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United States of America v. John M. Hardimon

March 15, 2011


The opinion of the court was delivered by: Michael J. Reagan United States District Judge


REAGAN, District Judge: A. Introduction Federal Rule of Criminal Procedure 11(d)(2)(b) authorizes a district court ‐‐ after accepting a guilty plea but before sentencing ‐‐ to permit the defendant to withdraw his guilty plea, if "the defendant can show a fair and just reason." On the grounds articulated by the undersigned District Judge at the conclusion of the March 4, 2011 hearing and the bases below‐ described, the Court finds that Defendant Hardimon has not demonstrated a fair and just reason for withdrawing his guilty plea. Accordingly, the Court DENIES the motion to withdraw plea (Doc. 16). B. Procedural Overview On October 19, 2010, Dr. John M. Hardimon (a licensed chiropractic physician) appeared before the undersigned Judge, ably represented by retained counsel from St. Louis, Missouri. Hardimon waived indictment and pled guilty to a 15‐count information. The written plea agreement and factual stipulations signed by Hardimon and his counsel (as well as counsel for the Government) outlined in detail acts constituting 14 counts of health care fraud and 1 count of money laundering, in violation of 18 U.S.C. § 1347 and § 1957, respectively. Specifically, Hardimon was charged with defrauding health care benefit programs by submitting (via United States mail or interstate wire facilities) claims for services he never performed, services he did not perform as claimed, or services not covered by his patients' actual medical conditions. The programs defrauded by Hardimon were operated by both public and private insurance providers including, inter alia, Medicare, Medicaid, Blue Cross Blue Shield of Illinois, Healthlink, Blue Cross Blue Shield of Missouri, Blue Cross Blue Shield of Michigan, and the United Food and Commercial Workers Local 655 Welfare Fund.

On October 19th, following an in‐depth colloquy in which the undersigned Judge directly conversed with Hardimon regarding his understanding of the charges he was facing and the rights he was relinquishing, the Court accepted Hardimon's plea, adjudged him guilty, and released him on bond pending sentencing. Six weeks later, Hardimon moved to withdraw his guilty plea, asserting that the plea "was neither knowing nor voluntary" (Doc. 16, p. 2), due to the fact that he had been taking two prescription medications -- Prozac and Adderall -- when he signed the plea documents (October 1, 2010) and when he pled guilty before the Court (October 19, 2010).

Actually, Hardimon was taking three medications in October 2010. He suffers from Adult Attention Deficit Hyperactivity Disorder (ADHD), anxiety, and depression. He had been taking a separate medication for each of these conditions -- antidepressant and anti‐ anxiety drugs since 2004 and a medication for the ADHD since January 2008. He had taken all three medications in the proper dosage prior to and on the day when he pled guilty.

Seven days after his guilty plea, Hardimon saw his primary care physician for a routine visit. As described further below, the physician noted that Hardimon's mood was stable, and Hardimon reported that his ADHD medicine was doing well. The physician changed one of the three medications, the antidepressant (switching from Prozac to Lexapro). Hardimon contends that he almost immediately experienced "increased alertness, awareness and attentiveness" plus diminished depression, leading him to realize "that he should not have pled guilty to the ... Information" (Doc. 16, p. 2). Hardimon further contends that his old medications "prevented him from fully understanding" the charges against him and the Government's burden of proof as to those charges (id., p. 3). The Court issued and amended a briefing and hearing schedule on Hardimon's November 30th motion (see Docs. 17, 19, 24, 32, 38). The January 2011 hearing was postponed and additional time allotted for Hardimon to brief the issues, after he retained new defense counsel. Attorney Stephen Welby entered his appearance on January 25, 2011, and the Court permitted attorneys Drey Cooley and Sanford Boxerman of the Capes, Sokol law firm to withdraw as Hardimon's counsel. Mr. Welby filed a reply brief in support of Hardimon's motion on February 25, 2011. The Court conducted a hearing March 4, 2011. Evidence and arguments were presented by counsel. Analysis begins with reference to applicable legal standards. C. Analysis As noted above, Rule 11(d)(2)(b) allows withdrawal of a guilty plea prior to sentencing if the defendant shows a fair and just reason. Or, as the United States Court of Appeals for the Seventh Circuit put it: "A defendant does not have an absolute right to withdraw a plea before sentencing, although the court may allow him to do so if he has a fair and just reason.." United States v. Chavers, 515 F.3d 722, 724 (7th Cir. 2008). Defendant Hardimon's motion and supporting briefs tender two reasons to withdraw his plea: (1) the plea was not knowing and voluntary (due to his improper medication, high anxiety, and sub‐par legal counsel), and (2) now that he is thinking clearly, he believes he is innocent of the charges against him. These assertions are examined in turn. A guilty plea is knowing and voluntary if the court is satisfied, after "considering the total circumstances surrounding the plea, that the defendant was informed of his rights and understood the consequences of his plea." United States v. Mitchell, 58 F.2d 1221, 1224 (7th Cir. 1995). See also United States v. Blalock, 321 F.3d 686, 688‐89 (7th Cir. 2003). Without question, Defendant Hardimon was informed of his rights -- both by his team of excellent defense attorneys from the Capes/Sokol law firm and by the undersigned District Judge. The Court commenced the March 4th motion hearing by playing the audio‐ recording of the lengthy in‐depth October 19th plea colloquy*fn1 -- a complete written transcript of which also was carefully examined by the undersigned Judge prior to the hearing. The record discloses (and the Court remains convinced) that Dr. Hardimon fully understood the charges he faced and the consequences of his guilty plea. The undersigned Judge rejects the assertion that the prescription medications Hardimon was taking in October 2010 rendered him "incapable of understanding the true nature of the charges against him, his constitutional rights, and the consequences of his plea" (Doc. 16, pp. 2‐3).

Rule 11(b)(2) requires the District Court, before accepting a guilty plea, to "address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises," other than promises in the plea agreement itself. Review of the transcript of the October 19, 2010 change of plea hearing ("Tr.," Doc. 20) verifies that the undersigned Judge more than met that requirement here. Defendant Hardimon was placed under oath before answering the Court's questions. He explained that he was 40 years old, and he had earned a bachelors and masters degree in chemistry, as well as a Doctor of Chiropractic degree. Asked if he was under the influence of drugs, medicine, or alcohol, Hardimon responded "Prescription medications." The Court inquired: "Do any of those medications affect your ability to think clearly?" Hardimon said: "No sir." Tr., pp. 2‐3. When the Court inquired further regarding the medications and any mental diseases or disorders, Hardimon explained that he suffered from anxiety, depression, and adult attention hyperactivity disorder (ADHD). Questioned about the medication for these, Hardimon confirmed that he was taking medication at a therapeutic level, and he believed the medications were working. The ADHD medicine (Adderall) increased his concentration but caused anxiety, so his physician prescribed him another medication to ease the anxiety. And he took an antidepressant as well. Tr. pp. 3‐4. This exchange followed (Tr., p. 4):

Q. Okay. As you stand before me, are you thinking clearly.

A. Yes sir.

Q. Do you think, given your mental status today, that you are capable of making decisions, serious decision, such as the one you are about to make involving pleading guilty to this 15 count Information?

A. Yes, sir.

Q. Okay. Do you have any physical conditions or problems that affect your ability to think clearly?

A. No, sir.

The Court laid out in detail the consequences of pleading guilty, reminding the Defendant that he could stop the Judge at any point with a question, ask for something to be rephrased or repeated, or take a break to consult with his attorneys. The undersigned stressed: "I want to make sure that you understanding everything that is going on here today," and "We're not in any hurry whatsoever." The Court also cautioned Defendant in certain terms that it was a "very important and heavy decision" Defendant was making (to plead guilty), and "if I accept your guilty plea, I'll tell you at the end you're stuck with it," so "I want to make certain you understand what you are getting into, the rights you're giving up and your potential exposure in this case." Tr. pp. 4‐5. The undersigned asked if any threats, promises, duress, undue influences, or guarantees had been made to get Defendant to waive his rights (e.g., the right to grand jury indictment). Hardimon answered without hesitation, "No, sir." The Court inquired if Hardimon was pleased with his defense counsel. Hardimon answered affirmatively. The Court asked if there was anything defense counsel had refused to do or been unable to do. He answered negatively. The Court then directly asked Hardimon, "Q. Are you pleading guilty to the 15 counts . because you are, in fact, guilty as charged?," and Hardimon responded, "Yes, sir." Tr. pp. 6‐7.

After details regarding the elements of his sentence (incarceration, fine, and restitution) were described, Hardimon verified that he understood each of these. The Court then asked if anyone had used threats, coercion, force, duress, promises, undue influence to secure his guilty plea, and Hardimon answered, "No, sir." The Court again asked if Hardimon was pleading guilty "because you feel it is in your best interest and you, in fact, are guilty as charged?" Hardimon said, "Yes." Asked if he had reviewed the plea agreement carefully with counsel before signing it, Hardimon said yes. Asked, "Do you understand everything in the plea agreement," he responded unequivocally, "I do understand, yes." Tr. pp. 7‐11. The Court continued with additional discussion of the specifics of the plea agreement, charge by charge, count by count. At the end of this exposition, the Court put more questions to Hardimon. Hardimon responded promptly and coherently to each. The undersigned repeatedly encouraged Hardimon to interject with any questions. Hardimon said he had no questions. The Court discussed the Government's burden of proof and Hardimon's rights during jury trial (to confront and cross‐examine witnesses, to refuse to incriminate himself, etc.). Asked if he understood the constitutional rights he was giving up by pleading guilty, Hardimon again responded, "Yes, sir." The undersigned elaborated on the negative effects of the guilty plea, going beyond the basic information and touching upon the adverse consequences to Hardimon's future employment and his right to vote, hold public office, ...

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