NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0244n.06
Case No. 15-4363
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Apr 28, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
CHRISTOPHER STEGAWSKI, ) OHIO
)
Defendant-Appellant. )
BEFORE: GIBBONS, SUTTON, and COOK, Circuit Judges.
SUTTON, Circuit Judge. A jury convicted Christopher Stegawski of conspiring to
distribute controlled substances, see 21 U.S.C. §§ 841(a)(1), 846, maintaining a place for
distributing controlled substances, see id. § 856(a), and conspiring to launder money, see 18
U.S.C. § 1956(h)—the conventional charges for what has become the all-too conventional means
of running a pill mill. On appeal, Stegawski does not challenge the sufficiency of the evidence
for his convictions, any procedural or evidentiary rulings, or his sentence. He instead claims that
he never would have been convicted if his attorney had conducted the trial as instructed: by
inviting convicted doctors to vouch for Stegawski’s issuance of opiate prescriptions and by
cross-examining the prosecution’s expert doctor. But Stegawski’s trial attorney did the best a
reasonable lawyer could have done with a difficult case. We affirm the denial of Stegawski’s
motion for a new trial.
Case No. 15-4363, United States v. Stegawski
I.
A native of Poland, Stegawski graduated from medical school in his home country, after
which he immigrated to the United States. He practiced for a few decades and eventually began
working for a temporary physician placement agency. The agency connected Stegawski with
John Randy Callihan, a previously convicted felon who had set up a pain clinic in Dayton that
conducted “no procedures; [] just straight prescription writing.” R. 188 at 61. The first two
doctors assigned by the placement agency to work with Callihan didn’t approve of what he was
doing, and left. Stegawski was a better match. Dayton-area pharmacists, however, soon alerted
the Ohio State Pharmacy Board of Stegawski’s penchant for readily prescribing oxycodone and
Xanax for patients. Callihan closed the Dayton clinic when law enforcement asked him about
the pharmacists’ concerns.
That did not end matters. Stegawski left the placement agency, and he and Callihan set
up shop in Lucasville, Ohio. Stegawski owned the clinic in his own name, allowing him to
dispense drugs directly to patients and to sidestep regulations prohibiting felons like Callihan
from owning pain clinics. Drug addicts and dealers soon began showing up at the clinic. The
patients paid in cash for their appointments, and the clinic did not accept medical insurance.
Stegawski and Callihan designed the appointments to “get them in and out” as quickly as
possible with the barest semblance of treatment. R. 202 at 132. The doctor spent more time with
some patients—women whom he found attractive—both in and out of the office.
Undercover law enforcement agents caught on to what Stegawski was doing and
managed to obtain medically unnecessary opiate prescriptions from him. As a result, the Ohio
State Pharmacy Board denied Stegawski’s application to open up a drug dispensary within the
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Lucasville clinic. After Callihan and Stegawski had a falling out, Callihan evicted Stegawski
from the clinic building.
Stegawski tried to open a new clinic in Portsmouth. But local police shut that operation
down too.
With the help of some opioid-addicted patients, the doctor broke into the Lucasville clinic
with bolt cutters. He then resumed his practice there until law enforcement (again) closed the
clinic.
Stegawski and one of his female patients opened yet another clinic in nearby South Point,
Ohio. Before long, law enforcement closed that clinic also.
A grand jury indicted Callihan and Stegawski. Callihan pleaded guilty to conspiring to
distribute narcotics and to launder money and agreed to testify against Stegawski. After firing
two appointed attorneys, Stegawski instructed his third attorney, Michael Cheselka, to take his
case to trial.
Stegawski had his own ideas about the best way to conduct the trial. He envisioned a
three-week trial. For the defense’s case, Stegawski imagined that he “should testify at least for a
week, and at least another week [should be] spent on examining witnesses and presenting
evidence.” R. 170 at 31. Stegawski’s prescription methodology, in his mind, was beyond
reproach, and any expert doctor would testify to that effect. Stegawski wanted Cheselka to call
forty patients (including a few whom Stegawski had sexual relations with), six co-workers, eight
physicians, and a member or two of the Ohio Medical Board and the State Pharmacy Board to
the stand. The prosecution’s witnesses would break down during cross-examination, he
believed, and admit “the techniques used by the [government] agents to obtain incorrect
testimony” and their “agree[ments] to falsely testify against” him. Id. at 9. If all else failed,
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Stegawski “had prepared several, maybe [a] thousand to 2,000 articles,” along with “several
movies and TV reports” that would reveal the extent of the devious government conspiracy. Id.
at 68. Convicted doctors from “federal prisons all over the country” would “come to trial to talk
about the fact that the prosecution of doctors is a government conspiracy.” Id. at 79. After
considering the corrupt police in The French Connection, or pondering the assassination of
President John F. Kennedy, the jury would acquit Stegawski on all counts.
But Stegawski’s ideas for the trial were not all that mattered. Fortunately for Stegawski
and others, clients control the “objectives of representation” while lawyers generally control “the
means by which they are to be pursued.” Model Rules of Prof’l Conduct r. 1.2(a). Cheselka
presented a more traditional defense and secured an acquittal on one count and a dismissal of
another. Even so, the jury convicted Stegawski on four other counts. The court imposed a 160-
month sentence.
Stegawski fired Cheselka. Through his fourth counsel, Stegawski moved for a new trial
on the basis of Cheselka’s purported ineffectiveness. After conducting an evidentiary hearing,
the district court denied Stegawski’s motion across the board.
II.
On appeal, Stegawski does not challenge the sufficiency of the evidence to support his
convictions or his sentence. He instead claims that the court should have granted his motion for
a new trial based on the alleged ineffectiveness of his lawyer.
We normally do not review ineffective-assistance claims on direct appeal because the
record is “usually insufficient” to review the claim. United States v. Gardner, 417 F.3d 541, 545
(6th Cir. 2005). The better approach is usually to wait for a collateral challenge to the conviction
under 28 U.S.C. § 2255. Id. But in this instance, new counsel raised the claims in a post-trial
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motion, the district court held an evidentiary hearing on the motion, developed the record with
respect to the claims, and squarely addressed the claims, making it appropriate for us to review
that ruling on appeal. United States v. Arny, 831 F.3d 725, 730–31 (6th Cir. 2016); United States
v. Munoz, 605 F.3d 359, 366 (6th Cir. 2010). Review of a motion for a new trial, it is true, is an
“atypical context” for reviewing ineffective assistance claims, but we see no basis for declining
to review it, just as we would any other Rule 33 motion. Id.
To succeed, Stegawski must show two things: that his lawyer’s representation fell short
of “an objective standard of reasonableness” and that the deficiencies were “prejudicial” to his
case. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984). In trying to meet this test,
Stegawski focuses on Cheselka’s decisions not to retain a medical expert and not to cross-
examine the prosecution’s medical expert. Neither challenge succeeds.
Medical expert. Cheselka reasonably decided not to retain a medical expert because there
was not then, and is not now, an identified medical expert who would have supported
Stegawski’s prescription habits. From the time Cheselka agreed to represent Stegawski, the
attorney knew that his client wanted to hire a medical expert to testify at trial. The problem was
that they “couldn’t find one” willing to testify in Stegawski’s defense. R. 170 at 94. Cheselka
scoured books and studies looking for doctors who would support Stegawski’s liberal
prescription practices. He even asked Stegawski if he knew of any doctors who might testify on
his behalf. All Stegawski gave his attorney was “a list of articles about doctors who had been
prosecuted” and a list of doctors who had “been convicted and are doing time in federal prisons
all over the country.” Id. at 79, 83. We break no new ground in holding that it is a “sound trial
strategy,” Strickland, 466 U.S. at 689, for a criminal-defense lawyer to resist putting an expert on
the stand who was convicted for doing just what the defendant was indicted for doing.
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One doctor recommended by Stegawski, it is true, was free from such concerns. But that
doctor confirms the point: He refused to testify in Stegawski’s defense.
Even had this not been the case, any chance of establishing prejudice from this trial
strategy was vanishingly slim. In view of the considerable evidence of Stegawski’s lax
prescription practices, there is no “reasonable probability that,” but for trial counsel’s alleged
error in failing to retain a medical expert, “the result of the proceeding would have been
different.” Id. at 694. Consider some of that evidence. When an undercover officer requested a
painkiller to help her sleep, Stegawski recommended the “more powerful” and “much stronger”
OxyContin, telling her: “Try them; they’re fun.” R. 188 at 21–22. Stegawski prescribed his
patients as many opiates as they requested. At one point, he prescribed a patient, who used a
drug dealer “sponsor” to receive the prescription faster, 150 30-milligram oxycodone pills,
150 15-milligram oxycodone pills, and 30 Xanax pills (nominally) per month. Stegawski had
another patient, whom he once asked out to dinner, on 15 30-milligram oxycodone pills and
20 15-milligram oxycodone pills per day.
Other evidence pointed relentlessly in the same direction. The only medical equipment at
the clinics was a blood pressure machine in the nurse’s room and an examination bed in the room
where Stegawski met his patients. Stegawski ignored health conditions and didn’t examine
patients at follow-up appointments when he re-prescribed painkillers. And Stegawski met some
of his female patients outside the office. On several occasions, he drove an hour and a half to
Mt. Sterling, Kentucky, to meet a female patient, who was also an employee, at a Walmart
parking lot. Stegawski delivered large prescriptions of methadone, oxycodone, Xanax, and
Percocet to her and spent the night at the woman’s house. Another female patient allowed
Stegawski to sleep, shower, and party with her in exchange for drug money and prescriptions.
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As Dr. Gronbach, the prosecution’s expert in pain management, testified, Stegawski’s
treatment methodology displayed “a lack of any kind of individualized or tailored medical care
for the patients.” R. 201 at 103. Stegawski’s prescriptions were “extremely unusual
combination[s]” of oxycodone, Xanax, methadone, and similar drugs—in other words, “the
highest, most addicting combinations of medications.” Id. at 45, 103. Dr. Gronbach explained
how Stegawski ignored patient urinalyses, which showed that some patients weren’t taking the
medications that Stegawski had prescribed while others were taking painkillers that Stegawski
hadn’t prescribed. The tests suggested that the former were selling their prescriptions and the
latter were buying drugs on the street. Stegawski ignored these warning signs and continued
overprescribing painkillers. This sort of evidence has become all-too familiar, now bordering on
the cliché. See, e.g., United States v. Sadler, 750 F.3d 585 (6th Cir. 2014) (sufficient evidence to
convict conspirators when pain clinic doctors regularly prescribed high doses of painkillers to
phantom patients and known drug addicts after cursory examinations and up-front cash
payments).
Stegawski never explains how a medical expert could have refuted this overwhelming
evidence of guilt. Even if Cheselka had hired a medical expert, no one would have “come in and
review[ed] the same files” and supported Stegawski’s practices. R. 170 at 84. Stegawski asks us
“to take the leap of faith” that an uncalled and unnamed medical expert—yet to be found even
now—would somehow have rebutted Dr. Gronbach’s testimony. Day v. Quarterman, 566 F.3d
527, 538 (5th Cir. 2009). How can we say that Cheselka committed unconstitutional malpractice
for failing to find a doctor that Stegawski and his new lawyer have yet to find to this day? That
is a leap of after-the-fact second guessing that Strickland commands us not to take.
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In truth, Stegawski’s only quibble with Dr. Gronbach’s testimony is his “interpretation[]
of the urinalysis reports contained in the patient files he analyzed.” Reply Br. 5. Through it all,
however, Stegawski never identifies any urinalysis that Dr. Gronbach misinterpreted.
The Supreme Court, it is true, has held that it is unreasonable for an attorney not to seek
additional funds for an expert witness where that failure is based not on any strategic choice but
on a mistaken belief about the availability of funds. Hinton v. Alabama, 134 S. Ct. 1081, 1088
(2014) (per curiam). But the reason Cheselka didn’t hire an expert was not a lack of money; it
was that he couldn’t find a credible expert willing to testify in Stegawski’s defense. It’s safe to
say that, when Cheselka refused to hire doctors because of their previous convictions for similar
offenses, he was doing so on strategic (and eminently reasonable) grounds. Cheselka also knew
that no expert witness could absolve Stegawski of responsibility for his lax prescription habits if
Stegawski himself wasn’t able to justify his prescription methods when Cheselka called him to
the stand. Cheselka acted reasonably in choosing not to hire an expert.
Cross-examination. Although Cheselka cross-examined several witnesses, he decided
not to cross-examine Dr. Gronbach. His reason: cross-examination would “reinforce the
testimony,” and Cheselka wagered that Stegawski, as a doctor, could “walk through point by
point” Dr. Gronbach’s testimony. R. 170 at 88. Cheselka discussed this strategic decision with
his client during the trial. And Cheselka was convinced that it was the best available option
despite Stegawski’s inattentiveness during trial preparation. Cheselka made this strategic choice
“after considering the relevant law and facts,” making it particularly difficult to challenge the
decision. Moss v. Hofbauer, 286 F.3d 851, 864 (6th Cir. 2002). Dr. Gronbach’s testimony on
the urinalyses and other evidence was cogent and sound. Lacking any legitimate basis for
impeachment, Cheselka was wise to avoid drawing further attention to Dr. Gronbach’s
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testimony. “[O]ther attorneys might have reached a different conclusion about the value of
cross-examining” Dr. Gronbach, but Cheselka’s “decision was ‘within the wide range of
reasonable professional assistance.’” Id. (quoting Strickland, 466 U.S. at 689).
For these reasons, we affirm.
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