Mystery defense motion raises stakes in medical kickback case

Tension is mounting in the federal kickback case against medical supplier Anil Mathur over an unfiled defense motion critical of the government.

Mathur's attorneys asked U.S. District Judge James Mahan a month ago to let them file the mystery motion under seal, suggesting it involves "public scandal."

Federal prosecutors, who with Mahan were given a courtesy copy in advance of the motion's filing, are calling it "offensive" in court papers. Prosecutors provided Mahan with their written response to the allegations but did not file it publicly.

Both sides, so far, are furthering the mystery. They have not provided hints about what is contained in the defense motion, as they take shots at each other in their dueling court filings.

Animosity between the two sides first surfaced last month after defense lawyers filed court papers breaking the cover of Las Vegas physician Robert Lampert, a confidential FBI source who wore a wire in the investigation of Mathur and possibly others in the health care profession. Lampert is part of a team of 14 lung specialists at Pulmonary Associates, a medical practice with six locations in Las Vegas.

One of the lawyers defending Mathur is Paul Padda, who left the U.S. attorney's office last year to go into private practice with another former prosecutor in the office, Ruth Cohen.

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

In court papers last month, Padda, Cohen and two other defense lawyers brought into the case, Robert Draskovich and Jacob Hafter, said they wanted to file the motion critical of the government under seal to protect their client's due process rights and avoid "inviting further hostility" from the government.

In a footnote, the defense lawyers said the government last year tried to intimidate Mathur, a "nearly 70-year-old man," when it sent at least five FBI agents to arrest him in front of his family in the early morning hours.

The defense lawyers told Mahan that federal courts also allow documents to be filed under seal "to avoid public scandal."

Last Thursday, after Assistant U.S. Attorney Crane Pomerantz secretly provided Mahan with his response to the defense allegations, Padda filed court papers seeking to delay his reply until five days after Mahan ruled on whether the motion can be filed publicly.

But Pomerantz fired back in court papers on Friday strongly opposing the delay, suggesting it gives the defense an "indefinite extension" while Mahan decides whether to make the defense allegations public.

"Defendant's motion is a thinly veiled request for yet more time to file a reply in support of an offensive motion and, untimely, to delay the trial date," he wrote. "This is not a good faith motion."

On Sunday, Padda wrote that his reply to Pomerantz's unfiled response to the defense allegations depends on how Mahan rules.

If Mahan orders the motion to be filed publicly, his response to the government's position on the allegations "will have to be measured and curtailed" because of the possible scandalous nature of the allegations, Padda argued.

"Government counsel himself would presumably protest the potential for embarrassment that may follow," he wrote. "The government's opposition to this reasonable request is misplaced and betrays an anxiety that appears to extend beyond any concerns to do with an indefinite extension.

"Defendant, however, should not be held accountable for this anxiety or deprived of his procedural rights as a result."