Friday, February 18, 2011

Third Circuit Rules Losing Election Is A Hobbs Act Win

The Third Circuit Court of Appeals affirmed a district court opinion here that dismissed conspiracy and attempt charges under section 1951 (Hobbs Act) finding "that acting 'under color of official right' is a required element of an extortion Hobbs Act offense, inchoate or substantive, when that offense does not involve threatened force, violence or fear." The court looks at the text of the statute, the legislative history, and provides a wonderful discussion on the history of the phrase "extortion under color of official right." The bottom line is that "[c]onduct by an unsuccessful candidate in an election does not meet that requirement."

(esp)

February 18, 2011 in Corruption, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

New Article -"Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause"

Professor Jordan Barry (san Diego) has a new article here that he describes on SSRN as:

"In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system."

(esp)

February 18, 2011 in Prosecutions | Permalink | Comments (0) | TrackBack (0)

Thursday, February 17, 2011

"Largest Ever Health Care Fraud Takedown"

A DOJ Press Release issued today titled, Medicare Fraud Strike Force Charges 111 Individuals for More Than $225 Million in False Billing and Expands Operations to Two Additional Cities tells that "[t]he Medicare Fraud Strike Force today charged 111 defendants in nine cities, including doctors, nurses, health care company owners and executives, and others, for their alleged participation in Medicare fraud schemes [allegedly] involving more than $225 million in false billing,..." It states that "[t]oday’s operation is the largest-ever federal health care fraud takedown."  

The press release notes that:

"The defendants charged today are accused of various health care fraud-related crimes, including conspiracy to defraud the Medicare program, criminal false claims, violations of the anti-kickback statutes, money laundering and aggravated identity theft.   The charges are based on a variety of alleged fraud schemes involving various medical treatments and services such as home health care, physical and occupational therapy, nerve conduction tests and durable medical equipment.   

"According to court documents, the defendants charged today participated in schemes to submit claims to Medicare for treatments that were medically unnecessary and oftentimes, never provided.   In many cases, indictments and complaints allege that patient recruiters, Medicare beneficiaries and other co-conspirators were paid cash kickbacks in return for supplying beneficiary information to providers, so that the providers could submit fraudulent billing to Medicare for services that were medically unnecessary or never provided. Collectively, the doctors, nurses, health care company owners, executives and others charged in the indictments and complaints are accused of conspiring to submit a total of more than $225 million in fraudulent billing."

AG Holder, speaking at a press conference stated that "[w]e are also pleased to announce the expansion of the Medicare Fraud Strike Force – which currently operates in Baton Rogue, Brooklyn, Detroit, Houston, Los Angeles, Miami, and Tampa – to two additional cities: Dallas and Chicago."

(esp)

February 17, 2011 in Fraud | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 15, 2011

Grand Juries Are Not For Trial Preparation

In a case pending and set for trial in March in the Central District of California, with allegations of FCPA and money laundering violations, DOJ prosecutors are seeking to start another grand jury investigation of the defendants. Lawyers for the defendants cried foul and moved to quash five subpoenas calling for testimony today. As a result, the federal judge presiding over the case imposed stringent conditions on any use of the grand jury by DOJ prosecutors. 

A grand jury is not to be used for "strengthening [a] case on a pending indictment or as a substitute for discovery." (Beasley, Simels, Arthur Andersen).  Prosecutors claimed that their purpose in questioning these witnesses, all current employees of the company under indictment, was for a "new" investigation. Interestingly, the filings show that this "new" grand jury investigation came immediately after DOJ prosecutors were denied access to the employees for pre-trial, witness preparation interviews.

Defense lawyers Jan Handzlik and Janet Levine also argued that the DOJ prosecutors were "manufacturing" a new investigation to create reasons to postpone the trial, set for March 29th. They suspected the government would seek a superseding indictment leading to a trial continuance. Prosecutors disagreed and filed an under seal, in camera declaration to justify the new investigation.

US District Judge Howard Matz denied the defense motion to quash the grand jury subpoenas, but issued an order that handed the DOJ prosecutors what some of us consider to be a stinging defeat. He placed conditions on what the government could do if it chose to proceed with its "new" investigation, stating in part:

(1) At the upcoming trial, the Government may not proffer or refer to any newly obtained evidence derived from the testimony of any witness before any grand jury session conducted after the return of the First Superseding Indictment on October 21, 2010. . . .

(2) The Government may not, and shall not, question any witness about any business and financial relationship that the [defendant ] Company had with [other individuals and entities named in the pending indictment]

(3) The Government may not, and shall not, question any witness about any of the other events that directly form the basis for the charges contained in the first superseding indictment.

(4) The Government shall file under seal a transcript or transcripts of the grand jury testimony it obtains from the aforementioned witnesses, and it shall do so by not later than one week before the start of trial, and

(5) The Government may not point to or rely on whatever evidence it obtains at the upcoming grand jury sessions to seek or obtain a continuance of the trial date.

Defense counsel in this case are Jan L. Handzlik (Greenberg Traurig LLP) and Janet I. Levine (Crowell Moring).

See Court's Order - Download Matz min order re GJ

See also Richard Cassin, FCPA Blog, Sparks Fly Before LA Trial

(esp)

February 15, 2011 in Defense Counsel, FCPA, Grand Jury, Investigations, Judicial Opinions, Money Laundering, Prosecutors | Permalink | Comments (1) | TrackBack (0)

In the News & Around the Blogosphere