Khan Plea Transcript

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA () CRIMINAL ACTION() NO. H-12-64

VS. () HOUSTON, TEXAS() FEBRUARY 22, 2012

MOHAMMAD KHAN () 11:34 A.M.

TRANSCRIPT OF REARRAIGNMENTBEFORE THE HONORABLE SIM LAKE

APPEARANCES:

FOR THE GOVERNMENT: Ms. Laura CordovaAssistant United States Attorney1400 New York Avenue, NWWashington, DC 20005

FOR THE DEFENDANT: Mr. Wayman L. PrinceAttorney at Law9111 Katy Fwy. Suite 207Houston, Texas 77024

COURT REPORTER: Anita G. ManleyOfficial Court Reporter515 Rusk, Rm. 8016Houston, Texas 77002

Proceedings recorded by stenographic means, transcript producedby computer.

Case 4:12-cr-00064 Document 20 Filed in TXSD on 05/29/12 of 21

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P R O C E E D I N G S

THE COURT: We're here this morning for rearraignment

in Criminal Action H-12-64, United States versus Mohammad Khan.

Will the defendant and counsel please come forward and identify

themselves?

MS. CORDOVA: Laura Cordova on behalf of the United

States.

MR. PRINCE: Attorney Wayman Prince for the defendant,

Mohammad Khan.

THE COURT: Would you state your name, please, sir?

THE DEFENDANT: Mohammad Khan.

THE COURT: Mr. Khan, I understand that you wish to

plead guilty to Count 1, which charges you with conspiracy to

commit health care fraud, in violation of Title 18 United

States Code, Section 1349; and to Count 2, which charges you

with conspiracy to defraud the United States and to pay health

care kickbacks, in violation of Title 18 United States Code,

Section 371; and to Counts 3 through 7, which charge you with

paying and offering to pay health care kickbacks, in violation

of Title 42 United States Code, Section 1320a-7b(b)(2) and

Title 18 United States Code, Section 2. Is that correct?

MR. PRINCE: Your Honor, may I interrupt for just one

moment? Because of one recent development, can I have a word

with my client before he responds to your --

THE COURT: We can continue the hearing if you want,


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but let me tell you something. When I address the defendant,

it's very important that no one else interrupt me. Rule 11

makes it very clear that his responses must be in direct

response to my questions. You can certainly confer with him,

but I would assume that would have occurred before now.

Is there some problem that we need to adjourn or

reconvene this?

MR. PRINCE: No, Your Honor.

THE COURT: Well, go ahead and talk to him. How much

time do you need?

MR. PRINCE: Less than five minutes, Your Honor.

THE COURT: All right. Well, let me know when you're

ready.

MR. PRINCE: Thank you very much, Your Honor.

(Concluding at 11:37 a.m. Reconvening at 3:04 p.m.)

THE COURT: We're here for a continuation of the

rearraignment in Criminal Action H-12-64, United States of

America versus Mohammad Khan. Will counsel and the defendant

please come forward and identify themselves?

MS. CORDOVA: Laura Cordova on behalf of the United

States.

MR. PRINCE: Wayman Prince on behalf of the defendant,

Mohammad Khan.

THE COURT: Would you state your name, please?

THE DEFENDANT: Mohammad Khan.


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THE COURT: Counsel, have you had adequate time to

talk to your lawyer (sic)?

MR. PRINCE: Yes, I have.

THE COURT: Talk to the defendant.

MR. PRINCE: Yes, I have, Your Honor.

THE COURT: Mr. Khan, I understand that you wish to

plead guilty to Count 1, which charges you with conspiracy to

commit health care fraud, in violation of Title 18 United

States Code, Section 1349; and to Count 2, which charges you

with conspiracy to defraud the United States and to pay health

care kickbacks, in violation of Title 18 United States Code,

Section 371; and also to Counts 3 through 7, which charge you

with paying and offering to pay health care kickbacks, in

violation of Title 42 United States Code, Section 1320a-7(b),

and Title 18 United States Code, Section 2. Is that correct?

THE DEFENDANT: Yes.

THE COURT: Would you please raise your right hand and

be sworn?

THE CASE MANAGER: Do you solemnly swear the testimony

you will give in the case now before the Court will be the

truth, the whole truth, and nothing but the truth, so help you

God?

THE DEFENDANT: Yes.

THE COURT: Mr. Khan, before I can accept your guilty

plea, I must ask you a number of questions. It is very


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important that you listen carefully to all of my questions and

that you answer all of my questions truthfully and completely

for several reasons.

First, since you are now under oath, if you gave

an untrue answer to a question, you could be charged with the

separate crime of perjury. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Also, before I can accept your guilty

plea, I must make a number of findings. My findings are based

on your answers to my questions. In order for my findings to

be correct, it is, therefore, necessary that all of your

answers be truthful and complete. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: If you do not understand anything that I

say this afternoon, will you ask me to repeat or explain

whatever you do not understand? Would you agree to do that?

THE DEFENDANT: Yes.

THE COURT: Also, you may stop at any time and speak

with your attorney. You do not need anyone's permission to

speak with your attorney.

Let me emphasize to you the importance of

providing truthful and complete answers to my questions this

afternoon. Sometimes after a defendant has been sentenced, he

will file a motion or will write the Court a letter saying that

the answers he gave at his rearraignment were not truthful or


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were not complete.

You need to understand that I'm going to rely,

both today and at all times in the future, on the answers that

you give me today. If you should ever in the future say

anything that is different from what you have told me today, I

will disregard that future statement and rely only on what you

have told me today. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: How old are you?

THE DEFENDANT: 61.2.

THE COURT: Where were you born?

THE DEFENDANT: I was born in Bareilly (phonetic),

India.

THE COURT: Are you a United States citizen?

THE DEFENDANT: Yes.

THE COURT: Did you attend school in India?

THE DEFENDANT: I was born in India but then migrated

to Pakistan.

THE COURT: Did you attend school in Pakistan?

THE DEFENDANT: Yes. Yes.

THE COURT: Did you graduate from the equivalent of

high school there?

THE DEFENDANT: BS.

THE COURT: Pardon me?

THE DEFENDANT: BS, bachelor of science.


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THE COURT: In Pakistan?

THE DEFENDANT: Yes.

THE COURT: When did you migrate to the United States?

THE DEFENDANT: '7 -- 1973.

THE COURT: Did you attend school in the United

States?

THE DEFENDANT: Yes.

THE COURT: Can you briefly describe your education in

this country?

THE DEFENDANT: I went to University of Houston

Downtown and did some courses there, some at San Jac but never

graduated from there. Then I went to, in '83, to Dominican

Republic and did MD. I attend MD program there and did three

years, '83 to '86. I attained MD degree, then came back to the

United States.

THE COURT: You obtained an MD degree?

THE DEFENDANT: In Republic -- but I never had a

license here, though.

THE COURT: All right. Have you ever been -- what is

the last job you held?

THE DEFENDANT: The last job I have, at the Riverside

General Hospital until February 6th, probably. I am assistant

administrator of the hospital.

THE COURT: How long did you have that job?

THE DEFENDANT: This position I have since 2006, but


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I've been working with the hospital since 1992 as a director of

the laboratory.

THE COURT: Thank you.

Have you ever been diagnosed or treated for any

type of mental problem?

THE DEFENDANT: No.

THE COURT: Have you ever been diagnosed or treated

for addiction to drugs or alcohol?

THE DEFENDANT: No.

THE COURT: Has anyone ever told you that you should

be treated for any type of mental problem or for any type of

addiction?

THE DEFENDANT: No.

THE COURT: Have you taken any type of drug or

medicine within the last 24 hours?

THE DEFENDANT: Hypertension medicine.

THE COURT: Does that medication interfere with your

ability to communicated with people?

THE DEFENDANT: No, never.

THE COURT: Does it interfere with your ability to

understand what's happening?

THE DEFENDANT: No.

THE COURT: How many times have you spoken with your

attorney about this case?

THE DEFENDANT: Six or seven times. Two visits.


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THE COURT: Has your attorney discussed with you the

charges against you and what the Government would have to prove

to establish your guilt to those charges?

THE DEFENDANT: Yes.

THE COURT: Has your attorney discussed with you the

evidence that the Government has against you?

THE DEFENDANT: Yes.

THE COURT: Has your attorney discussed with you how

the Federal Advisory Sentencing Guidelines might apply in this

case?

THE DEFENDANT: Yes.

THE COURT: Has your attorney answered all of your

questions?

THE DEFENDANT: Yes.

THE COURT: Has he done everything that you have asked

him to do?

THE DEFENDANT: Yes.

THE COURT: Are you fully satisfied with the advice

and counsel that your attorney has provided you?

THE DEFENDANT: Yes.

THE COURT: You do not have to plead guilty. You have

the right to go to trial. If you went to trial, you would have

to right to the assistance of an attorney. And if you could

not afford an attorney, in certain situations the Court could

appoint an attorney for you.


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You would have the right to see and hear the

Government's witnesses and have your attorney question them.

You would have the right to compel other people to come into

court and provide evidence. You would not be required to

testify. And you could not be convicted unless the jury

unanimously found beyond a reasonable doubt that you were

guilty.

If you plead guilty today, however, there will

not be a trial and you will give up the right to a trial and

all the protections that are associated with a trial. Do you

understand that?

THE DEFENDANT: Yes.

THE COURT: The offense that you are pleading guilty

to is a felony. That means you will lose the right to vote, to

hold public office, to serve on a jury, and to possess a

firearm.

As to Count 1, the maximum sentence that you face

if you plead guilty is ten years in prison and a fine of

$250,000 and three years of supervised release and a $100

special assessment and restitution.

As to Count 2, the maximum sentence you face is

five years in prison and a fine of $250,000 and three years of

supervised release and a $100 special assessment and

restitution.

As to Counts 3 through 7, the maximum sentence


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that you face is five years in prison and a fine of $25,000 and

three years of supervised release and a $100 special assessment

for each count and restitution.

Do you understand that those are the potential

consequences of a guilty plea?

THE DEFENDANT: Yes.

THE COURT: There is no parole in federal court. That

means any sentence of imprisonment will actually have to be

served in prison. Your term of supervised release will be

subject to a number of conditions which will be monitored by a

probation officer. If I found that you violated the conditions

of supervised release, I could revoke your supervision and send

you back to prison without any credit for the time you had

already served on supervised release. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: No determination has been made about what

your sentence will be. If I accept your guilty plea, a

probation officer will interview you, investigate the facts of

the case, and prepare a presentence investigation report. You

will have a chance to read the report and to discuss it with

your attorney before your sentencing. You may file objections

to the presentence report if you wish. At the time of your

sentencing, I will rule on any objections that you or the

Government may have to the presentence report. I will then

determine your advisory guideline range and your sentence.


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What you need to understand today about this

process of determining your sentence is that this process has

not yet begun. That means no knows what advisory guideline

range the probation officer will recommend or what advisory

guideline range I will find applicable or what sentence I will

impose. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: If the sentence that I should impose is

greater than what you now expect or greater than the sentence

that your lawyer or anyone else may have predicted, you will be

bound by your guilty plea today regardless of your sentence.

You will not be allowed to change your mind and withdraw your

guilty plea because you are not satisfied with your sentence.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: The Government has provided me with a copy

of a written plea agreement. Have you read the agreement?

THE DEFENDANT: Yes.

THE COURT: Have you discussed it with your attorney?

THE DEFENDANT: Yes.

THE COURT: How many times have you discussed it with

your attorney?

THE DEFENDANT: Twice.

THE COURT: All right. Do you have a copy there

before you?


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THE DEFENDANT: Yes.

THE COURT: Have there been any changes to this

agreement since it was provided to me yesterday?

MS. CORDOVA: No, Your Honor.

THE COURT: I thought there was a change with respect

to 11(c)(1)(A) and (B) in the introductory paragraph.

MS. CORDOVA: There was just a change in the sentence

data sheet but not to the plea agreement.

THE COURT: The sentence data sheet is not binding on

anyone. Is this a (c)(1)(A) and (B) plea?

MS. CORDOVA: No, Your Honor. It's just an

11(c)(1)(B) plea.

THE COURT: Well, then, I guess we need to change the

reference to (A) in the plea agreement, in the first page.

MS. CORDOVA: You are correct, Your Honor.

MR. PRINCE: Says (A) and (B).

THE COURT: If that is the agreement of the parties,

then make that change and initial it.

Mr. Khan, I want to go over the essential

elements of the agreement with you now just to be sure that you

understand all of it, the elements of the plea agreement.

In Paragraph 1, you agree to plead guilty to

Counts 1 through 7, which I described earlier.

In Paragraph 2, the parties have a number of

agreements. It's my understanding that these are merely


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recommendations and not binding on the Court. Is that correct?

MS. CORDOVA: That is correct, Your Honor.

THE COURT: Is that the defense counsel's

understanding?

MR. PRINCE: That's correct, Your Honor.

THE COURT: The parties recommend in Paragraph 2 that

the defendant receive a 26-level enhancement for relevant

conduct based on the loss of $116 million.

In Paragraph 3, the parties agree that there's a

four-level enhancement because of a loss to a Government health

program of more than $20 million.

In Paragraph 4, the parties agree to a two-level

enhancement because sophisticated means were used.

In Paragraph 5, the parties agree to a four-level

enhancement because of the defendant's role in an offense in

which he was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.

In Paragraph 6, the defendant agrees that he will

be jointly and severally liable with other defendants to pay

restitution in the amount of $31,324,243.

Mr. Khan, that's the agreement of the parties,

but it's not binding on the Court. I will make my own

independent evaluation of all of these sentencing factors. And

if I should differ with this agreement, you will still be bound

by this plea agreement. Do you understand that?


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THE DEFENDANT: Yes.

THE COURT: In Paragraph 15, the parties state that

the agreement carries with it the potential of a motion for

downward departure under Section 5K1.1 of the Sentencing

Guidelines. However, the defendant understands and agrees that

whether such a motion is filed will be determined solely by the

United States Government based on its judgment about whether

the Government (sic) has provided substantial assistance.

Mr. Khan, what you need to understand about this

provision of the plea agreement is, if the Government should

decide not to file a motion for downward departure, there is

nothing that you can do about it. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Pardon?

THE DEFENDANT: Yes.

THE COURT: Paragraph 16 provides that by fully

cooperating, you will testify truthfully as a witness before

any grand jury or trial jury, you will voluntarily attend

interviews and conferences, you will provide truthful,

complete, and accurate information, you will provide the

Government all documents in your possession or subject to your

control, you will make a full and complete disclosure of all of

your assets.

In Paragraph 17, you acknowledge that normally,

even though you're pleading guilty, you would have the right to


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appeal the sentence imposed or the manner in which it was

determined and you would normally have a right to collaterally

attack your conviction or sentence. In this agreement,

however, you waive or give up both of those rights.

Have you talked to your lawyer about whether you

should give up those rights?

THE DEFENDANT: Yes.

THE COURT: As part of this plea agreement, do you

wish to waive your right to appeal the sentence imposed and the

manner in which it was determined?

THE DEFENDANT: Yes.

THE COURT: As a part of this plea agreement, do you

wish to waive your right to collaterally attack your conviction

or sentence by means of any post-conviction proceeding?

THE DEFENDANT: Yes.

THE COURT: In Paragraph 20, the Government agrees

that you're entitled to a two-level downward adjustment for

acceptance of responsibility and that the Government will move

for an additional one-level downward adjustment based on the

timeliness of your plea and that the Government agrees that the

loss is between 100 and $200 million.

Finally, the Government agrees that it will

recommend a sentence at the low end of the guideline range. I

will certainly listen to the Government's recommendation, but

I'm not bound by the Government's recommendation that you


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should be sentenced at the low end of the guideline range. Do

you understand that?

THE DEFENDANT: Yes.

THE COURT: I will make my own independent

determination of what your sentence will be. And if my

sentence should differ with the Government's recommendation,

you will nevertheless be bound by this plea agreement. Do you

understand that?

THE DEFENDANT: Yes.

THE COURT: Now, other than the factual basis for your

guilty plea, which I will discuss in a minute, have I correctly

described your plea agreement with the Government as you

understand it?

THE DEFENDANT: Yes.

THE COURT: Other than what is stated in this plea

agreement, has the United States Government made any promises

to you in connection with your guilty plea?

THE DEFENDANT: No.

THE COURT: Has anyone threatened you or forced you to

plead guilty?

THE DEFENDANT: No.

THE COURT: Has anyone promised you what sentence you

will receive if you plead guilty?

THE DEFENDANT: No.

THE COURT: In order for the Government to prove your


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guilt at trial as to Count 1, the Government would have to show

that you and at least one other person made an agreement to

commit the crime of health care fraud as charged in the

indictment and that you knew the unlawful purpose of that

agreement and joined in the agreement willfully, that is, with

the intent to further the lawful purpose.

As to Count 2, the Government would have to show

that you and at least one other person made an agreement to

commit the crime of soliciting, receiving, offering, or paying

money in order to induce the referral of a Medicare patient and

that you knew of the unlawful purpose of that agreement and

joined in it willfully, that is, with the intent to further the

unlawful purpose and that during the existence of the

conspiracy, one or more of the conspirators knowingly committed

at least one of the overt acts described in the indictment in

order to accomplish some object or purpose of the conspiracy.

As to Counts 3 through 7, the Government would

have to show that you knowingly and willfully offered or paid

money for referring a patient, that the money was offered or

paid primarily to induce the referral of a patient insured by

Medicare, and that the services or items for which the patient

was referred were or would have been covered in whole or part

by Medicare.

Your plea agreement contains a lengthy factual

basis for the guilty plea at Pages 9, 10, and 11 of the plea


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agreement.

First of all, I have a question. At the bottom

of Page 9, the agreement says: "Khan was assistant

administrator of Riverside General Hospital overseeing

Riverside's PHP operations." What does "PHP" mean?

MS. CORDOVA: Partial hospitalization program.

THE COURT: Can you speak up?

MS. CORDOVA: Partial hospitalization program.

THE COURT: Mr. Khan, is that what you understand PHP

to mean?

THE DEFENDANT: Partial hospital program.

THE COURT: All right. Mr. Khan, have you carefully

read the factual basis for the guilty plea contained in

Paragraph 24 of the plea agreement at Pages 9, 10, and 11?

THE DEFENDANT: Yes.

THE COURT: Are all the facts stated there true?

THE DEFENDANT: Yes.

THE COURT: Did you do everything described on those

pages of the plea agreement?

THE DEFENDANT: Yes.

THE COURT: At the top of Page 11, the factual basis

states, quote: "Between January 2008 and August 2011,

Riverside billed Medicare between $100 million and $200 million

for PHP services that were not medically necessary and in some

cases were never provided."


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Mr. Khan, when those services were billed by

Riverside, were you aware that the services were not medically

necessary and in some cases not provided?

THE DEFENDANT: Yes.

THE COURT: Pardon me?

THE DEFENDANT: Yes.

THE COURT: Mr. Khan, how do you plead to Counts 1, 2,

3, 4, 5, 6, and 7 of the indictment, guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: Counsel, do you think any other advice of

rights is required before I can accept your client's guilty

plea?

MR. PRINCE: None, Your Honor.

THE COURT: It is the finding of the Court that the

defendant is fully competent and capable of entering an

informed plea and that the defendant's plea of guilty is a

knowing and voluntary plea supported by an independent

basis-in-fact establishing each of the essential elements of

the offense. I, therefore, accept your plea and now adjudge

you guilty of Counts 1 through 7.

You may now sign the plea agreement if you've not

already done so.

MR. PRINCE: We've done so, Your Honor.

THE COURT: Would you please tender it to my case

manager.


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I have set your sentencing for May 25th at 3:00

p.m. I realize the defendant's cooperation might necessitate a

continuance of that date. We'll operate under that schedule

for the time being.

MR. PRINCE: Thank you very much, Your Honor.

THE COURT: Does either counsel wish to say anything

else?

MS. CORDOVA: Nothing further, Your Honor.

MR. PRINCE: I have nothing further at this time, Your

Honor.

THE COURT: The defendant is remanded to the custody

of the marshal. Counsel are excused. Court is adjourned.

(Concluding at 3:30 p.m.)

I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THERECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER, TO THE BESTOF MY ABILITY.

5/29/12ANITA G. MANLEYOFFICIAL COURT REPORTER


Khan Plea Transcript

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Transcript of Khan Plea Transcript