U.S. District Court, Western District of N.Y. Case Summaries: July

Daily Record (Rochester, NY), Jul 3, 2008

U.S. District Court, Western District of N.Y.

Commerce Clause

Indictment

U.S. v. Soliman

06-CR-236A

Judge Arcara

Background: The defendant is a physician charged in a 64-count indictment with engaging in a scheme to defraud health care benefit programs. The defendant moved to dismiss on the grounds that the indictment is insufficient, multiplicitous and the statute at issue exceeds Congress' authority under the Commerce Clause. In March, the magistrate judge recommended granting the motion and dismissal of the indictment.

Ruling: The court does not accept the recommendation and finds the indictment sufficiently alleges the violations, is not multiplicitous and not in violation of the Commerce Clause. The indictment satisfies the requirements of the defendant's Sixth Amendment right to be informed of the nature and cause of the accusation. The court also finds the indictment sufficiently alleges that the scheme to defraud affected interstate commerce.

Mark J. Mahoney, of Harrington and Mahoney for the defendant, and Robert G. Trusiak, assistant U.S. attorney, for the United States

'Habeas Corpus'

Fair Trial

Mills v. Poole

06-CV-0842A

Judge Arcara

Background: The petitioner filed this petition for a writ of habeas corpus and the magistrate recommended that the petition be denied. The petitioner was convicted of attempted murder after threatening a police officer with a weapon and was sentenced to 20 years to life in prison. The incident was precipitated by a fuel company employee being threatened by the petitioner after the company repossessed propane tank regulators at the petitioner's father's house due to non-payment. At trial, the petitioner's competency became an issue, although he was found competent to stand trial. He now advances various claims related to the sufficiency of the evidence, bias of the trial judge and other violations of his right to a fair trial.

Ruling: The court adopts the recommendations and the petition is denied. The petitioner failed to renew his motion to dismiss at the close of all the evidence, therefore the insufficient evidence claim is unpreserved for review. The trial judge's former business relationship with the district attorney and familial relationship with assistant district attorneys in the same office did not require recusal.

Richard Mills, pro se, and Frederick H. Wen, New York State Attorney General's Office, for the defendants