United States of America v. Zafar Mehmood

Cincinnati, Ohio- Criminal defense lawyer represented defendant running a fraudulent scheme involving several home health-care companies that purported to provide physical therapy to home-bound beneficiaries and submitted fraudulent claims to Medicare charge.

A grand jury returned an indictment charging Mehmood with one count of conspiracy to

commit health-care fraud, in violation of 18 U.S.C. § 1349; four counts of health-care fraud, in

violation of 18 U.S.C. §§ 1347 and 2; one count of conspiracy to pay and receive health-care

kickbacks, in violation of 18 U.S.C. § 371; one count of conspiracy to commit money laundering,

in violation of 18 U.S.C. § 1956(h); and two counts of money laundering, in violation of 18 U.S.C.

§§ 1956(a)(1)(B)(i) and 2. A grand jury later returned a separate indictment charging Mehmood

with two counts of obstruction of justice, in violation of 18 U.S.C. §§ 1512 and 2. These latter

charges stemmed from the government's contention that Mehmood took incriminating parts of

patient files from the government's offices while he was there reviewing the evidence in

preparation for trial.

At trial, numerous former employees of Mehmood's companies testified about the

scheme's design and scope. This included evidence that Mehmood and others paid bribes to

recruiters for Medicare beneficiaries recruited or referred to his companies; recruiters offered and

paid bribes, including prescriptions for controlled medications, for the beneficiaries' Medicare

information and signatures on medical records; Mehmood and his employees created fake patient

records with fabricated medical information; Mehmood taught his employees how to fabricate

medical data to make it appear that the patient was making progress; Mehmood's companies

submitted claims for beneficiaries who were deceased or hospitalized at the time of the alleged in1 The companies listed in the indictment included Access Care Home Health Care, Inc. (Access), All State

Home Health Care, Inc. (All State), Patient Care Home Care, Inc. (Patient), and Hands on Healing Home Care, Inc.

(HOH). Mehmood was the owner and president of Access, Patient, and All State, and co-owner of HOH.

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home therapy; Mehmood, who was also a physical-therapist assistant, submitted bills showing that

he provided services for multiple patients at the same time, sometimes in different cities; and

Mehmood created shell companies and tasked intermediaries with facilitating payments.

A jury convicted Mehmood on all counts. The district court sentenced Mehmood to 360

months' imprisonment, based in part on its determination that the loss amount from Mehmood's

fraud was the full amount of gross billings submitted by Mehmood's companies.

On appeal, we affirmed Mehmood's convictions but vacated his sentence. United States

v. Mehmood, 742 F. App'x 928, 931 (6th Cir. 2018) (Mehmood I). As relevant here, we rejected

Mehmood's sufficiency-of-the-evidence argument on the obstruction-of-justice counts:

The government presented evidence that although Mehmood was detained

pending trial he was granted temporary release from custody to accompany his

attorneys to the office of the U.S. Department of Health and Human Services

("HHS”) in Detroit to prepare for trial and review original patient records and other

materials seized from Mehmood's companies. HHS discovered that certain

incriminating, original pages were missing following Mehmood's three visits and

law enforcement found these pages in Mehmood's cell upon executing a search

warrant.

At trial, the government presented evidence that the original patient files

had been scanned by the government prior to Mehmood's examination of those

files at HHS. The government argued: "we're able to take both what was left

after Mehmood's visit [to HHS,][(Ex. 352)], as well as the documents that were

seized from Mr. Mehmood's cell[, (Ex. 350A)], and if we put them together, they

match exactly” to the scan of the original records produced before Mehmood's visit

to HHS, (Ex. 351). (R. 322, PID 9340.) Specifically, the government focused on

the file of Janie Drake, comparing a scanned version of the Drake file made

before Mehmood's visit, to a version of the original Drake file scanned immediately

after Mehmood's visit, (Ex. 352), to reveal the missing pages. The missing pages,

(Ex. 350A), were later found in Mehmood's cell.

Mehmood now seizes on the government's argument at trial that the preand post-HHS-visit scans "match[ed] exactly.” (R. 322, PID 9340.) He argues that

because the two scans contain certain dissimilarities, they do not "match exactly,”

and thus Exhibit 351 cannot be a reliable representation of the contents of the Drake

file as originally seized. (Mehmood Br. at 34 ("In light of the dissimilarities . . . ,

the case agent's testimony that Exhibit 351 is a scanned duplicate of the original

Drake file viewed by Mehmood at the HHS field office 'defies physical realities'

and 'contradicts indisputable physical facts.'”) (citing United States v. Farley,

2 F.3d 645, 652 (6th Cir. 1993)).) Stated differently, Mehmood argues that the

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dissimilarities prove that "Exhibit 351 and Exhibit 352 . . . were not created from

the same physical document,” (Mehmood Reply Br. at 15), and thus Exhibit 351

"should be excluded from this Court's review of the sufficiency of the evidence.”

(Mehmood Br. at 34.)

Mehmood's argument fails. First, the complained-of dissimilarities are

minute: stray pen marks, additional or misaligned punch holes, additional staple

marks or staple marks in different locations, a speck of dust or stray piece of lint,

or slight discoloration or stains. Mehmood identifies no substantive differences

between the two scans. And the differences he does point to do not make Exhibit

351 inherently unreliable because the scans were made of the originals at different

times and after they were reviewed and handled.

Second, Mehmood did not make this argument to the jury, did not explore

the alleged dissimilarities at trial, and did not raise the issue in his motion for

acquittal. He never argued, as he does now, that certain dissimilarities undermined

the authenticity of the exhibit. Instead, he asks that we draw our own conclusions

about the scans and "give no weight to this evidence because it is irreconcilable

with the physical facts.” (Mehmood Reply Br. at 10.) We decline to entertain

Mehmood's argument about the alleged dissimilarities because "it is the

responsibility of the jury—not the court—to decide what conclusions should be

drawn from evidence admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2, 132 S.Ct.

2, 181 L.Ed.2d 311 (2011). "[T]he court cannot substitute its judgment of the

evidence or the facts for that of the jury, since ascertaining the facts is within the

exclusive province of the latter.” 9B Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2524 (4th ed.); see also United States v.

M/G Transp. Servs., Inc., 173 F.3d 584, 588-89 (6th Cir. 1999).

Mehmood also points to other evidence he argues undermines his

obstruction conviction, such as testimony that: (1) neither Mehmood's attorney nor

the HHS agents saw Mehmood take any patient files from the HHS office;

(2) "Medicaid providers may have legitimate business reasons to create multiple

copies of a patient file”; and (3) Mehmood's attorneys had given him copies of

patient records that he kept in his cell. (Mehmood Br. at 34-35.) But the jury heard

this testimony and chose to give it little weight. Instead, the jury permissibly

credited the testimony of the FBI agent who executed the search of Mehmood's cell

and who testified that the pages recovered from Mehmood's cell were the missing

originals because "the paper was indented as if being pressed by a point of . . . a

pen,” and because they contained an original, handwritten "sticky note” attached to

the documents, as opposed to a photocopy of the note, and, thus, the recovered

pages could not have been copies given to Mehmood by his attorneys or made

at Mehmood's companies before his arrest. (R. 323, PID 9504-06; 9509-10.)

Thus, we conclude that the evidence was sufficient for the jury to find

beyond a reasonable doubt that Mehmood attempted to obstruct justice by removing

certain incriminating patient files from HHS.

Mehmood I, 742 F. App'x at 936-38 (alterations in original) (footnotes omitted).

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We concluded, however, that Mehmood's sentence must be vacated, in part because the

district court erred in its analysis of the loss amount.

2

In particular, we found that the district court

erred in reasoning that the loss amount consisted of "the full amount of gross billings submitted

by Mehmood's companies between 2006 and 2011—$47,219,535.47—because Mehmood

obtained access to the Medicare program by certifying that he would not engage in kickbacks

'without any intention of living up to' that promise.” Id. at 940 (citation omitted). Rather, because

"the Guidelines state [that] 'the aggregate dollar amount of fraudulent bills submitted to the

Government health care program shall constitute prima facie evidence of the amount of the

intended loss,'” the district court should have deducted "the value of any legitimate claims, if

established.” Id. (quoting U.S.S.G. § 2B1.1, cmt. n.3(F)(viii)). And we noted that Mehmood had

introduced evidence that legitimate medical services were provided to some patients, which the

district court did not address. Id.

On remand, before resentencing, Mehmood moved for a new trial on the obstruction counts

based on a claim of newly discovered evidence. He argued that the new evidence, consisting of

two forensic examination reports, showed that trial Exhibits 350A (the missing pages from the

Drake file that were found in Mehmood's cell) and 352 (the pages from the Drake file remaining

after Mehmood's review of the files) were not derived from the same source document as Exhibit

351 (a scan of the original file produced to Mehmood prior to his review of the file at the

government office), undermining the verdict. He also argued that his computer expert should be

granted access to the scanner used to create the scan of Exhibit 351. At a hearing on the motion,

Mehmood requested that he be allowed to call witnesses in support of his motion. After

2 We also concluded that the district court erroneously applied two separate enhancements for obstruction of

justice, and remanded for further consideration of the separate enhancements for sophisticated laundering and

sophisticated means. Mehmood I, 742 F. App'x at 941, 943. These issues are not raised in this appeal.

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questioning counsel, the district court declined to allow the witnesses, concluding that Mehmood

was not entitled to a new trial because the proffered evidence was not newly discovered and could

have been discovered earlier with due diligence. The district court entered a written order to that

effect denying the motion.

The district court also conducted two resentencing hearings where Mehmood called

additional witnesses. These witnesses generally testified that they observed no fraud while

working for Mehmood's companies, and some of them had been present when medical services

were provided to patients. The government presented no additional evidence, choosing to rely on

the evidence submitted at trial. It argued that because the fraud was pervasive, the district court

should begin with the amount Mehmood's companies billed to Medicare, and then deduct any

legitimate services that Mehmood could establish. Mehmood argued that aside from a handful of

patients, the government had not met its burden to establish that the Medicare bills were fraudulent.

He advocated for a finding that only fifteen percent of the billings were fraudulent, and argued that

a contrary approach would run afoul of our mandate.

The district court agreed that the evidence supported the government's position that fraud

was pervasive, and it therefore considered the more than $47 million billed to Medicare as the

intended loss. It asked Mehmood several times if he could point to specific claims that were

legitimate, but Mehmood declined to do so, saying it was not his burden. Based on testimony that

some of the services were legitimate, and to be conservative, the district court reduced the loss

amount for the claims submitted by the four companies listed in the indictment—Access, Patient,

All State, and HOH—by twenty percent. This alone resulted in a loss amount of $26,176,405,3

corresponding to a twenty-two-level enhancement under U.S.S.G. § 2B1.1(b)(1)(L). After

3 The district court also added over $14 million to that number related to billings from other companies,

which the district court found were entirely fraudulent. Mehmood does not address this finding.

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determining the applicability of other enhancements not relevant to this appeal, the district court

found that Mehmood's total offense level was forty-two, yielding a Guidelines range of 360

months to life. The district court varied downward and sentenced Mehmood to 300 months'

imprisonment: 240 months on the fraud and money-laundering counts, followed by sixty months

on the obstruction counts. The district court also ordered restitution in the amount of $20,792,548.

This timely appeal followed.

II.

A.

Mehmood argues that his sentence is procedurally unreasonable because the district court

again erroneously calculated the loss amount and therefore miscalculated his Guidelines range.

We review challenges to the procedural reasonableness of a sentence for an abuse of discretion.

Gall v. United States, 552 U.S. 38, 51 (2007). We review de novo the district court's methodology

for calculating loss, and its factual findings—determined by a preponderance of the evidence—for

clear error. United States v. Ramer, 883 F.3d 659, 687 (6th Cir. 2018).

A defendant's offense level is adjusted based on the amount of loss the district court

determines is involved in the offense. U.S.S.G. § 2B1.1(b)(1). As relevant here, for a loss that is

more than $25,000,000 but less than or equal to $65,000,000, the base offense level is increased

by twenty-two levels. Id. § 2B1.1(b)(1)(L). "The relevant amount of loss for a Section 2B1.1

enhancement is the greater of the actual loss, defined as the reasonably foreseeable pecuniary harm

that resulted from the offense, or the intended loss to the victim. The district court's duty is to

make a reasonable estimate of the loss.” United States v. Washington, 715 F.3d 975, 984 (6th Cir.

2013) (citing U.S.S.G. § 2B1.1 cmt. n.3(A), (C)).

In a case in which the defendant is convicted of a Federal health care offense

involving a Government health care program, the aggregate dollar amount of

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fraudulent bills submitted to the Government health care program shall constitute

prima facie evidence of the amount of the intended loss, i.e., is evidence sufficient

to establish the amount of the intended loss, if not rebutted.

U.S.S.G. § 2B1.1, cmt. n.3(F)(viii).

Mehmood challenges the district court's methodology and its findings of fact. Regarding

the methodology, Mehmood first argues that the district court contravened our opinion in

Mehmood I by using the gross billings as its starting point and putting the onus on him to disprove

the bills' fraudulent nature. According to Mehmood, our prior opinion required the government

to prove which specific claims submitted to Medicare were fraudulent.

We disagree. We vacated the district court's prior loss determination because it appeared

to rely on the unsupported theory that none of Mehmood's claims were legitimate due to his initial

certification to Medicare that he would not engage in kickbacks. 742 F. App'x at 936-38. We

explained that the district court must deduct the value of any legitimate claims, "if established,”

and noted that there was evidence that Mehmood's companies may have performed at least some

legitimate services that the district court did not sufficiently address. Id. On remand, the district

court expressly disclaimed the theory we rejected, but it still determined that the full amount of

gross billings to Medicare constituted prima facie evidence of the aggregate dollar amount of the

fraudulent bills given the overarching fraudulent purpose—and convincing evidence about the

consistent fraudulent execution—of the scheme. It also evaluated the testimony tending to suggest

that at least some of the services performed were legitimate. Accordingly, the district court

complied with our mandate.

Nor do we find any error in the district court's approach. The district court reviewed the

trial evidence in detail and exhaustively explained its conclusion that "the overwhelming testimony

that we have that the purpose of these home healthcare agencies was fraudulent from the beginning,

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and it was beautifully executed over an extended period of time, until the [government] raided the

operation.” R. 423, PID 12344; see also id. at PID 12352-53 (finding that Access, Patient, All

State, and HOH "were formed for the sole purpose of carrying out this fraud”); id. at PID 12366-

67 (concluding that one company not listed in the indictment, My Home Doctor, "was a completely

fraudulent outfit,” and that three other companies were shell corporations used to pay recruiters

and did not provide any patient services). This review included witnesses' testimony, credited by

the district court, that fictitious patient charts were created; patients did not receive the care listed

in the bills and either did not want or did not need the care; bribes were routinely paid to patients

and doctors; and many patients purportedly needing homecare were signed up based solely on their

Medicare eligibility at an office building in Detroit or another location requiring the patients to

climb a flight of stairs (thus suggesting that these patients were not truly homebound). These

witnesses did not describe one-time events, but rather pervasive practices.

We have found that the value of all submitted bills satisfies the government's burden to

present prima facie evidence of the intended loss where the defendant's companies were "entirely

a fraud,” United States v. Meda, 812 F.3d 502, 520 (6th Cir. 2015), "the entire [] program was a

sham,” United States v. Washington, 715 F.3d 975, 985 (6th Cir. 2013), or a defendant "engaged

in a pervasive health care fraud conspiracy,” United States v. Lovett, 764 F. App'x 450, 460 (6th

Cir. 2019). In these situations, once the government meets its burden by establishing the

pervasiveness of the fraud, it is up to the defendant to "prov[e] the specific value by which that

amount should be reduced.” Washington, 715 F.3d at 985; see also United States v. Mahmud,

541 F. App'x 630, 636 (6th Cir. 2013) ("Mahmud argues that the loss calculation should have been

based only on payments to companies that the government proved were engaged in fraud and that

the legitimate services he billed to Medicare should not have been included in the loss calculation.

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While Mahmud is correct that he should not be punished for services he actually rendered,

U.S.S.G. § 2B1.1 cmt. 3(E), once the Government met its burden to prove the total amount, it was

his burden to prove 'the specific value' by which the loss amount should have been reduced.”

(internal citation omitted)); accord United States v. St. John, 625 F. App'x 661, 668 (5th Cir. 2015)

("[W]here the fraud is so pervasive that separating legitimate from fraudulent conduct 'is not

reasonably practicable, the burden shifts to the defendant' to prove any legitimate amounts.”

(quoting United States v. Hebron, 684 F.3d 554, 563 (5th Cir. 2012))). Here, the district court

reviewed the trial testimony and explained its conclusions that Mehmood's companies were

fraudulent at the outset and that the fraud was pervasive and continued until the government

intervened. It found, consistent with our precedent, that the government therefore met its burden

to establish prima facie evidence of the amount of loss. Thus, we find no merit to Mehmood's

contention that the district court improperly shifted the burden of proof to him.

Mehmood also appears to argue that the evidence was insufficient to find that the fraud

continued until the time his offices were raided. He points out that none of the witnesses at trial

worked at Mehmood's companies after 2008,4

and yet the district court used the claims submitted

by Mehmood's companies until 2011. However, there was extensive evidence detailing the

fraudulent nature of every aspect of the scheme, supporting the district court's finding that these

companies were fraudulent from the outset and continuously operated in a fraudulent manner.

Further, as we noted in Mehmood I,

the evidence seized during the search of Mehmood's businesses on November 3,

2011, suggests that the conspiracy continued until Mehmood's arrest. For example,

photographs of Mehmood's offices taken during the search on November 3, 2011

show that Mehmood continued to employ the same means to avoid detection. In

any event, Mehmood does not challenge the sufficiency of the evidence of his

health-care-conspiracy conviction and he did not present any evidence at trial that

4 The government also introduced statements made by co-defendant Badar Ahmadani, who withdrew as

owner from HOH in June 2009.

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he had withdrawn from the conspiracy, despite having the burden to establish this

defense.

742 F. App'x at 943 n.16. The district court relied on similar evidence, finding credible the agent's

testimony explaining the photographs of the office, and concluding that "nothing in this office []

indicates these entities were engaged in the legitimate business of healthcare services.” R. 417,

PID 12254. The photographs showed the names of all the home-health agencies on a white board

and their approved dates to bill Medicare, and phones lined up next to each other with a sticker on

the phone to help whoever answered the phone to identify the correct company. As the government

argued, "what this shows is simply the menu of home health agencies that Mr. Mehmood could

select from at one time in order to bill Medicare.” Id. at PID 12196. Given this evidence, the

district court did not clearly err in finding by a preponderance of the evidence that Mehmood

continued to carry out the fraud through November 2011.

Once the district court made its determination about the intended loss amount, it was

Mehmood's burden to establish the amount of legitimate billings to deduct from the total. See,

e.g., Washington, 715 F.3d at 985. The district court allowed Mehmood to call seven additional

witnesses during the two resentencing hearings. It considered their testimony, along with the

defense witnesses' testimony at trial, in determining the amount to deduct as legitimate billings.

It found that some witnesses were not credible, a finding not challenged on appeal. Although the

district found other witnesses credible, it explained that some of the witnesses had roles in the

company (such as a driver or file clerk) that did not allow them to know whether a fraud was being

carried out. However, because some witnesses testified to providing care to patients, the district

court concluded that some deduction was warranted. Even though Mehmood made no effort to

quantify the amount of legitimate services provided based on those witnesses' testimony, the

district court deducted millions of dollars from the loss amount by determining that only eighty

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percent of the claims submitted by Access, Patient, All State, and HOH were fraudulent. It based

this determination on testimony from two witnesses who provided care to patients and Mehmood's

argument that "if there's one good apple, there are likely to be more good apples nearby.” R. 423,

PID 12364. It also used as a benchmark the testimony from two other witnesses who learned the

fraudulent business from Mehmood and went on to form their own fraudulent businesses where

eighty to ninety percent of the business was fraudulent. We find no error in the district court's

conclusion that this determination "g[a]ve the benefit of the doubt to the defendant's calculation.”

Id. at PID 12365.

Mehmood does not meaningfully argue that the evidence supported a further reduction.

Instead, he primarily argues that the district court improperly placed the burden on him to establish

the value of legitimate services. Because we have rejected that argument, we affirm the district

court's loss determination. Mehmood also challenges the restitution order, but on the same

grounds as his challenge to the loss amount. And for the same reasons, we affirm the district

court's restitution order. We accordingly affirm Mehmood's sentence.

B.

Next, Mehmood challenges the denial of his motion for new trial, which we review for

abuse of discretion. United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). Mehmood's

motion was premised on his claim of newly discovered evidence. To prevail on such a motion,

Mehmood must establish "that the evidence (1) was discovered only after trial, (2) could not have

been discovered earlier with due diligence, (3) is material and not merely cumulative or

impeaching, and (4) would likely produce an acquittal if the case were retried.” United States v.

Dubrule, 822 F.3d 866, 885 (6th Cir. 2016) (internal quotation mark omitted) (quoting United

States v. Garland, 991 F.2d 328, 335 (6th Cir. 1993)). "Motions for a new trial based upon newly

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discovered evidence are disfavored and should be granted with caution.” United States v. Turns,

198 F.3d 584, 586 (6th Cir. 2000) (citing United States v. Seago, 930 F.2d 482, 488 (6th Cir.

1991)).

The evidence here does not qualify as newly discovered evidence that could not have been

discovered earlier with due diligence. Mehmood submitted reports from two experts analyzing

evidence that Mehmood possessed before trial supporting an argument that he made, and we

rejected, in the prior appeal. One report compared Exhibit 351, the original scan of the complete

Drake file, to Exhibit 350A, the pages from that file recovered from Mehmood's cell; and the other

compared Exhibit 351 to Exhibit 352, the remaining pages in the Drake file after Mehmood's visits

to the government offices. Both reports concluded that there were significant differences between

some of the document images from each exhibit.

Mehmood concedes that "there was nothing preventing [the exhibits'] examination at or

before trial.” Appellant's Br. at 29-30. This would seem to foreclose his argument that the

evidence is newly discovered, but he nevertheless argues that "the documents were not called into

question until [his prior counsel's] disclosure and production of the pictures, which only occurred

after trial and right before the original sentencing proceedings. The district court did not consider

this in dismissing Mehmood's new trial motion.” Id. at 30. Although Mehmood faults the district

court for not considering the photographs his former counsel apparently discovered after trial,

Mehmood never made this argument in his new-trial motion.

The photographs, which are not in the record, do not aid Mehmood in any event. The

photographs he refers to were first discussed in a motion to adjourn sentencing that Mehmood filed

after his trial but before his initial sentencing and appeal. The motion stated:

In late 2014, counsel visited Defendant's former office and took digital

photographs, including of several documents which appeared to be from patient

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files, with a camera. Months later, when counsel looked for the digital photographs,

he was unable to find the memory card on which they were stored.

Recently, at Defendant's request, counsel again searched for the photos and

found them. Defendant compared them to the documents which were seized from

his jail cell at Dickerson, and discovered that the photos of four documents were

copies of documents seized from his cell. After being advised of that, counsel

returned to the office and located the three binders in which the photographed

documents were present.

R. 273, PID 5112-13. Even accepting the statements made in the motion as true, it is apparent that

the photographs and documents were in Mehmood's counsel's possession well before trial. And

even if misplacing evidence and finding it later can make evidence newly discovered, Mehmood's

counsel was apparently able to find the evidence by "again search[ing] for the photos,” and thus

the evidence could have been rediscovered earlier with due diligence.

In his reply brief, Mehmood shifts his focus to the metadata for the scanner used to scan

the patient file. See Reply Br. at 3 ("[T]he key evidence – the metadata, was not [available to the

defense before trial.”). Mehmood's theory about how the metadata might have resulted in an

acquittal is not sufficiently explained, but the metadata for the scanner used to scan the patient file

existed well before trial. The time to litigate whether Mehmood could access the metadata was

before his trial and conviction. Waiting until after conviction to seek a court order for the

government to produce evidence that existed long before does not make that evidence newly

discovered.

Because we agree with the district court that the forensic reports and metadata do not

constitute newly discovered evidence that could not have been discovered earlier with due

diligence, we find no abuse of discretion in the district court's refusal to hear testimony addressing

the substance of that evidence. See United States v. Smith, 749 F.3d 465, 493 (6th Cir. 2014).

For the reasons set forth above, we affirm.