Twice-Convicted Health-Care Fraudster’s Bid to Undo Plea Denied

A former New York physician challenging his second conviction for health-care fraud was rightly denied a chance to withdraw his guilty plea, the Second Circuit said Thursday.

Spyros Panos pleaded guilty to defrauding medical peer review companies by using another doctor’s credentials—after he’d surrendered his own license—to write reports under the guise of being a licensed doctor. He later claimed his lawyer had an unwaivable conflict of interest once the government accused Panos of producing potential exhibits for trial that were fraudulent.

But the conflict was a potential conflict, not an actual conflict, and it was therefore waivable, the US Court of Appeals for the Second Circuit said.

Although the Second Circuit has held that an unwaivable conflict exists when an attorney is implicated in a client’s crimes, the government didn’t suspect that Panos’s lawyer had anything to do with the falsified documents, the court said.

Panos was unable point to any authority holding that “the mere possibility of an attorney being called to testify in a hearing involving their client amounts to a per se unwaivable conflict,” the court said.

Panos also argued that his former lawyer failed to advise him that his plea agreement didn’t provide him with a benefit, because he was still punished for obstruction of justice based on the falsified documents. He also argued that the lawyer failed to advise him that he had a colorable trial defense.

But his claims weren’t enough to overcome the “strong presumption” that a lawyer’s representation was within “the wide range of reasonable professional assistance,” the court said.

The court also rejected the argument that the district court failed to give Panos enough time to contemplate the risks of his lawyer’s alleged conflict before he waived it, saying the argument was belied by the record.

When the district court held its Curcio hearing to examine potential conflicts, it gave Panos “many opportunities to take more time to consider his options, explicitly noting that it was ‘not in a rush,’” the court said.

The district court rejected Panos’s remaining challenges, including to the imposition of a 12-month prison sentence for violating the terms of his supervised release, imposed as part of his prior offense.

Panos claimed he wasn’t given a sufficient opportunity to be heard because the judge began to announce his sentence before giving him an opportunity to speak. But the judge immediately corrected the error by interrupting himself immediately and inviting defense counsel to speak, the appeals court said.

Judges Richard C. Wesley, Denny Chin, and Eunice C. Lee joined the decision.

Panos is represented by Ezra Spike of Brooklyn, NY.

The case is United States v. Panos, 2d Cir., No. 22-3158, 2/29/24.