Lowe v. United States

Background

Kevin Lowe filed a petition under 28 U.S.C. § 2255, a federal procedure allowing a prisoner to challenge a federal conviction or sentence. He proceeded without a lawyer. A jury had convicted him after a two-week trial of conspiring to distribute oxycodone, and the court sentenced him to 144 months in prison. The Court of Appeals for the Second Circuit later affirmed the conviction and sentence.

Lowe’s defense at trial was that he did not know about or agree to the conspiracy. The government presented evidence concerning the operation of clinics that Lowe owned and controlled, including testimony from Robert Terdiman, a physician who worked at one clinic. The government also presented evidence that Lowe knew about unusually high patient volumes, cash payments, limited medical equipment, and investigations into the clinics’ prescribing practices.

Claims and Analysis

Lowe raised three groups of claims: ineffective assistance of trial counsel, failure to disclose evidence required by Brady v. Maryland, and the government’s alleged use of perjured testimony.

For ineffective assistance, the court applied the two-part test from Strickland v. Washington. Lowe had to show both that his lawyer’s performance fell below an objective standard of reasonableness and that the alleged errors probably affected the result. The court rejected allegations that counsel failed to investigate or call witnesses, failed to use phone records and police-related material, failed to respond adequately to the government’s expert, failed to impeach Terdiman, failed to make certain motions or objections, and acted unprofessionally.

The court reasoned that testimony from two doctors and police officers would have been cumulative or potentially harmful, and that allegations concerning unnamed clinic employees and other witnesses were too general. It found that the phone records would not probably have changed the verdict because other evidence established Lowe’s knowledge of patient volume. It also found that challenging the government’s expert would not have advanced Lowe’s theory that he lacked knowledge and intent. Counsel’s choices concerning Terdiman’s memory and cognitive problems were treated as potentially reasonable trial strategy. The court further found that the record did not show that counsel acted unreasonably by not seeking to remove a juror who had previously known Terdiman, and that objecting to the jury instruction on deliberate avoidance would not probably have changed the result. The court stated that the claims about counsel’s absences and lateness did not show how those problems caused the guilty verdict.

The court also rejected Lowe’s claim that the government withheld favorable evidence. A Brady violation requires favorable evidence, suppression by the government, and resulting prejudice. Lowe did not identify undisclosed medical records concerning Terdiman, and the government said it had no report of an interview with Jean-Yves Dastian. The government assumed that a report of a Drug Enforcement Administration interview with Caesar Santos had not been provided before trial, but the court found the report immaterial because it did not undermine confidence in the verdict or contradict the evidence about Lowe’s awareness or involvement.

Finally, the court rejected Lowe’s claim that the government elicited false testimony from Terdiman. The evidence did not establish that Terdiman knowingly testified falsely about whether the clinic maintained a system for tracking patients who received controlled substances. Santos had worked at the clinic for seven days and had never met Terdiman, and the report did not show whether the tracking system was used, accessible, or known to Terdiman.

Ruling and Effect

Judge Lorna G. Schofield denied the § 2255 petition. The court stated that Lowe had not made the required substantial showing that a federal right had been denied, so appellate review was not warranted. Under the cited statute, the court also stated that any appeal would not be taken in good faith. The Clerk of Court was directed to close the case and mail Lowe a copy of the Opinion and Order.