In federal court, one important issue is whether to testify or not testify. It is a more critical issue in federal court due to a federal judge's ability to increase the sentence for "obstruction" if the judge thinks the defendant misrepresented the truth.
These same concerns are in state court but there is not usually the concern about the impact on sentencing. Instead there is the usual concern about making it appear that the burden of proof has shifted to the defense.
In a recent case, a doctor defendant received a harsh sentence based in part on the judge adding time for "obstruction" due to her testimony at trial. On August 28, 2018, family practitioner Dr. Vilasini Ganesh was sentenced to 63 months in prison for health care fraud and making false statements related to a health care benefits program. We had reported on this case previously after the 8-week trial when she and her partner were convicted.
During Dr. Ganesh’s sentencing hearing, Judge Koh specifically stated that Dr. Ganesh "obstructed justice" by misrepresenting her understanding of the legal system, the amount of money she was paid by insurers, and whether she understood that it was improper to “upcharge” when submitting claims to insurers. The jury had rejected a defense as well that the doctor's mental state contributed to her lack of understanding of the billing rules.
Judge Koh also found that Dr. Ganesh had "abused a position of trust" by submitting the false claims. In addition to the prison term, Judge Koh sentenced Ganesh to a 3-year term of supervised release and ordered her to pay restitution in the amount of $344,916.20. Dr. Ganesh will begin serving the prison sentence on November 1, 2018.
On April 4, 2018, Judge Koh sentenced Dr. Ganesh's husband Dr. Gregory Belcher, who was convicted of one count of health care fraud to a year and a day in prison to be followed by three years of supervised release. There are tactical reasons for preferring a year and a day since it allows a defendant to be released to a half-way house. There is no indication that Dr. Belcher testified at trial.
Update: As of June 4, 2020, the case is on appeal and Dr. Ganesh is out on bond pending appeal.
Posted by Tracy Green, Green and Associates