Christian Coloma v. USA

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 18-14710
Non-Argument Calendar
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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.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 23, 2020)
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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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