PATEL v. United States

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

KIRTISH PATEL, :

: Civil Action No. 18-14628 (SDW)

Petitioner, :

:

v. : OPINION

:

UNITED STATES OF AMERICA, :

:

Respondent. :

:

APPEARANCES:

CAROLINE CINQUANTO, Esq.

Law Firm of Caroline Goldner Cinquanto

123 S. Broad Street, Suite 2500

Philadelphia, PA 19109

On behalf of Petitioner

STACY A. BIANCAMANO

Biancamano Law

42 A North 20th St.

Kenilworth, NJ 07033

On behalf of Petitioner

NICOLE F. MASTRIOPIERI, Assistant United States Attorney

United States Attorney's Office

970 Broad Street

Assistant United States Attorney Newark, NJ 07102

On behalf of Respondent

WIGENTON, District Judge

Presently before the Court is Petitioner Kirtish Patel’s ("Mr. Patel") amended motion to

vacate sentence under 28 U.S.C. § 2255, challenging his criminal conviction and sentence in

Criminal Action No. 15-593 (D.N.J.).1 (ECF No. 10). Mr. Patel pled guilty to one count of health

care fraud in violation of 18 U.S.C. § 1347. The Government filed an answer to the amended §

2255 motion (Civ. ECF No. 16), and Mr. Patel filed a reply brief. (ECF No. 20). This Court

granted Mr. Patel's motion to stay while he pursued a related FOIA request. (Civ. ECF Nos. 21,

22). This action was reopened on January 3, 2022, upon completion of the FOIA proceeding.

(Civ. ECF No. 28). This Court granted Mr. Patel's motion to file a supplement to his amended

motion to vacate under § 2255 (Civ. ECF No. 36), based on information he obtained in the FOIA

proceedings. On June 10, 2022, the Government filed a brief opposing Mr. Patel's supplement to

his amended § 2255 motion. (Civ. ECF No. 43). This Court granted Mr. Patel's request to file a

reply brief, without deciding his request for an evidentiary hearing on the merits of his ineffective

assistance of counsel claims. (Civ. ECF No. 58). On November 11, 2022, Mr. Patel filed a motion

for leave to file a declaration in support of his amended § 2255 motion. (Civ. ECF No. 59). The

Government did not respond. For the reasons set forth below, pursuant to Federal Rule of Civil

Procedure 78, based on the pleadings and briefs, this Court will deny the amended § 2255 motion

and the remaining motions without oral argument.

I. BACKGROUND

Kirtish Patel ("Kirtish" or "Mr. Patel") pled guilty to federal health care fraud involving

Medicare and private insurers, through a scheme in which he used forged physician signatures to

create false diagnostic reports purportedly written by physicians who had read and interpreted

the results, and by false pretenses claiming neurological diagnostic tests were supervised by a

1 Docket Entries in Criminal Action No. 15-592 are cited herein as ("Crim. ECF No."), and

docket entries in this Civil Action, No. 18-14628, are cited herein as ("Civ. ECF No.")

physician.2 (Crim. ECF No. 29 at 1). According to a stipulation in the plea agreement, although

not binding on the sentencing judge, Mr. Patel and his wife Nita Patel were paid more than

$4,386,133.75, with payments from Medicare accounting for $1,668,954.95 of the total amount,

as a result of their scheme to defraud. (Id. at 9).

A. The Information

On November 17, 2015, Mr. Patel was charged by Information with defrauding Medicare

and private insurers from in or about September 2006 through in or about June 2014, in Morris

County, New Jersey, in violation of 18 U.S.C. § 1347.3 (Crim. ECF No. 25). The factual

2 "Medicare regulations require all diagnostic testing to be 'reasonable and necessary,' as defined

under Medicare Part B. In order for diagnostic neurological testing to be 'reasonable and

necessary,' it must be performed under the proper level of physician supervision."

United States ex rel. Doe v. Heart Sol., PC, 923 F.3d 308, 311 (3d Cir. 2019) (citing 42 U.S.C. §

1395y(a)(1)(A), 42 C.F.R. § 410.32(b)(1); 42 C.F.R. § 411.15(k).)

3 18 U.S.C. § 1347(a, b) provides:

(a) Whoever knowingly and willfully executes, or attempts to

execute, a scheme or artifice--

(1) to defraud any health care benefit program; or

(2) to obtain, by means of false or fraudulent pretenses,

representations, or promises, any of the money or property owned

by, or under the custody or control of, any health care benefit

program, in connection with the delivery of or payment for health

care benefits, items, or services, shall be fined under this title or

imprisoned not more than 10 years, or both. If the violation results

in serious bodily injury (as defined in section 1365 of this title),

such person shall be fined under this title or imprisoned not more

than 20 years, or both; and if the violation results in death, such

person shall be fined under this title, or imprisoned for any term of

years or for life, or both.

(b) With respect to violations of this section, a person need not

have actual knowledge of this section or specific intent to commit

a violation of this section.

allegations are summarized as follows. Mr. Patel was the owner of Biosound Medical Services

Inc., ("Biosound") and his wife, Nita Patel, owned Heart Solution PC ("Heart Solution"), and

both corporations offered mobile diagnostic testing, including echocardiograms, ultrasounds and

nerve conduction studies, that were performed on-site at a physician's office. The Patels, who

were not physicians, operated Biosound and Heart Solution. Biosound was a Medicare-approved

provider since 1999, and Heart Solution was a Medicare-approved provider since 2011. Private

insurance companies and Medicare reimbursed Biosound and Heart Solution for performing and

interpreting diagnostic tests including: 1) echocardiograms to diagnose heart conditions; 2)

ultrasounds to detect blood clots and abdominal aortic aneurysms; and 3) carotid ultrasounds to

detect risk of stroke. Medicare required independent diagnostic companies like Biosound to

have a licensed subspecialist physician on staff to supervise and interpret tests performed in a

particular subspecialty.

The scheme began with a referring doctor's request for a diagnostic test. In response, an

employee of Biosound, often Kirtish Patel, went to the referring physician's office to administer

the diagnostic test. Biosound then transmitted a diagnostic report to the referring doctor, which

had purportedly been reviewed and interpreted by a physician ("Reading Doctor"). At least as

early as October 2008, the Patels stopped sending Biosound diagnostic reports to a Reading

Doctor. Mr. Patel, who was not a physician, authored the reports himself. His wife, Nita Patel,

affixed a doctor's signature to the reports and sent them back to the referring doctors. The

referring doctors, believing the reports to have been interpreted by licensed specialist physicians,

relied on the reports in making treatment decisions for patients. The Patels forged Reading

Doctors' signatures on more than half of the thousands of diagnostic reports performed by

Biosound. Biosound employees became concerned that the Patels were not sending the reports

to a licensed specialist physician for interpretation, and Mr. Patel responded to them by saying

"why should I pay these doctors when I can read them?"

Beginning around September 2006, Mr. Patel represented to Medicare that Biosound

would begin performing neurological diagnostic testing, and that Biosound had a supervising

physician. The physician, however, never agreed to supervise Biosound's testing. Thus, from

September 2006 through June 2014, the neurological testing done by Biosound was not

supervised by the physician Mr. Patel claimed to have on staff. But for this fraudulent

representation, Medicare would not have approved Biosound as a provider or paid for the

neurological testing performed for Medicare beneficiaries. The Patels were paid more than

$4,386,133.74 by Medicare and private insurance companies for diagnostic tests and reports that

were not interpreted by a licensed physician, and neurological diagnostic tests that were not

supervised by a licensed neurologist. The Government sought forfeiture of all property and

gross proceeds derived from the commission of the offense, pursuant to 18 U.S.C. § 982(a)(7).

B. The Plea Agreement

On November 17, 2015, Mr. Patel executed a written plea agreement with the

Government, pleading guilty to the Information. (Crim. ECF No. 29). In exchange for Mr.

Patel’s guilty plea, the Government agreed not to initiate any further criminal charges against

him for forging physician signatures or obtaining health care benefits from Medicare or

Medicaid under false pretenses for the period from September 2006 through June 2014. The plea

agreement stated that: (1) the statutory maximum term of imprisonment was ten years; (2) the

statutory maximum fine was the greatest of $250,000, or twice the gross amount of any

pecuniary gain that any persons derived from the offense, or twice the gross amount of any

pecuniary loss sustained by any victims of the offense; (3) in addition to any fine, the sentencing

court must order forfeiture pursuant to 18 U.S.C. § 981(a)(1)(c) and 28 U.S.C. § 2461; and (4)

the sentencing court may order restitution.

The Government did not make any promises about the sentencing guidelines range or the

ultimate sentence to be imposed by the sentencing court. As to forfeiture, the parties agreed the

amount of money judgment imposed by the Court "shall be equivalent to the amount of the loss

involved in the criminal conduct pursuant to U.S.S.G. § 2B1.1(b)(1)". Further, Mr. Patel agreed

to make full restitution for all losses resulting from the offense of conviction, as determined by

the Court at sentencing.

Pursuant to the plea agreement, Mr. Patel stipulated that the Patels were paid more than

$4,386,133.75 by the victims. This stipulation did not bind the sentencing judge. The stipulation

did not bind the Government to the extent that the Government obtained, prior to sentencing, any

conflicting credible, material information on losses. Mr. Patel acknowledged in writing that he

had discussed the plea agreement with his attorney. Further, he acknowledged that he read the

plea agreement and wanted to plead guilty.

C. The Plea Hearing

On November 17, 2015, Mr. Patel entered a guilty plea before the late Honorable

William H. Walls, U.S. District Judge. (Crim. ECF No. 30). Mr. Patel was represented by

Attorney Anthony Fusco, Jr. (Id. at 3). Judge Walls explained that Mr. Patel had no obligation

to plead guilty, and he retained the right to have the case presented to a grand jury. If indicted,

he had the right to a jury trial with the presumption of innocence and other attendant rights. (Id.

at 10-12). By pleading guilty, Mr. Patel was waiving those rights. (Crim. ECF No. 30 at 12).

Judge Walls informed Mr. Patel that his sentencing exposure was ten years in prison with a

period of supervised release, and a potential fine of $250,000, or twice the gross loss of the

victims, or twice the gross gain resulting from the scheme to defraud. (Id. at 13). Mr. Patel

acknowledged that he would be required to pay restitution and that he wanted to plead guilty.

(Id. at 13-16). He understood that in exchange for his guilty plea, the Government would not

bring any further criminal charges based on his charged conduct for the period of September

2006 through June 2014. (Id. at 16). Mr. Patel also understood that his sentence would be

imposed at the sentencing court's discretion, after hearing arguments from the attorneys and

reading the presentence report ("PSR") from the United States Probation Office. (Id. at 16-17).

Judge Walls reviewed with Mr. Patel the stipulations contained in the plea agreement.

(Id. at 18-20). Mr. Patel stipulated that he and his wife received $4,386,133.75 from Medicare

and private insurance companies, labeled Payor Group A in the PSR:

for false diagnostic reports that purported to be written by actual

physicians but, in fact, were never reviewed or authored by any

physicians, and, two, neurological diagnostic reports for which

there was no supervisory physician of the neurological testing

being performed.

(Id. at 18-19). He further stipulated there were other insurance companies who suffered losses

from the fraud, Payor Group B, who had not yet been identified, and their losses would be

calculated in the same manner as Payor Group A. (Id. at 19). He stipulated that the offense

involved ten or more victims; one of the victims was a federal health care plan, which paid the

Patels $1,668,954.95; and the offense involved the conscious or reckless risk of death or serious

bodily harm. (Id. at 20). Mr. Patel agreed to waive his right to appeal or collaterally attack the

sentence, unless the sentence fell outside the statutory maximum term or fine, but he reserved the

right to challenge his criminal history category. (Crim. ECF No. 30 at 21-22). Mr. Patel further

agreed to forfeiture of money equal to all property derived directly or indirectly from the gross

proceeds traceable to the fraud. (Id. at 22-23). The plea agreement called for the Court to

determine the amount of loss involved in the criminal conduct, and for the forfeiture to equal that

amount. (Id. at 23).

Judge Walls advised Mr. Patel of the following provision in the plea agreement:

This agreement is only between you and this United States

Attorney for this District of New Jersey, Mr. Patel. It's not binding

upon any other Federal, state, or local law enforcement agencies,

nor is it binding upon any civil authorities, such as the Internal

Revenue Service. It's not binding on any third parties who might

wish to bring administrative or civil litigation against you.

(Id. at 28-29). Mr. Patel indicated that he had not been threatened or coerced into accepting the

plea offer, he had enough time to think about it and discuss it with his attorney, and he was

satisfied with his attorney's representation. (Id. at 29).

Judge Walls then asked Mr. Patel to affirm the following, prior to the Court's acceptance

of his plea:

The COURT: … Mr. Patel, let's turn now to the period of 2006

through 2014. Did you and your wife, who I understand is in court,

whose name is Ni[t]a, did you and your wife own and operate a

mobile or own a mobile diagnostic company, Biosound Medical

Services and Heart Solution, PC?

THE DEFENDANT: Yes.

THE COURT: Where were they located?

THE DEFENDANT: In Parsippany.

THE COURT: In Parsippany?

THE DEFENDANT: Yes.

THE COURT: Now, did Biosound Medical Services and Heart

Solution PC provide diagnostic testing services to Medicare

patients?

THE DEFENDANT: Yes.

THE COURT: And did they bill Medicare programs for those

testing services that you claimed you had provided?

THE DEFENDANT: Yes.

THE COURT: And as part of that diagnostic work that you claim

you provided, did that include having a licensed specialist

physician review and interpret the diagnostic values recorded by

diagnostic technicians such as yourself?

THE DEFENDANT: Yes.

THE COURT: And did you know that the doctors who ordered the

diagnostic services relied upon those diagnostic reports that they

believed had been prepared by licensed specialist physicians in

order to make important treatment decisions for their patients?

THE DEFENDANT: Yes.

THE COURT: And during this time period or during the time

period of October 2008 to June of 2014, did you decide to write

many of the diagnostic reports that were supposed to have been

written by a licensed specialist physician?

THE DEFENDANT: Can I get a minute?

THE COURT: You certainly may.

(Off the record discussion between the Defendant and

defense counsel)

THE DEFENDANT: Yes.

THE COURT: And did you at this time have any medical license

of any kind?

THE DEFENDANT: Diagnostic testing facility.

THE COURT: I'm talking about, were you licensed as a physician

--

THE DEFENDANT: No.

THE COURT: -- or medical doctor?

THE DEFENDANT: No.

THE COURT: So when you fraudulently interpreted and wrote a

diagnostic report, that is to say, you wrote it as though you were an

appropriately trained physician, did you or your wife then attach a

forged specialist physician signature to that report to make it look

like an actual physician had actually authored the report?

THE DEFENDANT: Yes.

THE COURT: Did you author and forge specialist physician

signatures on diagnostic reports intended to assess a physician's

risk of serious medical conditions such as heart defects, blood

clots, abdominal or aortic aneurysms, and stroke?

MR. FUSCO: Just one second, Judge.

THE COURT: Yes.

(Off the record discussion between the Defendant and defense

counsel)

THE DEFENDANT: Okay.

MR. FUSCO: Yes. The answer is yes to seven.

THE COURT: Okay. You said yes?

THE DEFENDANT: Yes.

THE COURT: Now, during the time period of 2006 through 2014,

did you falsely represent to Medicare that the neurological testing

being performed at Biosound Medical Services was being

supervised by licensed neurologists when, in fact, it was not?

THE DEFENDANT: Yes.

THE COURT: And did you make this false representation -- well,

false representation to Medicare knowing that it was false?

THE DEFENDANT: Yes.

THE COURT: Did anyone put a gun to your head, literally or

figuratively, to make you do that?

THE DEFENDANT: No.

THE COURT: H'm?

THE DEFENDANT: No.

THE COURT: You did that of your own free will; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: Is it so that both Biosound Medical Services and

Heart Solution PC were paid more than $4,386,133.75 by

Medicare and five insurance companies for claims submitted by

diagnostic testing and reports that were never interpreted by any

licensed physician, and as well as for neurological diagnostic

testing that were never licensed -- or strike that -- were never

supervised by a licensed neurologist?

THE DEFENDANT: Yes.

THE COURT: Is that so? And were your company, that is,

Biosound Medical Services and Heart Solution PC, paid at least

$1,668,954.95 by Medicare for claims submitted for diagnostic

testing and reports that had never been interpreted by either a

licensed physician or neurologist?

THE DEFENDANT: Yes.

THE COURT: Is that true?

MS. WALSMAN: Your Honor, --

THE COURT: I'm sorry?

MS. WALSMAN: -- you modified the question slightly in your

reading of it. There were diagnostic tests that were never

interpreted by a licensed physician and then neurological

diagnostic testing.

THE COURT: It's the same thing.

MS. WALSMAN: It's a little different, Your Honor.

THE COURT: In other words, you got at least more than $1

million for claims made for diagnostic testing and reports that had

never been interpreted by a licensed physician and for neurological

diagnostic testing that had never been supervised by a licensed

neurologist; is that correct?

THE DEFENDANT: Yes.

THE COURT: You did all of this of your own free will?

THE DEFENDANT: Yes.

THE COURT: And at the time that you submitted these claims to a

Medicare program for diagnostic reports that were not authored by

actual doctors or neurological testing that was not supervised by a

licensed neurologist who happens to be a doctor, did you know

that doing so was illegal and against our law?

THE DEFENDANT: Yes.

THE COURT: Are you pleading guilty to this because you are, in

fact, guilty?

THE DEFENDANT: Yes.

(Crim. ECF No. 30 at 31-37). Judge Walls accepted Mr. Patel's guilty plea after confirming that

he read the plea agreement and the waiver of indictment and had no further questions. (Id. at 37-

38).

D. The PSR

In Mr. Patel’s presentence report (“PSR”), the U.S. Probation Department calculated the

sentencing offense level using the November 1, 2015 Guidelines Manual.4 (PSR ¶ 28). U.S.S.G.

§ 2B1.1 is the relevant guideline for loss calculations under 18 U.S.C. § 1347. Application Note

1 to § 2B1.1 defines "Federal health care offense” as it is defined in 18 U.S.C. § 24(b):

any public or private plan or contract, affecting commerce, under

which any medical benefit, item, or service is provided to any

individual, and includes any individual or entity who is providing a

medical benefit, item, or service for which payment may be made

under the plan or contract.

4 Available at https://www.ussc.gov/guidelines/guidelines-archive/2015-guidelines-manual. (last

visited January 12, 2023).

Application Note 1 defines “Government health care program” as:

any plan or program that provides health benefits, whether directly,

through insurance, or otherwise, which is funded directly, in whole

or in part, by federal or state government. Examples of such

programs are the Medicare program….

Application Note 3 governs "Loss Under Subsection (b)(1)," and provides, in relevant

part:

(A) General Rule.—Subject to the exclusions in subdivision (D),

loss is the greater of actual loss or intended loss.

(i) Actual Loss.—“Actual loss” means the reasonably

foreseeable pecuniary harm that resulted from the offense.

. . .

(C) Estimation of Loss.—The court need only make a reasonable

estimate of the loss. The sentencing judge is in a unique position to

assess the evidence and estimate the loss based upon that evidence.

For this reason, the court’s loss determination is entitled to

appropriate deference. See 18 U.S.C. § 3742(e) and (f).

The estimate of the loss shall be based on available information….

(E) Credits Against Loss.—Loss shall be reduced by the following:

(i) The money returned, and the fair market value of the

property returned and the services rendered, by the

defendant or other persons acting jointly with the

defendant, to the victim before the offense was detected.

. . .

(F) Special Rules.—Notwithstanding subdivision (A), the

following special rules shall be used to assist in determining loss in

the cases indicated:

. . .

(v) Certain Other Unlawful Misrepresentation Schemes.—

In a case involving a scheme in which (I) services were

fraudulently rendered to the victim by persons falsely

posing as licensed professionals; . . . loss shall include the

amount paid for the property, services or goods transferred,

rendered, or misrepresented, with no credit provided for the

value of those items or services.

With this background, the Probation Office started with a base offense level of six,

pursuant to § 2B1.1. (PSR, ¶ 50). The base offense level was increased by 18 levels because

the loss was at least $4,386,133.75. (Id., ¶ 51). Two levels were added, pursuant to §

2B1.1(b)(2)(A), for ten or more victims. (Id., ¶ 52). Two levels were added, pursuant to §

2B1.1(b)(7)(A)(B)(i), because the offense was against Medicare, and the loss to Medicare was

more than one million dollars. (Id., ¶ 53). Two more levels were added, pursuant to §

2B1.1(b)(15)(A), because the offense involved the conscious or reckless risk of death or serious

bodily injury. (Id., ¶ 54). This resulted in an offense level of 30. (Id., ¶ 58). Three levels were

deducted for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a, b). (Id., ¶¶ 60, 61).

The total offense level was 27. (Id., ¶ 62).

The total loss, including Payor Groups A and B, was $4,803, 875.40. (Id., ¶ 33). In

determining the loss amount, the Probation Office applied Application Note 3(F)(v) to § 2B1.1.

Thus, it was recommended that Mr. Patel, who falsely represented that the test reports were

written by licensed physicians, was not entitled to a deduction for the value of performing the

diagnostic tests. (PSR, ¶ 31).

E. Sentencing Hearing

This Court takes judicial notice under Federal Rule of Evidence 201(b),5 that in

sentencing Ms. Patel immediately before Mr. Patel, Judge Walls adopted the recommended

5 See S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d

Cir. 1999) (courts may "may take judicial notice of another court's opinion—not for the truth of

the facts recited therein, but for the existence of the opinion, which is not subject to reasonable

dispute over its authenticity.")

Guidelines range of 30 and the loss amount of $4,803,875.40 from Ms. Patel's PSR, and granted

an adjustment for acceptance of responsibility, over the Government's opposition, which reduced

the base offense level to 27. United States v. Patel, 17cv7485 (WHW) (D.N.J.) (ECF No. 27 at

65-134). Attorney Shay Desphande represented Mr. Patel at the sentencing hearing on August

16, 2016. (Crim. ECF No. 42 at 1). Mr. Desphande focused his argument on Mr. Patel's

acceptance of responsibility for his conduct. (Id. at 3, 5-7). Mr. Desphande also attempted to

convince Judge Walls that there was value to the performance of the diagnostic tests, despite his

rejection of the same argument in Ms. Patel's sentencing hearing. (Id.) Judge Walls again

rejected this argument. (Id. at 5). Mr. Desphande then requested a downward departure to allow

Mr. Patel to care for his wife while she recovered from illness. (Id. at 7).

The Government objected to Mr. Patel receiving a three offense level deduction for

acceptance of responsibility because, after he pled guilty, he claimed that not all of the

neurological tests were unsupervised, and that he was not responsible for the fraud associated

with his wife's company, Heart Solution. (Id. at 13). He also attempted to minimize the risk his

conduct posed to the patients. (Id. at 14-15). The Government submitted that when the Patels

were arrested and agreed to provide the Government with a list of patients whose tests were not

read by a physician, the list they produced fell woefully short of the actual number of fraudulent

tests. (Crim. ECF No. 42 at 17-18). Thus, the Government sought a top of the Guidelines range

sentence. (Id. at 15-16).

Judge Walls found that Mr. Patel was responsible for restitution in the amount of

$4,803,875.40. (Id. at 18). He also found that Mr. Patel had not accepted responsibility for his

actions because he had minimized the risk of harm from his conduct. (Id. at 24-25). Judge Walls

found an offense level of 30, with a Guidelines range of 97 to 121 months imprisonment. (Id. at

26). He imposed a prison term of 100 months and waived the fine. (Id. at 26-28).

II. Proceedings Under 28 U.S.C. § 2255

On October 2, 2018, Mr. Patel filed his original § 2255 motion. (Civ. ECF No. 1). He

filed the operative amended § 2255 motion on June 8, 2019. (ECF No. 10). This matter was

stayed on April 22, 2020, while Mr. Patel pursued a FOIA request for documents related to the

loss calculation by the Government. (ECF Nos. 21, 22, 28). Upon reopening the case on

January 3, 2022, Mr. Patel filed several subsequent motions, adding new claims and requesting

an evidentiary hearing. The Government opposed the motions. Finally, Mr. Patel filed a motion

to submit a declaration in support of his amended § 2255 motion, and the Government did not

respond.

A. The Amended § 2255 Motion

Mr. Patel raises the following claims of ineffective assistance of counsel in his amended

§ 2255 motion. First, his attorney failed to explain the difference between pleading guilty with

an agreement versus pleading open. Mr. Patel claims he was prejudiced because he did not get a

three offense level deduction for pleading guilty with an agreement, and he did not preserve his

appellate rights.

Second, Mr. Patel contends he had no reason to know that the sentencing court would

adopt the stipulated loss amount. At sentencing, he expected his attorney to present evidence for

a lower loss amount, but he was represented by last minute substitute counsel, who made only

feeble attempts to argue for a lower loss amount. Mr. Patel would not have pled guilty if he had

known that by attempting to argue for a lower loss amount, he would lose credit for acceptance

of responsibility. Further, Mr. Patel would not have pled guilty if his lawyer had advised him

that the stipulation in his plea agreement would preclude him from challenging the amount of

damages in a related civil case. Once counsel became aware of the civil action, he should have

advised Mr. Patel to withdraw from his plea agreement.

Third, at his sentencing hearing, Mr. Patel attempted to explain what led him to commit

the health care fraud offense. He unwittingly caused the Court to believe he was not accepting

responsibility for his actions by minimizing the risk to the patients. His counsel failed to

convince the Court otherwise.

B. The Answer

The Government responded to each of Mr. Patel's claims of ineffective assistance of

counsel. Regarding the alleged failure of counsel to explain the difference between pleading

guilty and pleading open, there was no distinction in the sentencing exposure. (Civ. ECF No. 16

at 9-10). Therefore, Mr. Patel was not prejudiced by choosing to plead guilty. (Id.) He

understood and accepted the waiver of his appellate rights in the plea agreement, as evidenced by

the colloquy before Judge Walls. (Id.) In the absence of extraordinary circumstances, a

petitioner may not contradict his earlier sworn statements in a plea colloquy. (Id., citing United

States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005)). Furthermore, Mr. Patel has not

identified a meritorious appellate issue that he would have raised if he had pleaded open and

preserved his appellate rights. (Civ. ECF No. 16 at 11).

Next, the Government addressed the ineffective assistance claims based on the loss

amount. Mr. Patel's counsel argued for a reduction in loss amount based on Mr. Patel

performing the diagnostic reports The Government contends that defense counsel is not

ineffective by failing to prevail on that argument. (Id. at 13).

Further, defense counsel was not ineffective, the Government submits, for failing to

advise Mr. Patel of the collateral consequences of his plea agreement on a subsequent civil action

under the False Claims Act. (Id.) Moreover, Mr. Patel acknowledged during the plea colloquy

before Judge Walls that the plea agreement did not bind any civil authorities or third parties from

bringing administrative or civil actions against him. (Id.)

Finally, the Government argues that defense counsel was not ineffective, nor was Mr.

Patel prejudiced by counsel's performance, simply because Judge Walls did not award a three

point reduction in offense level for acceptance of responsibility. (Id. at 15-16). Mr. Patel's own

remarks caused Judge Walls to determine he had not accepted responsibility, and defense

counsel had urged the court to find otherwise. (Id.)

C. Reply Brief

In reply to the Government's answer, Mr. Patel asserts that he was prejudiced by his

counsel's advice to sign a plea agreement that did not provide any consideration. Prejudice

resulted because Mr. Patel waived his appellate rights and was unable to appeal the district

court's denial of acceptance of responsibility under U.S.S.G. § 3E1.1, which potentially would

have reduced his base offense level by three. (Civ. ECF No. 20 at 2). Mr. Patel states that he

met the criteria for a downward adjustment based on acceptance of responsibility, and the district

court erred by focusing on Petitioner's financial motive to save his company. (Id. at 2-10). Mr.

Patel had a basis to appeal on the grounds that the district court abused its discretion in denying a

three level adjustment for acceptance of responsibility. (Id. at 10).

Mr. Patel replied to the Government's claim that his counsel was not obligated to advise

him of the collateral consequences of his plea agreement on subsequent civil litigation under the

False Claims Act. (Id. at 11). He contends there is no categorical rule that counsel is not

required to advise a client of collateral consequences of a guilty plea, and all cases cited by the

Government are distinguishable. (Id. at 11-16). Mr. Patel relies on the American Bar

Association Standard 4-5.4, which provides, in pertinent part:

(a) [d]efense counsel should identify, and advise the client of,

collateral consequences which may arise from charge, plea or

conviction…. (b) When defense counsel knows that a consequence

is particularly important to the client, counsel should advise the

client as to whether there are procedures for avoiding, mitigating,

or later removing the consequence….

(Id. at 15).

Mr. Patel claims he did not fully understand that the plea agreement did not bind civil

authorities or any third parties from bringing administrative or civil litigation against him. (Id. at

16). In sum, Mr. Patel maintains that he made a sufficient showing to entitle him to an

evidentiary hearing on his ineffective assistance of counsel claims. (Id. at 16-17).

D. Supplement to Amended § 2255 Motion

After Mr. Patel completed his related FOIA proceeding, this Court permitted him to file a

supplement to his amended § 2255 motion, based on his claim that he had "a good faith basis for

this request on the grounds that the documents he obtained under the Freedom of Information Act

contain information that is relevant and critical to his claim of ineffective assistance of counsel."

(Civ. ECF No. 35). In his supplement, Mr. Patel explained that he filed a FOIA request with the

U.S. Department of Justice to obtain documents regarding the Government's loss calculation. (Id.

at 1, ¶ 2). The Executive Office for United States Attorneys ("Executive Office") responded to the

FOIA request and disclosed that a document called "Proper Loss Calculation Memo" was missing

after an extensive search. (Id. at 2-3, ¶¶ 4-6). The Executive Office maintained that it likely would

have withheld the document anyway, based on privileges of attorney work product and deliberative

processes. (Id. at 3, ¶ 7).

Mr. Patel also stated that the FOIA request did not yield any evidence of his plea counsel

requesting documentation to support the Government's loss calculation, nor that plea counsel

independently investigated the loss amount. In advance of sentencing, although Mr. Patel's plea

counsel refuted the Government's loss amount, he offered no competent evidence in the alternative.

(Id. at 4, ¶ 10). As a result of counsel's deficient performance, the sentencing court relied on the

stipulated loss amount, and when Mr. Patel tried to explain why the loss was inflated, his

statements were used against him by denying his acceptance of responsibility. (Id. at 5, ¶¶ 11, 12).

If Mr. Patel had been advised that the stipulated loss amount would be the loss amount adopted by

the district court, he would have pleaded open or gone to trial. (Id. at 5-6, ¶ 13). Finally, Mr. Patel

requested a hearing on the timing and reason for the missing "Proper Loss Calculation Memo."

(Id. at 6, ¶ 14).

E. Response in Opposition to the Supplement

The Government filed a brief in opposition to Mr. Patel's supplement to his amended §

2255 motion. (ECF No. 43). Because Mr. Patel did not rely on any documents obtained in the

FOIA litigation, the Government argues that he should not be permitted to raise new claims. (Id.

at 1). The Government also opposes a hearing on the missing "Proper Loss Calculation Memo."

According to the Government, the memo in question was attorney work product. Therefore, it

would not have been produced if found. (Id. at 2). Moreover, there was never any question about

how the Government calculated the loss. (Id.) The Government added the total amount of money

that Mr. Patel and his wife received for producing unsupervised neurological diagnostic reports

during the relevant time period, to the total amount of money they received for producing false

cardiac diagnostic reports, excluding echocardiograms, that were not reviewed or authored by a

physician. (Id.)

Finally, the Government asserts Mr. Patel's new claims do not arise out of the same

conduct, transaction or occurrence alleged in the amended § 2255 motion, and are barred by the

one-year statute of limitations. The new claims are: 1) plea counsel took no steps to investigate

and verify the loss amount; 2) there was no evidence that plea counsel requested documentation

supporting the Government's loss calculation; 3) plea counsel produced no competent evidence of

an alternative loss amount; and 4) the Patels had a neurologist properly supervising the process for

a period of time. (Id. at 4). In addition to these claims being barred by the statute of limitations,

the Government argues the claims are meritless. (Id. at 5-10).

F. Reply to Government's Opposition to the Supplement

In his reply brief, Mr. Patel contends that his new claims relate back to his amended § 2255

motion, and the results obtained through his FOIA request are relevant and critical to his ineffective

assistance of counsel claim. (ECF No. 58).

G. Motion for Leave to File Declaration

On November 11, 2022, Mr. Patel filed a motion for leave to file a declaration in support

of his amended § 2255 motion. (ECF No. 59). Mr. Patel and his wife prepared declarations in

support of his claim that "counsel failed to investigate the obvious deficiencies in the Government's

loss calculation, and, thus, provided Mr. Patel with ineffective assistance of counsel by advising

him to stipulate to a demonstrably overstated Guidelines loss adjustment." (Id.) Mr. Patel

explained that preparation of the declarations were delayed by Ms. Patel's ill health. (Id.) The

Government did not respond to this motion.

III. DISCUSSION

A. The Supplement to the Amended § 2255 Motion

Federal Rule of Civil Procedure 15(d) governs supplemental pleadings, and it provides:

[o]n motion and reasonable notice, the court may, on just terms,

permit a party to serve a supplemental pleading setting out any

transaction, occurrence, or event that happened after the date of the

pleading to be supplemented. The court may permit

supplementation even though the original pleading is defective in

stating a claim or defense. The court may order that the opposing

party plead to the supplemental pleading within a specified time.

Mr. Patel instituted FOIA proceedings on the Government's loss calculation after he filed

his amended § 2255 motion. In those proceedings, he learned there was a missing document

entitled "Proper Loss Calculation." Mr. Patel believes the document may have been intentionally

lost or destroyed, and that it may contain evidence to support his ineffective assistance of counsel

claims. This Court agrees with the Government on two points in opposition to the supplemental

pleading: 1) an internal memorandum by the U.S. Attorneys involved in his criminal case on

calculation of the loss for sentencing purposes was likely to be withheld under the attorney work

product privilege;6 and 2) the contents of the missing memorandum are immaterial because the

PSR explains how the Government calculated the loss amount.

The Government was required, pursuant to 18 U.S.C. § 3664(d)(1), to consult with all

identified victims and provide the Probation Office with a listing of the amounts subject to

restitution. (PSR at ¶ 39). The Government provided such a list, broken into Payor Groups A and

B, identifying each insurance company and its contact information, together with the loss amount

for each victim. (PSR at ¶¶ 40, 41). Upon learning that not all cardiology reports were false, and

excluding echocardiograms from the losses, the Government estimated the percentage of

6 FOIA's Exemption 5, "allows the government to withhold records from FOIA disclosure under

… the attorney work-product privilege." Nat'l Ass'n of Crim. Def. Laws. v. Dep't of Just. Exec.

Off. for United States Att'ys, 844 F.3d 246, 249 (D.C. Cir. 2016) (citing Coastal States Gas Corp.

v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980)). The privilege applies when "the

document can fairly be said to have been prepared or obtained because of the prospect of

litigation.” Id. at 251 (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)

(quoting Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998)).

cardiology tests that were fraudulent. (PSR at ¶ 32). This was accomplished by sending subpoenas

to Biosound's referring doctors for Biosound diagnostic reports. (Id.) The Government then

compared the Biosound diagnostic reports received from the referring doctors, for the years 2012-

2014, with the Reading Doctors' records of reports they had actually authored/reviewed. (Id.) This

resulted in the conclusion that 75% were false reports with forged signatures. (Id.) Therefore, the

Government included only 75% of the loss amounts from the total paid by insurance companies

for cardiology tests other than echocardiograms. (Id.) The Government made no deductions to

the losses reported for neurological diagnostic tests because none of the tests were supervised by

a neurologist. (Id.) Therefore, there is no need for an evidentiary hearing on the missing "Proper

Loss Memo."

Mr. Patel also suggests that another new development arose from his FOIA proceeding, he

failed to uncover evidence that his plea counsel requested documentation from the Government on

its loss calculation or that his counsel did his own independent investigation of the loss amount.

Mr. Patel could have raised an ineffective assistance of counsel claim for failure to independently

investigate the loss amount when he filed his original or his amended § 2255 motion.7 This was

not a new development that provides a basis to supplement the pleading. Therefore, this Court

will not further address the claims raised in the supplement to the amended § 2255 motion.

B. Motion for Leave to File Declaration

Rule 7(a) of the Rules Governing Section 2255 Motions for the United States District

Courts provides that "the judge may direct the parties to expand the record by submitting additional

7 This Court takes judicial notice under Federal Rule of Evidence 201(b), that Ms. Patel, who

shared joint representation with Mr. Patel in their criminal defense, raised these claims in her

amended § 2255 motion, filed on December 12, 2017. Patel v. United States, 17cv7485 (SDW)

(D.N.J. Dec. 12, 2017, ECF No. 4).

materials relating to the motion. The judge may require that these materials be authenticated." The

types of materials that may expand the record include documents, exhibits and affidavits. SECT

2255, Rule 7(b).

Mr. Patel seeks to submit into the record, long after the one-year statute of limitations

expired, and well after briefing on the amended § 2255 motion concluded, declarations from

himself and his wife that raise new factual allegations and new legal theories. Mr. Patel had the

opportunity to prepare and file a declaration in support of his § 2255 motion, or to seek an

extension of time to file such a declaration, at least from the time he initiated this proceeding on

October 2, 2018, through September 6, 2019, when he filed his reply brief in response to the

Government's answer. He was also given the opportunity to supplement the record with any new,

relevant evidence discovered in his FOIA proceeding, but he did not obtain such evidence. Mr.

Patel seeks to inject new claims that were available to him when he filed his original or amended

§ 2255 motion. Therefore, this Court will deny Mr. Patel's motion for leave to file declaration at

this late stage in the proceeding. See generally Rule 2, Rules Governing Section 2255 Cases for

the United States District Courts (a § 2255 motion "must specify all the grounds for relief available

to the moving party" and "state the facts supporting each ground.")

C. Legal Standards for § 2255 Claims

A prisoner in federal custody may file a motion under 28 U.S.C. § 2255 to challenge the

validity of his or her conviction and sentence. Section 2255 provides, in relevant part:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that

the sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to

impose such a sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

28 U.S.C. § 2255.

The Third Circuit summarized the legal standard for bringing a Sixth Amendment

ineffective assistance of counsel claim:

a criminal defendant may demonstrate that his representation was

constitutionally inadequate by proving: (1) that his attorney's

performance was deficient, i.e., unreasonable under prevailing

professional standards; and (2) that he was prejudiced by the

attorney's performance. [Government of Virgin Islands v.] Forte,

865 F.2d [59,] 62 [3d. Cir. 1989) (citing Strickland, 466 U.S. at 687,

694, 104 S.Ct. 2052). Under the first prong, “[j]udicial scrutiny ... is

highly deferential,” and courts “must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 688–89, 104 S.Ct.

2052. In order to establish prejudice, the defendant must prove that

“there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S.Ct. 2052. We have endorsed the

practical suggestion in Strickland to consider the prejudice prong

before examining the performance of counsel prong “because this

course of action is less burdensome to defense counsel.” McCoy,

410 F.3d at 132 n. 6; see Strickland, 466 U.S. at 694, 104 S.Ct. 2052

(stating that, “[i]f it is easier to dispose of an ineffectiveness claim

on the ground of lack of sufficient prejudice, which we expect will

often be so,” the prejudice prong should be examined before the

performance prong “to ensure that ineffectiveness claims do not

become so burdensome to defense counsel that the entire criminal

justice system suffers as a result”).

United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005). The same test applies to advice given by

counsel in the context of guilty plea discussions. Id. at 546 (citing Hill v. Lockhart, 474 U.S. 52,

58 (1985)). In such cases, the petitioner must establish "that but for his trial attorney's alleged

ineffectiveness, he would likely have received a lower sentence." Id. at 547. Alternately, a

petitioner may establish prejudice by showing "that but for his counsel’s purported errors, he would

have gone to trial, received a more favorable plea deal, or have been better off pleading guilty

without the benefit of a plea agreement." Boye v. United States, 810 F. App'x 118, 121 (3d Cir.

2020).

D. An Evidentiary Hearing is Not Required

An evidentiary hearing should be granted in a § 2255 proceeding, "[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to no relief." 28

U.S.C.A. § 2255(b). In making the determination whether to hold an evidentiary hearing, “the

court must accept the truth of the movant's factual allegations unless they are clearly frivolous on

the basis of the existing record.” Booth, 432 F.3d at 545 (quoting Government of the Virgin Islands

v. Forte, 865 F.2d 59, 62 (3d Cir.1989)). For the reasons discussed below, the records in this

matter conclusively show that Mr. Patel is not entitled to relief, and an evidentiary hearing will not

be held.

E. Ground One: "Ineffective Assistance of Counsel Regarding the Options Involved in

Pleading Guilty Pursuant to an Agreement that Surrendered Appellate Rights or

Pleading Open to Preserve Appellate Rights"

Accepting as true Mr. Patel's claim that his counsel failed to explain the option of an open

plea, he must establish prejudice to prevail on his ineffective assistance of counsel claim. "An

'open' guilty plea is a plea made by the defendant without entering into a plea agreement with the

Government. Booth, 432 F.3d at 543 (citing. e.g., United States v. Casiano, 113 F.3d 420, 423 (3d

Cir. 1997)). Mr. Patel argues he was prejudiced by not pleading open because if he had preserved

his appellate rights, he would have succeeded on appealing the sentencing court's denial of an

adjustment for acceptance of responsibility. For the reasons discussed in Section III.H. below, Mr.

Patel has not established a reasonable probability that he would have succeeded in appealing the

sentencing court's denial of an adjustment for acceptance of responsibility.

More importantly, Mr. Patel ignores the fact that he received consideration for pleading

guilty, which he would not have received if he pleaded open. "To allow an otherwise valid plea

agreement to be undone because the defendant did not obtain 'enough' of a benefit would

undermine the efficacy of such agreements by permitting the defendant to obtain the benefit of the

bargain without suffering the detriment." United States v. Williams, 184 F.3d 666, 670 (7th Cir.

1999). The Government agreed not to initiate any further criminal charges against Mr. Patel for

forging physician signatures or obtaining health care benefits from Medicare or Medicaid under

false pretenses for the period from September 2006 through June 2014. Continued investigation

of the scheme to defraud might have led to additional charges brought in an Indictment. See, e.g.,

United States v. Fabian, 798 F. Supp. 2d 647, 672 (D. Md. 2011) (holding advice to accept plea

offer and agree to statement of facts was objectively reasonable in consideration for not presenting

additional charges in Indictment). Additional charges would have increased Mr. Patel's sentencing

exposure and potentially nullified any benefit he may have received for accepting responsibility

for the one count charged in the Information. Mr. Patel received consideration for his guilty plea

and has not established prejudice for not being advised of the option to plead open to preserve his

appellate rights on the issue of acceptance of responsibility.

F. Ground Two: "Ineffective Assistance of Counsel Regarding the Loss Amount"

Mr. Patel asserts that he had no reason to believe his stipulated loss amount would be

adopted at sentencing. His counsel advised him that he would have the opportunity to argue why

the loss amount was overinclusive. He was represented by last minute substitute counsel at the

sentencing hearing, who made only feeble attempts to argue for a lower loss amount. Mr. Patel

asserts he would not have pled guilty if his counsel had advised him that the stipulated loss amount

would not be subject to challenge, or that by attempting to dispute the loss amount, he would risk

losing an award for acceptance of responsibility.

The first part of this claim, that Mr. Patel did not have the opportunity to challenge the loss

amount at sentencing, is factually incorrect. The plea agreement set forth that the stipulated loss

amount would not govern sentencing, which would be determined by the sentencing judge. (Crim.

ECF No. 29). At the plea hearing, Mr. Patel acknowledged that he had sufficient time to discuss

the plea agreement with his attorney, and that he understood the terms of the plea agreement, which

Judge Walls extensively reviewed with him. (Crim. ECF No. 30). Specifically, Judge Walls

explained that he would determine the sentence after considering the arguments from both parties

and reading the PSR from the Probation Office. Even if Mr. Patel's counsel told him the sentencing

judge would not impose the stipulated loss amount, such improper advice was cured by the plea

colloquy. U.S. v. Fazio, 795 F.3d at 428. The plea agreement did not guarantee Mr. Patel would

be successful in arguing for a lower loss amount. "[D]efense counsel's conjectures to his client

about sentencing are irrelevant where the written plea agreement and in-court guilty plea colloquy

clearly establish the defendant's maximum potential exposure and the sentencing court's

discretion." United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).

The second part of this ineffective assistance of counsel claim is that Mr. Patel would not

have pled guilty with a nonbinding stipulation of the loss amount if his counsel had advised him

that challenging the loss amount would jeopardize an adjustment for acceptance of responsibility.

In other words, Mr. Patel is claiming he would have been better off pleading open because he could

have challenged the loss amount without raising an argument that was inconsistent with the plea

agreement and, thus, potentially received an adjustment for acceptance of responsibility.

Under U.S.S.G. § 2B1.1(b)(1)(j, k), a loss amount between $3,500,000 and $9,000,000

calls for an eighteen level increase in the base offense level. To reduce his offense level, Mr. Patel

was required to establish the Government's estimated loss amount of $4,803,875.40 was overstated

by more than one million dollars. The Government obtained the loss amount from thousands of

diagnostic tests directly from the insurance companies who paid Biosound and Heart Solution for

those tests during period of the scheme to defraud, and reasonably estimated the percentage of

cardiology tests that were actually read by a Reading Doctor. (PSR ¶¶ 32, 39-41). Mr. Patel has

not established a reasonable probability that the Government's calculation was off by more than

one million dollars.

Moreover, if Mr. Patel had pled open, he would not have received the Government's

promise not to initiate additional charges against him based on his scheme to defraud. Additional

charges would have exposed him to a longer term of imprisonment and potential criminal fines.

Mr. Patel has not established a reasonable probability that his sentence would have been more

favorable if he pled open without a stipulated loss amount. Therefore, this ineffective assistance

of counsel claim fails.

G. Ground Three: "Ineffective Assistance of Counsel Regarding the Failure to Advise

Mr. Patel of the Collateral Consequences of His Plea Agreement and Stipulation of

Fraud Amount"

After Mr. Patel pled guilty, a civil action was brought against him under the False Claims

Act, and he was collaterally estopped by his guilty plea from challenging the amount of damages

stipulated in his plea agreement. See United States ex rel. Doe v. Heart Sol., PC, 923 F.3d 308,

311 (3d Cir. 2019). Mr. Patel submits that he would not have pled guilty if he had been advised

of the collateral consequence on subsequent civil litigation.

First and foremost, Mr. Patel was advised by the terms of the plea agreement, and again

during the plea colloquy, that his guilty plea did not preclude the Government or a third party from

initiating a civil action against him based on the same criminal conduct. See U.S. v. Fazio, 795

F.3d 421, 428-29 (3d Cir. 2015) ("any possible error in plea counsel's advice was cured by the ...

plea colloquy”. Based on his affirmance in the plea colloquy that he understood this provision,

this Court rejects Mr. Patel's subsequent claim that he did not understand. See, e.g., U.S. v. Padillo-

Castro, 426 F. Appx 60, 63 (3d Cir. 2011) (holding that contrary to the defendant's assertions, the

record showed he was properly informed of the mandatory minimum sentence upon his guilty

plea). Having determined that Mr. Patel was aware of the possibility of civil litigation, this Court

turns to whether his counsel was ineffective for failing to advise him that his guilty plea would

collaterally estop him from taking an inconsistent position in subsequent civil litigation.

In Padilla v. Kentucky, the Supreme Court held that Strickland's ineffective assistance of

counsel standard applied to a criminal defense attorney's failure to advise a defendant of the risk

of deportation as a collateral consequence of pleading guilty. 559 U.S. 356 (2010). This was a

new rule of constitutional law. Chaidez v. U.S., 568 U.S. 342, 349 (2013). Until Padilla, the

Supreme Court had not addressed the threshold question of whether advice about deportation was

a collateral rather than direct consequence of a criminal conviction, and whether collateral

consequences were 'categorically removed' from the scope of the Sixth Amendment right to

counsel. 568 U.S. 342, 349 (2013) (quoting Padilla, 130 S.Ct. at 1482). Prior to Padilla, all ten

federal appellate courts that had addressed the question, and 30 state appellate courts, held that

counsel in criminal prosecutions were not required to give advice on noncriminal matters. Id. at

350. In Padilla, the Court did not answer whether the distinction between direct and collateral

consequences was a generally appropriate question for courts to consider, but rather the Court

"relied on the special 'nature of deportation'—the severity of the penalty and the 'automatic' way it

follows from conviction—to show that '[t]he collateral versus direct distinction [was] ill-suited' to

dispose of Padilla's claim." Chaidez, 568 U.S. at 355 (quoting Padilla, 130 S.Ct. at 1482)).

Similar to deportation, there are other "automatic" consequences that flow from pleading

guilty. 31 U.S.C. § 3731(e), which governs False Claims Act litigation, provides:

(e) Notwithstanding any other provision of law, the Federal Rules

of Criminal Procedure, or the Federal Rules of Evidence, a final

judgment rendered in favor of the United States in any criminal

proceeding charging fraud or false statements, whether upon a

verdict after trial or upon a plea of guilty or nolo contendere, shall

estop the defendant from denying the essential elements of the

offense in any action which involves the same transaction as in the

criminal proceeding and which is brought under subsection (a) or

(b) of section 3730.

This legislation has been in effect since the 1980s. Nonetheless, there does not appear to

be any precedent, before or after the Padilla decision, which requires criminal defense counsel to

advise clients who are charged with fraud or false statements of the collateral estoppel effect on

civil claims for damages. In Padilla, the Supreme Court explained that deportation cases are

different because the severity of the penalty, exile from the United States, is so severe that a

defendant must be allowed to weigh the benefit derived from the guilty plea against the full

consequences of the plea. A civil judgment for money damages, even trebled damages under the

False Claims Act, does not approach the severity of deportation. Therefore, there is good reason

to treat the consequence of deportation differently than the consequence of civil liability for Sixth

Amendment purposes. See Parrino v. United States, 655 Fed. Appx. 399, 403 (6th Cir. 2016)

("[t]he penalty of complete banishment from the United States is different in kind from the burden

of five years’ exclusion from federal health-care programs.") This Court concludes that counsel

was not ineffective for failing to advise Mr. Patel of the collateral consequences of his guilty plea.

H. Ground Four: "Ineffective Assistance of Counsel Regarding the Acceptance of

Responsibility and Sentencing Hearing"

Mr. Patel alleges that his counsel's argument for acceptance of responsibility at the

sentencing hearing was constitutionally deficient. The sentencing guideline for acceptance of

responsibility, U.S.S.G. § 3E1.1 (effective Nov. 1, 2015), provides:

(a) If the defendant clearly demonstrates acceptance of

responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the

offense level determined prior to the operation of subsection (a) is

level 16 or greater, and upon motion of the government stating that

the defendant has assisted authorities in the investigation or

prosecution of his own misconduct by timely notifying authorities

of his intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently,

decrease the offense level by 1 additional level.

Both of these elements were likely satisfied at the time of entry of Mr. Patel's guilty plea. However,

the comments to U.S.S.G. § 3E.1.1 Acceptance of Responsibility, state that "[a] guilty plea does

not entitle a criminal defendant to a three-level adjustment for acceptance of responsibility under

the Sentencing Guidelines as a matter of right." U.S.S.G. § 3E1.1 Cmt. n. 3 (2015). Mr. Patel's

acceptance of the plea agreement, and his acknowledgment of the terms of the plea agreement in

the plea colloquy, establish that he was advised of the discretionary nature of receiving credit for

acceptance of responsibility.

The Government ultimately opposed an award for acceptance of responsibility because it

contended that Mr. Patel attempted to mitigate the scope and seriousness of his conduct, first in

the False Claims Act litigation, then in his sentencing memorandum.8 Thus, at the sentencing

hearing, Mr. Patel's counsel focused on obtaining an award for acceptance of responsibility, stating

that the earlier arguments for mitigating the loss amount were "technical" arguments by the

lawyers, and were not intended to take away from the fact that Mr. Patel understood the risk his

conduct posed to the patients. (Crim. ECF No. 42 at 2-8). Judge Walls seemed to accept counsel's

explanation that the arguments for mitigating the loss amount were counsel's arguments, not Mr.

8 Mr. Patel's sentencing memorandum was not docketed in the criminal docket, but is attached,

under seal, as an exhibit to the Government's Brief in Opposition to Supplement to Amended

Petition. (Civ. ECF No. 47).

Patel's true feelings about the seriousness of his conduct. Judge Walls encouraged counsel to

"stand your ground and say what you believe is appropriate legally for the benefit of your client.

Always remember that." (Id. at 8-9).

Judge Walls then gave Mr. Patel an opportunity to be heard. (Id. at 9). Mr. Patel said that

he was deeply sorry, and he did not mean to harm anyone. (Id. at 10). Judge Walls was troubled

by Mr. Patel's statement that he did not mean to harm anyone because interpreting diagnostic

reports without a medical license risked lives. (Id.) Judge Walls asked Mr. Patel why he

committed this fraudulent scheme. (Crim. ECF No. 42 at 11). Mr. Patel responded that he was

trying to save his business because Reading Doctors were not returning the reports in time. He

explained that he only performed screening tests. (Id.) Judge Walls called Mr. Patel a "greedy

fool," and asked whether he had anything else to say. (Id. at 12). He did not.

The Government then urged Judge Walls not to award an adjustment for acceptance of

responsibility because Mr. Patel had defended the False Claims Act litigation by arguing that not

all of the neurological tests were unsupervised, which he repeated in his sentencing memorandum.

(Crim. ECF No. 42 at 13). The Government argued that Mr. Patel had not accepted responsibility

because he minimized his conduct by noting these were only screening tests, and in his written

submissions, he stated that if a patient had a risk factor, the referring doctor would have sent

him/her to a hospital. (Id. at 15). The Government suggested that Mr. Patel had shown a complete

lack of contrition, and recommended a top of the Guidelines sentence. (Id. at 16).

Judge Walls invited defense counsel to respond to the Government's contention that Mr.

Patel had not accepted responsibility based on "his later own words." (Id. at 19). Defense counsel

urged Judge Walls that Mr. Patel's explanation of his conduct was not intended to detract from his

acceptance that his conduct was wrong. (Id.) Counsel said he knew that Mr. Patel, in his heart,

was not denying the risk his conduct posed. (Id.) He was only trying to explain that his

performance of the diagnostic tests, his life's work, had some value. (Id.) In the end, Judge Walls

was not satisfied that Mr. Patel showed contrition for his crime, and he denied an adjustment for

acceptance of responsibility. (Crim. ECF No. 42 at 25).

Because “[c]redibility and demeanor play a crucial role in

determining whether a person is genuinely contrite,” and “[b]ecause

the sentencing judge has the unique opportunity of observing the

defendant ... and evaluating acceptance of responsibility in a live

context,” the finding of the sentencing court is entitled to great

respect.

United States v. Burns, 925 F.2d 18, 20 (1st Cir. 1991) (quoting United States v. Royer, 895 F.2d

28, 29 (1st Cir. 1990)). The record supports the conclusion that it was Mr. Patel's own

statements and demeanor that failed to convince Judge Walls of his acceptance of responsibility.

Thus, Mr. Patel has failed to establish that but for his counsel's ineffective argument at

sentencing, he would have received the three level adjustment to his base offense level under §

3E1.1. Therefore, this ineffective assistance of counsel claim fails.

IV. CONCLUSION

Defense counsel performed within the prevailing professional standards, and Mr. Patel's

ineffective assistance of counsel claims are based on speculation that he might have been better

off with a different strategy. "Judicial scrutiny of counsel's performance must be highly deferential,

and a fair assessment of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight…." Strickland, 466 U.S. 668, 669 (1984). Therefore, the amended

§ 2255 motion is denied.

V. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from

the final order in that proceeding unless he makes “a substantial showing of the denial of a

constitutional right.” “‘A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude that the issues presented here are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Because jurists of reason could not disagree with this Court’s conclusion that Mr. Patel's

ineffective assistance of counsel claims are without merit, Mr. Patel has failed to make a substantial

showing of the denial of a constitutional right, and no certificate of appealability shall issue.

An appropriate order follows. ~\

Hon. Susan D. Wigenton,

United States District Judge

Dated: January 23, 2023

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