PATEL v. UNITED STATES OF AMERICA

Filing 72

OPINION. Signed by Judge Susan D. Wigenton on 3/28/2024. (lag, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NITA PATEL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 17-7485 (SDW)
OPINION

WIGENTON, District Judge
This matter comes before the Court upon Petitioner Nita Patel’s (“Petitioner”) motion
under Federal Rule of Civil Procedure 60(b)(1), and (b)(6), seeking to reopen this Court’s Order
denying her amended motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF
No. 4). Respondent did not file a brief in opposition to the motion. For the reasons discussed
below, the Court will reopen this matter and deny relief under 28 U.S.C. § 2255.
I.

INTRODUCTION
Petitioner seeks relief under Federal Rule of Civil Procedure 60(b)(1) and (6), asserting

this Court failed to adjudicate three claims she raised in her amended § 2255 motion. (ECF No.
71). The three claims are: (1) ineffective assistance of counsel for failing to investigate and
object to the presentence investigation report (“PSR”); (2) ineffective assistance of counsel for
failure to obtain experts and a summary witness; and (3) violation of the due process right not to
be convicted or sentenced on inaccurate or incomplete information. (ECF No. 71).

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Federal Rule of Civil Procedure 60(b)(1), and (6) provide: “[o]n motion and just terms,
the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect;
… (6) any other reason that justifies relief. Rule 60(b)(6) applies only when Rules 60(b)(1) - (5)
are inapplicable. Kemp v. United States, 596 U.S. 528, 533 (2022). Rule 60(b)(1) applies here.
In the opinion denying Petitioner’s amended § 2255 motion, this Court generally addressed these
claims by finding Petitioner failed to establish ineffective assistance of counsel at any stage of
the proceedings. However, the Court will grant Petitioner’s motion and specifically address the
three claims asserted in the Rule 60(b) motion.
I. BACKGROUND
The full background of Petitioner’s conviction and sentence is recited in the opinion
denying Petitioner’s amended § 2255 motion (ECF No. 55). Therefore, only a brief summary is
necessary here. Petitioner and her husband, Kirtish Patel, pled guilty to federal health care fraud
involving Medicare and private insurers through a scheme in which they 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 physician, in violation of 18 U.S.C. §§ 1347 and 2, As a result of the health
care offense, the Patels, through their companies, Biosound Medical Services, Inc. ("Biosound")
and Heart Solution, PC ("Heart Solution"), were paid more than $4,386,133.75, with payments
from Medicare accounting for $1,668,954.95 of the total amount. Importantly, the plea
agreement permitted Petitioner, despite a stipulation with the Government for purposes of the
plea, to argue for a lower loss amount under U.S.S.G. 2B1.1(b)(1) at sentencing.
II. ANALYSIS

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A. Ineffective Assistance of Counsel by Failing to Obtain Expert and Summary Witnesses
In Strickland v. Washington, the United States Supreme Court established a two-pronged
test to analyze ineffectiveness claims:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
466 U.S. at 687. “Strickland . . . permits counsel to ‘make a reasonable decision that makes
particular investigations unnecessary.’” Harrington v. Richter, 562 U.S. 86, 106–11 (2011)
(quoting Strickland, 466 U.S. at 691). Defense counsel need only formulate a strategy that is
reasonable at the time. Id. at 107 (citations omitted). It is a rare circumstance where only one
defense strategy is reasonable. Thus, in making the Strickland deficient performance
determination, courts must ‘“reconstruct the circumstances of counsel's challenged conduct’ and
‘evaluate the conduct from counsel's perspective at the time.’” Id. (quoting Strickland, 466 U.S
at 689). For the prejudice prong of the Strickland test, a petitioner must establish “a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. Prejudice flows from ineffective assistance of
counsel where counsel’s error results in a harsher sentence. Glover v. United States, 531 U.S.
198, 204 (2001). A petitioner must establish both prongs of the Strickland test, and courts may
address either prong first. Strickland, 466 U.S. at 694.
In Paragraph 55 of her amended § 2255 motion, Petitioner asserted Attorney Arleo failed
to failed to retain experts to explore her defenses. (ECF No. 4-1 at 13). In Paragraph 84(n),

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Petitioner alleged Attorney Arleo “[f]ailed to petition the Court for funds in accordance with the
Criminal Justice Act for experts, investigators and forensic accountants to negotiate with
minimal competence.” (Id. at 22). Similarly, in Paragraph 91(c), Petitioner asserted Attorney
Arleo “failed to obtain expert and forensic accountants to arrive at an appropriate forfeiture and
loss calculation and argue for Movant’s lack of scienter in risk of harm.” (Id. at 28). Finally, in
Paragraph § 176, Petitioner broadly claimed that Attorney Arleo failed her by not presenting
experts to support her case. (Id. at 55). Petitioner alleged prejudice because her counsel:
failed to conduct even minimally competent investigation of the
facts and law and failing to lodge basic objection to grossly
inaccurate statements in the PSI and failing to obtain experts and
summary witnesses, cumulatively resulting in their own client
receiving a substantially elongated sentence, Movant otherwise
would have received….
(Id. at 2).
It was reasonable for counsel to pursue a strategy, based on the strength of the
Government’s evidence, to seek a plea deal where Petitioner had a chance to obtain a three
offense level reduction for acceptance of responsibility. Based on the large numbers of
diagnostic tests involved in the healthcare fraud offense and the extensive review experts would
be required to perform, counsel could reasonably have concluded that Petitioner was likely to
obtain a greater outcome by early acceptance of responsibility. Even assuming counsel’s
performance was deficient, to show prejudice, Petitioner must establish a reasonable probability
that expert analysis and testimony would have led to a better outcome for her. Petitioner has
provided nothing but unsubstantiated claims and speculation. “‘Vague and conclusory
allegations contained in a § 2255 petition may be disposed of without further investigation by the
district court.’” Johnson v. United States, 294 F. App’x 709, 710 (3d Cir. 2008) (not
precedential) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)). As this Court
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noted in its opinion denying Petitioner’s amended § 2255 motion, the hurdle to establish
prejudice based on the loss amount was high:
To establish ineffective assistance of counsel at sentencing, the
petitioner must also establish the reasonable probability of a
shorter sentence but for counsel's errors. United States v.
Smack, 347 F.3d 533, 540 (3d Cir. 2003) (citing Glover v. U.S.,
531 U.S. 198, 204 (2001) (holding that any reduction in sentence
constitutes substantial prejudice for purposes of the Strickland
analysis)). Even if this Court were to assume counsel's
performance was constitutionally deficient, Ms. Patel has not
shown that a more in depth review of the payments by the insurers
would have resulted in a successful claim for a lower offense level.
The sentencing judge added 18 points to her base offense level
based on a loss of $4,803.875.40. The relevant Guideline called for
an increase of 18 points to the base offense level for losses
between $3,500,000 and $9,000,000. U.S.S.G. § 2B1.1(b)(1)(J, K);
(PSR ¶ 51). To reduce the offense level by one point, the loss
amount had to be under $3,500,000. Ms. Patel fell far short of her
burden to establish prejudice from counsel's failure to make this
showing. See Boye v. United States, 810 F. App'x 118, 121 (3d
Cir. 2020) (holding the petitioner failed to set forth a lower loss
calculation "to show that his sentence would have been materially
impacted, or that he would have been on stronger plea bargaining
grounds.") Therefore, this ineffective assistance of counsel claim
fails on both prongs.
(ECF No. 55 at 42). Petitioner has not established Strickland prejudice. See, e.g., United States
v. Bailey, 106 F. App'x 116, 117–18 (3d Cir. 2004) (finding counsel’s alleged error in failing to
object to loss amount in presentence report for embezzlement did not prejudice the defendant
because it had no impact on the sentencing court’s guideline calculation). Therefore, this
ineffective assistance of counsel claim is denied.
B. Ineffective Assistance of Counsel by Failing to Make Objections to the PSR
In her amended § 2255 petition, Petitioner asserted that her counsel provided ineffective
assistance by failing to object to the following statements in the PSR:
•

PSR ¶ 14, in October 2008, Nita Patel was involved in the charged conduct.

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PSR ¶¶ 11, 12, 14, echocardiograms were not read by a licensed reading physician.

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[no citation provided], more than half of the diagnostic reports were forged.

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PSR ¶ 19, Kirtish Patel never directed an employee how to draft a diagnostic report when
it was not read by a physician.

•

PSR ¶ 21, in September 2006, Kirtish Patel told Petitioner that Biosound was in
compliance with Medicare regulations by hiring Dr. Brad Tinkelman.

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PSR ¶ 21, all neurological balancing tests were read by a licensed neurologist.

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PSR ¶¶ 22-30, a substantial amount less than $4,303,875.40 was paid to Petitioner and
her husband for tests that were never interpreted by a licensed physician.

•

PSR ¶ 32, the 100% neurology non-read rate is grossly inaccurate.

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PSR ¶ 36, Kirtish Patel assured Petitioner there was no risk of death or bodily injury for
patients.

•

The Government’s healthcare program did not pay $1,668,954.95 during Petitioner’s
involvement.

(ECF No. 4-1 ¶ 136).
Counsel’s failure to object to the PSR was not constitutionally deficient for the simple
reason that the plea agreement reserved Petitioner’s right to challenge the loss amount at
sentencing. In other words, the PSR objections were preserved for sentencing. Counsel
challenged many of the above assertions in his sentencing memorandum and at the sentencing
hearing (ECF No. 27 at 66-87, 189-95). It is important to note that counsel had to be cautious
not to challenge the factual basis for Petitioner’s plea agreement, because this might have
resulted in the loss of a three offense level reduction for acceptance of responsibility. Therefore,
Petitioner has not established ineffective assistance of counsel, based on failure to make
objections to the PSR.
C. Due Process Right Not to be Sentenced on Inaccurate or Incomplete Information
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Petitioner asserts that she was denied her due process right not to be sentenced based on
inaccurate or incomplete information because the loss amount attributed to her healthcare fraud
conviction was grossly inaccurate. Petitioner relies on the Supreme Court’s decisions in United
States v. Tucker, 404 U.S. 443, 447–48 (1972) and Townsend v. Burke, 334 U.S. 736, 740–41
(1948).
In Tucker, the record on appeal established that the defendant was sentenced based on the
trial court’s consideration of two prior uncounseled convictions which were “wholly
unconstitutional.” 404 U.S. at 447. The Court explained the circumstances of the defendant’s
sentencing:
[i]nstead of confronting a defendant who had been legally
convicted of three previous felonies, the judge would then have
been dealing with a man who beginning at age 17, had been
unconstitutionally imprisoned for more than ten years, including
five and one-half years on a chain gang.
Id. The Supreme Court held that due process required reconsideration of the defendant’s
sentence because using uncounseled convictions to enhance a defendant’s sentence eroded the
right to counsel established in Gideon v. Wainwright [372 U.S. 335 (1963)]. Id. at 449.
Similarly, in Townsend, the defendant was found not guilty on two charges that the trial
court considered, when imposing sentence, as part of the defendant’s criminal history. 334 U.S.
at 740. The Supreme Court held that the petitioner’s right to due process was violated because
he “was sentenced on the basis of assumptions concerning his criminal record which were
materially untrue[.]” Id. at 741. The Court explained, “it is the careless … sentence on a
foundation so extensively and materially false, which the prisoner had no opportunity to correct
by the services which counsel would provide, that renders the proceedings lacking in due
process.” Id.

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Petitioner’s case stands in stark contrast to Tucker and Townsend, in part, because
Petitioner was counseled throughout her criminal proceedings. In Tucker and Townsend, the
information relied on by the sentencing judge, the defendants’ criminal histories, were clearly
and unambiguously false. Here, in contrast, Petitioner pled guilty to healthcare fraud, where
sentencing is often complex and requires only a reasonable estimate of the loss caused by the
misconduct under U.S.S.G. § 2B1.1. The Government obtained the loss amounts directly from
the insurers’ records. (PSR ¶ 32, 33, 40, 41). Where it was known that not all of the diagnostic
cardiology reports were noncompliant with Medicare regulations, the Government reasonably
determined an estimate by obtaining a two-year sample of Biosound’s reports from referring
physicians, and comparing the reports with reading doctors’ records of reports they had actually
reviewed, and applying this percentage to the relevant time period established in the factual basis
of the plea. (PSR ¶ 32). Beyond her speculation, Petitioner has not pointed to any evidence in
the record that establishes she was sentenced upon an unreasonable estimate of losses caused by
her healthcare fraud, which is all that is required by U.S.S.G. § 2B1.1, Application Note 3(C).
Therefore, this Court denies Petitioner’s due process claim.
III. 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 she 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 denial of Petitioner’s

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ineffective assistance of counsel and due process claims, she has failed to make a substantial
showing of the denial of a constitutional right, and no certificate of appealability shall issue.
IV. CONCLUSION
For the reasons discussed above, this Court denies the three claims asserted in
Petitioner’s motion under Rule 60(b)(1).

An appropriate order follows.
March 28
Date: ________________,
2024

_______________________
Hon. Susan D. Wigenton,
United States District Judge

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