Defendant’s change of heart cost him his right to silence

Elbeblawy was convicted and sentenced in Miami, Florida, for conspiracy to commit health care fraud in violation of 18 U.S.C. 1349. His offense arose from his ownership and management of home health agencies that provided in-home medical nursing and other services to homebound patients which he used to defraud Medicare for millions of dollars. His fraud included billing Medicare for services that were never provided, paying doctors in case for referring patients, hiring patient recruiters and nurses for referrals. He would disguise check by inflating the rates paid for staffing services and described checks to patient recruiters as payments for consulting and other services.

After an investigation focused on Elbeblawy, he decided to cooperate with the government and helped investigators obtain evidence against his former conspirators. He signed a plea agreement and a written factual basis for the agreement. The agreement stated that the government would be free to use against him in any criminal proceedings any of the statement provided by him including the factual basis for the plea. After he signed the agreement, he changed his mind and refused to plead guilty and the government prosecuted him for the charges he was indicted. Prior to trial Elbeblawy filed a motion to suppress the signed factual basis for the plea agreement on the ground that he did not knowingly and voluntarily waive the Rule 11 and Rule 410 protections. The district court denied his motion.

In his appeal upheld the district court’s decision. It rejected Elbeblawy’s argument that the waiver provision of the plea agreement was ambiguous because the fact that the factual basis was not attached to the plea agreement. The factual basis was identified in the plea agreement and later signed by Elbeblawy and his attorney.   The court found a waiver of the plea-statement rules is valid and enforceable absent some affirmative indication that the agreement was entered in unknowingly or involuntarily.

The evidentiary hearing held prior to the trial the court found that testimony of Elbeblawy, his criminal defense lawyer, and the government investigator support the district court’s findings that the defendant read the waiver provision and that the attorney read it to him. The court found that he knew his rights when he signed the agreement and understood the consequences of signing the agreement. It accepted his attorney’s testimony that Elbeblawy never indicated that there was any portion of the plea agreement or the factual basis that he did not understand.  The court of appeals restated the familiar warning by law enforcement that anything you say to the government can and will be used against you.

Elbeblawy also claims a Brady violation because the government failed to disclose an allegedly exculpatory report about an early police interview of a witness who initially denied knowing Elbeblawy and only may have seen him 4-5 years before the interview. Soon after the witness reversed course and incriminated Elbeblawy in a later interview. The court rejected his argument that the report was material because it found that though the report may have had some minimal impeachment value, there was no reasonable probability that it would have changed the outcome of the trial. Additionally, it found the evidence was overwhelming even without the witness’s testimony.