Why Do So Many Health Care Fraud Cases Go To Trial? Poor Plea Offers and Aggressive Prosecution. Case Example - California Ambulance Company Owner, Operator and Employees Sentenced to Prison for Medicare Fraud

In June 2013, I wrote an article about a nonemergency ambulance company whose owner, operator and managers were charged in federal court in Los Angeles. Here is an update.

After two years, the case went to trial on August 18, 2015, and after a ten day jury trial, four of the defendants were convicted of one count of conspiracy to commit health care fraud and five counts of health care fraud. One defendant was found not guilty. One of my colleagues represented the person who was found not guilty. Sentencing happened last week.

What were the sentences like in this case? One of the sentences for the owner was long (102 months - 9 1/2 years) and the other sentences were two years and three years. It would be interesting to know whether the plea offers would have provided a sentence significantly lower than that for the employees. It is now more favorable for defendants with little evidence against them to go to trial so the jury and the judge can evaluate the evidence rather than relying on the government's claims to probation during sentencing. 

Query: Why are these cases going to trial? First, the plea agreements being offered by the U.S. Attorney's Office are not very favorable. The sentences are potentially high with little benefit of plea agreements especially where some of the individuals are employees who are not highly educated as was the case with at least two of the defendants. The acquitted defendant had little day to day business contact or evidence against him but was forced to go to trial or plea to a prison term. Even employees who were not highly paid are being required to agree to restitution to the entire amount.

Tracy Green Interviewed On Plea Bargain Agreements In Criminal Justice System By Santa Monica Daily Press

Tracy Green was interviewed in the Santa Monica Daily Press  as part of their story entitled "Family fights plea bargain in deadly hit-and-run" regarding the role of plea bargains in the criminal justice system. The fact is that approximately 95% of all cases plea before trial.  While most clients come to our office looking to prevent or defend a case, it is important to understand the role of plea negotiations in the criminal justice system -- both federal and state.

The article touched briefly on some of Ms. Green's beliefs and strategy as it relates to negotiating and/or considering a plea bargain for her clients, as part of case strategy.  The article did not quote Ms. Green's statement to the reporter that she "believes the system is broken" and that pleas are used to process the huge numbers of cases that are filed each year. Often pleas are offered in weak state cases that offer a "guaranteed" result and help avoid the risk and expense of trial.

Scott Burns, the executive director with the National District Attorneys Association, explained it well in the article: “The reality is that there are between 15 and 20 million non-misdemeanor cases prosecuted in America every year.” Mr. Burns added: “If each of those, or frankly half or a third of those, went to trial, we would need a much, much larger criminal justice system.” Instead, attorneys forge plea bargains, agreements that offer a potentially lighter sentence in exchange for a guilty or no-contest plea.

The article also stated: "They also offer security, said Tracy Green, a private defense attorney based in Los Angeles.  Whereas plea deals are negotiated between the attorneys involved, jury trials rely on a body of 12 unknowns, making the process a roll of the dice for both sides." I hate to tell people it's like going to Las Vegas, but justice can come at a price," Green said." 

"Defense attorneys also look at the merits of the case, but also determine if it’s a financial possibility for their client to go through the expensive trial process and if they’re capable of serving time, even a reduced amount, Green said."

“What are the client’s goals? Can they risk, handle or afford emotionally or lifestyle-wise any threat of incarceration, or having a conviction of what’s been charged?” she asked. “What’s the downside risk if you go to trial and lose?”

While neither attorney believes that the system is broken, Burns was more apt to defend it than Green, who felt that defendants risk getting a harsher sentence if they go for a trial and lose." It is now considered "below the standard of care" for an attorney not to explain the benefits of early plea negotiations to targets of investigations and persons charged with a crime -- especially in the federal system. Thus, any experienced criminal defense attorney should explore these issues and explain the system to their client without fear of looking "weak" or that they are "not a fighter." These are complex issues and each person's case and situation may be different. 

Some clients are concerned that discussing plea bargains is a sign of weakness but it is a tool to be used. For example, if we have a professional client who is charged with a felony it is important to address all potential strategies including going to trial, the risks if the trial is not successful and whether a certain result (such as a misdemeanor plea by a corporation) may make sense given the facts and risks. Each person or business entity have different goals and different ability to absorb risks. 

To be conscious of the role of plea negotiations is important. It is unfortunate that there are many people who plea because it is in their best personal and business interest rather than risk going to trial, but if it is to be done it should be explored in detail, addressed throughout the process and not simply done at the last minute when there is fear of going to trial. This requires an assessment of the facts, legal exposure and personal issues faced by the client.

Posted by Tracy Green, Esq. 
To speak with Ms. Green, you can email her at tgreen@greenassoc.com or call for an appointment at 213-233-2260.

Practical Tips For Those Who Face Federal Custody Time, Part II: How To Minimize Problems In Custody And Stay Under The Radar

Most of our clients are college educated, are businessmen or professionals, have never been charged with a crime before and have never been incarcerated. For those individuals who are facing federal prison time -- even if it appears they should be eligible for probation -- one of the biggest fears is how they would cope with being in federal prison or camp and mingle with the general population on a daily basis. We have interviewed several of our white collar clients who have spent time in federal custody on tips for how they were able to successfully serve their time if the federal judge decides to impose a custody sentence.

In addition, we have received requests for representation after they have been sentenced when they were surprised by a 6-month or 1 year custody time because the federal judge did not accept the prosecutor’s recommended sentence set forth in the plea agreement. The fear that some clients have is best addressed in advance and for everyone to work for the best possible result and prepare for the worst.

For some clients who are facing a 10-year sentence and where the evidence is overwhelming, there are cases where an early plea disposition is the best result possible.  Sentencing in the federal system is similar to a small trial and is an art. We have other clients where a plea is not a possibility and trials are necessary. However, in either case, there is a risk of incarceration if the case is not a reject or the case is not dismissed before trial. As of March 23, 2013, there are 217,929 incarcerated in federal prison according to the Bureau of Prisons. In California alone, there are 163,000 in state prisons.

For those who need some guidance on what to expect for federal custody, we offer our clients guidance. Of course, the best result is for a rejected case, a win at trial or motion phase or a probationary sentence. If there is the possibility of federal prison time, preparation helps. Especially since our clients who have had almost no exposure to the criminal justice system cannot believe how the prison industrial complex has become a major industry in the United States and how there are routine deprivations of rights and privileges. This is even more common in the county and state facilities.  Almost every client we have had feels they need to write a book or make a movie on the criminal justice system. However, when the politicians and public think that we need to be “tough on crime,” these are not easy issues to raise with the public during an election.

Let us hope that you or your family member’s case will not result in incarceration. However, if it occurs – whether while awaiting trial or post-trial or plea agreement – there are unwritten rules to be considered. For example, one of our physician clients was in custody pending trial and had two bail motions denied when we were retained. The client filed numerous complaints with the Los Angeles County Sheriff’s Office about treatment, moldy food, violation of regulations and policies, and unfair treatment. Our client was correct on all these issues, however, the complaints resulted in something called “diesel therapy” and other administrative sanctions. Somehow, the client was taken to the wrong facility for a court appearance and made to wait in a freezing room all day in handcuffs. Even a court order was not followed on the transport. The judges only have so much jurisdiction over the federal Bureau of Prisons or the County Jails or the Department of Corrections. We were able to obtain results by going to the legal department, obtaining court orders, negotiating with staff ourselves and persuading our client that making complaints will be detrimental unless it is done properly.

The staff at facilities believe that this is their house and you are a guest following their rules. Even if it is taxpayer supported, they do not want complaints about the food, the soap, the facilities, and so on. This does not mean that we agree with the prison administrators but we want those in custody to know that viewpoint so they do not cause themselves additional aggravation. 

For educated persons who are not experienced in the jails and prisons, how are they to navigate this new territory? This is a different planet. Often it is not so dangerous and interminably boring and isolating. There is a risk of becoming institutionalized and depressed. There is also a race based culture (especially in state prisons) that needs to be navigated. If you or your family member is educated, that can be a great benefit to the other inmates who are not well-educated. Finally, there are new terms to learn.