          Case: 18-14710   Date Filed: 03/23/2020   Page: 1 of 4



                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-14710
                       Non-Argument Calendar
                     ________________________

                D.C. Docket Nos. 1:17-cv-20468-JEM,
                       1:12-cr-20757-JEM-3


CHRISTIAN COLOMA,

                                                        Petitioner-Appellant,

                                versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee,



ATTORNEY RONALD GAINOR, et al.,


                                                                   Intervenors.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                           (March 23, 2020)
                 Case: 18-14710    Date Filed: 03/23/2020   Page: 2 of 4



Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

         Christian Coloma is a federal prisoner serving a 144-month sentence for one

count of conspiracy to defraud the United States and to pay and receive kickbacks

in connection with a federal healthcare benefit program, in violation of 18 U.S.C.

§ 371, and five counts of payment of kickbacks in connection with a federal

healthcare benefit program, in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). He

appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate.

Coloma argues that the government violated his Fifth and Sixth Amendment rights

when it obtained duplicate copies of his attorney work product from a government

contracted copying service. For the following reasons, we affirm.

         In reviewing a district court’s denial of a § 2255 motion to vacate, we review

de novo the court’s legal conclusions and review for clear error the court’s factual

findings. Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en

banc).

         The Fifth Amendment guarantees the right against the deprivation of “life,

liberty, or property, without due process of law.” U.S. Const. amend. V. To

constitute a violation of the Fifth Amendment due process clause, the alleged

violation “must be so outrageous that it is fundamentally unfair and shocking to the

universal sense of justice.” United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.


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1987) (internal quotation mark omitted). “[T]he totality of the circumstances must

be considered with no single factor controlling” when determining whether such

conduct exists, and “[t]he defense is to be invoked only in the rarest and most

outrageous of circumstances.” Id. (internal quotation marks omitted). Even if the

behavior constituted a violation of the Fifth Amendment due process clause,

reversal is only warranted if the defendant demonstrates that the violation resulted

in prejudice (or, if applicable, the substantial threat of prejudice). See United

States v. Morrison, 449 U.S. 361, 365–66 (1981).

       The Sixth Amendment guarantees anyone accused of a crime the right to

assistance of counsel. U.S. Const. amend. VI. An alleged Sixth Amendment

violation must have had (or threatened) “some adverse effect upon the

effectiveness of counsel’s representation or . . . produced some other prejudice to

the defense” to warrant “imposing a remedy.” Morrison, 449 U.S. at 365.

       Here, assuming without deciding that counsel’s selection and/or compilation

of documents during discovery from government-produced documents constituted

privileged attorney work product under Federal Rule of Criminal Procedure

16(b)(2),1 Coloma still has not established a violation of his Fifth Amendment

right to due process or Sixth Amendment right to assistance of counsel. This is



1
 It does not appear that we or the Supreme Court have addressed this specific issue, but we need
not reach it to decide this appeal.
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because he has failed to show that the government’s alleged receipt of his

counsel’s work product was outrageous or prejudicial to him. In the face of

substantial inculpatory evidence presented at trial by 23 witnesses, at best, he

offers nothing but speculation and conclusory assertions to suggest how the

government’s possession of this information harmed him. For the alleged Fifth

Amendment violation specifically, he circularly argues that “the Government

prejudiced [him] and rendered his defense counsel ineffective by obtaining

duplicate copies of the defense team’s work product.” Accordingly, the district

court did not err when it denied Coloma’s § 2255 motion, and we affirm.

      AFFIRMED.




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