                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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Case No. 15-4363, United States v. Stegawski


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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Case No. 15-4363, United States v. Stegawski


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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Case No. 15-4363, United States v. Stegawski


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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Case No. 15-4363, United States v. Stegawski


       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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Case No. 15-4363, United States v. Stegawski


       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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Case No. 15-4363, United States v. Stegawski


       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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