     Case: 17-30725      Document: 00514715203         Page: 1    Date Filed: 11/07/2018




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                                      No. 17-30725                United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                  November 7, 2018
UNITED STATES OF AMERICA,
                                                                    Lyle W. Cayce
              Plaintiff - Appellee                                       Clerk

v.

MEHMOOD M. PATEL,

              Defendant - Appellant



               Appeal from the United States District Court for the
                          Western District of Louisiana
                             USDC No. 6:14-CV-604


Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM:*
       A jury convicted Mehmood Patel of 51 counts of healthcare fraud for
performing unnecessary medical procedures.                   After we affirmed the
convictions, 485 F. App’x 702 (5th Cir. 2012), Patel sought postconviction relief
arguing he had new information showing violations of his constitutional rights.
28 U.S.C. § 2255. The district court rejected Patel’s claims, and we only
authorized a single issue for appeal: whether the district court abused its




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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discretion in not granting Patel an evidentiary hearing to determine if a
witness falsified certain trial exhibits.
                                          I.
                                          A.
       Patel worked as a cardiologist in Lafayette, Louisiana. In 2002, a nurse
at Patel’s clinic contacted a federal health care fraud hotline to report
fraudulent Medicare and Medicaid billing. Soon after, an additional witness
came forward: Christopher Mallavarapu, a physician who worked for Patel.
The employees alleged that Patel was billing the federal government for
unnecessary angioplasties. 1
       A year after the feds received the tip, the government executed a search
warrant at Patel’s office. Among other medical records, agents seized CDs
containing angiograms performed by Patel. The parties call these CDs the
“gold CDs” because of their color. The government also imaged the hard drives
of seven computers in the clinic and left the physical hard drives.
       A few years later, a grand jury charged Patel with 94 counts of health
care fraud. The resulting trial lasted nearly three months. The government
called ten experts. Patel called no experts but testified in his own defense for
19 days. Both sides used the gold CDs and information copied from Patel’s
hard drives that the government compiled onto an external drive.                     While
testifying, Patel noticed some inconsistencies in the angiograms on the
external hard drive and advised his counsel during a break that some
sequences were out of order. The government responded that Patel could use



       1 An angioplasty is an invasive procedure that involves threading a catheter with a
balloon through an artery in the groin area up into a narrowed artery. The balloon then
expands and a stent can be inserted into the artery. Prior to performing an angioplasty,
doctors typically perform a diagnostic test called an angiogram. In an angiogram, the doctor
threads a catheter into the heart and injects dye to test blood circulation and determine the
severity of artery blockage.
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                                 No. 17-30725
the original CDs if he was dissatisfied with the duplicates that the government
made. Patel replied, “I think I can proceed because I know exactly where the
pictures are,” and he continued to use the government’s duplicates during his
entire testimony.
      The jury was initially hung and reached a verdict only after the judge
gave an Allen charge. It found Patel guilty of 51 counts of health care fraud
and acquitted him on the remaining 40 counts. Patel was sentenced to ten
years in prison.
                                     B.
      The criminal trial was not Patel’s only problem. Before the trial began,
Mallavarapu filed a qui tam action against Patel under the False Claims Act
based on the same allegations as the criminal case. As is typical, the complaint
was sealed while the government decided whether to intervene.            When it
elected to do so, it also successfully sought a stay of the civil case pending the
criminal trial. Patel’s attorney was notified about the suit at that time and the
complaint was unsealed. After the criminal trial, the stay was lifted and the
civil litigation commenced.
      As will become important, the court held a hearing on a motion in limine
Patel filed seeking to exclude the gold CDs as unreliable. Patel presented
expert testimony about supposed discrepancies in the CDs, but the court
concluded that there were innocent explanations for the inconsistencies and
held the CDs would be admissible in the civil trial.
                                     C.
      In 2014, with the civil case still pending, Patel filed his section 2255
motion.    He asserted the following claims: (1) a Brady claim alleging
concealment of Mallavarapu’s role in the investigation and prosecution; (2) a
Brady claim related to Mallavarapu’s providing Patel’s files to the government,
which he argued amounted to a Fourth Amendment violation; (3) prosecutorial
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misconduct for failing to disclose that Mallavarapu took CDs and records from
Patel’s office, encouraging his act of theft, and entrusting him with CDs
without maintaining a proper chain of custody; and (4) prosecutorial
misconduct based on allegations that the government knew Mallavarapu had
falsely described his role in the qui tam.
      Patel later sought discovery and a hearing. The request relied on expert
witness Michael Hale, who examined the gold CDs and found numerous
discrepancies. Hale contends (1) that many of the angiograms on the CDs
appear to have been created before the procedures took place; (2) that some
have missing series, which are part of a group of images in sequence used by
the program to show a sequential moving image; (3) that some contain
incorrect or missing information, such as a patient's date of birth; and (4) that
some files on the external hard drive used at trial have “run” and “frame”
numbers that appear to be different from what is shown on the CDs Hale
examined.
      The district court rejected all of Patel’s claims in an 85-page opinion. It
also denied an evidentiary hearing.        Relying on the record from both the
criminal and civil case, it concluded a hearing was unnecessary because “the
affidavits provided by Patel have no independent indicia of reliability in light
of the contradictions between them, the record evidence[,] and the Court[’]s
knowledge and understanding of these cases.”
      We granted a certificate of appealability only on the question whether
the district court should have held a hearing to resolve Patel’s allegations that
Mallavarapu altered the angiograms.


                                     II.
      Having now reviewed full briefing on that issue, we find no abuse of
discretion in the district court’s refusal to hold an evidentiary hearing in the
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section 2255 matter. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008)
(reviewing refusal to hold hearing for abuse of discretion). A district court
must grant such a hearing on a disputed fact issue in a postconviction
proceeding unless the record conclusively shows that the petitioner is entitled
to no relief. 28 U.S.C. § 2255(b). A district court thus need not hold a hearing
when resolution of the factual dispute will not affect the outcome. United
States v. Green, 882 F.2d 999, 1008 (5th Cir. 1989).
       That is the case here. This is a “no hearing” case in only the most formal
sense.   Although the district court did not hold a hearing about alleged
manipulation of the CDs using the docket number for this postconviction
proceeding, it did hold one in the civil case. After hearing from five witnesses,
including an expert Patel called, the district court expressed serious doubt
about Patel’s allegation of manipulation. It found it “very hard to believe” that
irregularities in some of the dates could not be attributed to “people working
late at night at the practice.” The court also emphasized that the testimony
showed that, in files with the wrong date, the dates were “consistently
inconsistent,” suggesting there was something wrong with the computer’s
dating system. Another innocent explanation flowed from the fact that some
of the allegedly misdated files were for tests conducted before the long Labor
Day weekend, which made it likely that the misdating simply represented a
delay in downloading them. The court concluded by noting that many other
“common sense factors” supported the accuracy of the CDs.
       The civil hearing also allowed the court to make a number of findings
that show Mallavarapu likely did not have the opportunity to manipulate the
CDs.     It rejected Patel’s contention that Mallavarapu gave files to the
government; in fact, the government obtained the files from the search. It also
explained that the seized gold CDs were kept in a locked room separate from


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the rest of the evidence and Mallavarapu did not have unsupervised access to
them.
        Patel advances no convincing reason why his arguments would have
succeeded in a second hearing when they failed at the first. 2 It thus was
reasonable for the district court to conclude that what would be essentially a
second hearing on the same topic was unnecessary. It was also entitled to rely
on its conclusion from the civil hearing that the allegations did not establish
wrongdoing or render the CDs unreliable.
        But there is a more fundamental problem for Patel. Even if he could
show some willful manipulation of the CDs by Mallavarapu, that alone would
not entitle him to relief. A due process claim based on the presentation of false
evidence requires showing government knowledge of the falsity. United States
v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997) (citing Napue v. Illinois, 360 U.S.
264, 269 (1959)). Patel has offered no evidence that the government knew
about any doctoring of the CDs (assuming it happened at all), relying only on
assertions that it gave Mallavarapu unsupervised access to the CDs. But the
district court rejected that as a factual matter. And even if it were true, Patel
cites no authority saying that merely giving access would establish government
knowledge of any falsity.
        There are other sound reasons why a hearing was unnecessary, such as
Patel’s knowledge during the criminal trial of Mallavarapu’s role and many



        2 Patel argues that his current expert found more discrepancies than the one who
testified in the civil case. But the thrust of the allegations is nearly identical. The only major
addition is testimony about the nature of the software and its alleged susceptibility to easy
alteration. General susceptibility to alteration would not undo the specific reasons the court
gave for finding neither manipulation nor the opportunity to do so. Likewise, while the expert
in the civil case did not examine the CDs related to the counts of conviction, he did examine
many others admitted in the criminal trial. Nothing suggests that there is a material
difference about risk of alteration for the CDs on the counts that led to conviction versus the
ones that led to acquittal.
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other facts that gave rise to the section 2255 allegations he later asserted. But
the ones we have already highlighted are enough to demonstrate that the
district court did not abuse its discretion.
      The judgment is AFFIRMED.




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