at least in the hundreds. The seventeen patients Bieganowski names as having no difficulties with the injections thus represents a tiny fraction of total number of patients who received injections. The seventeen patients Bieganowski names were in no position to discuss the remaining patients’ experience with the injections and whether or not Rene Moreno and others at Bieganowski’s clinic pressured the individuals to make and keep appointments for the procedure. Further, the Court observes that when the Government cross-examined Gilbert, it was able to suggest that Bieganowski billed for trigger point injections which he did not actually administer. Expressly questioning the seventeen patients named above about their experience with nerve block injections would have given the Government multiple opportunities to elicit similar damaging testimony on cross-examination.1060 Finally, the Court notes that the Government did not prosecute Bieganowski for malpractice. This case was not about whether Bieganowski was a competent physician who had a cordial relationship with his patients, but rather whether Bieganowski fraudulently billed insurance carriers. Considering the nature of the charges against Bieganowski, questioning these seventeen patients about facet injections likely presented more potential risk to Bieganowski’s defense than assistance. The Court therefore concludes that Bieganowski has not shown that counsel’s performance fell below reasonable professional standards or that prejudice ensued from any alleged errors.

JJ. Counsel Did Not Properly Prepare Patients to Testify

*69 Bieganowski states that Smith called the following patients to testify on Bieganowski’s behalf: (1) Mary Walton; (2) Jesus Rubalcava; (3) Inez Rodriguez; (4) Rosa Noriega; (5) Jose Maese; (6) John Jessel; (7) Rita Hecker; (8) Sigrid Franklin; (9) Loretta Franco; (10) Al Franco; (11) Luz Carlos; (12) Alma Carlos; (13) Genaro Bueno; (14) Ross Bramblett; (15) Don Bemis; and (16) Jenny Apodaca.1061 Bieganowski argues that, because Smith did not properly prepare these witnesses to testify, Smith lost the opportunity to elicit testimony on the following subjects: (1) the extent of Bieganowski’s medical histories; (2) the extent of Bieganowski’s physical exams; (3) treatments Bieganowski, Gustavo Diaz, Maximo Arroyo, and Lei Zhang administered; (4) emotional and psychological care Bieganowski’s patients received; and (5) the lack of pressure on patients to receive unwanted or unnecessary medical care.1062

1. The Affiants’ Trial Testimony

The Court has carefully reviewed the affiants’ trial testimony. The record shows that Smith questioned each affiant, with the exception of Genaro Bueno, Luz Carlos, and Don Bemis, regarding Bieganowski’s taking of medical histories.1063 Although Smith did not directly examine Luz Carlos and Bemis on this topic, on cross-examination, the Government asked both witnesses whether Bieganowski had taken a medical history during their initial visit.1064 In addition, the prosecution noted that it was not concerned with whether Bieganowski took Bemis’s medical history, because Bemis’s initial visit occurred before the conspiracy began.1065 Genaro Bueno was thus the only one of the affiants not to offer testimony concerning whether Bieganowski took his medical history and the depth of Bieganowski’s questions.

The record shows that Smith directly examined each affiant about the extent of the physical exams that Bieganowski performed on them.1066 The record also shows that the Government cross-examined each affiant, except Rosa Noriega, on the subject.1067 Smith likewise directly examined each affiant about the treatments Bieganowski and his staff administered.1068 The Government also thoroughly cross-examined each affiant about the physical examinations Bieganowski performed on the affiant.1069

The record shows that Smith questioned Jesus Rubulcava, Rosa Noriega, John Jessel, Rita Hecker, Sigrid Franklin, Loretta Franco, Luz Carlos, and Ross Bramblett concerning the emotional and psychological care that Bieganowski gave them.1070 Smith attempted to question Mary Helen Walton on this subject, but the Government successfully objected that Smith’s query was beyond the scope of the Government’s cross-examination.1071 Smith did not question Inez Rodriguez, Jose Maese, Alfonso Franco, Alma Carlos, Genaro Bueno, Don Bemis, or Jenny Apodaca about the emotional and psychological care that Bieganowski gave to them. However, the Government independently raised the issue when it cross-examined Inez Rodriguez and Loretta Franco.1072 Therefore, Jose Maese, Alfonso Franco, Alma Carlos, Genaro Bueno, and Jenny Apodaca were the only affiants whom Smith did not question about psychological care and who did not testify on the subject in response to the Government’s cross-examination.

*70 On direct examination, Smith elicited testimony from each affiant, except Luz Carlos and Genaro Bueno, from which the jury could infer that Bieganowski did not attempt to keep them from returning to work, unnecessarily prolong their treatment, or coerce them into having treatments they did not want, especially facet injections.1073 However, on cross-examination, Luz Carlos and Genaro Bueno, as well as Jesus Rubulcava, testified on the subject.1074

2. Discussion

As a threshold matter, the Court finds that, even taking Bieganowski’s allegations at face value, his ineffective assistance claim against Smith fails because Bieganowski simply has not shown that Smith’s examination of the aforementioned witnesses fell outside the broad range of reasonable professional assistance. However, the Court notes that, in any event, most of Bieganowski’s factual allegations do not stand scrutiny. In the instances in which the record shows that Smith did not, in fact, elicit testimony from the affiants, besides failing to show deficient performance, Bieganowski’s claim fails because he has failed to show prejudice.

Inasmuch as Bieganowski contends that Smith did not ask Mary Helen Walton, Jesus Rubalcava, Inez Rodriguez, Rosa Noriega, Jose Maese, John Jessel, Rita Hecker, Sigrid Franklin, Loretta Franco, Al Franco, Alma Carlos, Ross Bramblett, and Jenny Apodaca whether Bieganowski took a medical history, there is no factual basis for Bieganowski’s allegations.1075 Bieganowski has therefore failed to show either deficient performance or prejudice as to these affiants. Because Luz Carlos and Don Bemis both testified on cross-examination about whether Bieganowski took their medical histories, Bieganowski has failed to show prejudice as to them. Bieganowski has additionally failed to show prejudice as to Bemis, because Bemis’s first visit fell outside the temporal bounds of the conspiracy alleged in Count One of the Indictment. Turning to the remaining affiant, Genaro Bueno, the record shows that Smith did not ask Genaro Bueno whether Bieganowski took his medical history and that the Government did not independently question Bueno on this issue. Assuming only for purposes of argument that Smith performed deficiently by failing to question Bueno about the taking of a medical history, the Court finds that Bieganowski has not shown prejudice. Bueno’s testimony on this issue would have been merely cumulative of testimony offered by the other affiants and there is no reasonable probability that the outcome of the trial would have been different, but for Smith’s alleged deficiencies.

To the extent Bieganowski argues that Smith rendered ineffective assistance by failing to ask the affiants about the extent of Bieganowski’s physical examinations and the treatments that Bieganowski and his staff administered, the record shows that there is no factual basis for his claim. Because the record shows that Smith questioned each affiant on the aforementioned topics,1076 Bieganowski has not established that Smith performed deficiently.

*71 The Court now turns to Bieganowski’s allegation that Smith rendered ineffective assistance by not questioning the affiants about the psychological care Bieganowski gave them. Because the record shows that Smith questioned or attempted to question Mary Helen Walton, Jesus Rubulcava, Rosa Noriega, John Jessel, Rita Hecker, Sigrid Franklin, Loretta Franco, Luz Carlos, and Ross Bramblett concerning the emotional and psychological care that Bieganowski gave them, the Court finds that there is no factual basis for Bieganowski’s allegation as to these witnesses.1077 Although Smith did not ask Inez Rodriguez, Jose Maese, Alfonso Franco, Alma Carlos, Genaro Bueno, Don Bemis, or Jenny Apodaca about the emotional and psychological care Bieganowski gave them, as noted, the Government independently raised the issue when it cross-examined Inez Rodriguez and Loretta Franco.1078 Therefore, Jose Maese, Alfonso Franco, Alma Carlos, Genaro Bueno, and Jenny Apodaca were the only affiants whom Smith did not question about psychological care and who did not testify on the subject in response to the Government’s cross-examination. The Court has carefully examined Maese’s, Alfonso Franco’s, Alma Carlos’s, and Bueno’s affidavits. To summarize, each affiant believes that he could have offered testimony about the emotional support and caring Bieganowski offered to them and that this testimony would have assisted Bieganowski’s defense. The affiants’ statements manifest a fundamental misunderstanding of the crimes for which Bieganowski stood accused. The issue at trial was not whether Bieganowski was an emotionally supportive, competent doctor. The issue was whether, for billing purposes, Bieganowski knowingly mischaracterized the services he rendered to his patients or billed insurance carriers for services he did not render at all. The affiants were not particularly equipped to answer this question. To the extent Maese, Alfonso Franco, Alma Carlos, and Bueno could have discussed the kind of psychological support Bieganowski offered them and the length of time he spent doing so, their testimony would have been cumulative of other testimony offered by defense witnesses. Moreover, judging the ease with which the Government undermined the testimony of the affiants who did testify on this topic, the Court finds that their testimony was more likely to damage Bieganowski’s defense than help it.1079

Turning to Bieganowski’s last claim, that Smith did not ask the affiants whether Bieganowski or his staff pressured them to undergo certain treatments, the Court finds that the record not support his claim as to Mary Walton, Jesus Rubalcava, Inez Rodriguez, Rosa Noriega, Jose Maese, John Jessel, Rita Hecker, Sigrid Franklin, Loretta Franco, Alfonso Franco, Alma Carlos, Ross Bramblett, Don Bemis, or Jenny Apodaca. The record clearly shows that Smith question these witnesses on the issue.1080 As to Luz Carlos and Genaro Bueno, Bieganowski has failed to show prejudice, even assuming that he could show deficient performance. Although Smith did not question Luz Carlos and Bueno on this topic, Carlos and Bueno both discussed it on cross-examination.1081

KK. Counsel Should Have Called Additional Patients to Testify on Bieganowski’s Behalf

*72 Bieganowski contends that, in addition to the patients listed in the last section of this Memorandum Opinion, counsel should have also called the following patients to testify on Bieganowski’s behalf: (1) Walter Whittington; (2) Yolanda Gonzalez; (3) Ubaldo Granados; (4) Christina Martinez; (5) Rose Mediola; (6) Jose Paniagua; (7) Robert Cardoza; (8) Lucilla De Alba, and (9) Ron Dillow. As the Court has previously discussed, the Court limited the number of patient-witnesses that it would allow the defense to call in its case-in-chief.1082 Considering these restrictions, the Court finds that Bieganowski has not established that his defense attorneys performed deficiently in choosing which witnesses to call. Bieganowski has also failed to show prejudice, as the aforementioned patients’ proposed testimony would have been cumulative of testimony offered by patient-witnesses who did testify at trial.

LL. Counsel Did Not Require Insurance Company Representatives to State Which HCPCS Levels and Codes Their Companies Required

The Court has previously discussed this point.1083 Here, the Court will merely reiterate that the particular codes insurance carriers required were irrelevant to the charges against Bieganowski. Counsel cannot be said to have performed deficiently in declining to establish a point that was not essential to Bieganowski’s defense.

MM. Counsel Did Not Show That Some HCFCAs Were Hand-Delivered Rather Than Mailed to Insurance Carriers

Bieganowski has failed to establish either deficient performance or prejudice. The elements of mail fraud under 18 U.S.C. § 1341 are first, a scheme to defraud, and second, the mailing of a letter for the purpose of executing the scheme.1084 “It is not necessary that the scheme contemplate the use of the mails as an essential element.”1085 It was thus unnecessary for the Government to show that Bieganowski and his co-conspirators used the mails each and every time they submitted a fraudulent HCFCA form. As the evidence at trial amply supported a finding that, in the vast majority of cases, Bieganowski and his co-conspirators used the mails to perpetrate their fraud, there was no basis for counsel to argue that the Government had not proven the elements of the offense.

NN. Counsel Did Not Read Chris Valdespino’s Form 302 Report1086

Bieganowski alleges that counsel did not read the Form 302 report the FBI prepared regarding an interview with Chris Valdespino.1087 Bieganowski argues that the Form 302 report would show that Lucy Campos was not the true custodian of Bieganowski’s billing records maintained by Servicio de Facturacion y Cobranza, S.A. de C.V. (“Servicio”) in Ciudad Juarez.1088 If counsel had read Valdespino’s Form 302 report, Bieganowski argues, counsel could have filed a motion to suppress the records.1089

After review, the Court finds that Bieganowski has failed to establish a claim for constitutionally ineffective assistance of counsel. Bieganowski’s allegations that the Government did not provide counsel with Valdespino’s Form 302 report and that counsel did not read it (or was not otherwise aware of the information it contained) are conclusory and unsupported by any evidence. Further, the issue of Campos as the proper custodian of Servicio’s records and Valdespino’s role in transporting the records to El Paso was fully litigated at trial.1090 The Court heard ample evidence satisfying it as to the records’s authenticity and the chain of custody. The Court would therefore have denied any motion to suppress that counsel might have filed.

OO. Counsel Did Not Move the Undersigned Judge to Recuse Himself or Move for a Change of Venue

*73 Bieganowski argues that the undersigned judge was biased against him.1091 For reasons supporting his claim, Bieganowski refers the Court to his “Motion Brought Pursuant to 28 U.S.C. § 455 to Disqualify Judge Pursuant to 28 U.S.C. § 144 for Bias and Prejudice Towards Movant” (“Motion for Recusal”) [Docket No. 572], filed in this cause on May 10, 2004.1092 Bieganowski argues that Roberts was therefore ineffective for failing to either move the undersigned judge to recuse himself or to move the Court for a change of venue due to judicial bias.1093 For the reasons discussed in its “Order Denying Movant’s Motion for Recusal” (“Order”), dated May 21, 2004, which are herein incorporated by reference, the Court finds that the bases Bieganowski offers for recusal are legally insufficient under the applicable legal standard to support disqualification.1094 Therefore, if counsel had filed a pre-trial motion for the undersigned judge to recuse himself, supported only by the aforementioned reasons, the Court would have denied the request. Thus, the Court concludes that Bieganowski cannot show prejudice, even if he could show that counsel performed deficiently.

To the extent Bieganowski alleges that counsel should have filed a motion for change of venue based on judicial bias, the Court finds that alleged judicial bias is not a proper ground for a change of venue under the Federal Rules of Criminal Procedure. Federal Rule of Criminal Procedure 18 governs the place of prosecution and trial.1095 It states:

Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant and the witnesses, and the prompt administration of justice.1096

Pursuant to Federal Rule of Criminal Procedure 21(a), a defendant may move for a transfer of venue for trial due to prejudice. However, “prejudice” within the meaning of Rule 21(a) refers to the lack of an impartial jury rather than judicial bias.1097 Thus, a motion requesting the undersigned judge to recuse himself, rather than a motion for change of venue, would have been the proper procedural route for Roberts to employ. However, as the Court has discussed, Bieganowski has failed to come forward with legally sufficient reasons warranting the undersigned judge’s recusal in this cause. For the reasons discussed above, the Court concludes that Bieganowski has not carried his burden under Strickland.

PP. Counsel Was Ineffective Because He Did Not Attempt to Compel Attorney Luis Islas to Withdraw from Representing Lucy Campos or to Compel Attorney Gary Weiser to Withdraw from Representing Victor Bieganowski

Bieganowski argues that a conflict existed between himself and attorney Luis Islas, who represented Lucy Campos.1098 Bieganowski states that, in March 1996, through Bieganowski’s attorney Jim Darnell, Bieganowski hired Islas to represent Bieganowski and Bieganowski’s employees in the event that the FBI or the grand jury sought to question them.1099 Bieganowski also alleges that a conflict of interest existed between himself and attorney Gary Weiser. Bieganowski asserts that Weiser represented Victor Bieganowski in the case at bar and also previously represented prosecutor Debra Kanof in an unrelated matter.1100 Bieganowski argues that counsel should have filed motions asking the Court to order Islas and Weiser to withdraw from representing Campos and Victor Bieganowski.1101

*74 After due consideration, the Court finds that the grounds Bieganowski presents, without more, would not have warranted an order disqualifying either Islas or Weiser. Thus, to the extent Bieganowski argues that counsel was ineffective for seeking such qualification, the Court concludes that Bieganowski has not established prejudice, even assuming that he could show that counsel performed deficiently. Because Bieganowski must meet both of Strickland’s prongs, his failure to establish prejudice is fatal to his present claim.

QQ. Counsel Did Not Seek FBI Agents’ Interview Notes

Bieganowski asserts that FBI agents interviewed the following individuals while investigating Bieganowski’s clinics: (1) Marie McIntosh; (2) Theresa Huber; (3) Elizabeth Cedillos; (4) Tony Duarte; (6) Grace Castro; (7) Itzel Granados; (8) Bonnie Cortez; (9) Elaine Mendez; (10) Wendy Murillo; and (11) Diana Rodriquez.1102 Extrapolating from Bieganowski’s invocation of United States v. Brown, 303 F.3d 582 (5th Cir.2002), the Court understands Bieganowski to argue the following. First, Bieganowski contends that the agents took notes during these interviews and used those notes to complete Form 302 reports for these individuals.1103 Second, Bieganowski avers that the agents’ interview notes varied materially from the Form 302 reports the agents prepared from the notes.1104 Third, Bieganowski argues that, since material discrepancies allegedly existed between the agents’ notes and the corresponding Form 302 reports, the Government had a duty, under the version of Federal Rule of Criminal Procedure 16(a)(1)(A) in effect at Bieganowski’s trial, to disclose the agents’ interview notes.1105 Alternatively, the Court understands Bieganowski to argue that the Government had a duty to disclose the agents’ preparatory interview notes under the Jencks Act and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1973). Bieganowski avers that his defense team was ineffective for failing to pursue the agents’ notes under the legal theories set forth above. The Court considers Bieganowski’s arguments in turn.

1. Federal Rule of Criminal Procedure 16(a)(1)(A)

The version of Federal Rule of Criminal Procedure 16(a)(1)(A) in effect at Bieganowski’s trial provided, in pertinent part, that:

Upon request of a defendant the government must disclose to the defendant and make available for inspection, copying, or photographing: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent....1106

Under Rule 16(a)(1)(A), the government has a duty to provide the defense with a copy of a Form 302 report concerning an interview with the defendant.1107 The government has no duty to provide the defense with a copy of the notes the agent took during the defendant’s interview if the Form 302 report contains all the information contained in the interview notes.1108 By its express terms, Rule 16(a)(1)(A) does not apply to written or recorded statements, including Form 302 reports, concerning witnesses other than the defendant.

*75 Because Rule 16(a)(1)(A) concerns the disclosure of defendants’ written or recorded statements, Bieganowski’s argument that the Government had a duty under Rule 16(a)(1)(A) to disclose Form 302 reports (or notes agents used to prepare those reports) concerning Marie McIntosh, Theresa Huber, Elizabeth Cedillos, Tony Duarte, Grace Castro, Itzel Granados, Bonnie Cortez, Elaine Mendez, Wendy Murillo, and Diana Rodriquez fails at the outset. None of the aforementioned individuals were indicted in this cause, and thus, Rule 16(a)(1)(A) does not apply to them. Bieganowski’s defense attorneys cannot be said to have performed deficiently by declining to raise a frivolous objection.

2. The Jencks Act

The Jencks Act, which is codified at 18 U.S.C. § 3500 reads, in pertinent part,

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.1109

Under the plain terms of the statute, the Jencks Act required the Government to provide statements made by its witnesses who actually testified at trial, after the witness testified. Applying the plain language of the statute to Bieganowski’s argument, the Court finds that his claim fails immediately as to Theresa Huber, Tony Duarte, Grace Castro, Itzel Granados, Bonnie Cortez, Elaine Mendez, and Diana Rodriquez, because these individuals did not testify at trial.

Marie McIntosh, Elizabeth Cedillos, and Wendy Murillo did testify at trial, on the Government’s behalf. Thus, the Jencks Act required the Government to disclose any “statement” made by McIntosh, Cedillos, and Murillo concerning the instant litigation, after these individuals testified at trial.1110 However, unless a Form 302 report purports to represent a verbatim transcript of what the witnesses said to FBI agents or the witness expressly adopts the report, a Form 302 report does not constitute a “statement” within the meaning of the Jencks Act.1111 The Court finds that Bieganowski has not met this showing with regard to any Form 302 reports prepared from interviews with McIntosh, Cedillos, and Murillo. The Court accordingly concludes that the Jencks Act did not require the Government to provide Form 302 reports to the defense for these witnesses. Bieganowski’s defense team did not perform deficiently by not seeking Form 302 reports under the Jencks Act when the statute did not entitle it to the reports.

Although Bieganowski’s failure to establish deficient performance is fatal to his instant ineffective assistance claim, in the interest of thoroughness, the Court will consider whether Bieganowski has demonstrated prejudice. After due consideration, the Court concludes that Bieganowski has not met his burden in this respect, either. It is clear from Bieganowski’s own evidence that the Government did, in fact, provide Marie McIntosh’s Form 302 report to Bieganowski’s defense team as a courtesy.1112 Further, the Government asserted without contradiction from defense counsel, that it had provided all Jencks Act and Brady material well before trial.1113 Under the circumstances, the Court finds that Bieganowski has not shown that he suffered prejudice as the result of his defense team’s conduct.

3. Brady v. Washington

*76 The prosecution’s suppression of evidence favorable to the accused denies him due process of law when the evidence is material either to guilt or punishment, regardless of whether the accused specifically requests the information and the prosecution’s good or bad faith.1114 The three essential elements of a Brady prosecutorial misconduct claim are: (1) the evidence at issue must favor the accused, either because it is exculpatory or impeaching; (2) the Government must have willfully or inadvertently suppressed that evidence; and (3) the exculpatory or impeaching evidence must be sufficiently material such that prejudice to the defense ensued from its suppression.1115 Evidence which is as equally available to defense counsel exercising diligence as it is to the prosecution cannot be withheld or suppressed within the meaning of Brady.1116 In other words, a criminal defendant cannot establish “suppression” if the defendant either actually knew or should have known the essential facts which would permit him to take advantage of the evidence at issue, or if the defendant could have learned the essential facts by exercising reasonable diligence.1117 The materiality inquiry “is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions.”1118 Rather, “the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”1119 Under Brady, a defendant is entitled to an FBI agent’s notes concerning an interview with a witness only if the agent testifies at trial regarding the particular interview and the defendant makes an independent showing that agent’s trial testimony is inconsistent with the agent’s notes and the alleged inconsistency is material to guilt or punishment.1120

Here, only four FBI agents testified at trial, namely, Special Agents James Griego, Jr., G. Clayton Grigg, Rolando Lopez, and Luz Sanabria-Garcia. None of the agents testified at trial regarding the content of their interviews, if any, with the individuals Bieganowski names in his present claim. The Court therefore concludes that the agents’ notes concerning interviews with the named individuals, assuming that such notes exist, were not Brady material. Because Brady did not require the Government to disclose the notes, Bieganowski has not shown that his defense team performed deficiently when it did not seek the agents notes under this legal theory. Alternatively, Bieganowski has not established prejudice. Because the agents’ notes were not discoverable under Brady, even if Bieganowski’s attorneys had sought the notes under this legal theory, the Court would have denied their request.

RR. Counsel Did Not Pursue Evidence That the Rene Moreno and Raymond Espinoza Received Undisclosed Incentives to Testify Against Bieganowski

*77 Bieganowski contends that his attorneys were ineffective at trial because they did not pursue evidence that the Government suppressed the fact that it made “certain payoffs” to Raymond Espinoza and Rene Moreno in return for their testimony against Bieganowski.1121 The Court first addresses Bieganowski’s claim that counsel were ineffective because they did not investigate whether the Government provided Raymond Espinoza with an incentive to testify against Bieganowski, but failed to disclose the incentives to the defense.

1. Raymond Espinoza

At a pre-trial hearing held on September 2, 1999, Roberts argued that the Court should reconsider its order denying Bieganowski bond.1122 In opposition to Roberts’s request, the Government called Special Agent Griego to testify.1123 Agent Griego stated that he was well-known to Bieganowski and Bieganowski’s staff as the primary case agent for the Bieganowski investigation.1124 Agent Griego reported that inmate Raymond Espinoza had written to the FBI concerning a death threat Bieganowski allegedly made against Agent Griego and the two other agents who had testified against Bieganowski at Bieganowski’s detention hearing.1125 Agent Griego said that he contacted the Bureau of Prisons and the United States Marshals Service and verified that Espinoza had been housed with Bieganowski at the Federal Transfer Center in Oklahoma City, Oklahoma.1126 Agent Griego testified that he subsequently interviewed Espinoza about the allegations contained in the letter.1127 According to Agent Griego, Espinoza provided sufficient identifying information in the letter and interview for the agents to be confident that the man Espinoza identified was Bieganowski.1128 Agent Griego said that Espinoza related the following information regarding a conversation with Bieganowski.1129 Bieganowski allegedly admitted that he and some of his patients were involved in schemes to defraud insurance companies and that Bieganowski lied during court hearings in order to collect money from insurance companies for himself and the patient.1130 Bieganowski allegedly stated that when he returned to El Paso, he was going to renew his attempts to have bond set.1131 If the Court set bond, Bieganowski intended to murder three potential witnesses whose names were mentioned at his first detention hearing, as well as the FBI agents who had testified against him at that same hearing.1132 Then Bieganowski planned to flee the country.1133 Bieganowski appeared very serious to Espinoza.1134 According to Agent Griego, Espinoza did not ask for anything in return for the information, and the agents did not offer him anything.1135 Bieganowski testified at the hearing.1136 Bieganowski admitted to having met and spoken with Espinoza while at the Federal Transfer Center, but denied having made any of the threats Espinoza attributed to him.1137

It is clear from the record that Espinoza did not actually testify against Bieganowski, either before trial or otherwise. Therefore, whether Espinoza received an undisclosed incentive to testify is arguably moot. More importantly, Bieganowski has come forward with no evidence, other than his completely unsupported speculation that “more than likely, Espinoza received a sentence reduction for giving statements against Dr. Bieganowski” to support his claim.1138 Under the circumstances, the Court concludes that Bieganowski has not shown that his counsel’s services fell outside the wide range of objectively reasonable professional discretion.

2. Rene Moreno

*78 In support of his claim, Bieganowski presents an unsigned declaration purportedly made by Bieganowski’s former employee, Tony Duarte.1139 As the declaration is unsigned, much less notarized, the statement is unauthenticated and possesses no evidentiary value. Moreover, even taken at face value, the allegations set forth therein are based on inadmissible hearsay and speculation on the part of the statement’s author, whomever that may be. Given the speculative nature of the allegations, the Court finds that Bieganowski has failed to show that counsel’s performance fell below reasonable professional standards or that prejudice ensued to his defense as a result of counsel’s alleged shortcomings.

SS. Counsel Did Not Challenge the Chain of Custody for Bieganowski’s Billing and Travel Records, or Texas Worker’s Compensation Fund Records

The Court understands Bieganowski to argue that defense counsel should have objected to the admission of Bieganowski’s billing and travel records, as well as certain Texas Workers’ Compensation Fund records, because the chain of custody for these records was somehow corrupted.1140 The Court further understands Bieganowski to contend that, if counsel had objected, the Court would not have admitted the records in question into evidence at trial.1141

Bieganowski’s argument is without merit. “In cases where a defendant questions whether the evidence offered is the same as the items actually seized, the role of the district court is to determine whether the government has made a prima facie showing of authenticity.”1142 “If the Government meets its burden, the evidence should be admitted, and the jury has the ultimate responsibility for deciding the authenticity issue.”1143 A break in the chain of custody, if any, simply goes to the weight of the evidence rather than its admissibility.1144 With each of the records in question, the Government clearly made a prima facie showing of authenticity, and the records were therefore admissible. Under the circumstances, the Court cannot say that defense counsel was ineffective for failing to object to the records’ admission.1145

TT. Counsel Did Not File an Interlocutory Appeal Challenging the Court’s Orders Denying the Release of Funds to Hire Expert Witnesses

Bieganowski argues that counsel should have filed an interlocutory appeal challenging the Court’s orders denying Bieganowski’s various motions seeking the release of funds to hire expert witnesses.1146 Bieganowski’s claim is without merit.

Federal circuit courts have jurisdiction over only three types of appeals.1147 These are final orders;1148 certain specific types of interlocutory appeals involving injunctive relief;1149 and appeals in which a district court has certified the question as final, pursuant to Federal Rule of Civil Procedure 54(b).1150 The appeal Bieganowski believes his attorneys should have filed does not fall within any of the three aforementioned categories. Because the Court of Appeals would have lacked jurisdiction to entertain the challenge, filing an interlocutory appeal challenging the Court’s order would have been frivolous as well as futile.

UU. Counsel Did Not Request Further Voir Dire or a Supplemental Instruction Regarding a Local Newspaper Article

*79 During voir dire on March 13, 2000, the Court questioned the venire about their general exposure to media coverage of Bieganowski’s indictment and trial.1151 Roberts then asked the prospective jurors whether any of them had read an article published that same morning by the local newspaper.1152 After six prospective jurors, including James Carr, stated that they had read or at least seen the article, Roberts asked the Court for an opportunity to question the six individuals about the article’s effect on them, outside the other venire members’ presence.1153 The Court allowed Roberts to question the six venire members about the article, but required Roberts to do so in open court.1154 When Roberts asked Juror Carr whether Carr remembered anything from the article, Carr replied, “Yeah, [Bieganowski] allegedly threatened witnesses, threatening to kill them, and a large amount involved in the alleged offense.”1155 Roberts immediately, but unsuccessfully, moved for a mistrial, arguing that Carr’s statement had infected the entire jury pool.1156

On appeal, Roberts argued that the Court erred in denying him leave to question the six venire members outside the other prospective jurors’ hearing and in denying his motion for mistrial after Carr’s statement.1157 The Court of Appeals found no reversible error, stating,

Undoubtedly, the district court would have been better advised to have granted Bieganowski’s request to conduct individual voir dire, of those who indicated they had read the particular article, outside the hearing of the panel. The court also would have been better advised to have engaged in further questioning of the entire venire after Carr’s statement in the presence of the panel about the contents of the article. Equally important, however, is Bieganowski’s failure to request such additional questioning by the court (or otherwise). We must ask, therefore, whether the district court’s failure to conduct individual voir dire after Carr’s statement, in the absence of that failure being brought to the court’s attention, so affected Bieganowski’s substantial rights as to merit reversal. We conclude that it did not.1158

In his present collateral appeal, Bieganowski argues that Roberts was ineffective because he did not, as the Court of Appeals notes, request the Court to question the entire panel further.1159 In addition, the Court understands Bieganowski to assert that Roberts should have urged the Court to issue a special instruction directing the panel to disregard Carr’s statement and should have filed an interlocutory appeal.1160 Assuming for purpose of argument that Roberts performed deficiently, the Court finds that Bieganowski has nonetheless failed to establish prejudice resulting from Roberts’s alleged shortcomings, for the reasons discussed by the Court of Appeals.1161

VV. Counsel Did Not Seek a Specific Unanimity Instruction Regarding the Money Laundering Count

Bieganowski argues that counsel rendered ineffective assistance because he did not request a specific unanimity instruction regarding Count Twenty-Two of the Indictment, which charged Bieganowski with conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(I), 1956(a)(2)(B)(I) and 1956(h).1162 After review, the Court concludes that Bieganowski has not established a claim of constitutionally ineffective assistance of counsel. A specific unanimity instruction is required only when “there exists a genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts.”1163 Despite Bieganowski’s assertions to the contrary, the Court finds that there was no genuine risk that the jurors in this cause would be confused or that a conviction would occur as the result of different jurors concluding that Bieganowski committed different acts. Bieganowski has therefore failed to show that counsel performed deficiently by not seeking a specific unanimity instruction.

WW. Counsel Did Not Challenge the Government’s Alleged Failure to Prove the Concealment Element of the Money Laundering

*80 The Court understands Bieganowski to argue that counsel should have moved for a judgment of acquittal regarding Count 22 of the Indictment because the Government did not prove the concealment element of money laundering.1164 There is no merit to Bieganowski’s argument. To demonstrate that Bieganowski and his co-conspirators intended to conceal the proceeds of illegal activity, it was sufficient for the Government to show that the transactions they engaged in were part of a larger scheme to conceal illegal proceeds.1165 “It is not necessary with regard to any single transaction that the defendant removed all trace of his involvement with the money or that the particular transaction charged is itself highly unusual.”1166 The evidence adduced at trial regarding the conspiracy to launder money was more than sufficient to send the case to the jury. Any objection that the Government had not provided sufficient evidence to support a jury finding that the transactions in question were part of a larger scheme to conceal illegal proceeds would have been frivolous. Counsel cannot perform deficiently by declining to press a frivolous point.

XX. Counsel Did Not Show the Jury That the Government’s Alleged Intimidation of Witness Linda Howard Adversely Affected Howard’s Testimony

The Court of Appeals fully adjudicated the underlying issue (i.e., did the Government intimidate Bieganowski’s expert witness, Linda Howard).1167 Given the Court of Appeals’s conclusion that the prosecution’s comments regarding perjury did not amount to substantial interference with Howard’s choice to testify,1168 Bieganowski cannot show prejudice, even assuming that Bieganowski could show that counsel performed deficiently.

Having disposed of Bieganowski’s ineffective assistance claims, the Court now considers whether any of Bieganowski’s prosecutorial misconduct claims are properly before the Court.

IV. BIEGANOWSKI’S PROSECUTORIAL MISCONDUCT CLAIMS ARE NOT ENTITLED TO COLLATERAL REVIEW

In Ground Two of his Amended Motion to Vacate, Bieganowski alleges that the Government is guilty of prosecutorial misconduct. The Court now summarizes Bieganowski’s allegations. First, Bieganowski contends that the Government committed “forum shopping” (“Ground II(A)”).1169 Second, Bieganowski asserts that the prosecution did not comply with its duty under Giglio to disclose any incentives it provided to Raymond Espinoza, Chris Valdespino, Robert Griego, Rebecca Skalman-Ortiz, Stephen Untersee, George Lozano, and Sonia Morales in return for their cooperation with the Government’s investigation (“Ground II(B)”).1170 Third, Bieganowski asserts that the prosecution did not provide Jencks Act material for thirty-six individuals (“Ground II(C)”).1171 Fourth, Bieganowski avers that the Government did not disclose “secret meetings” between Agent Griego and Rose Goodlow and between Agent Griego and Yvette Renteria (“Ground II(D)”).1172 Fifth, Bieganowski alleges that Agent Griego intimidated and harassed Bonnie Cortez, Elizabeth Cedillos, Tony Duarte, Angela McKinley, Howard Lee, Diana Rodriquez, and others whom Bieganowski declines to identify (“Ground II(E)”).1173 Sixth, Bieganowski accuses Agent Griego of threatening Bieganowski’s life (“Ground II(F)”).1174 Seventh, Bieganowski contends that the Government attempted to influence the outcome of the trial through witchcraft (“Ground II(G)”).1175 Eighth, Bieganowski asserts that National Insurance Crime Bureau Agent J.C. Rhodes and Agent Griego were responsible for Roberts being struck by a car before Bieganowski’s trial (“Ground (H)”).1176 Ninth, Bieganowski charges Agent Griego with lying under oath (“Ground II(I)”).1177 Ninth, Bieganowski accuses the Government of introducing the false hearsay testimony of Rose Goodlow, Maria Pragner, Yvette Renteria, Rene Moreno at Bieganowski’s detention hearing in order to deny Bieganowski bond (“Ground II(J)(1)”).1178 Tenth, Bieganowski accuses trial witnesses Rene Moreno, Gina Macias, Ann Salo, Marie McIntosh, Sandra Olivares, George Lozano, Maribel Mata-Cordova, Wendy Murillo, Lucy Campos, and Treasury Agent Fonda Hivic with perjury and asserts that the Government knowingly sponsored these witnesses’ false trial testimony (“Ground II(J)(2)”).1179 Lastly, Bieganowski charges Assistant United States Attorney Debra Kanof with various instances of misconduct (Ground II(J)(3)”).1180

*81 In response, the Government argues that Bieganowski’s prosecutorial misconduct claims represented in Ground Two of his Amended Motion to Vacate are barred from review.1181 That is, the Government contends that, although Bieganowski could have done so, he failed to raise his prosecutorial misconduct claims on direct appeal and has not met the cause-and-prejudice standard which would entitle his prosecutorial claims to collateral review.1182 With the procedural default principles articulated in Part II of this Memorandum Opinion in mind, the Court now considers Bieganowski’s prosecutorial misconduct claims in greater detail, to determine whether his arguments are properly before it.

A. The Government Committed Forum Shopping

1. The Parties’ Arguments

Bieganowski states that, from the mid-1990s to the early 2000s, the Government prosecuted three physicians in the Western District of Texas, El Paso Division, including himself, for medical fraud.1183 Bieganowski asserts that Magistrate Judge Richard P. Mesa presided over bond proceedings in each case and that the undersigned district judge presided over all three trials.1184 From this premise, Bieganowski concludes that the Government committed “forum shopping,” which, according to Bieganowski, violated his right to due process of law.1185 The Government responds that Bieganowski has procedurally defaulted his forum-shopping claim by failing to raise it on direct appeal and has not demonstrated cause and prejudice to overcome the procedural hurdle to review.1186 Alternatively, the Government argues that Bieganowski’s forum-shopping claim lacks merit.1187

2. Discussion

The Court understands Bieganowski to argue that the prosecution attempted to steer its case to Judge Mesa for bond proceedings and to the undersigned district judge for trial. It further understands Bieganowski to allege that the prosecution did so because it believed, based on the outcome of two prior medical billing fraud cases in which the judges presided, that Judge Mesa and the undersigned district judge would view the Government’s case favorably.

After review, the Court finds that Bieganowski has failed to establish either cause or prejudice, and is thus not entitled to have his claim considered on collateral review. All the facts and circumstances underpinning Bieganowski’s allegation were available to him before trial, and Bieganowski has failed to show that any factor independent of the defense impeded him from previously and fully litigating the claim’s merits either before trial or on direct appeal. The Court additionally concludes that Bieganowski could not show prejudice even if he could show cause. Although there is a factual basis for Bieganowski’s assertion that the undersigned district judge presided over the medical fraud trials to which he alludes, Bieganowski neglects to mention that the Government failed to convict defendant Anthony Valdez.1188 This fact alone, while not dispositive, tends to undermine Bieganowski’s argument that the Government expected a sympathetic tribunal. More significantly, as the Government observes, in the Western District of Texas, the District Clerk assigns criminal cases to district judges in rotating order at the time of indictment.1189 Neither the United States Attorney nor the district judges in the Western District participate in this neutral case assignment system. The Court also takes judicial notice that magistrate judges in the Western District of Texas, El Paso Division, receive cases based on a rotating duty-week assignment. Bieganowski has made no showing whatsoever that the prosecution in this case somehow attempted to interfere with the District Clerk’s routine and neutral method of assigning cases. For the reasons discussed above, the Court concludes that Bieganowski is not entitled to collateral review of his claim that the Government committed forum-shopping.

B. The Government Violated Its Duties Under Brady and Giglio

1. The Parties’ Arguments

*82 Bieganowski contends that the Government did not disclose police reports concerning the following individuals: (1) Raymond Espinoza; (2) Chris Valdespino; (3) Robert Griego; (4) Rebecca Ortiz; (5) Stephen Untersee; (6) George Lozano; and (7) Sonia Morales.1190 Bieganowski also alleges that the Government assisted witness Rene Moreno in buying a new car, buying a new home, and in obtaining a new job, but did not report the alleged inducements to the defense.1191 Bieganowski argues that the Government thereby violated its duties under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).1192 Although Bieganowski does not expressly characterize his argument as stating a Brady violation, Bieganowski additionally alleges that the Government failed to disclose the fact that FBI Agent James Griego met with Rose Goodlow, Maria Pragner, and Yvette Renteria.1193

The Government answers that Bieganowski’s claim is procedurally barred from review.1194 The Government further avers that it is not aware that any such police reports exist;1195 that Bieganowski has failed to come forward with any evidence, other than his own conclusory assertion, that such reports exist;1196 and that the police reports, if they in fact exist, do not necessarily represent Brady or Giglio material.1197 The Government does not address Bieganowski’s Giglio allegation that it provided inducements to Rene Moreno to testify, but did not disclose the inducements to the defense. The Government also fails to address Bieganowski’s arguments concerning Agent James Griego’s meeting with Goodlow, Maria Pragner, and Renteria.

2. The Applicable Legal Standard

The Court has articulated the Brady standard elsewhere in this Memorandum Opinion, although not in the context of the cause-and-prejudice requirement for collateral review. The Court therefore reiterates the standard and sets forth the cause-and-prejudice inquiry regarding Brady claims. As the Court has noted, the prosecution’s suppression of evidence favorable to the accused denies him due process of law when the evidence is material either to guilt or innocence, or to punishment, regardless of whether the accused specifically requests the information and the prosecution’s good or bad faith.1198 The three essential elements of a Brady prosecutorial misconduct claim are: (1) the evidence at issue must be favor the accused, either because it is exculpatory or impeaching; (2) that government must have willfully or inadvertently suppressed the evidence, and (3) the exculpatory or impeaching evidence must be sufficiently material such that prejudice to the defense ensued from its suppression.1199 A Giglio allegation, which concerns non-disclosure of inducements given to a witness in exchange for witness’s testimony, merely represents a subspecies of a Brady claim.1200 The “cause and prejudice” inquiry regarding a Brady claim parallels two of the three components of the alleged Brady violation itself.1201 “Corresponding to the second Brady component (evidence suppressed by the [Government] ),” a petitioner shows “cause” when the reason for his failure to develop facts in trial proceedings was the Government’s suppression of relevant evidence.1202 “Coincident with the third Brady component (prejudice), prejudice within the compass of the ‘cause and prejudice’ requirement exists when the suppressed evidence is ‘material’ for Brady purposes.”1203

*83 Evidence which is as equally available to defense counsel exercising diligence as it is to the prosecution cannot be withheld or suppressed within the meaning of Brady.1204 In other words, a criminal defendant cannot establish “suppression” within Brady’s meaning if the defendant either actually knew or should have known the essential facts which would permit him to take advantage of the evidence at issue, or if the defendant could have learned the essential facts by exercising reasonable diligence.1205 The materiality inquiry “is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions.”1206 Rather, “the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”1207

3. Discussion

Here, the Court finds that Bieganowski has failed to show either Government suppression of evidence or prejudice. Turning first to the allegedly suppressed police reports, the Court finds that Bieganowski has come forward with no evidence whatsoever suggesting that the reports in question actually exist, much less with any evidence suggesting that the Government possessed or suppressed the documents. Further, assuming for purposes of argument that the reports do exist, Bieganowski has not established their materiality. Neither Raymond Espinoza nor Chris Valdespino nor Sonia Morales testified at trial; thus, Bieganowski has failed to demonstrate how police reports relating to the latter individuals would have been relevant at his trial. On the other hand, Robert Griego, Rebecca Ortiz, and George Lozano did testify at Bieganowski’s trial. Therefore, a police report relating to one of these individuals might conceivably assist the defense. However, Bieganowski gives the Court no hint of the alleged reports’ contents or the context in which they were purportedly prepared. In sum, the Court finds Bieganowski has failed to make even a threshold showing that the reports exist or that the Government suppressed the documents. More importantly, Bieganowski has not explained the reports’ value to his defense.

Turning to Bieganowski’s Giglio claim concerning Rene Moreno, the Court find that Bieganowski has similarly failed to establish cause and prejudice. Although Bieganowski claims that the Government provided Rene Moreno with certain tangible and intangible incentives to testify, but did not disclose the inducements at trial, Bieganowski has failed to come forward with any evidence other than rank speculation and hearsay in support of his allegation.

To the extent Bieganowski contends that the Government suppressed evidence that FBI Agent James Griego met with Rose Goodlow, Yvette Renteria, and Maria Pragner before Bieganowski’s indictment, the Court finds that Bieganowski has again failed to establish suppression or materiality. As proof of Agent Griego’s meetings with Goodlow and Renteria, Bieganowski’s employees, Bieganowski offers Agent Griego’s testimony at Bieganowski’s bond hearing on August 11, 1998.1208 Even assuming that defense counsel did not know or guess from the Indictment that the Government had been speaking to Bieganowski’s patients and employees as part of its investigation, by the time Agent Griego testified at the bond hearing, the information regarding his meetings with Goodlow and Renteria became fully available to the defense.

*84 Bieganowski lastly alleges that the Government did not disclose the fact that Agent Griego met with Maria Pragner, Bieganowski’s former patient. In support of the latter claim, Bieganowski asserts that, at the same bond hearing, Bieganowski’s former attorney, James Darnell, offered Naomi Garcia’s affidavit.1209 In her affidavit, which is dated January 2, 1998, Garcia identifies herself as Bieganowski’s former patient and Gustavo Diaz’s girlfriend.1210 Concerning Maria Pragner’s meetings with Agent Griego, Garcia states:

Maria told me on several occasions that an FBI agent named James Griego was contacting her on a regular basis and asking questions about Dr. Bieganowski. She told me that he would drive her up to Trans-Mountain Road. He would park the car and ask her questions about Dr. Bieganowski and activities at the clinic. I never saw the FBI Agent but Maria talked a lot about him.1211

The Court observes that Naomi Garcia’s statements concerning Maria Pragner’s communications are hearsay to the extent Bieganowski offers Garcia’s statements to prove the truth of the matter asserted. However, putting the hearsay question aside and accepting the affidavit’s contents at face value, it does nothing more than establish that Agent Griego met with Pragner as part of the Government’s investigation. Garcia’s affidavit does not show that the Government suppressed this information within the meaning of Brady. On the contrary, the date of Garcia’s affidavit, January 2, 1998, shows that the defense knew about Agent Griego’s meetings with Pragner no later than seven months before the Grand Jury indicted Bieganowski on August 4, 1998. The Court additionally notes the second document Bieganowski has collectively submitted to the Court as Affidavit 30. The second document is dated December 17, 1997, and on its face is a memorandum from James Darnell to Hank Webber, Darnell’s investigator, regarding Arthur Bieganowski.1212 In pertinent part, the memorandum reads, “On December 1, 1997, Debra Kanof informed me that Maria Pragner, a witch, had indicated that Dr. Bieganowski ‘goons’ threatened her about testifying or giving information about Dr. Bieganowski.”1213 The record shows that Debra Kanof is one of the three assistant United States Attorneys who tried Bieganowski’s case. As the Court has previously discussed, the record also shows that the Grand Jury did not indict Bieganowski until August 4, 1998, some eight months after the date of the aforementioned memorandum. Garcia’s affidavit and the memorandum clearly establish that Bieganowski had all the essential facts regarding Agent’s Griego’s contact with Pragner well before the Government even charged him with a crime. In light of these circumstances, the Court finds that Bieganowski’s claim that the Government violated its duties under Brady and Giglio is not entitled to collateral review.

C. The Government Failed to Disclose Jencks Act Materials

1. The Parties’ Arguments

*85 Bieganowski argues that the Government violated its statutory duty under 18 U.S.C. § 3500, otherwise known as the Jencks Act.1214 Specifically, Bieganowski asserts that the Jencks Act required the Government to provide the defense with FBI Form 302 reports1215 for the following individuals: (1) Grace Castro; (2) Mary Castillo; (3) Diana Rodriguez; (4) Wendy Murillo; (5) Elaine Mendez; (6) Elizabeth Cedillos; (7) Sonia Morales; (8) Tony Duarte; (9) Itzel Granados; (10) Rose Goodlow; (11) Maria Pragner; (12) Yvette Renteria; (13) Laura Tovar; (14) Victor Bieganowski; (15) Raymond Espinoza; (16) Bertha Rojo-Hernandez; (17) Dolores Gutierrez; (18) Patricia Velez; (19) Rebecca Ortiz; (20) Phillip Osborne; (21) Rosa Maria Garcia; (22) Pete Tope; (23) Larry Gibbs; (24) Ian Goodall; (25) Clive Harris; (26) Martin Heitzman, M.D.; (27) William Follet, M.D.; (28) Lynn Neill, M.D.; (29) Alice Cano; (30) Elizabeth Delgado; (31) David Elias; (32) Miguel Hernandez; (33) Raymundo Gallego; (34) Rudolfo Gallegos; (35) Carlos Cervantes; and (36) Manuel Carillo.1216 The Government contends that Bieganowski’s claim is procedurally barred. Alternatively, the Government asserts that Bieganowski’s claim lacks merit, because the Government provided all Jencks Act material to the defense that the statute required.1217

2. Discussion

The Court finds that the facts underpinning Bieganowski’s Jencks Act claim were or should have been known to him at trial. Thus, Bieganowski could have litigated this aspect of his prosecutorial misconduct claim in a direct appeal, but failed to do so.1218 Therefore, Bieganowski may not raise his Jencks Act claim for the first time in his Amended Motion to Vacate unless he demonstrates cause for his default and prejudice flowing from it. After due consideration, the Court concludes that Bieganowski has not met his burden. As an initial matter, Bieganowski has not shown that any factor external to the defense prevented him from litigating this issue in a direct appeal. More significantly, Bieganowski has not demonstrated prejudice, for the reasons discussed below.

Section 3500 reads, in pertinent part,

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.1219

Under the plain terms of the statute, the Jencks Act required the Government to provide statements of Government witnesses who actually testified at trial, after the witness testified. Turning to the thirty-six individuals that Bieganowski names in his Jencks Act claim, the Court notes that the Government called only eight of them to testify against Bieganowski, specifically Wendy Murillo, Elizabeth Cedillos, Bertha Rojo-Hernandez, Dolores Gutierrez, Patricia Velez, Rebecca Ortiz, Phillip Osborne, and Rosa Maria Garcia.1220 Thus, Bieganowski’s prosecutorial misconduct claim regarding the remaining twenty-eight individuals, who either did not testify at all or testified as defense witnesses, fails immediately. As to the eight individuals who testified for the Government, the Court notes that Bieganowski has not shown that the Form 302 reports in question purport to be verbatim transcripts of what the witnesses said to FBI agents or that the witnesses ever adopted the reports. Without such a showing, the Court finds that the Form 302 reports in question are not “statements” within the Jencks Act’s meaning.1221 In addition, it appears that, as a courtesy, the Government gave the defense access to Form 302 reports in its possession for many, if not most, of the Government’s witnesses.1222 Assuming for purposes of argument that the Form 302 reports were covered by the Jencks Act, Bieganowski still cannot prevail on his claim because he has failed to show prejudice.1223 That is, Bieganowski has not shown that the witnesses in question offered trial testimony that materially varied from the information reflected in their Form 302 reports, if any. Because the Court concludes that Bieganowski has failed to establish either cause or prejudice regarding his failure to raise his Jencks Act claim on direct appeal, the Court finds that he is not entitled to collateral review respecting this issue.

D. Agent Griego Coerced Government Witnesses Elizabeth Cedillos and Angela McKinley Into Giving False Testimony at Trial

1. The Parties’ Arguments

*86 The Court understands Bieganowski to argue that Agent Griego coerced Government witnesses Elizabeth Cedillos and Angela McKinley, Bieganowski’s former employees, into testifying falsely at trial.1224 The Court further understands Bieganowski to assert that the prosecutors in this matter knew of Agent Griego’s alleged conduct and also knew that the witnesses gave allegedly false testimony at trial as a result of Agent Griego’s alleged actions.1225 The Government responds that Bieganowski had ample opportunity to assert the latter claim when he testified at trial, but failed to do so.1226 The Government also argues that Bieganowski has failed to come forward with any credible evidence in support of his claim that Agent Griego intimidated Cedillos and McKinley.1227

2. Discussion

The Court first considers whether Bieganowski has shown cause for failing to raise his instant claim on direct appeal. Although it appears that the facts and circumstances necessary to bring this claim on direct appeal were available to Bieganowski at the time of his trial, the Court will resolve any doubts on that score in Bieganowski’s favor. However, the Court’s conclusion that Bieganowski has arguably satisfied the “cause” prong of the cause and prejudice standard does not end its inquiry. After considering the evidence Bieganowski offers to bolster his present claim, for the reasons discussed below, the Court concludes that Bieganowski has not satisfied the “prejudice” prong of the cause-and-prejudice test.

In support of his present allegation that Agent Griego intimidated Cedillos and McKinley and coerced false testimony from them, Bieganowski offers affidavits from these two witnesses.1228 The Court has carefully examined the aforementioned affidavits and finds that they do not support Bieganowski’s contention that Agent Griego acted improperly or Bieganowski’s assertion that Cedillos and McKinley testified falsely at trial. A court must set aside a defendant’s conviction where the defendant establishes that the Government knowingly used perjured testimony or used testimony that it should have known was untruthful and there is any reasonable likelihood that the false testimony could have affected the jury’s judgment.1229 Here, although Cedillos and McKinley both cast aspersions on other prosecution witnesses’ trial testimony, neither Cedillos nor McKinley expressly recants her own trial testimony against Bieganowski. Thus, as a threshold matter, neither affidavit supports Bieganowski’s claim that Cedillos and McKinley gave perjured testimony. In addition, neither Cedillos nor McKinley allege that Agent Griego encouraged them to testify falsely. In the portion of Cedillos’s affidavit discussing her contact with Agent Griego, Cedillos states:

I was interviewed by the government including the prosecutor Debra Kanof, FBI agent James Griego, and other agents and an insurance company investigator. I felt very intimidated by them, They knew everything about me and wanted me to tell them what Dr. Bieganowski had given me-gifts or money to which I said nothing. They did not want to believe me and kept pressing me. I told them I never thought Dr. Bieganowski did anything wrong, nor could I give them any evidence of his wrongdoing.1230

*87 McKinley offers this account of her communications with Griego:

I originally did not want to testify at the government trial of Dr. Bieganowski, but Mr. James Griego (FBI agent) would not leave me alone. I told them I did not know anything bad about Dr. Bieganowski, but he kept insisting I talk to them, I guess because they knew I did Dr. Bieganowski’s personal affairs. Mr. Griego kept harassing me, calling me at work at least four to five times, trying to pressure me to talk to him. I finally relented.1231

The Court notes that the affidavits are consistent in that Cedillos and McKinley both state that Agent Griego aggressively sought their cooperation with the Government’s investigation and prosecution of Bieganowski. However, nothing in their affidavits suggest that Agent Griego departed from the realm of “constitutional, zealous law enforcement” into “outrageous, unconstitutional conduct that offends the fundamental fairness of our system.”1232 Neither Cedillos nor McKinley asserts that Agent Griego pressured her to testify in any particular way, other than to respond truthfully to the Government’s questions. In sum, the Court finds that, even if Bieganowski has demonstrated cause for failing to raise his instant claim on direct appeal, he has not demonstrated prejudice. Bieganowski has fallen well-short of showing that either Cedillos or McKinley testified falsely or that Agent Griego coerced these witnesses into perjuring themselves. Because Bieganowski has not met both prongs of the cause-and-prejudice test, the Court concludes that his instant claim is not entitled to collateral review.

E. Agent Griego Intimidated Defense Witnesses

1. The Parties’ Arguments

Bieganowski argues that Agent Griego attempted to intimidate Bonnie Cortez, Tony Duarte, Howard Lee, Diana Rodriquez, and other individuals, whom Bieganowski declines to identify, to either prevent them from testifying in Bieganowski’s defense or to coerce them into testifying for the Government.1233 As with Bieganowski’s claim that Agent Griego coerced Elizabeth Cedillos and Angela McKinley to perjure themselves, the Government responds that Bieganowski has failed to come forward with any credible evidence in support of his claim that Agent Griego intimidated witnesses.1234 After review, the Court finds that, as to each of the aforementioned individuals, Bieganowski has failed to meet one or both aspects of the cause-and-prejudice test, and therefore his claim is not entitled to collateral review.

2. Legal Standard

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to present witnesses to establish his defense without fearing that the Government will retaliate against those witnesses.1235 The Fifth Amendment, moreover, prohibits the Government from improperly interfering with a defense witness’s decision to testify.1236 Thus, if the Government substantially interferes with a defense witness’s choice to testify, the Government may violate the defendant’s due process rights.1237

3. Discussion

*88 The Court will analyze Bieganowski’s claim with respect to each individual he names above.

a. Bonnie Cortez

The Court first evaluates whether, as to Cortez, Bieganowski has shown cause for failing to raise his claim in his direct appeal. It appears that the facts and circumstances necessary to raise the claim were known or could have been discovered by Bieganowski with an exercise of due diligence at the time of trial. In an abundance of caution, however, the Court will resolve any doubts on that account in Bieganowski’s favor. For the reasons discussed below, the Court nonetheless concludes that Bieganowski’s claim concerning Cortez is not entitled to collateral review because he has failed to demonstrate prejudice.

In support of his claim, Bieganowski offers Cortez’s affidavit. Therein, Cortez states that, after the FBI searched Bieganowski’s offices but before Bieganowski’s arrest, Agent Griego called her at work.1238 Cortez agreed to meet the agent at her home.1239 Cortez proceeds to describe the meeting:

It was clear to me from the outset of our interview that FBI Agent James Griego wanted me to say bad things about Dr. Bieganowski. He started by asking if my house was bought for me by Dr. Bieganowski just like Dr. Bieganowski did for [Guadalupe] Rodriguez. Then I was asked whether the flowers that were on my table were from Dr. Bieganowski. They were from my mother. Then I was asked whether an attorney had been provided to me to tell me how to answer questions. These types of questions seemed a bit outrageous and really didn’t deserve answering. I however told them no, no, and yes, I had told Dr. Bieganowski’s office you were coming here to see me and declined the offer of an attorney because I had nothing to hide. The questioning continued and it became apparent that FBI Agent James Griego was trying hard to get me to say bad things about Dr, Bieganowski but I did not feel Dr. Bieganowski had done bad things. For example, he tried to get me to say that I witnesses Dr. Bieganowski and Mr. Diaz filling out false fee tickets in the clinic, when I went to see Dr. Bieganowski to get checks signed. I said I frequently went to see Dr. Bieganowski for that reason but never saw anything like that while I was waiting for Dr. Bieganowski. That made FBI Agent James Griego mad because I would not lie for him, FBI Agent James Griego kept trying to convince me to say bad things, getting angrier and more impatient when I would not say what he wanted. In his anger and frustration, FBI Agent James Griego told me that Dr. Bieganowski and his brother Victor Bieganowski, came to El Paso to take advantage of minority people who were dumb and didn’t know what was going on.

FBI Agent James Griego also said Dr. Bieganowski hired people who were not very smart, and who had problems, so that he could take advantage of them and put things over on them. That was about the last straw for me, because I told him that Dr. Bieganowski hired good people and he also had a habit of hiring patients and other people who had real problems finding work and did this to help them-not to hurt them or take advantage of them.

*89 My husband, who was in another room listening to what was going on was very tempted to come in there and ask them to leave because what FBI Agent James Griego was doing was not right. FBI Agent James Griego seemed to take all of this about Dr, Bieganowski very personally and seemed to be willing to go to hurt Dr. Bieganowski whether it was the truth or not.1240

Although it is apparent that Cortez did not enjoy her interview with Agent Griego and did not particularly like the agent, nowhere in her affidavit does Cortez allege that Agent Griego attempted to dissuade her from testifying on Bieganowski’s behalf. Indeed, it is clear from Cortez’s own statements about the meeting’s timing (i.e., between the 1996 search of Bieganowski’s offices but before his arrest) that the case was still in the investigatory stages when Agent Griego interviewed her. It is thus manifest that, when Agent Griego interviewed Cortez, the Government had not yet even indicted Bieganowski and his co-defendants. Trial was not yet on the horizon. Further, Cortez does not allege that she had any subsequent contact with Agent Griego. The Court accordingly finds that Bieganowski has failed to show prejudice, because he has not demonstrated that Agent Griego attempted to intimidate Cortez or that Agent Griego’s conduct resulted in Cortez refusing to testify on Bieganowski’s behalf.

b. Tony Duarte

In support of his claim, Bieganowski offers an declaration, purportedly from Tony Duarte.1241 The unsigned and undated statement lacks any indicia of reliability. The Court concludes that Bieganowski has thus established neither cause nor prejudice, and his claim with respect to Duarte is not entitled to collateral review.

c. Howard Lee

To support his argument that Agent Griego attempted either to prevent Howard Lee, a local physician, from testifying on Bieganowski’s behalf or to coerce Lee in testifying for the Government, Bieganowski offers his investigator’s notes of an interview the investigator conducted with Elaine Mendez.1242 The notes are dated February 24, 2000.1243 The notes state that Mendez identified herself as Bieganowski’s former patient.1244 The notes continue, “Witness is know [sic ] Dr. Howard Lee’s patient, Lee told witness FBI interviewed him and tried to get him to say Dr. B paid him money for patients-not true would not go along with FBI.”1245

After due consideration, the Court finds that Bieganowski has not established cause or prejudice. The date of the notes, February 24, 2000, shows that Bieganowski had the information concerning the FBI’s alleged communications with Lee well before trial began, and thus there is no reason that Bieganowski could not have raised his present argument either at trial or on appeal. Bieganowski has moreover failed to establish prejudice, as the “evidence” he presents constitutes multiple hearsay and does not specifically implicate Agent Griego. Bieganowski has not come forward with an affidavit from Lee attesting to his interactions with investigating agents. Bieganowski has similarly failed to show that Agent Griego’s or any other government agent’s conduct prevented Lee for testifying on Bieganowski’s behalf.

d. Diana Rodriquez

*90 Bieganowski directs the Court to Exhibit LL of his Amended Motion to Vacate. That exhibit, on its face, purports to be notes taken by Bieganowski’s investigator, concerning an interview the investigator conducted with Diane Rodriquez.1246 The notes are dated February 24, 2000.1247 The notes state that Rodriguez is Bieganowski’s former employee.1248 The notes continue, “FBI interviewed this witness they tried to get her to state things that were not true or put words in her mouth, witness refused and stated nothing but positive information regarding Dr. B’s [sic ] practice and treatment of patients.”1249

After review, the Court finds that Bieganowski has not established cause for failing to raise his instant claim on direct appeal or prejudice. The date of the notes, February 24, 2000, shows that Bieganowski had the information concerning the FBI’s alleged communications with Rodriquez far in advance of trial, and therefore, there is no reason that Bieganowski could not have raised his present argument either at trial or on appeal. Bieganowski has moreover failed to establish prejudice, as the “evidence” he presents constitutes multiple hearsay and does not specifically implicate Agent Griego. Bieganowski has not come forward with an affidavit from Rodriquez concerning her interactions with investigating agents. Bieganowski has similarly failed to show that Agent Griego’s or any other government agent’s conduct prevented Rodriquez from testifying on Bieganowski’s behalf.

e. Unnamed Individuals

Bieganowski offers his own two-paragraph affidavit attesting that he has “become aware of multiple people who were intimidated and/or physically threatened by FBI Agent James Griego of the El Paso FBI office.”1250 Bieganowski states that he is withholding these individuals’ names because he is afraid that Agent Griego will resume “this behavior of intimidation and threats.”1251 Bieganowski’s vague and self-serving affidavit carries no evidentiary value. The Court accordingly concludes that Bieganowski has failed to show cause for failing to raise his instant claim at trial or on direct appeal, or prejudice.

F. Special Agent James Griego Threatened Bieganowski

Bieganowski also alleges that Agent Griego threatened him.1252 In support of his claim, Bieganowski offers two of his own affidavits.1253 In the first affidavit, Bieganowski relates that the FBI searched his offices in 1996.1254 His affidavit continues:

Thereafter, and before my arrest in 1998, I was informed by a person that FBI Agent James Griego had attended a party at which time Agent Griego discussed my case and stated unequivocally, that I had killed my wife and that he, Agent Griego, was “going to get me”. [sic ] ... This person had the distinct impression that Agent Griego was taking the case with me quite personally and seemed less than objective.1255

In his second affidavit, Bieganowski states that

I have become aware of a person who attended my trial in the Spring of 2000 ... This person contacted me unsolicited and told me that this person felt my life was in danger around the time of my trial.... Ths person overheard FBI Agent James Griego of the El Paso FBI office talking to another man, in the hallway of the courthouse building, during a recess in my trial ... This person heard FBI Agent James Griego state quite clearly and plainly to the other man, “If Dr. Bieganowski is not convicted in this case, I’ll take care of him myself.”... This person felt from the conversation that FBI Agent James Griego would make an attempt on my life if there was an acquittal in my case.1256

*91 The Court notes that Bieganowski’s megalomaniacal, self-serving allegations are completely unsubstantiated, based on nothing but rank hearsay within hearsay.1257 More importantly, even assuming that Bieganowski’s allegations were true, he has failed to show prejudice. To the extent Bieganowski is arguing that Agent Griego’s alleged threats deterred him from testifying, the record belies any such claim. Bieganowski testified in his own defense at trial. For the reasons discussed above, the Court finds that Bieganowski has failed to come forward with any reliable evidence that Agent Griego threatened him, and in the alternative, finds that Bieganowski has failed to show prejudice.

G. The Government Intended to Influence the Outcome of the Trial Through the Use of Witchcraft

Bieganowski alleges that unidentified witnesses would testify “that witchcraft was brought into the Courtroom and was present at the prosecutor’s table throughout the trial.”1258 Bieganowski further avers that Agent Griego and Maria Pragner, Bieganowski’s former patient, “conspired to bring this witchcraft into the Courtroom for the sole purpose to harm Dr. Bieganowski and to guarantee his conviction.”1259 Bieganowski explains that Pragner “is well known for practicing the Black Arts/Witchcraft.”1260 The “purpose of the Witchcraft,” Bieganowski says, “was to put a hex on myself, so that I would be convicted and my life destroyed.”1261 Specifically, Bieganowski alleges that an unnamed source approached Bieganowski after trial.1262 Bieganowski states that the unnamed source informed Bieganowski that the prosecutors’ table had a white rose on it throughout trial, and that a white rose is an object of witchcraft.1263 The Government responds that Bieganowski must be delusional.1264

The Court has afforded Bieganowski’s argument the degree of consideration it deserves, and concludes that his claim is patently frivolous. As a threshold issue, the Court notes that, as with so many of Bieganowski’s allegations, his present contention relies on rank hearsay from unidentified sources. Moreover, the Court enjoyed a unique vantage point from the bench to observe objects on the defense and prosecution tables. Despite its advantageous position, the Court has no independent recollection of a white rose (or any other flowers) being present on the Government’s table during trial. The Court further observes that it is extremely unlikely that there would have been room on the prosecution table for decorative floral arrangements, or even a single flower, given that the table had to accommodate the three assistant United States Attorneys assigned to this case, at least one of the FBI agents assigned to the case, their notes, and voluminous exhibits. The Court also notes that Bieganowski himself, who was present during trial and seated closer to the prosecutors’ table than any spectator in the gallery, does not claim that he ever saw a white rose. Putting aside the fact that Bieganowski has not established that a white rose was present, more importantly, Bieganowski has failed to demonstrate that a white rose has nefarious associations. Sometimes a cigar is just a cigar, and sometimes, a rose is merely a rose. Lastly and most fatal to his claim, Bieganowski has failed to show prejudice. The fact that the jury found Bieganowski and several of his co-defendants guilty does not establish that supernatural forces were at work during his trial or had any effect on the trial’s outcome.

H. National Insurance Crime Bureau Special Agent J.C. Rhodes and FBI Agent James Griego Arranged for Attorney Charles Roberts to Be Hit By a Car Before Bieganowski’s Trial

*92 As discussed elsewhere in this Memorandum Opinion, the record shows that a car struck Bieganowski’s second attorney, Charles Roberts, on June 17, 1999, approximately a month before Bieganowski’s trial was set to commence.1265 Roberts suffered significant physical injuries.1266 Bieganowski speculates that Roberts’s injuries were not due to an accident, but were rather the result of a premeditated attack coordinated by National Insurance Crime Bureau Special Agent J.C. Rhodes and FBI Agent James Griego.1267 In support of his claim, Bieganowski offers his own affidavit.1268 Therein, Bieganowski states that while he was confined in the Westchester County Jail in Valhalla, New York, receiving treatment for prostate cancer before trial began, he made several telephone calls to his wife.1269 Bieganowski avers that during those telephone calls, he told his wife that “a new witness with valuable information had been identified to Mr. Roberts.”1270 Bieganowski states that “this new information would shed new light on my case and the government’s allegations would suffer.”1271 Bieganowski then notes that “I returned to El Paso in the second week of June and shortly thereafter, Mr. Roberts was hit by an automobile under suspicious circumstances.”1272 Bieganowski thus concludes that Rhodes and Griego launched a clandestine attack on Roberts, which they designed to look like a hit-and-run pedestrian-motor vehicle accident.

The information Bieganowski cites in support of his claim was available to him well before trial began, and he has not shown that any factor independent of the defense precluded him from raising his claim at trial or on appeal. Bieganowski has therefore not demonstrated “cause” for his default. Bieganowski has similarly failed to show prejudice. Bieganowski offers no proof whatsoever in support of his scandalous and patently ridiculous allegation. He has therefore failed to make even a threshold showing of Government misconduct.

I. Two Federal Agents, Various Government Witnesses, and Assistant United States Attorney Debra Kanof Lied Before the Grand Jury and at Trial

Bieganowski contends that FBI Special Agent James Griego, United States Treasury Agent Fonda Hivic, various Government witnesses, and Assistant United States Attorney Debra Kanof, the lead prosecutor at Bieganowski’s trial, lied before the grand jury and at trial.1273 After due consideration, the Court finds that Bieganowski has not shown cause for failing to raise his present allegations on direct appeal. The Court similarly concludes that Bieganowski has not demonstrated prejudice, as his allegations are largely conclusory and manifest a misunderstanding of evidentiary rules in effect at different stages of the proceedings against him as well as investigating agents’ and the prosecution’s role in the adversarial process.

V. CERTIFICATE OF APPEALABILITY

To appeal the denial of a Motion to Vacate filed under 28 U.S.C. § 2255, the petitioner must obtain a Certificate of Appealability.1274 Appellate review of a habeas petition is moreover limited to the issues on which a CoA is granted.1275 In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to solely those issues on which CoA is granted.1276

*93 A CoA to appeal the denial of a Motion to Vacate shall be granted only upon “a substantial showing of the denial of a constitutional right.”1277 The showing necessary to obtain a CoA on a particular claim depends upon the manner in which the District Court has disposed of a claim. If the Court rejects a prisoner’s constitutional claim on the merits, he must then demonstrate that reasonable jurists could find the Court’s assessment of the constitutional claim to be debatable or wrong.1278 If the petitioner wishes to challenge the Court’s dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, he must satisfy two requirements.1279 First, the petitioner must demonstrate that jurists of reason would debate whether the petition states a valid constitutional claim.1280 Second, the petitioner must show that jurists of reason would debate whether the Court was correct in its procedural ruling.1281 This Court is authorized to address the propriety of granting a CoA sua sponte.1282

After considering the entire record and the Parties’ pleading, the Court concludes that jurists of reason could not debate whether Bieganowski has stated a valid claim for relief or whether a procedural ruling in this case is correct. Accordingly, the Court will deny Bieganowski a CoA regarding his claims.

VI. CONCLUSION & ORDER

For the reasons discussed above, the Court finds that Bieganowski is not entitled to relief regarding the claims he raises in his Amended Motion to Vacate. The Court additionally finds that Bieganowski is not entitled to a Certificate of Appealability. The Court accordingly enters the following Orders:

1. Petitioner Arthur Bieganowski’s pro se “Amended Memorandum and Brief in Support of Motion § 2255” [Docket No. 616], filed in the above-captioned cause on January 11, 2005, is hereby DENIED.

2. The Court DENIES Petitioner a Certificate of Appealability with respect to his claims.

3. All pending motions in this cause, if any, are DENIED AS MOOT.

SO ORDERED.

Footnotes

1

United States v. Bieganowski, 2

Id. at 295.

3

Bieganowski v. United States, 538 U.S. 1014, 123 S.Ct. 1956, 155 L.Ed.2d 851 (2003).

4

The Government challenged the timeliness of Bieganowski’s Original Motion to Vacate in a Motion to Dismiss filed on July 1, 2004. For the reasons discussed in its Order, dated July 20, 2004, denying the Government’s Motion to Dismiss, the Court determined that Bieganowski placed his Original Motion to Vacate in the prison mailing system no later than May 5, 2004. The Court therefore concluded that Bieganowski’s Original Motion to Vacate was timely filed under the prisoner mailbox rule. See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir.1998) (explaining that, for purposes of determining timeliness under the Anti-Terrorism and Effective Death Penalty Act of 1996, the filing date is the date on which the Petitioner placed his Motion to Vacate in the prison mail system).

5

For the reasons set forth in its Order, dated February 15, 2005, the Court concluded that certain claims Bieganowski raised in his Amended Motion to Vacate were time-barred and did not relate back to the claims he alleged in his Original Motion to Vacate. In its present Memorandum Opinion, the Court therefore discusses only Bieganowski’s claims that are properly before it.

6

United States v. Willis, 273 F.3d 592, 595 (5th Cir.2001); United States v. Shaid, 937 F.2d 228, 231-31 (5th Cir.1991).

7

United States v. Gaudet, 81 F.3d 585, 589 (5th Cir.1996) (internal quotations and citations omitted).

8

United States v. Seyfert, 67 F.3d 544, 546 (5th Cir.1995) (citations omitted).

9

Withrow v. Williams, 507 U.S. 680, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993).

10

See Shaid, 937 F.2d at 231 (“[A] collateral challenge may not do service for an appeal”).

11

Id. at 232.

12

United States v. Guerra, 94 F.3d 989, 993 (5th Cir.1996).

13

See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.1992) (stating that the general rule in the Fifth Circuit is that, except in rare instances where the record on direct appeal is adequate to evaluate such a challenge, an ineffective assistance of counsel claim cannot be resolved on direct appeal because no opportunity existed for the parties to develop the record on the merits of the allegations).

14

Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

15

The Government contends that Bieganowski’s prosecutorial misconduct claims are procedurally barred from collateral review. Resp’t’s Resp., Docket No. 671, at 90-91.

16

Wiggins, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

17

Wiggins, 539 U.S. at 521.

18

Id.

19

Id. (quoting Strickland, 466 U.S. at 688).

20

Strickland, 466 U.S. at 687-91.

21

See, e.g., Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (explaining the compelling policy considerations behind Strickland’s contemporary, rather than retrospective, assessment of counsel’s conduct); Burger v. Kemp, 483 U.S. 776, 789, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (stating that a fair assessment of attorney performance requires the court to make every effort to eliminate the distorting effect of hindsight and to evaluate counsel’s decisions based on the then-existing circumstances and counsel’s perspective at the time); Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.1997) (stating that the court will not find inadequate representation merely because, with the benefit of hindsight, it disagrees with counsel’s strategic choices).

22

Strickland, 466 U.S. at 690; Drew v. Collins, 964 F.2d 411, 422 (5th Cir.1992); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.1992).

23

See Boyle v. Johnson, 93 F.3d 180, 187-88 (5th Cir.1996) (holding that an attorney’s decision not to pursue a mental health defense or to present mitigating evidence concerning the defendant’s possible mental illness was reasonable where counsel feared that the jury would not view such testimony as mitigating and that the prosecution might respond to the testimony by presenting its own psychiatric testimony regarding the defendant’s violent tendencies); West v. Johnson, 92 F.3d 1385, 1406-09 (5th Cir.1996) (holding that a trial counsel’s failure to conduct further investigation into the defendant’s head injury and psychological problems was reasonable where interviews with the defendant and the defendant’s family failed to produce any helpful information); cf. Wiggins, 539 U.S. at 524 (holding that, in a capital case, counsel’s decision not to expand its mitigation-defense investigation beyond reviewing a presentence investigation report and Department of Social Services records, despite suggestions that additional, significant mitigating evidence existed, was unreasonable and fell below professional standards).

24

See Sones v. Hargett, 61 F.3d 410, 415 n. 5 (5th Cir.1995) (stating that counsel cannot be held deficient for failing to press a frivolous point); United States v. Gibson, 55 F.3d 173, 179 (5th Cir.1995) (explaining that the Sixth Amendment does not require counsel to file meritless motions); Smith v. Collins, 977 F.2d 951, 960 (5th Cir.1992) (noting that the defense of a criminal case is not an undertaking in which everything not prohibited is required, nor does it contemplate the employment of wholly unlimited time and resources).

25

See Sharp v. Johnson, 107 F.3d 282, 290 n. 28 (5th Cir.1997) (holding that clairvoyance is not a required attribute of effective representation).

26

Strickland, 466 U.S. at 691-92.

27

Id. at 692.

28

Id. at 694.

29

Id. at 700; Green, 116 F.3d at 1122; see also Burnett v. Collins, 982 F.2d 922, 928 (5th Cir.1993) (stating that the defendant bears the burden of proof on both prongs of the Strickland test).

30

Hoskins, 910 F.2d at 311; Thomas, 812 F.2d at 229-30.

31

See Strickland, 466 U.S. at 699 (explaining that it is not necessary for a court evaluating the merits of an ineffective assistance claim to analyze the components of the applicable test in any particular order or to evaluate both components if the petitioner fails to carry his burden as to one aspect of the test); Black v. Collins, 962 F.2d 394, 401 (5th Cir.1992) (stating that a court evaluating a claim of ineffective assistance need not address the components of the applicable test in order, and if a defendant fails to carry his burden as to one component of the test, the court need not address the other component); Pierce, 959 F.2d at 1302 (asserting that an insufficient showing of prejudice pretermits addressing the adequacy prong of the Strickland test for ineffective assistance).

32

See Kinnamon v. Scott, 40 F.3d 731, 735 (5th Cir.1994) (holding that a petitioner’s speculative complaints of ineffective assistance by appellate counsel did not warrant federal habeas relief).

33

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 25.

34

Id. at 25-26.

35

Id. at 26.

36

Id. at 37.

37

Id. at 37-40.

38

Id. at 38.

39

Id. at 39-40.

40

Id. at 38. Regarding his argument that the Court misapplied the restitution statute, the Court also understands Bieganowski to argue that 18 U.S.C. § 3663A is unconstitutional under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2005), as extended to federal sentencing in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id. at 41-42. However, Booker does not apply retroactively to Bieganowski’s already final judgment, and in any event, Bieganowski may not raise this claim for the first time in a collateral appeal. See United States v. Gentry, 432 F.3d 600, 605-06 (5th Cir.2005) (holding that Booker does not apply retroactively to initial or successive motions pursuant to 28 U.S.C. § 2255).

41

United States v. Corn, 836 F.2d 889, 895 (5th Cir.1988).

42

Id. Before the VWPA’s effective date, a district court could order restitution only as a condition of probation. Id.

43

Id. at 896.

44

Id.

45

Richards, 204 F.3d at 212.

46

Id.

47

Id.

48

Id. at 213.

49

Id. at 212.

50

Id.; United States v. Greer, 137 F.3d 247, 252 (5th Cir.1998).

51

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 43.

52

Id.

53

Id.

54

Id. at 44.

55

Id. at 45-50.

56

Resp’t’s Resp., Docket No. 671, at 18.

57

Id. at 19.

58

Id. at 18-22.

59

Id. at 19.

60

Id. at 29.

61

Id.

62

Id.

63

Id. at 22.

64

See Schwander v. Blackburn, 750 F.2d 494, 499 (5th Cir.1985) (asserting that, by itself, a short period of consultation between a defendant and his attorney cannot support an ineffective assistance of counsel claim); Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984) (stating that brevity of consultation time between a defendant and his counsel, alone, cannot support a claim of ineffective assistance of counsel); Jones v. Wainwright, 604 F.2d 414, 416 (5th Cir.1979) (explaining that effective assistance may be provided even if counsel spends only a short time with his client).

65

Def.’s Mot. for Continuance of Trial, Docket No. 135, at 4 ¶ II.E.

66

Id.

67

Id. at 1 ¶ I.

68

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 51-53.

69

Resp’t’s Resp., Docket No. 671, at 30.

70

Id.

71

Id.

72

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 53.

73

Id.

74

Tr., Vol. 9 of 43, at 6-11.

75

Id. at 7.

76

Id. at 9.

77

Id.

78

Id.

79

Id.

80

Tr., Vol. 10 of 43, at 50-249.

81

Id. at 52; see also Tr., Vol. 10 of 43, at 219-220 (test. of FBI Sp. Agent Luz Sanabria-Garcia).

82

Id. at 54-61.

83

Id. at 54.

84

Id.

85

Id.

86

Tr., Vol. 10 of 43, at 118. The Government disputed Roberts’s statement, asserting that it had, in fact, provided Roberts with copies of all audio tapes it possessed. Id.

87

Roberts’s statement about not having the audio tapes occurred during a discussion regarding whether Roberts would play the audio tapes for the jury or have the FBI agents testify regarding the tapes’ contents, or both. Id. at 115-19. The prosecutor commented that the tapes contained hours of irrelevant material, reflecting time the agents spent waiting for Bieganowski and his staff to see them. Id. at 117. Roberts asked the Court for a recess so that he could determine where, specifically, on the tapes, the relevant material began. Id. at 118.

88

At one point during the cross-examination, Roberts challenged Agent Lopez’s testimony that Agent Lopez and Agent Garcia repeatedly told Bieganowski and his staff that they were not injured. Id. at 141-42. Roberts specifically noted that the transcripts mention an accident report. Id. When the prosecutor protested that Roberts was assuming facts not in evidence (i.e., because Roberts had allegedly not shown that the fabricated police and accident reports were included in Agents Lopez and Garcia’s fictitious medical records), Roberts responded that Robert Griego, Bieganowski’s solicitor, discussed the accident report in the transcripts. Id. Roberts could not have known this fact without having reviewed the transcripts.

89

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 54.

90

Id.

91

Id.

92

Id.

93

Id.

94

Id.

95

Id.

96

Tr., Vol. 10 of 43, at 125.

97

Id.

98

Id.

99

Id.

100

Id. at 125-26.

101

Id. at 126.

102

Id.

103

Id. at 126-33.

104

Id. at 23-37.

105

Id. at 24-25.

106

Id. at 31-35 (cross-exam.); 36-37 (recross-exam.).

107

Id. at 33.

108

Tr., Vol. 20 of 43, at 34-37.

109

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 55.

110

Id.

111

Id.

112

Tr., Vol. 10 of 43, at 213.

113

Id.

114

Id. at 214.

115

Id. at 215.

116

Id. at 214-15.

117

Id. at 215.

118

Id.

119

Id.

120

Id.

121

Id. at 216-17.

122

Id. at 218.

123

Id. at 244.

124

Id. at 245-47.

125

Id. at 246.

126

Pet’r’s Am. Mot. to Vacate, Docket No. 616. at 55.

127

Id.

128

Id.

129

Id.

130

Id.

131

Id. at 55-56.

132

Id. at 56.

133

Id.

134

Id. at 230.

135

Id. at 231.

136

Id.

137

Id. at 275.

138

Id. at 275-76.

139

Id. at 223, 224.

140

Tr., Volume 9 of 43, at 203-04.

141

Rosa Maribel Mata-Cordova, Bieganowski’s former office manager, testified that Bieganowski diagnosed most of his automobile accident patients with cervical thoracic lumbar strain and TMJ syndrome. Tr., Vol. 20 of 43, at 253. George Lozano, a former employee, also testified that Bieganowski diagnosed virtually all automobile accident patients with cervical thoracic lumbar strain and TMJ syndrome. Tr., Vol. 20 of 43, at 157.

142

Tr., Vol. 34 of 43, at 186 (test. of A. Bieganowski, concerning patient Alejandro M. Del Campo), 216-17 (test. of A. Bieganowski, concerning patient Deborah Hernandez).

143

Id. at 171-263.

144

Tr., Vol. 28 of 43, at 22.

145

Id.

146

Id. at 57.

147

Id. at 56.

148

Id. at 56-57.

149

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 56.

150

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 5 (coll.affs.).

151

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 56.

152

Tr., Volume 12 of 43, at 163.

153

Id. at 240.

154

Id. at 163, 167.

155

Id. at 165, 166.

156

Id. at 165-66.

157

Id. at 165.

158

Id. at 168.

159

Id. at 168, 171.

160

Id.

161

Id. at 168-69.

162

Id.

163

Id. at 186.

164

Id. at 186-87.

165

Id. at 189-90.

166

Id. at 190-91.

167

Id. at 191-92.

168

Id. at 191-92; 262-65.

169

Id. at 192.

170

Id. at 193, 194.

171

Id. at 197.

172

Id. at 250; 289.

173

Id. at 289.

174

Id. at 290.

175

Id.

176

Id. at 291.

177

Id. at 294.

178

Id. at 296.

179

Id. at 301.

180

Id. at 303.

181

Tr., Vol. 13 of 43, at 24.

182

Id. at 44.

183

Id. at 47.

184

Id. at 48.

185

Id. at 50.

186

Id.

187

Id. at 56.

188

Id. at 63.

189

Id. at 64.

190

Id. at 65.

191

Id.

192

Id. at 69.

193

Id. at 70.

194

Id.

195

Id.

196

Id. at 71.

197

Id. at 73-75.

198

Id. at 75.

199

Id.

200

Id. at 78.

201

Id. at 83.

202

Id.

203

Id. at 85.

204

Id.

205

Id. at 86.

206

Id. at 89.

207

Id.

208

Id. at 95.

209

Id. at 96.

210

Id.

211

Id. at 97.

212

Id. at 98-99.

213

Id. at 111.

214

Id. at 116.

215

Tr., Vol. 12 of 43, at 190-303, Vol. 13. of 43, at 24-116.

216

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 5 (coll.affs.), Aff. of R. Cardoza at ¶ 4; Aff. of U. Granados at ¶ 4; Aff. of M. Ramirez at ¶ 4; Aff. of C. Sanchez at ¶ 4.

217

Tr., Vol. 29 of 43, at 151-67.

218

Tr., Vol. 29 of 43, at 124-51 (test. of L. Franco); 178-98 (test. of M. Walton).

219

Tr., Vol. 29 of 43, at 140-41.

220

Id. at 150.

221

Id. at 141.

222

Id. at 147-49.

223

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 5 (coll.affs.), Aff. of M.H. Walton, at ¶ 2.

224

Tr., Vol. 29 of 43, at 141.

225

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. Vol. I, Aff. 4 (Aff. of I. Granados).

226

Tr., Vol. 38 of 43, at 66-67.

227

Id.

228

Id. at 57-58.

229

Tr., Vol. 16 of 43, at 6-7.

230

Id.

231

Tr., Vol. 30 of 43, at 161-203.

232

Id.

233

Id. at 58.

234

Tr., Vol. 14 of 43, at 8.

235

Tr., Vol. 14 of 43, at 77.

236

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 58.

237

Tr., Vol, 15 of 43, at 24.

238

Id. at 25.

239

Id.

240

Pet’r’s Am. Mot. to Vacate, Docket No. 616. at 59, 100-101.

241

Id.

242

Id.

243

Id. at 59-60.

244

Id. at 60.

245

Id.

246

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 6.

247

Id. at ¶ 33.

248

Tr., Vol. 15 of 43, at 41.

249

Id. at 41-42.

250

Id. at 43.

251

Id. at 41-42.

252

Id. at 45-46.

253

Id. at 48-52.

254

Id.

255

Id.

256

Id. at 53.

257

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 6 (Aff. of E. Cedillos).

258

Tr., Vol. 15 of 43, at 53.

259

Id.

260

Id.

261

Kinnamon, 40 F.3d at 735.

262

Exhibit W purports to be the notes taken by Bieganowski’s former counsel or that attorney’s investigator, regarding an interview with Lei Zheng. In pertinent part, Exhibit W reads:

[Zheng] had been working for Arroyo. They both began working for Dr. B. Each spent a couple of days working @ Dr. D.’s office & he paid them both 67k. Then, Dr. B told Zheng that he wanted to fire Arroyo because the patients complained that he hurt them. Dr. B told Zheng that the entire 67k would be all his and, as a result, Dr. B wanted him to pay 2k of Arroyo’s 5k severance. Zheng agreed, [but] Arroyo told him that he had no right to do that because Arroyo paid [sic] sponsored his VISA and Zheng agreed that he was beholding [sic] to Arroyo, so he turned down Dr. B’s offer. Arroyo also told him that he should not compete with him, so Zheng accepted employment w/ a Dr. in Houston.

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Ex. W, ¶ 2.

263

Tr., Vol. 19 of 43, at 9.

264

Tr., Vol. 39 of 43, at 83-84.

265

Tr., Vol. 19 of 43, at 9-10.

266

Tr., Vol. 39 of 43, at 68-81, 68 (Arroyo’s credibility), 77 (Arroyo’s laziness). To the extent Bieganowski faults Roberts for not calling patients Luz Carlos, Walter Whittington, Genaro Bueno, Rose Mendiola, Christina Martinez, Alma Carlos, John Jessel, Ross Bramblett, Don Bemis, and Loretta Franco, or employee Elizabeth Cedillos to discredit Arroyo, their proposed testimony would have spoken to Arroyo’s skills as an acupuncturist and bedside manner, rather than his truthfulness and knowledge of Bieganowski’s practices. Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 19 (coll. affs. of L. Carlos, W. Whittington, G. Bueno, R. Mendiola, C. Martinez, A. Carlos, J. Jessel, R. Bramblett, D. Bemis, and L. Franco). Their testimony would thus not have been relevant.

267

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 61.

268

Tr., Vol 16 of 43, at 9-14.

269

Id. at 15.

270

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 61-62.

271

Id. at 62.

272

Id. at 61.

273

Id.

274

Id.

275

Id. at 61-62.

276

Id.

277

Id. at 91-92.

278

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 4 (Aff. of I. Granados) & Aff. 9 (Aff. of G. Castro).

279

Tr., Vol. 18 of 43, at 144-45.

280

Id. at 145.

281

Id. at 146.

282

Id. at 147, 154.

283

Id. at 153.

284

Tr., Mot. for De Novo Detention Hr’g, at 28.

285

Id.

286

Id. at 29.

287

Id.

288

Id. at 30.

289

Id. at 43.

290

Id. at 33.

291

Id. at 34 (eliciting testimony that Castillo loaned money to an employee on the same day Castillo had disciplined that individual for borrowing money from employees); at 36 (demonstrating that Castillo did not know the names of office staff members although Castillo testified to having worked for Bieganowski for 16 years); at 39-40 (showing that Bieganowski kept Castillo off work after an injury, and that as long as Castillo was off work, she continued to receive workers’ compensation benefits); at 41 (excoriating Castillo’s seemingly selective memory loss); at 44 (emphasizing Castillo’s lack of direct knowledge); at 44-45 (contrasting Castillo’s salary relative to her professional qualifications); at 53 (eliciting testimony that Bieganowski’s brother and co-defendant, Victor, represented Castillo in a workers’ compensation claim and negotiated a settlement on her behalf, of which her portion amounted to $20,000).

292

Id.

293

Id. at 57-58.

294

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Ex. X.

295

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 9 (Aff. of G. Castro) at ¶ 1.

296

Id. at ¶ 2.

297

Id. at ¶ 3.

298

Id. at ¶ 5.

299

Tr., Vol 18 of 43, at 146.

300

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 9 at 1 ¶ 1.

301

Tr., Vol. 20 of 43, at 227-29, 250-51.

302

Id.

303

Tr., Vol. 18 of 43, at 218-45.

304

Id. at 245.

305

Id. at 246-48.

306

Id. at 248.

307

Id.

308

Id.

309

Tr., Vol. 20 of 43, at 217, 256.

310

Id.

311

Id. at 230.

312

Id. at 231.

313

Id.

314

Id.

315

Id.

316

Id. at 232.

317

Id. at 233-34.

318

Id. at 238-39.

319

Id.

320

Id. at 243.

321

Id. at 252.

322

Id. at 254.

323

Id.

324

Id. at 254-55.

325

Id. at 254.

326

Id. at 255.

327

Id.

328

Id.

329

Id. at 258-71.

330

Id. at 271-77.

331

Id. at 275-76.

332

Id. at 276.

333

Id. at 285.

334

Tr., Vol. 30 of 43, at 85-124.

335

Id. at 124-27. When the Government cross-examined Grigg, the prosecutor elicited testimony that the fact that a physician might lawfully delegate certain duties to a physician’s assistant such as Diaz under the Medical Practices Act was an entirely separate question from whether a physician who was not on the premises when a physician’s assistant performed a service could properly bill an insurance carrier. Id. at 132-33.

336

Id. at 137-41.

337

Tr., Vol. 34 of 43, at 77.

338

Id.

339

Id. at 64.

340

Id.

341

Resp’t’s Resp., Docket No. 671, at 32-33; see also Tr., Vol. 28 of 43, at 8-12 (Roberts’s opening statement).

342

Resp’t’s Resp., Docket No. 671, at 32-33; see also Tr., Vol. 28 of 43, at 8-12, 26 (Roberts’s opening statement).

343

Tr., Vol. 21 of 43, at 95, 101.

344

Id. at 71-118.

345

Id. at 114-18.

346

To the extent Bieganowski contends that counsel were ineffective for failing to interview Elizabeth Cedillos, call her as a defense witness, or cross-examine her when she testified for the Government, the Court has previously addressed his arguments in Part III.O, supra, of this Memorandum Opinion. Inasmuch as Bieganowski asserts that Roberts was ineffective for not personally interviewing Cedillos, rather than delegating the responsibility to his investigator or co-counsel, Bieganowski has not shown how an attorney performs below reasonable professional expectations by choosing to allocate his finite resources in this manner.

To the extent Bieganowski alleges that counsel should have cross-examined Rene Moreno, or called Grace Castro to discredit Moreno’s testimony, the Court has addressed Bieganowski’s arguments in Part III.R., supra.

347

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 67 & 105.

348

Id. at 68 & Exhibit Y.

349

Id. at 71-72.

350

Id. at 74-75.

351

Id. at 75.

352

Id.

353

Id. at 76.

354

Id.

355

Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.1985).

356

Id.

357

Id.

358

Id.

359

Wright v. Gramley, 125 F.3d 1039, 1044 (7th Cir.1997).

360

United States v. Ashimi, 932 F.2d 643, 650 (7th Cir.1991); see Wing v. Sargent, 940 F.2d 1189, 1191 (8th Cir.1991) (stating that the burden is on the petitioner to show that counsel’s performance was objectively unreasonable, and that a petitioner’s speculation regarding how the uncalled witnesses would have testified is insufficient to meet the burden of proof).

361

To the extent Bieganowski, as Exhibit D to his Amended Motion to Vacate, includes a letter purportedly written by Sondra B. Hatcher on the Vinson & Elkins’s letterhead, the Court finds that the letter’s contents do not exonerate Bieganowski. The Government alleged that, among other misdeeds, Bieganowski attempted to mask his illegal capping scheme by making it appear that a chiropractor was soliciting patients, rather than Bieganowski. Tr., Vol. 39 of 43, at 164-65. The Government argued that the chiropractor was essentially a straw man, as Bieganowski continued to pay Robert Griego’s compensation and reimburse the chiropractor for the expense of buying police reports, and implied during Bieganowski’s cross-examination that the Vinson & Elkins attorneys told him as much. Tr., Vol. 37 of 43, at 114. Whether it was legal for a chiropractor to solicit patients for himself is thus beside the point. The contents of Hatcher’s letter also does not show that she would have testified at trial.

Insofar as Bieganowski complains that Roberts did not call Larry Gibbs, a corporate tax lawyer and consultant, to testify, the trial record suggests that Gibbs’s testimony would have harmed Bieganowski’s defense. Fonda Hivic (“Hivic”), a special agent with the Internal Revenue Service’s Criminal Investigation Division, testified as a Government witness at trial. Tr., Vol. 25 of 43, at 181-319. Agent Hivic assisted the FBI with its investigation of Bieganowski’s money laundering activities. Id. at 182. Among other matters, Agent Hivic testified regarding a letter, Government’s Exhibit 594, Id. at 240, that the Government discovered during its search of Richard Goldberg’s office. Id. at 241-42. The letter, which on its face purports to have been written by Larry Gibbs, was addressed to Richard Goldberg. Id. at 242. The letter read, in pertinent part: “The most dangerous undertaking is work in a consulting capacity without full and complete information. We have nothing to indicate what was signed, when signed, nor any prior tax returns supporting any of the entities. We have no information about the company in Mexico. I’m cancelling my visit to El Paso. I’m not interested in a continuing consulting relationship. Diagram of the two plans, as proposed, are attached.” Id. Smith cross-examined Hivic about Gibbs’s letter and attempted to elicit testimony suggesting that the jury should not infer from the letter that there were financial irregularities attendant upon Bieganowski’s financial arrangements. Id. at 281-89.

In addition, Bieganowski testified in his own defense at trial. Tr., Vol. 34 of 43, at 7-261; Vol. 35 of 43, at 8-245; Vol. 37 of 43, at 6-321; Vol. 38 of 43, at 8-42. During cross-examination, the prosecutor questioned Bieganowski about Gibbs’s letter. Tr., Vol. 35 of 43, at 10-11. Bieganowski acknowledged that, in the letter, Gibbs had expressed that he could no longer continue working for the Bieganowski brothers because Gibbs was not being given enough information about their assets and various business entities. Id. Bieganowski also acknowledged that Gibbs had nothing to do with the creation of Servicio or UTM, entities allegedly integral to Bieganowski’s money-laundering activities.

Id. at 11-13. Under such circumstances, the Court concludes that it was not objectively unreasonable for Roberts not to call Gibbs as a defense witness.

362

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 69.

363

Id. at 68.

364

Id. Bieganowski appears to concede that he billed for Rincones’s examination under his own provider number, but claims that this fact “is of no moment.” Id. at 69.

365

Id. at 69.

366

Id. at 68-69.

367

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 7 (Aff. of R.M. Garcia).

368

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 70.

369

Id. at 70.

370

Resp’t’s Resp., Docket No. 671, at 68-70.

371

Id. at 68-69.

372

Id. at 69.

373

Id. at 69-70.

374

Id. at 70.

375

Tr., Vol. 23 of 43, at 46-47.

376

Id. at 47.

377

Id. at 47-48.

378

Id.

379

Id. at 49-50.

380

Tr., Vol. 27 of 43, at 148-49.

381

The Court notes that, due to the length of the trial, it limited the number of patient-witnesses Roberts could call in his case-in-chief. Tr., Vol. 27 of 43, at 148-49. Thus, Roberts necessarily had to forego calling certain witnesses in lieu of others that he deemed to be more effective to Bieganowski’s overall defense.

382

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 71-72.

383

Indict. at 26.

384

Id.

385

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 71-72.

386

Alexander, 775 F.2d at 602.

387

Indict. at 31.

388

Id.

389

Id. at 32.

390

Id.

391

Id.

392

Id.

393

Id.

394

Id. at 32-33.

395

Id.

396

Id. at 33.

397

Id.

398

Id.

399

Id.

400

Id.

401

Id.

402

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 77.

403

Id.

404

Id.

405

Id.

406

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Ex. F.

407

Id. at 1-2.

408

Id. at 2.

409

Id. at 3-4.

410

Id. at 4.

411

Id. at 5.

412

Id.

413

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 77-78.

414

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Ex. BB.

415

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 78.

416

Id.

417

Id.

418

Id.

419

Id. at 79-80.

420

Id. at 80.

421

Tr., Vol. 23 of 43, 164-70.

422

Tr., Vol. 37 of 43, at 192.

423

Id. at 200-01, 204-08.

424

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 81.

425

Indict. at 6 (Count One) & 50 (Count 22).

426

Vol. 23 of 43, at 342-47; Vol. 24 of 43, 10-327.

427

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 81, 95-96.

428

Tr., Vol. 23 of 43, at 342-44. The Government also agreed to dismiss the pending money laundering count, Count Twenty-Two, against Campos. Id. Assistant United States Attorney Kanof additionally promised to furnish Campos with a letter to prospective employers, detailing Campos’s cooperation with the Government and attesting to Campos’s good character. Id.

429

Id. at 345.

430

Tr., Vol. 24 of 43, at 16, 18.

431

Id. at 18.

432

Id. at 19-21.

433

Id.

434

Id.

435

Id. at 29.

436

Id. at 24.

437

Id. at 31.

438

Id. at 41-52.

439

Id. at 32-33, 58, 62.

440

Id. at 62.

441

Id. at 25-26.

442

Id. at 63.

443

Id. at 63-64.

444

Id. at 63.

445

Id. at 64-65.

446

Id. at 64-65, 69.

447

Id. at 80-82.

448

Id. at 81.

449

Id. at 68.

450

Id. at 87.

451

Id. at 87, 93.

452

Id. at 88.

453

Id. at 89.

454

Id. at 89-90, 92.

455

Id. at 92, 105-06, 110.

456

Id. at 93.

457

Id. at 90.

458

Id.

459

Id. at 91.

460

Id.

461

Id.

462

Id. at 85-86.

463

Id.

464

Id. at 98-99.

465

Id. at 99-100.

466

Id. at 103.

467

Id. at 119.

468

Id. at 119-20.

469

Id. at 122.

470

Id. at 88.

471

Id. at 88-89, 94-96.

472

Id. at 107-110.

473

Id. at 110.

474

Id. at 111.

475

Id. at 111-12.

476

Id. at 121.

477

Id. at 120-21.

478

Id. at 97.

479

Id. at 136-39.

480

Id. at 138-39, 156. Servicio’s role in the money laundering scheme has been discussed previously, in Part I.A, supra, of this Memorandum Opinion.

481

Id. at 142.

482

Id. at 147.

483

Id. at 148.

484

Id. at 151.

485

Id. at 151-52.

486

UTM Management, Inc.’s role in the money laundering scheme has been discussed previously, in Part I.A, supra, of this Memorandum Opinion.

487

Tr., Vol. 13 of 43, at 194-240.

488

Id. at 195-96.

489

Id. at 198.

490

Id. at 196.

491

Id. at 196-98.

492

Id. at 198.

493

Id. at 199.

494

Id. at 199-200.

495

Id.

496

Id. at 200.

497

Id.

498

Id.

499

Id.

500

Id. at 200-01.

501

Id. at 201.

502

Id. at 202.

503

Id.

504

Id. at 203.

505

Id. at 203-04.

506

Id. at 204.

507

Id. at 206-07.

508

Id. at 207.

509

Id. at 208.

510

Id. at 209-10.

511

Id. at 210-11.

512

Id. at 211.

513

Id. at 212.

514

Id.

515

Id.

516

Id. at 216.

517

Id. at 213.

518

Id.

519

Id. at 213-14.

520

Id. at 216.

521

Id. at 216-17.

522

Id. at 217.

523

Id. at 218.

524

Id. at 218-19.

525

Id. at 219.

526

Id. at 220.

527

Id. at 220.

528

Id. at 220.

529

Id. at 220-221. On re-direct examination, McKinley told the jury that Diaz, rather than Bieganowski, would have examined some of the patients on the list. Id. at 239. McKinley stated that she did not know how Bieganowski would know what Diaz did when he saw patients. Id.

530

Id. at 221.

531

Id. at 222.

532

Id. at 223.

533

Id.

534

Id. at 223-24.

535

Id. at 224.

536

Id.

537

Id. at 224-25.

538

Id. at 227.

539

Id. at 228.

540

Id.

541

Id. at 228-29.

542

Id. at 229.

543

Id.

544

Id.

545

Id. at 229-30.

546

Id.

547

Id. at 230.

548

Id.

549

Id. at 231-32.

550

Id. at 233.

551

Id. at 235.

552

Id. at 235-38.

553

Id. at 236.

554

Id.

555

Id. at 236-37.

556

Id. at 237.

557

Id.

558

Id.

559

Id.

560

Id. at 238-40.

561

Id. at 240.

562

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 12 (Aff. of A. McKinley) ¶¶ 1-12.

563

Tr., Vol. 38 of 43, at 64-75.

564

Id. at 65.

565

Id. at 65-66.

566

Id. at 66.

567

Id.

568

Id. at 66-67.

569

Id. at 67.

570

Id.

571

Id.

572

Id. at 67-68.

573

Id. at 68.

574

Id. at 68-69, 71.

575

Id. at 73-74.

576

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 10 (Aff. of T. Diaz), at ¶ 3.

577

Id. at ¶ 4.

578

Id. at ¶ 5.

579

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 9 (Aff. of G. Castro), at ¶¶ 8-13.

580

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 9 (Aff. of B. Cortez), at ¶ 1.

581

Id.

582

Id. at ¶ 3.

583

Id. at ¶ 5.

584

Id. at ¶ 7.

585

Id. at ¶¶ 7-8.

586

Id. at ¶ 9.

587

Id.

588

Id. at ¶ 5(b).

589

Id. at ¶ 16.

590

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 18 (Aff. of C. Fowler), at ¶ 1.

591

Id.

592

Id. at ¶ 3.

593

Id. at ¶¶ 6-7.

594

Id. at ¶ 6.

595

Id. at ¶ 8.

596

Tammy Diaz’s proposed testimony on the state of filing and dictation in Bieganowski’s clinic is immaterial for the same reasons.

597

Tr., Vol. 27 of 43, at 148-49.

598

Tr., Vol. 25 of 43, at 92.

599

Tr., Vol. 28 of 43, at 20-21.

600

Tr., Vol. 39 of 43, at 110-11.

601

Tr., Vol. 20 of 43, at 77-215.

602

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 81-82.

603

Id. at 81 (Diaz); 87 (McKinley); 94-95 (Cortez); 100 (Granados).

604

Id. at 82.

605

Id.

606

Id. at 82-84, 86.

607

Id. at 84.

608

Id.

609

Id. at 85.

610

Id. at 90.

611

Id. at 91.

612

Id. at 97.

613

Id.

614

Id. at 90.

615

Id.

616

Id. at 92.

617

Id.

618

Id. at 95.

619

Id. at 93.

620

Id. at 94.

621

Id. at 93.

622

Id. at 94-95.

623

Id. at 95.

624

Id.

625

Id.

626

Id. at 96.

627

Id.

628

Id.

629

Id.

630

Id. at 97. Lozano also described the routine for established patients. After an established patient signed in, Lozano testified, Lozano would call the patient to his office and record the patient’s chief complaint on the fee ticket before taking the chart to the clinic. Id. at 111. Lozano stated that he did not take chief complaints for new patients. Id. Lozano additionally testified that, after a patient’s first visit, clinic personnel did not use the patient’s medical chart again. Id. at 123. Instead, clinic staff simply completed new fee tickets. Id. at 123. Lozano said that the patient’s chart remained in the medical file room, except if Lozano needed to prepare the chart for a deposition. Id. at 123-24.

631

Id. at 98, 106.

632

Id. at 98.

633

Id.

634

Id.

635

Id. at 101.

636

Id.

637

Id.

638

Id. at 102.

639

Id.

640

Id. at 104.

641

Id.

642

Id. at 104-05.

643

Id. at 106.

644

Id.

645

Id. at 107.

646

Id. at 114.

647

Id.

648

Id. at 115.

649

Id.

650

Id.

651

Id. at 116.

652

Id. at 155-56.

653

Id. at 117.

654

Id. at 116-17, 118. Lozano testified that he learned to do orders based on what he had seen the nurses write on new patient charts. Id. at 118.

655

Id. at 116.

656

Id. at 157.

657

Id. at 118.

658

Id.

659

Id.

660

Id. at 119.

661

Id.

662

Id.

663

Id. at 119-20.

664

Id. at 121.

665

Id.

666

Id. at 121-22.

667

Id. at 122.

668

Id. at 124.

669

Id. at 127.

670

Id.

671

Id. at 128.

672

Id.

673

Id.

674

Id. at 130-31, 132.

675

Id. at 131.

676

Id. at 132.

677

Id.

678

Id.

679

Id. a 133.

680

Id. at 133-34.

681

Id. at 135.

682

Id.

683

Id.

684

Id. at 138.

685

Id. at 139.

686

Id.

687

Id.

688

Id. at 139-40.

689

Id. at 140. Lozano explained that patients scheduled to see Bieganowski would sometimes be accompanied by their children. Id. According to Lozano, Bieganowski directed Lozano to prepare fee tickets for some of these children. Id. On cross-examination, Lozano asserted that he saw this happen ten to fifteen times while he worked for Bieganowski. Id. at 181.

690

Id. at 141.

691

Id.

692

Id. at 142.

693

Id.

694

Id.

695

Id. at 143-45.

696

Id. at 144-45.

697

Id. at 146.

698

Id.

699

Id. at 147.

700

Id. at 147-48.

701

Id. at 148.

702

Id. at 148-49.

703

Id. at 150.

704

Id. at 150-51.

705

Id. at 152.

706

Id. at 153.

707

Id. at 160.

708

Id. at 179.

709

Id. at 180.

710

Id.

711

Id. at 180-81.

712

Id. at 181.

713

Id. at 182.

714

Id. at 184.

715

Id. at 182-83.

716

Id.

717

Id. at 184-85.

718

Id. at 185.

719

Id. at 186.

720

Id. at 196-97.

721
722

Id. at 197.

723

Id. at 187-93.

724

Id. at 193.

725

Id. at 193-94.

726

Id. at 199-214.

727

Id. at 203-210.

728

Id. at 201.

729

Id.

730

Id. at 202.

731

Id. at 202.

732

Id. at 203.

733

Id.

734

Id. at 204.

735

Id.

736

Id. at 204-05.

737

Id. at 205.

738

Id. at 205-06.

739

Id. at 206.

740

Id. at 207.

741

Id. at 210.

742

Id. at 199-200.

743

Id. at 200.

744

Id.

745

See supra Part III.Z.2.

746

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 12 ¶ 18.

747

See supra Part III.Z.4.

748

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 10 (Aff. of T. Diaz) ¶ 6.

749

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 17 (Aff. of B. Cortez) ¶ 12.

750

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 4 (Aff. of I. Granados) ¶ 28 (emphasis in original).

751

Tr., Vol. 28 of 43, at 12-13.

752

Tr., Vol. 31 of 43, at 201-10.

753

Id. at 204, 206-08.

754

Id.

755

Id. at 208.

756

Id.

757

Tr., Vol. 32 of 43, at 171-72.

758

Tr., Vol. 27 of 43, at 148-49.

759

The Court also notes that Bieganowski testified at trial and submitted many affidavits in support of the claims contained in his Amended Motion to Vacate, including an affidavit in which Bieganowski attempts to discredit Lucy Campos. Pet’r’s Am. Mot. to Vacate. Docket no 616, Aff. 40. In the aforementioned affidavit, Bieganowski accuses Campos of taking many actions without his knowledge or approval. Id. at ¶ 4. Curiously, however, Bieganowski does not allege therein that Campos hid knowledge of the alleged check-stealing incident from him, nor has Bieganowski submitted a separate affidavit alleging that he has personal knowledge, as owner of the clinic, that Lozano or his associate Gay stole checks from him. Although the Court does not consider Bieganowski’s omission dispositive, it nonetheless finds the omission telling.

760

See supra Part III.K.2, at 43.

761

Tr., Vol 21 of 43, at 45-49.

762

Id. at 47.

763

See supra Part III.Z.2 & 3.

764

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 81-82 (Diaz), 86 (McKinley), 95 (Cortez), 101 (Cedillos), 175 (Duarte).

765

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 82.

766

Id. at 117-18.

767

Id. at 101-02.

768

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 101 (E.Cedillos); Aff. 10 (Aff. of T. Diaz) ¶¶ 8-9; Aff. 27 (unsigned decl. of T. Duarte) at ¶ 13.

769

Tr., Vol. 11 of 43, at 77-273.

770

Id. at 82-83.

771

Tr., Vol 11 of 43, at cover.

772

Id. at 6.

773

Id.

774

Id.

775

Id.

776

Id.

777

Id.

778

Id. at 77.

779

Id. at 79.

780

Id. at 81.

781

Id.

782

Id. at 81-82.

783

Id.

784

Id. at 82.

785

Id.

786

Id. at 84.

787

Id. at 86.

788

Id.

789

Id. at 87.

790

Id.

791

Id.

792

Id.

793

Id. at 88-90.

794

Id. at 91.

795

Id. at 92.

796

Id. at 93.

797

Id.

798

Id.

799

Id. at 94.

800

Id. at 94-95.

801

Id. at 96, 99-100.

802

Id. at 101-02.

803

Id. at 105.

804

Id.

805

Id. at 111.

806

Id. at 106.

807

Id. at 106-07.

808

Id. at 106-08.

809

Id. at 108.

810

Id. at 108 & 124.

811

Id. at 109.

812

Id.

813

Id. at 110.

814

Id. at 110.

815

Id.

816

Id. at 109.

817

Id. at 111.

818

Id.

819

Id. at 110.

820

Id. at 112.

821

Id. at 112 & 116.

822

Id.

823

Id. at 112.

824

Id.

825

Id. at 113.

826

Id.

827

Id.

828

Id.

829

Id.

830

Id. at 114-15.

831

Id. at 114.

832

Id. at 126.

833

Id.

834

Id. at 127.

835

Id. at 127, 130-34.

836

Id.

837

Id.

838

Id. at 135.

839

Id. at 135-36.

840

Id. at 136-37.

841

Id.

842

Id. at 116.

843

Id. at 116-17.

844

Id. at 117.

845

Id. at 118.

846

Id.

847

Id.

848

Id.

849

Id. at 118-19.

850

Id. at 119.

851

Id.

852

Id. at 119-20.

853

Id. at 120.

854

Id.

855

Id.

856

Id. at 121.

857

Id.

858

Id.

859

Id. at 125.

860

Id. at 122.

861

Id. at 123.

862

Id.

863

Id. at 138.

864

Id. at 138.

865

Id.

866

Id. at 139.

867

Id.

868

Id.

869

Id. at 142.

870

Id. at 143.

871

Id.

872

Id. at 144-45.

873

Id. at 147.

874

Id. at 148.

875

Id.

876

Id. at 151.

877

Id. at 152.

878

Id.

879

Id. at 153.

880

Id.

881

Id.

882

Id. at 154.

883

Id.

884

Id.

885

Id.

886

Id.

887

Id. at 155.

888

Id.

889

Id. at 155-56.

890

Id. at 158.

891

Id. at 157.

892

Id. at 159.

893

Id.

894

Id. at 160-61.

895

Id. at 162.

896

Id.

897

Id. at 163.

898

Id. at 164.

899

Id. at 165.

900

Id. at 166.

901

Id.

902

Id. at 167.

903

Id. at 169-207.

904

Id. at 174.

905

Id. at 174-76.

906

Id. at 176.

907

Id. at 181.

908

Id. at 182.

909

Id. at 183.

910

Id.

911

Id. at 183-84.

912

Id. at 184-85.

913

Id. at 185.

914

Id. at 187.

915

Id. at 188-89.

916

Id. at 189-90.

917

Id. at 194.

918

Id. at 195.

919

Id.

920

Id. at 196.

921

Id.

922

Id. at 196-97.

923

Id. at 197-98.

924

Id. at 198.

925

Id.

926

Id. at 198-99.

927

Id. at 199.

928

Id.

929

Id.

930

Id. at 199 & 201.

931

Id. at 200-01.

932

Id. at 202.

933

Id. at 203.

934

Id.

935

Id.

936

Id. at 204.

937

Id.

938

Id. at 204-05.

939

Id. at 207.

940

Id. at 208-27.

941

Id. at 208-09.

942

Id. at 209.

943

Id. at 209-12.

944

Id. at 213.

945

Id.

946

Id. at 219.

947

Id. at 220-21.

948

Id. at 221.

949

Id. at 222-23.

950

Id. at 223.

951

Id. at 226.

952

Id. at 226.

953

Id.

954

Id.

955

Id. at 227.

956

Id.

957

Id. at 227-28.

958

Id. at 227.

959

Id. at 228.

960

Id.

961

Id.

962

Id.

963

Id.

964

Id.

965

Id.

966

Id.

967

Id. at 228-29.

968

Id. at 229.

969

Id.

970

Id. at 230-41.

971

Id. at 230-31.

972

Id. at 237-39.

973

Id. at 239.

974

Id. at 241.

975

Id. at 242.

976

Id. at 241.

977

Id. at 242.

978

Id. at 242-43.

979

Id. at 244.

980

Id. at 243.

981

Id. at 243-44.

982

Id. at 245-46. On Stillinger’s recross-examination, however, Macias conceded that none of the categories asked Bieganowski to comment on Macias’s honesty. Id. at 270. On re-direct examination, Kanof attempted to rehabilitate Macias by eliciting testimony that Bieganowski reported that Macias showed outstanding sincerity, interest, and loyalty to the doctor, and that Macias worked well with Bieganowski, the office manager, and others at the clinic. Id. at 272.

983

Id. at 263-65.

984

Id.

985

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 11 (Aff. of S. Ramos, also known as S. Bieganowski) ¶¶ 3-18 (emphasis in original).

986

The Court has carefully examined Macias’s testimony and finds that Macias did not testify that Ramos falsified progress notes.

987

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 11 (Supp. Aff. of S. Ramos, also known as S. Bieganowski) ¶¶ 3-12.

988

That is, Ramos’s proposed testimony corroborates other testimony in the case that Victor Bieganowski referred his clients to Bieganowski and that the Bieganowski brothers eagerly sought automobile accident patients.

989

Tr., Vol. 35 of 43, at 64.

990

Tr., Vol. 39 of 43, at 156.

991

Id. at 156-57.

992

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 83.

993

The Court notes that, contrary to Bieganowski’s assertion, McKinley’s affidavit does not mention an arrest in Juarez.

994

Id. at 84-87.

995

See supra Part III.Z.2.

996

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 12 (Aff. of A. McKinley) ¶¶ 14-17. The Court has previously summarized Mata’s testimony in Part III.T. 1., supra, of this Memorandum Opinion.

997

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 87.

998

Id. at 88-89.

999

Tr., Vol. 33 of 43, at 223-30.

1000

Id. at 223-25.

1001

Id. at 224.

1002

Id.

1003

Id.

1004

Id. at 224-25.

1005

Id. at 225.

1006

Id.

1007

Id.

1008

Id. at 225-27.

1009

Id. at 228.

1010

Id. at 228-29.

1011

Id. at 229-30. 1012 Id. at 229.

1012

Id. at 229.

1013

Id. at 231.

1014

Id.

1015

Id. at 236.

1016

Id.

1017

Id.

1018

Id. at 232.

1019

Id. at 232-33.

1020

Id. at 233-34.

1021

Id. at 235.

1022

Id.

1023

Id.

1024

Id. at 234-35.

1025

Id. at 234.

1026

Id. at 236-37.

1027

Id. at 238-39.

1028

Id. at 239.

1029

Id.

1030

Id. at 239-40.

1031

Id. at 240.

1032

Id. at 240-42.

1033

Id.

1034

Id. at 241.

1035

Id. at 242.

1036

Id. at 245.

1037

Id. at 245.

1038

Id. at 247-48.

1039

Pet’r’s Am. Mot. to Vacate. Docket no 616, Aff. 13 (Aff. of B. Gilbert) at ¶ 6.

1040

Id.

1041

Id. at ¶ 8;

1042

Id. at ¶ 9.

1043

Id. at ¶ 10.

1044

Id. at ¶ 11.

1045

Id.

1046

LaGrand v. Stewart, 133 F.3d 1253, 1274 (9th Cir.1998).

1047

Strickland, 466 U.S. at 694; Roberts v. Dretke, 356 F.3d 632, 640-41 (5th Cir.2004).

1048

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 89-90.

1049

Id.

1050

Id. at 90.

1051

Id.

1052

Id. at 90-91.

1053

Id.

1054

Id. at 90-91.

1055

Id.

1056

Pet’r’s Am. Mot. to Vacate. Docket No. 616, Aff. 16 (coll.aff.).

1057

Id.

1058

Tr., Vol. 29 of 43, at 181 & 186 (test. of M.H. Walton) (stating that she received nerve blocks, which alleviated her pain); Vol. 27 of 43, at 261 (test. of J. Rubulcava) (noting that he received nerve blocks and omitting any mention of coercion and duress); Vol. 28 of 43 at 231 (test. of I. Rodriguez) (recalling that he received nerve blocks and that the injections helped him); Vol. 27 of 43, at 325-26 (test. of J. Jessel) (recalling that block injections helped him and stating that he was able to return to work due to Bieganowski’s treatments);Vol. 28 of 43, at 62-63 (test. of R. Hecker) (asserting that she had block injections and that the procedure helped her);Vol. 29 of 43, at 130 & 132 (test. of L. Franco) (noting block injections helped her condition and that she was able to return to work); Vol. 29 of 43, at 100-01, 109 (test. of R. Bramblett) (recounting his return to work after back surgery and stating that nerve block injections relieved his pain); Vol. 27 of 43, at 308-10 (test. of D. Bemis) (stating that he had nerve blocks and describing the procedure at the hospital).

1059

Tr., Vol. 27 of 43, at 148-49.

1060

Coble v. Dretke, 444 F.3d 345, 352 (5th Cir.2006) (citing Williams v. Cain, 125 F.3d 269, 278-79 (5th Cir.1997), for the proposition that counsel’s failure to present evidence does not constitute deficient performance within Strickland’s meaning if counsel could have concluded, for tactical reasons, that attempting to present such evidence would be unwise).

1061

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 103-04; Aff. 21 (coll.affs.) & Aff. 22 (coll.affs.). Bieganowski also includes Rosa M. Garcia in this claim. Id., Aff. 22 (Aff. of Rosa M. Garcia). Garcia testified for the Government in its case-in-chief. Tr., Vol. 23 of 43, at 45-53 (test. of R.M. Garcia). The Government questioned Garcia almost exclusively about her experiences in Jesse Lopez’s physical therapy clinic. Id. To the extent Bieganowski argues that Smith should have asked Garcia about facet injections in his cross examination, the Court notes that any such question would have been subject to an Government objection for being well-beyond the scope of cross-examination. To the extent Bieganowski faults his defense team for not calling Garcia in its-case-in-chief, the Court observes that the Court limited the number of patients it allowed the defense to call. Tr., Vol. 27 of 43, at 148-49. Given Garcia’s hostile testimony during the Government’s case-in-chief, Bieganowski has not shown that his defense attorneys performed in a professionally unreasonable manner by choosing to call other witnesses in its case-in chief.

1062

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 103-04. Bieganowski particularly faults Smith because, on the spur of the moment, Smith decided to call Jesus Rubulcava to testify in Bieganowski’s defense. Id. at 103. Bieganowski explains that Rubalcava was observing the trial from the gallery. Id. In his affidavit, Rubalcava asserts that Smith only spoke with Rubalcava for “about two or three minutes” before putting Rubulcava on the stand. Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 21 (Aff. of J. Ruvulcaba) at ¶ 4.

The Court finds that Bieganowski has not demonstrated deficient performance. As the Court has previously noted in this Memorandum Opinion, the brevity of time an attorney spends with his client does not support Strickland’s deficient performance prong. Schwander, 750 F.2d at 499; Murray, 736 F.2d at 282; Jones, 604 F.2d at 416. It logically follows that, without more, the mere brevity of time a defense attorney spends with a witness cannot support an ineffective assistance claim under Strickland.

1063

Tr., Vol. 29 of 43, at 180 (test. of M.H. Walton); Vol. 27 of 43, at 255-56 (test. of J. Ruvulcaba); Vol. 28 of 43, at 228-29 (test. of I. Rodriguez); Vol. 30 of 43, at 79 (test. of R. Noriega); Vol. 29 of 43, at 82-83 (test. of J. Maese); Vol. 27 of 43, at 322-23 (test. of J. Jessel); Vol. 28 of 43, at 72-74 (test. of R. Hecker); Vol. 28 of 43, at 205 (test. of S. Franklin); Vol. 29 of 43, at 126 (test. of L. Franco); Vol. 29 of 43, at 155 & 157 (test. of A. Franco);Vol. 28 of 43, at 189 (test. of A. Carlos); Vol. 29 of 43, at 98 (test. of R. Bramblett); Vol. 28 of 43, at 293-94 (test. of J. Apodaca).

1064

Tr., Vol. 29 of 43, at 272-73 (test. of L. Carlos); Vol. 28 of 43, at 314-15, 317 (test. of D. Bemis).

1065

Tr., Vol. 28 of 43, at 314-15, 317.

1066

Tr., Vol. 29 of 43, at 181-83 (test. of M.H. Walton); Vol. 27 of 43, at 255-56, 259-61 (test. of J. Ruvulcaba); Vol. 28 of 43, at 228-29 (test. of I. Rodriguez); Vol. 30 of 43, at 81 (test. of R. Noriega); Vol. 29 of 43, at 78 & 91 (test. of J. Maese); Vol. 27 of 43, at 321-23 (test. of J. Jessel); Vol. 28 of 43, at 64-65 (test. of R. Hecker); Vol. 28 of 43, at 205-06, 214-15 (test. of S. Franklin); Vol. 29 of 43, at 126-27, 128, 146 (test. of L. Franco); Vol. 29 of 43, at 154 & 155 (test. of A. Franco); Vol. 29 of 43, at 259-60 (test. of L. Carlos); Vol. 28 of 43, at 189 (test. of A. Carlos); Vol. 27 of 43, at 230 (test. of G. Bueno); Vol. 29 of 43, at 98 & 107 (test. of R. Bramblett); Vol. 27 of 43, at306-07, 310 (test. of D. Bemis); Vol. 28 of 43, at 294 (test. of J. Apodaca).

1067

Tr., Vol. 29 of 43, at 189-91 (test. of M.H. Walton); Vol. 27 of 43, at 269-70 (test. of J. Ruvulcaba); Vol. 28 of 43, at 235-36, 237-39 (test. of I. Rodriguez); Vol. 29 of 43, at 80-82 (test. of J. Maese); Vol. 27 of 43, at 332-35 (test. of J. Jessel); Vol. 28 of 43, at 79 (test. of R. Hecker); Vol. 28 of 43, at 209 (test. of S. Franklin); Vol. 29 of 43, at 134 & 142 (test. of L. Franco); Vol. 29 of 43, at 160-64 (test. of A. Franco); Vol. 29 of 43, at 262-63, 264-65, 270-73 (test. of L. Carlos); Vol. 28 of 43, at 189, 191-92, 194-95, 198-200 (test. of A. Carlos); Vol. 27 of 43, at 245 (test. of G. Bueno); Vol. 29 of 43, at 120-22 (test. of R. Bramblett); Vol. 27 of 43, at 312-13 (test. of D. Bemis); Vol. 28 of 43, at 301 (test. of J. Apodaca).

1068

Tr., Vol. 29 of 43, at 182-84 (test. of M.H. Walton); Vol. 27 of 43, at 258 (test. of J. Ruvulcaba); Vol. 28 of 43, at 229-32 (test. of I. Rodriguez); Vol. 30 of 43, at 79-80, 84-85 (test. of R. Noriega);Vol. 29 of 43, at 76-77, 89-91 (test. of J. Maese); Vol. 27 of 43, at 325-26 (test. of J. Jessel); Vol. 28 of 43, at 62-64, 65, 85-86 (test. of R. Hecker); Vol. 28 of 43, at 206-07 (test. of S. Franklin); Vol. 29 of 43, at 128-30 (test. of L. Franco); Vol. 29 of 43, at 154, 155-57 (test. of A. Franco); Vol. 29 of 43, at 258 (test. of L. Carlos); Vol. 28 of 43, at 186 & 188, 200 (test. of A. Carlos); Vol. 27 of 43, at 228 (test. of G. Bueno); Vol. 29 of 43, at 99-101, 107-09 (test. of R. Bramblett); Vol. 27 of 43, at 305-06, 307-10 (test. of D. Bemis); Vol. 28 of 43, at 294-95 (test. of J. Apodaca).

1069

Tr., Vol. 29 of 43, at 193 (test. of M.H. Walton); Vol. 27 of 43, at 266-70 (test. of J. Ruvulcaba); Vol. 28 of 43, at 239-41, 244-45 (test. of I. Rodriguez); Vol. 30 of 43, at 82-83 (test. of R. Noriega);Vol. 29 of 43, at 86-88 (test. of J. Maese); Vol. 27 of 43, at 329-31, 335 (test. of J. Jessel); Vol. 28 of 43, at 68-70 (test. of R. Hecker); Vol. 28 of 43, at 217-19 (test. of S. Franklin); Vol. 29 of 43, at 134-35, 137-39 (test. of L. Franco); Vol. 29 of 43, at 159, 161-63 (test. of A. Franco); Vol. 29 of 43, at 263-64, 265-66 (test. of L. Carlos);Vol. 28 of 43, at 197-98 (test. of A. Carlos); Vol. 27 of 43, at 239, 245-47 (test. of G. Bueno); Vol. 29 of 43, at 113-14, 120 (test. of R. Bramblett); Vol. 27 of 43, at 312 (test. of D. Bemis); Vol. 28 of 43, at 308-09 (test. of J. Apodaca).

1070

Tr., Vol. 27 of 43, at 258-59 (test. of J. Rubalcava); Vol. 30 of 43, at 80-81 (test. of R. Noriega); Vol. 27 of 43, at 323 & 327 (test. of J. Jessel); Vol 28 of 43, at 59 (test. of R. Hecker); Vol. 28 of 43, at 215 (test. of S. Franklin); Vol. 29 of 43, at 146 (test. of L. Franco); Vol. 29 of 43, at 256-59 (test. of L. Carlos); Vol. 29 of 43, at 116-17 (test. of R. Bramblett).

1071

Tr., Vol. 29 of 43, at 196 (test. of M.H. Walton).

1072

Tr., Vol. 28 of 43, at 241-42 (test. of I. Rodriguez); Vol. 29 of 43, at 143-44, 145-46

1073

Tr., Vol. 29 of 43, at 181 & 186 (test. of M.H. Walton) (stating that she received nerve blocks, which alleviated her pain); Vol. 27 of 43, at 261 (test. of J. Ruvulcaba) (noting that he received nerve blocks and omitting any mention of coercion and duress); Vol. 28 of 43 at 231 (test. of I. Rodriguez) (recalling that he received nerve blocks and that the injections helped him); Vol. 30 of 43, at 79 (test. of Rosa Noriega) (stating that she did not receive nerve blocks and implying that no one attempted to pressure her into undergoing the procedure); Vol. 29 at 73-73 (test. of J. Maese) (stating that Bieganowski promptly sent him back to work); Vol. 27 of 43, at 325-26 (test. of J. Jessel) (recalling that block injections helped him and stating that he was able to return to work due to Bieganowski’s treatments); Vol. 28 of 43, at 62-63 (test. of R. Hecker) (asserting that she had block injections and that the procedure helped her); Vol. 28 of 43, at 207 (test. of S. Franklin) (explaining that the frequency of her clinic visits diminished as her condition improved); Vol. 29 of 43, at 130 & 132 (test. of L. Franco) (noting block injections helped her condition and that she was able to return to work); Vol. 29 of 43, at 155 (test. of A. Franco) (stating that he did not have block injections and implying that no one attempted to force him to undergo the procedure); Vol. 28 of 43, at 186 (test. of A. Carlos) (stating that she was able to return to work); Vol. 29 of 43, at 100-01, 109 (test. of R. Bramblett) (recounting his return to work after back surgery and stating that nerve block injections relieved his pain); Vol. 27 of 43, at 308-10 (test. of D. Bemis) (stating that he had nerve blocks and describing the procedure at the hospital); Vol. 28 of 43, at 293, 295, & 297 (test. of J. Apodaca) (recalling that she was able to return to work and that, although she discussed the possibility of having a block injection with Bieganowski, she decided not to have the procedure).

1074

Tr., Vol. 29 of 43, at 262-63 test. of L. Carlos) (discussing nerve blocks); Vol. 27 of 43, at 232, 248-50 (test. of G. Bueno) (stating that Bieganowski administered various nerve block injections); Vol. 27 of 43, at 265 (test. of J. Rubulcava) (stating that he visited Bieganowski’s clinic less frequently as his condition improved).

1075

See supra note 1063.

1076

See supra notes 1066 & 1068.

1077

Tr., Vol. 27 of 43, at 258-59 (test. of J. Rubulcava); Vol. 30 of 43, at 80-81 (test. of R. Noriega); Vol. 27 of 43, at 323 & 327 (test. of J. Jessel); Vol 28 of 43, at 59 (test. of R. Hecker); Vol. 28 of 43, at 215 (test. of S. Franklin); Vol. 29 of 43, at 146 (test. of L. Franco); Vol. 29 of 43, at 256-59 (test. of L. Carlos); Vol. 29 of 43, at 116-17 (test. of R. Bramblett).

1078

Tr., Vol. 28 of 43, at 241-42 (test. of I. Rodriguez); Vol. 29 of 43, at 143-44, 145-46

1079

Lest Bieganowski argue that the Court’s last statement supports his claim that Smith did not adequately prepare the affiants to testify, the Court categorically rejects any such contention. Nothing in the affidavits Bieganowski has offered persuade the Court that the affiants would have somehow given more beneficial testimony if they had merely had the benefit of additional hand-holding from Smith.

1080

See supra note 1070.

1081

See supra note 1073.

1082

Tr., Vol. 27 of 43, at 148-49.

1083

See supra Part III.B.

1084

Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

1085

Id.

1086

Bieganowski brings his claim concerning Valdespino’s Form 302 report as part of a claim entitled, “Counsel’s Failure to Pursue and Present Exculpatory Evidence.” Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 124. In addition to Bieganowski’s allegations concerning Valdesipino, Bieganowski alleges that counsel did not read notes memorializing their investigator’s interview with Elizabeth Cedillos. Id. If counsel had read the notes, Bieganowski argues, counsel would have learned that the FBI interviewed Cedillos, even though the FBI allegedly did not provide a Form 302 report concerning the interview. Id. “Obviously,” says Bieganowski, “the [Form] 302 contained exculpatory information.” Id. Furthermore, says Bieganowski, the investigator’s notes would have shown that Cedillos “had information crucial to the defense.” Id.

Bieganowski also asserts that counsel failed to obtain records from Bieganowski’s former counsel, Jim Darnell, showing that Bieganowski had filed a medical report notifying the relevant insurance carrier that Bieganowski had treated patient “Concepcion Monrreal” under another name (i.e., Maria Romero). Id. at 126. Bieganowski contends that counsel also failed to obtain a copy of a letter that Bieganowski allegedly sent to Darnell concerning Romero’s dual identity. Id. Bieganowski further asserts that Tammy Diaz had various notes documenting her communications with the insurance carrier concerning Romero and Romero’s alter ego, Monrreal. Id. at 127.

The Court has previously discussed Bieganowski’s allegations concerning Cedillos and Romero. See supra Part III.O. (Cedillos) & III.Y (Romero).

1087

Pet’r’s Am. Mot. to Vacate, Docket No. 616 at 127.

1088

Id. at 128.

1089

Id.

1090

Tr., Vol. 24 of 43, at 52-58.

1091

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 129.

1092

Id.

1093

Id.

1094

Order Deny’g Movant’s Mot. for Recusal, Docket No. 575, at 3-4.

1095

Fed.R.Crim.P. 18. In addition, the Sixth Amendment further entitles the accused to trial “by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. CONST. amend VI.

1096

Id.

1097

See United States v. Parker, 877 F.2d 327, 330-31 (5th Cir.1989) (discussing juror impartiality as the impetus for a change of venue pursuant to Federal Rule of Criminal Procedure 21(a)); United States v. Chagra, 669 F.2d 241, 250 (5th Cir.1982) (stating that, under Federal Rule of Criminal Procedure 21(a), a defendant must demonstrate that prejudicial, inflammatory publicity about his case so saturates the community from which his jury will be drawn as to render it virtually impossible to obtain an impartial jury).

1098

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 129-30.

1099

Id.

1100

Id. at 129-30.

1101

Id. at 130-31.

1102

Id. at 131-36.

1103

Id. at 131.

1104

Id.

1105

Id.

1106

Fed.R.Crim.P 16(a)(1)(A) (West 2000).

1107

On page 136 of his Amended Motion to Vacate, Bieganowski complains that “the Government had an exculpatory [Form] 302 from co-defendant Gustavo Diaz. The Government was able, at trial, to enlist [the undersigned judge], in declaring Mr. Diaz’s notes and [Form] 302 self-serving and inadmissible.” Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 136. Bieganowski has failed to identify where, specifically, in the voluminous record the Parties’ arguments and the Court’s ruling concerning Diaz’s Form 302 report are to be found. The Court therefore finds that Bieganowski has waived his claim as to Diaz. In addition, the Court observes that Bieganowski’s complaint regarding FBI notes of interviews with Diaz appears to go to the Court’s ruling on the notes’ and reports’ admissibility rather than the Government’s duty to disclose the notes and Form 302 report. Indeed, it is clear from Bieganowski’s own argument, quoted above, that the Parties were aware of the notes’ and reports’ contents and litigated their admissibility at trial. Therefore, to the extent Bieganowski argues that Roberts was ineffective because he did not attempt to compel the Government to provide agents’ interview notes, the Court finds that Bieganowski has not established prejudice. If Roberts himself was not the one to raise the issue, it is clear that one or more of Bieganowski’s co-defendants did. Furthermore, Bieganowski does not actually allege that the agents’ notes of their interview with Diaz were inconsistent with their Form 302 report prepared thereafter. As such, the agents’ notes concerning Diaz would not have been subject to disclosure under Rule 16(a)(1)(A). See United States v. Brown, 303 F.3d 582, 590 (5th Cir.2002) (holding that Rule 16(a)(1)(A) does not grant a criminal defendant a right to preparatory interview notes where the content of those notes have been accurately captured in a type-written report, such as a Form 302, that has been disclosed to the defendant).

1108

United States v. Brown, 303 F.3d 582, 590 (5th Cir.2002). 178

1109

18 U.S.C.A. § 3500(a).

1110

Id.

1111

Duncan v. Cain, 278 F.3d 537, 539 (5th Cir.2002) (recognizing that an investigating officer’s notes made during a witness interview are not covered by the Jencks Act, and absent proof that the notes constitute a verbatim transcription of the interview or that the witness otherwise adopted the report, have no impeachment value); Edwards, 702 F.2d 529, 531 (5th Cir.1983) (noting that FBI Form 302 reports which do not represent substantially verbatim reports are not “statements” within the meaning of the Jencks Act).

1112

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Ex. HH (FBI Form 302 Report, dated March 2, 1999, concerning interview with Edith Marie McIntosh). Further, the Government asserted that, although it was not required to do so, it had turned over all Jencks Act material concerning its witnesses in advance of their testifying at trial. Tr., Vol. 9 of 43, at 9.

1113

Tr., Vol. 9 of 43, at 9.

1114

See Strickler v. Greene, 527 U.S. 263, 290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (setting forth the evolution of the Brady standard and the essential components of a Brady claim, explaining that not every violation of the prosecution’s broad duty of disclosure necessarily establishes a due process violation); United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (holding that the prosecution must disclose impeaching evidence as well as exculpatory evidence); United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (holding that the prosecution’s duty to disclose evidence favorable to the accused applies whether or not the accused requests the information); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that, regardless of the prosecution’s good or bad faith, its suppression of evidence favorable to the accused upon the accused’s request denies him due process, where the information is material to the issue of the accused’s guilt or punishment).

1115

See Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004).

1116

See Bigby v. Cockrell, 340 F.3d 259, 279 (5th Cir.2003) (concluding that Brady did not obligate prosecutors to provide the defendant’s trial counsel with copies of his client’s jail medical records, which showed the number of psychotropic medications that defendant was taking while incarcerated and awaiting trial, because defense counsel could have obtained the records by exercising reasonable diligence); Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir.2002) (holding that Brady does not require prosecutors to furnish a defendant with exculpatory evidence if that evidence is fully available to the defendant through an exercise of reasonable diligence); Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir.1997) (holding that the State has no duty to lead the defense toward potentially exculpatory evidence if the defendant possesses the evidence or can discover it through due diligence).

1117

Bilby, 340 F.3d at 279; Kuttner, 303 F.3d at 336; Rector, 120 F.3d at 558-59.

1118

Strickler, 527 U.S. at 290.

1119

Id.; see Kyles v. Whitley, 514 U.S. 419, 433-44, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (“The adjective [‘reasonable probability’] is important. The 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.”).

1120

United States v. Brown, 303 F.3d 582, 592-96; United States v. Martin, 565 F.2d 362, 363-64 (5th Cir.1978).

1121

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 136-37.

1122

Tr., Vol. 8 of 43 (Hr’g on All Pend’g Mots.), at 11-14.

1123

Id. at 14-15.

1124

Id. at 15-16.

1125

Id. at 16-18. Agent Griego stated that Espinoza was in prison serving a 25-year sentence for armed robbery. Id. at 24. Espinoza self-reported that he had not been convicted of a crime that involved lying. Id. at 23-24.

1126

Id. at 20-22.

1127

Id. at 23.

1128

According to Agent Griego, Espinoza described the individual he had spoken with as a “white male approximately 5′ 8″, 160-170 pounds, [with] gray hair, light complexion with a thin face and what appeared to be a small mustache growing.” Id. at 24. According to Agent Griego, Espinoza stated that the man, whose first name was “Arthur” and whose last name began with the letter “B,” told Espinoza that he was a doctor and a psychiatrist who had a practice in El Paso, Texas, and that he was then on his way back to El Paso from a hospital in New York. Id. at 22-23.

1129

Id. at 25.

1130

Id. at 25-26.

1131

Id. at 26.

1132

Id.

1133

Id. at 27.

1134

Id.

1135

Id. at 28.

1136

Id. at 48-77.

1137

Id. at 56-59.

1138

Pet’r’s Am. Mot. Vacate, Docket No. 616, at 137.

1139

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 136-37; Aff. 27 (unsigned decl. of Tony Duarte).

1140

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 138-44.

1141

Id.

1142

United States v. Sparks, 2 F.3d 574, 582 (5th Cir.1993).

1143

Id.

1144

Id.

1145

To the extent Bieganowski argues that counsel should have objected that the airlines, rather than Lucy Campos, were the proper custodian of Bieganowski’s travel records, Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 141, his argument is similarly unavailing. Federal Rule of Evidence 803(b) does not require “that the witness who lays the foundation [for business records] be the author of the record or be able to personally attest to its accuracy. Furthermore, there is no requirement that the records be created by the business having custody of them.” United States v. Duncan, 919 F.2d 981, 986 (5th Cir.1990) (internal citations omitted). Counsel cannot be said to have performed deficiently for declining to raise a frivolous objection.

1146

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 144-45.

1147

Dardar v. Lafouche Realty Co., 849 F.2d 955, 957 (5th Cir.1988).

1148

28 U.S.C.A. § 1291 (West 2005).

1149

28 U.S.C.A. § 1292(a)(1) (West 2005).

1150

28 U.S.C.A. § 1292(b) (West 2005).

1151

Tr., Vol. 9 of 43, at 28-135.

1152

Id. at 153.

1153

Id. at 155-56.

1154

Id.

1155

Id. at 157.

1156

Id. at 158.

1157

United States v. Bieganowski, 313 F.3d 264, 271 (5th Cir.2002).

1158

Id. at 273-74.

1159

Pet’r’s Am. Mot. to Vacate, Docket No 616, at 147.

1160

Id.

1161

Bieganowski, 313 F.3d at 274.

1162

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 148-53.

1163

United States v. Tucker, 345 F.3d 320, 336 (5th Cir.2003) (quoting United States v. Holley, 942 F.2d 916, 926 (5th Cir.1991)).

1164

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 153-61.

1165

United States v. Ismoila, 100 F.3d 380, 390 (5th Cir.1996).

1166

United States v. Rodriguez, 278 F.3d 486, 491 (5th Cir.2002) (internal quotations omitted).

1167

Bieganowski, 313 F.3d at 291-92.

1168

Id. at 292.

1169

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 167.

1170

Id. at 167-70.

1171

Id. at 170-73.

1172

Id. at 173-74.

1173

Id. at 174-75.

1174

Id. at 175-76.

1175

Id. at 176-76. The Court notes that two consecutive pages of Bieganowski’s Amended Motion to Vacate are both numbered as page 176.

1176

Id. at 176-77.

1177

Id. at 177-89.

1178

Id. at 190-99.

1179

Id. at 198-234.

1180

Id. at 234-72.

1181

Resp’t’s Resp., Docket No. 671, at 90-91.

1182

Id.

1183

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 167. Bieganowski identifies the other physicians as “Arlin” Gifford and Anthony Valdez. Id. The Court takes judicial notice of two cases: United States v. Loring Arden Gifford, No. 3:94-CR-424-DB, and United States v. Anthony F. Valdez, 3:97-CR-1077-DB. See Fed.R.Evid. 201(d) (vesting a court with the authority to take judicial notice of facts that are not subject to reasonable dispute, in that the facts are generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to resources whose accuracy cannot reasonably be questioned). The record for those cases, which is consistent with the Court’s independent recollection, shows that the undersigned district judge presided over both trials. The record for those cases also reveals that a jury found defendant Gifford guilty of the Government’s charges. A jury acquitted defendant Valdez, however, of conspiring to commit mail fraud and aiding and abetting mail fraud.

1184

Id.

1185

Id.

1186

Resp’t’s Resp., Docket No. 671, at 90-91.

1187

Id. at 91.

1188

See supra text accompanying note 1183.

1189

Id.; see Am. Plan for Random and Direct Assignm’t of Cases in Multi-Judge Divisions (May 28, 2003), ¶ VI “Assignment of Criminal Cases”) (stating that all criminal cases shall be filed randomly, and that in the event that the U.S. Attorney, defense counsel, or both deem that the case should be transferred to another judge, they may file an appropriate motion to transfer). The Court takes judicial notice that, at the time of Bieganowski’s Indictment, the procedure for assigning cases was substantially similar to the Western District’s current plan.

1190

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 169-70.

1191

Id. at 170.

1192

Id.

1193

Id. at 173-74.

1194

Resp’t’s Resp., Docket No. 671, at 90-91.

1195

Id. at 93.

1196

Id.

1197

Id. at 92.

1198

Strickler, 527 U.S. at 290; Bagley, 473 U.S. at 676; Agurs, 427 U.S. at 107; Brady, 373 U.S.

1199

Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004).

1200

Giglio, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

1201

Banks, 540 U.S. at 691.

1202

Id.

1203

Id.

1204

Bilby, 340 F.3d at 279; Kuttner, 303 F.3d at 336; Rector, 120 F.3d at 558-59. 196

1205

Bilby, 340 F.3d at 279; Kuttner, 303 F.3d at 336; Rector, 120 F.3d at 558-59.

1206

Strickler, 527 U.S. at 290.

1207

Id.

1208

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 173-74.

1209

Id. at 174.

1210

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 30 (Aff. of Naomi Garcia), at 3-4.

1211

Id. In support of its motion to detain Bieganowski without bond, the Government asserted that Bieganowski had certain unnamed individuals threaten Maria Pragner, Bieganowski’s patient, to dissuade her from testifying against Bieganowski or otherwise assisting the Government. At the bond hearing, Darnell offered the affidavits of Naomi Garcia (Gustavo Diaz’s girlfriend), Eliza Garcia (Maria Pragner’s former sister-in-law), and Hank Webb (Darnell’s investigator) to undermine Pragner’s credibility. Although each of the aforementioned affidavits portray Maria Pragner in an unflattering light, only Naomi Garcia’s affidavit mentions Pragner’s contact with Agent Griego.

1212

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 30 (memo. dated 12/17/97).

1213

Pet’r’s Am. Mot. to Vacate, Docket No. 616.

1214

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 170-73.

1215

FBI Form 302 reports represent interview notes taken by government agents. United States v. Edwards, 702 F.2d 529, 531 (5th Cir.1983).

1216

Id. at 172-73.

1217

Resp’t’s Resp., Docket No. 671, at 31, 84, 93-94.

1218

Edwards, 702 F.2d at 531 (noting that, in a direct appeal alleging a Jencks Act violation, it is the defense’s duty to request the Government to produce the statement at issue for the appellate court’s consideration).

1219

18 U.S.C.A. § 3500(a).

1220

Tr., Vol. 1 of 43(Master Chrono. Index), passim.

1221

Duncan v. Cain, 278 F.3d 537, 539 (5th Cir.2002) (recognizing that an investigating officer’s notes made during a witness interview are not covered by the Jencks Act, and absent proof that the notes constitute a verbatim transcription of the interview or that the witness otherwise adopted the report, have no impeachment value); Edwards, 702 F.2d at 531 (noting that FBI Form 302 reports which do not represent substantially verbatim reports are not “statements” within the meaning of the Jencks Act).

1222

The prosecution did not provide the defense with a Form 302 report for Wendy Murillo. Before cross-examining Murillo, Roberts told the Court that he had received a transcript of Murillo’s Grand Jury testimony, but that he had not received an FBI 302 Report for her. Tr., Vol. 14 of 43, at 170. Roberts asked that, if the Government had a Form 302 report for Murillo, that he be allowed to see it. Id. Assistant United States Attorney Debra Kanof replied that the Government did not have a Form 302 report for Murillo. Id. Also, as the Court has discussed elsewhere in Part III.F, supra, this Memorandum Opinion, the record supports a finding that the Government provided all Jencks Act material in its possession.

1223

United States v. Schneiderhan, 404 F.3d 73, 80 (1 st Cir.2005) (finding that the alleged Jencks error was harmless and that, in any event, the defendant had not even attempted to demonstrate prejudice); United States v. Vieth, 397 F.3d 615, 619 (8th Cir.2005) (stating that a conviction can only be overturned under the Jencks Act if there was bad faith by the government and prejudice to the defendant); United States v. Ramirez, 174 F.3d 584, 588 (5th Cir.1999) (declining to craft a good faith exception to alleged Jencks Acts violations, but requiring the defendant to show more than harmless error in order to obtain a reversal of his conviction); United States v. Schell, 775 F.2d 559, 567 (4th Cir.1985) (noting that Jencks Acts violations constitute harmless error when no prejudice results to the defense).

1224

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 174-75.

1225

Id.

1226

Resp’t’s Resp., Docket No. 671, at 31, 84, 93.

1227

Id.

1228

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff.6 (Aff. of E. Cedillos) & Aff 12 (Aff. of A. McKinley). Bieganowski also refers the Court to an unsigned declaration, purportedly made by his former employee, Tony Duarte. Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 27 (unsigned decl. of T. Duarte). As the declaration is unsigned, much less notarized, it carries negligible evidentiary value.

1229

United States v. Augurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

1230

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff.6 (Aff. of E. Cedillos) ¶ 34.

1231

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 12(Aff. of A. McKinley) ¶ 19.

1232

United States v. Cannon, 88 F.3d 1495, 1507 n. 3 (8th Cir.1996); see also Berry v. Peterson, 887 F.2d 635, 641 (5th Cir.1989) (noting that citizens have an interest in and are entitled to zealous law enforcement).

1233

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 174-75.

1234

Resp’t’s Resp., Docket No. 671, at 93.

1235

United States v. Bieganowski, 313 F.3d 264, 291 (5th Cir.2002).

1236

Id.

1237

Id.

1238

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 17 (Aff. of B. Cortez) ¶ 13.

1239

Id.

1240

Id.

1241

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 17 (Aff. of B. Cortez) & Aff. 27 (unsigned decl. of T. Duarte).

1242

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Ex. JJ.

1243

Id.

1244

Id.

1245

Id.

1246

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Ex. LL.

1247

Id.

1248

Id.

1249

Id.

1250

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 31 (Aff. of A. Bieganowski) ¶ 1.

1251

Id. at ¶ 3.

1252

Id. at 175-76.

1253

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 32 & 33 (Aff. of A. Bieganowski).

1254

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 32 (Aff. of A. Bieganowski) ¶ 1.

1255

Id. at ¶¶ 2-3.

1256

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 33 (Aff. of A. Bieganowski) ¶¶ 1-5.

1257

Although Bieganowski purports to have the unidentified individuals’ safety in mind when he refuses to identify the declarants, the Court notes that there are long-extant procedures in place, such as ex parte motions to file information under seal and ex parte requests for in-camera inspection, designed to handle sensitive information. Bieganowski’s failure to avail himself of these measures in itself strongly suggests that there is no factual basis for Bieganowski’s assertions.

1258

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 175-76.

1259

Id. at 176.

1260

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 35 (Aff. of A. Bieganowski) ¶ 4.

1261

Id. at ¶ 5.

1262

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 34 (Aff. of A. Bieganowski) ¶ 2 & ¶ 4.

1263

Id. at ¶¶ 2-4.

1264

Resp’t’s Resp., Docket No. 671, at 94.

1265

Def.’s Mot. for Continuance of Trial, Docket No. 135, at 4 ¶ II.E.

1266

Id.

1267

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 176-77. Agent Rhodes, who testified at Bieganowski’s trial, assisted the FBI with its undercover sting operation, detailed earlier in this Memorandum Opinion. Tr., Vol. 9 of 43, at 250-265; Vol. 10 of 43, at 13-21.

1268

Pet’r’s Am. Mot. to Vacate, Docket No. 616, Aff. 36 (Aff. of A. Bieganowski).

1269

Id. at ¶¶ 3-4.

1270

Id. at ¶ 5.

1271

Id. at ¶ 6.

1272

Id. at ¶ 7.

1273

Pet’r’s Am. Mot. to Vacate, Docket No. 616, at 177-272.

1274

Fed.R.App.P. 22(b).

1275

See Crutcher v. Cockrell, 301 F.3d 656, 658 n. 10 (5th Cir.2002), (holding that a CoA is granted on an issue-by-issue basis, thereby limiting appellate review to those issues); Jones v. Cain, 227 F.3d 228, 230 n. 2 (5th Cir.2000) (holding the scope of appellate review from the denial of habeas petition is limited to issue on which the CoA granted).

1276

28 U.S.C.A. § 2253(c)(3) (West 2005); Crutcher, 301 F.3d at 658 n. 10; Hill v. Johnson, 114 F.3d 78, 80 (5th Cir.1997); Muniz v. Johnson, 114 F.3d 43, 45 (5th Cir.1997); Murphy v. Johnson, 110 F.3d 10, 11 n. 1 (5th Cir.1997).

1277

28 U.S.C.A. § 2253(c)(2); Miller-El, 537 U.S. at 327.

1278

Miller-El, 537 U.S. at 338.

1279

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

1280

Id.

1281

Id.

1282

Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.2000).

End of Document
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