Magistrate: Defense claims in kickback case without merit

Keeping the mystery alive in a hard-fought medical kickback case, a federal magistrate has concluded that a sealed defense motion attacking the government contains nothing more than "scandalous and salacious arguments."

U.S. Magistrate Judge Peggy Leen recently issued a 17-page decision recommending denial of the motion, which sought to dismiss criminal charges against medical supplier Anil Mathur on grounds of selective and vindictive prosecution.

Leen also said there were "compelling reasons" to withhold the court papers from the public.

"The court finds the motion to dismiss contains un­substantiated rumor, gossip and other scurrilous allegations that may be used to gratify private spite, permit public scandal and circulate libelous statements," Leen wrote.

The magistrate said she found no evidence in the defense's court papers that suggested prosecutors in the U.S. attorney's office were vindictive toward Mathur or singled him out for prosecution.

Prosecutors contended the bulk of the motion had nothing to do with the case.

Leen refused to give defense lawyers a hearing to "explore office gossip and answer rhetorical questions about the motives" of prosecutors.

Four experienced attorneys lent their names to Mathur's dismissal motion: Paul Padda, Ruth Cohen, Robert Draskovich and Jacob Hafter. Padda left the U.S. attorney's office last year to go into private practice with Cohen, another former prosecutor in the office.

Defense lawyers said that they would file objections to Leen's decision with U.S. District Judge Miranda Du. Days before Leen's opinion was filed, U.S. District Judge James Mahan took himself off the case without explanation.

"It's disappointing, but I'm not surprised," Hafter said after reading Leen's decision. "The judge is saying absent direct evidence of some inappropriate actions, we're going to proceed to try the case on its merits."

Mathur, who owns United Medical Supplies, is charged with providing $26,150 in kickbacks to Las Vegas physician Robert Lampert between December 2008 and December 2010 to obtain Medicare business. He sold oxygen supplies to the physician's patients.

In March, ill feelings surfaced on both sides of the case after defense lawyers filed court papers breaking Lampert's cover as a confidential FBI source. Lampert, part of a team of 14 lung specialists at Pulmonary Associates, wore a wire in the investigation of Mathur and possibly others in the health care profession.

Leen said in her decision that she was summarizing the defense's contentions without repeating all of the "salacious details" for the benefit of the public's right to access court records.

The motion went to great lengths to repeat the history of the Bush administration's removal of U.S. attorney Daniel Bogden in 2007 and then his re­appointment during the Obama administration in 2009, Leen said.

But the magistrate did not say why the defense lawyers included details in their motion of Bogden's journey in and out of office.

Leen said the motion "comments on administrative and personnel decisions" made in the U.S. attorney's office after Bogden was let go by the Bush administration. Again, however, she did not provide details of those defense claims, which she said were based on "information and belief."

Bogden and Russell Marsh, who runs the U.S. attorney's Criminal Division, should have removed themselves from Mathur's prosecution because they attended political events sponsored by the Asian American Group, an organization Mathur has supported financially, Leen said the defense lawyers contended.

The defense lawyers also claimed that Mathur was treated more harshly than at least seven health care providers, all of whom were allowed to strike civil settlements with the U.S. attorney's office rather than face criminal charges, Leen wrote. And, she added, the defense contended that Mathur was singled out because of his "South Asian/Indian descent and his Hindu religion."

Prosecutors also were vindictive toward him because he refused to wear a wire, like Lampert , Leen said the lawyers argued.

Leen, however, concluded that the defense lawyers did not present a "scintilla of evidence" that Mathur's prosecution was based on his race or religion.

Likewise, the lawyers did not show that the government acted in a "punitive" and "vindictive" way toward the medical supplier, Leen wrote.

Contact reporter Jeff German at
jgerman@reviewjournal.com or 702-380-8135.