Sugar Daddy Website Users: Pay Attention. San Diego Attorney Who Used Site Has Entered Federal Guilty Plea to Enticing and Coercing a Female to Engage in Prostitution.

Sugar Daddy websites that offer a “mutually beneficial relationship” are being investigated as part of human trafficking when they involve minors and young women. A recent case, has a San Diego attorney pleading guilty which will probably lead to prison time and potential loss of bar license. 

I hope this case causes people to think twice about the nature of these websites and how vulnerable young women can be lured to them. Professionals especially should be very careful since they are held to a higher level of conduct. This case did not involve an agent posing as a young woman but an actual minor female who claimed to be 18 year's old but was still in high school.  

On October 30, 2019, San Diego attorney William David Turley plead guilty in federal court to enticing and coercing a female to engage in prostitution in violation of 18 U.S.C. § 2422(a). U.S.D.C., So Dist, CA, Case No. 18-CR-4574-AJB.

According to his plea agreement, on or about April 30, 2018, Mr. Turley began communicating with an adult female victim whom he met on the website sugardaddymeet.com. Mr. Turley and the victim discussed entering into a “mutually beneficial relationship,” meaning that Mr. Turley would provide the victim with financial support and the victim would provide companionship for and engage in sexual acts with Mr. Turley.

How to Write a Letter to the Court for Sentencing: Felicity Huffman Letter as a Case Study

Credit: SF Gate

In cases, we have clients and friends, colleagues and family write character and support letters. These are not easy letters to write. I'll use the recent letter written by Felicity Huffman as a case study. I view it as a first draft and think it could have been much improved. 

You can review the letter and see what you think. Here's the link to: Huffman Letter, page 1; Huffman Letter, Page 2; and Huffman Letter page 3

First, I tell clients when they write such letters that it is hard to truly apologize at the same time that you're crying for yourself and your family. The letter came off to me as being more about how this has adversely affected Ms. Huffman and her family than how she apologizes to the victims of the SAT cheating fraud and the college students across the country who took the same test her daughter did. She could have acknowledge in greater detail that her actions and bribe resulted in her daughter getting an additional 400 points on the SAT which is a big jump.

Second, I would have told her that her letter focused in my opinion too much upon herself and was too self-involved. Her statements that "I find Motherhood bewildering" and that she was in a "blind panic" when she decided to pay off the proctor would have been deleted by my red pen. Her husband's statements in his letter, see below, about how motherhood was "frightened" his wife did not help.

Sacramento Man Sentenced to 3 Years in Prison for Causing Misbranded Drugs to Be Sold Online As Weight Loss and Fat Burner Pills

The U.S. Food and Drug Administration (FDA) has stepped up criminal enforcement where misbranded drugs are being sold online to consumers. On May 29, 2019, Scott Edward Cavell of Sacramento was sentenced by U.S. District Judge John A. Mendez to three years in prison for causing misbranded drugs to be introduced into interstate commerce for weight loss. 

According to plea agreement and court documents, between 2015 and 2017, Mr. Cavell, with others, developed a plan to market and sell a drug, 2,4-Dinitrophenol (also known as DNP), as a weight loss drug and “fat burner” despite knowing that DNP is not approved by the FDA as a substance for human consumption. Mr. Cavell sold DNP in pill form and called it a fertilizer — a term under which is it legally sold in other circumstances.

After 6 Week Trial, New York Doctor And Physical Therapist Found Guilty Of Health Care Fraud, Conspiracy to Make False Statements Relating to Health Care Programs Medicare And Medicaid and Other Counts With Allegations of Sham Owner, Falsified Medical Records, Kickbacks.

A recent health care fraud case involved the alleged unlicensed practice of medicine and a  physician allegedly posing as the owner of medical clinics in order to satisfy New York  law that medical clinics be owned and operated by a medical professional. When that occurs the loss amounts can be large since the entire clinic can be viewed as a fraud with all billings suspect. 

On May 9, 2019, after a six-week federal jury trial, doctor Paul J. Mathieu and physical therapist Hatem Behiry were each convicted of one count each of conspiracy to commit health care fraud, mail fraud, and wire fraud; and conspiracy to make false statements relating to a health care program; as well as the substantive offenses of health care fraud, mail fraud, and wire fraud.  This trial was held in the Southern District of New York. 

Between 2007 and 2013, the government alleged that Dr. Mathieu fraudulently posed as the owner of three of six medical clinics in Brooklyn (the “Clinics”), which were all in fact owned by a non-physician and alleged co-conspirator Alexksandr Burman. Mr. Burman has already been sentenced in a related case to 120 months in prison. 

The government alleged that from 2009 to 2013, Dr. Mathieu also directly participated in the fraudulent billing practices of the clinics, by visiting several of the clinics on a weekly basis, where he would sign stacks of false and fraudulent medical charts, and issue referrals for expensive additional testing, occupational therapy, and physical therapy, including for physical therapy purportedly provided by Mr. Behiry. It was alleged at trial that during this time period, Dr. Mathieu did not see any patients and simply fabricated medical records falsely stating that he had seen and treated such patients. 

San Jose Doctor Pleads Guilty To Federal Charge of Unlawfully Distributing Hydrocodone and Committing Health Care Fraud. Make Sure Your Practice Follows California Pain Medication Guidelines.

Record keeping and following the California pain management protocols are key for physicians who prescribe scheduled medications for pain management. California revised its protocols called “Guidelines for Prescribing Controlled Substances for Pain” in November 2014 and expects all physicians to be familiar with it. You can download a copy of it with its attachments from the link above which is my public dropbox account. 

Under federal and state law, if the physical examination does not demonstrate legitimate medical need which must be documented, then the prescription is no longer protected by the DEA rules allowing physicians to prescribe. It is then treated like an illegal drug and opioids, like cocaine, are treated harshly under the sentencing guidelines. Even board certified pain management doctors need to be careful to make sure their record keeping and physical examination protocols are up to date. Every doctor can have a bad or busy day, but with scheduled drugs such allowances are simply not tolerated.  I recommend that doctors and clinics systemize as much as they can which is sometimes not done in small or solo practices. A recent case shows why this is so important.

San Jose pain management physician Venkat Aachi, indicted on October 9, 2018, has now pleaded guilty to distributing hydrocodone outside the scope of his professional practice and without a legitimate medical need, and to health care fraud. This is a huge blow to his practice and profession.  On March 26, 2019, his guilty plea was accepted by the Honorable Edward J. Davila, U.S. District Judge.

Sentencing Update: California Doctor Sentenced To 63 Months In Federal Prison For Health Care Fraud. Doctor's Testimony At Trial Resulted in Longer Sentence. Doctor Husband Sentenced to One Year and One Day. Case Is On Appeal.

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.

California Meat Processing Company and Two Company Officials Plead Guilty to Selling Misbranded Beef, Pork and Poultry They Falsely Claimed Had Been Inspected

Regulatory cases can turn criminal and the resolution often takes years. A recent case began on the regulatory side in 2012 and became a criminal case which has taken six years to resolve. The case has also cost the company millions of dollars in product seizures, recall requirements, legal fees and fines. It shows the potential risk of non-compliance.

On August 1, 2018, a meat processor Golden Key Food, Inc. dba AA Meat Products Corp. was investigated in 2012 by the U.S. Department of Agriculture (USDA) for selling meat that was produced without federal inspection. The government alleged that AA Meat products had a plant in Maywood that was operating under a USDA grant of inspection where meat and poultry food products were properly federally inspected, but that they had a second facility in Commerce did not have USDA inspection grant. USDA alleged that AA Meat produced and sold meat (such as trip, duck feet, and other less expensive parts) from its Commerce plant that had not been inspected but was stamped as if it had been inspected.

In 2012, the USDA investigators came in and seized approximately 568,000 pounds of meat and poultry products. The USDA then issued a Class I recall led to the recovery of another nearly one-half million pounds of meat – all of which had to be destroyed.

California Radiologist Sentenced to 10 Years in Federal Custody for Alleged Workers’ Comp Fraud

Federal prosecutors are much more likely to prosecute health care fraud involving private insurance companies than they were years ago. A recent case involved workers' compensation insurance and no Medicare or Medicaid or Medi-Cal. This case also shows the perils of a doctor defendant testifying at trial where the Judge decides that the doctor is not being truthful and imposes a sentencing enhancement for "obstruction." 

On June 18, 2018, radiologist Ronald Grusd and two of his corporations, California Imaging Network Medical Group and Willows Consulting Company, were sentenced in federal court  after a jury trial in December where Dr. Grusd was represented by attorney Tom Mesereau resulted in convictions on 39 felony fraud counts. Dr. Grusd hired a different attorney for the sentencing phase of his case.

U.S. District Judge Cynthia A. Bashant imposed a sentenced of 10 years in custody and a fine of $250,000, and remanded Dr. Grusd into custody. His companies, California Imaging Network and Willows Consulting Company, were each required to pay a $500,000 fine, and an additional $15,600 in special assessments.

According to evidence presented at trial, the government claimed that Dr. Grusd and his companies paid kickbacks for patient referrals from multiple clinics in San Diego and Imperial counties in order to fraudulently bill insurance companies over $22 million for medical services.

Korean-American Owner of California Management Company for Physical Therapy and Occupational Therapy Clinics Sentenced to 121 Months

A recent health care fraud case shows what happens when business people get in a highly regulated business and do not follow the rules or have any compliance program. It also shows what happens when business people decide to enter a healthcare business and cater to an ethnic community which wants services others than those paid for by Medicare.

In this case, it involves the Korean American community in Los Angeles and Orange Counties which is hardworking and entreprenurial but where some do not necessarily understand the full consequences when regulations are not followed. Those consequences? Audits, fines, civil lawsuits and, in this case, criminal cases with lengthy prison sentences.

On January 10, 2017, a California man Simon Hong (also known as Seong Wook Hong) who ran management companies which allegedly operated rehabilitation clinics in Walnut, Torrance and Los Angeles was sentenced to 121 months in federal prison by United States District Judge David O. Carter. At the conclusion of the sentencing hearing, Judge Carter ordered Mr. Hong remanded into custody.

This is not just a straight forward fraud case. One of the issues is providers giving patients in an ethnic community services other than physical therapy but billing and documenting for physical therapy. In addition, it is a businessman operating clinics and then getting a percentge of income for referring the business. There were traditional health care fraud issues present but it shows what happens when business people decide to operate or manage a clinic.  

Mr. Hong owned or operated physical therapy clinics operated by companies called Hong’s Medical Management, Inc., CMH Practice Solution, and HK Practice and Solution, Inc. As part of his business, Mr. Hong recruited Medicare providers and beneficiaries and provided uncovered services like massage and acupuncture for the beneficiaries. Even though many of the beneficiaries did not receive actual physical therapy, those who worked with Mr. Hong billed Medicare for physical therapy, and then paid a large percentage (allegedly 56 percent) of the reimbursement funds back to Mr. Hong's management companies.

Teva Pharmaceutical Enters Into Deferred Prosecution Agreement And Agrees to Pay More Than $283 Million in Fines For Paying Government Officials in Various Countries to Promote Drugs and Paying Doctors in Mexico to Prescribe Its Drugs

What's the difference between the way the government treats large or public healthcare businesses and medium to small sized businesses when it comes to violating regulations? Plenty.

Well, to begin with, large businesses have the ability to pay huge fines, employ thousands and the government tends to not want them to fail. A recent case involving Teva would have been very different if it were a small or medium sized business.

Deferred prosecution agreements (DPA), for example, are almost impossible to obtain with small to medium size health care businesses. When clients note that large businesses do these same practices, they must remember that being so large gives them benefits as well. In a recent case, Teva obtained a DPA showing that being a large publicly owned company has its benefits. A DPA usually requires a strict compliance program and reporting to the government but it allows the entity to avoid criminal plea which would shut down a business engaged in healthcare in the United States. 

On December 22, 2016, Teva Pharmaceutical Industries Ltd. (Teva), the world’s largest manufacturer of generic pharmaceutical products, and its wholly-owned Russian subsidiary, Teva LLC (Teva Russia), agreed to resolve criminal charges and to pay a criminal penalty of more than $283 million in connection with allegations involving the bribery of government officials in Russia, Ukraine and Mexico in violation of the Foreign Corrupt Practices Act (FCPA) in order to promote its drug products.

We often have clients at early stages who offer to pay back any billings at issue. Those overtures are rejected since local offices for small or medium sized businesses want the criminal conviction and usually want to pursue the owners or executives and not the entity.

California Man Who Refinanced Hotel Property Convicted Of Wire Fraud and Misstatements to a Bank in Federal Jury Trial

In the legal community, many of us expected white collar prosecutions for bank financing and mortgage fraud, including cases against lenders to be on the rise. There have not been as many cases as expected. The cases still seem to be against individuals who gave false information to get a loan. While some call these "liar's loans" - most frequently they are not prosecuted unless the borrower was not able to make the loan payments. A recent case involving hotel refinancing and construction loans show what kind of bank misstatement and loan fraud cases go criminal. In the cases we have worked on, the banks put together a large package of material to make it easy for the prosecutors to work up the case.

On November 9, 2016, after a 12 day trial, a federal jury convicted Sanjiv Kakkar of wire fraud and making misstatements to a bank. The government presented evidence at trial that Mr. Kakkar presented false information to a bank in connection with refinancing a hotel property he owned in Boulder Creek, Calif. There were three basic categories of misstatements or fraud: (1) falsifying income information and tax returns where income was overstated; (2) failure to provide updated financial and tax records; and (3) submitting false information to an escrow company to get reimbursement for construction costs.  

Former UCSD Professor's Tech Company That Applied for Government Grants and Contracts Admits and Pleads Guilty to Wire Fraud, Agrees to Forfeit $180,000. False Statements in Government Applications Carry Exposure. Owner Gets "Deferred Prosecution Agreement."

False statements in any documents submitted to the government for payment can result in fraud charges. During the 1990s, government qui tam and criminal contracting fraud cases were common. We are seeing an increased number of companies being investigated for government contract fraud. These are usually handled by the Office of Inspector General (OIG) 

In an unusual case involving government grants and contracts, Dr. Homayoun Karimabadi, a former research professor at the University of California, San Diego (“UCSD”) and the Chief Executive Officer for SciberQuest, Inc., was charged in federal court last week with fraudulently obtaining government grants and contracts.

Dr. Karimabadi and SciberQuest, Inc., the corporation run by Dr. Karimabadi, both waived indictment and were arraigned on an information charging them with felony wire fraud and criminal forfeiture.  SciberQuest entered a guilty plea before U.S. Magistrate Judge Karen S. Crawford. Additionally, Dr. Karimabadi and SciberQuest jointly agreed to forfeit $180,000 as money that was improperly received as a result of the alleged fraud, in addition to a fine that will be imposed on the corporation at sentencing. 

In a favorable resolution for Dr. Karimabadi, he is scheduled to enter into a "deferred prosecution agreement" on January 15, 2016 at 8:30 a.m. before Judge Gonzalo P. Curiel. A deferred prosecution agreement is an agreement between a criminal defendant and the United States Attorney’s Office where the defendant admits to the facts constituting a criminal offense, but the United States agrees to suspend the entry of judgment for a period of time and agrees to dismiss the charges if, during that period, the defendant complies with certain conditions set forth in the agreement.These are not easy to obtain and show that either there were weaknesses in the government's case against Dr. Karimabadi or that fairness supported this result.  

90 Year Old Federal Judge Sentences 79 Year Old Physician to 5 Years For Distributing Hydrocodone and Money Laundering in Los Angeles Federal Court

(Liz O. Baylen / Los Angeles Times)

Here is a follow-up on a blog post about a physician Dr. Andrew Sun who had plead guilty to one count of distributing hydrocodone in federal court in Los Angeles on June 19, 2014. The case took a different turn in that Judge Real refused to take Dr.Sun's plea. This occurs if at the change of plea hearing the defendant does not agree that there is a factual basis for the plea. The case was then set for trial and a three day trial was held in August 2014.

At the trial, Dr. Sun was found guilty on numerous counts of distributing hydrocodone (21 USC Section 841(a)(1) and money laundering (18 USC 1956(a)(1)). On January 5, 2015, Judge Real sentenced Dr. Sun to 63 months in federal prison. Judge Real essentially gave a 3 year term on each of 17 distributing hydrocodone counts and ordered that they run concurrently (at the same time). On the two money laundering counts, there was a sentence of 1 year on each count with those counts. Judge Real allowed Dr. Sun to have until February 2015 to self surrender.

The age of the physician is an interesting fact here. The U.S. Attorney's Office sought a sentence of 20 years while the defense argued for community services and no prison time. Judge Real in imposing a 5 year sentence on a man who is almost 80 years' old seemed to take age into account as well as the other facts and circumstances brought out at trial. Interestingly, Judge Real is approximately 90 years' old and has a reputation for being compassionate towards defendants and believes in rehabilitation. The Los Angeles Times article on this case can be found here. It is an interesting testament to how we are living longer and how certain professionals can practice late into their life.

However, as professionals age there needs to be some realistic checks into their capacity to run medical practices and work at a load they did earlier in their career. Dr. Sun's attorneys noted in their sentencing brief that Dr. Sun began having problems with the Medical Board and in other areas and questioned whether his age, pride, dementia or senility were a factor but did not have any evidence to use that as a defense. It is unfortunate that this is how he is ending his medical career, I am seeing a number of cases involving older professionals who have lost their judgment on what the professions require of them, are unwilling to retire for many understandable reasons, and get themselves into legal difficulties that they never had for the first 40 years of their careers.

Posted by Tracy Green, Esq.

Before You Submit Your License Application Or Report Your Conviction -- You May Be Eligible To Have Certain Felony Violations Designated As Misdemeanors Under Penal Code 1170.18 (Prop. 47)

If you have been convicted of certain felonies and are eligible under the recently passed Proposition 47 which enacted Penal Code Section 1170.18, you may be eligible to have the felony designated as a misdemeanor and/or resentenced as a misdemeanor.  

Here are some frequently asked questions our office is receiving:

Who Should Seek Relief Under Penal Code Section 1170.18 (Prop. 47)?
My recommendation is that anyone who is eligible should seek relief. Felony convictions can result in negative collateral consequences for future student loans, SBA loans, job opportunities, background checks for jobs, clearance for coaching kids' sports or volunteering, admission to colleges, and licensing by governmental agencies, among other things. Reducing to a misdemeanor will at least make some of these exclusions "discretionary" instead of mandatory.  

When Should I Seek Relief Under Penal Code Section 1170.18 (Prop. 47)?
I recommend doing it now. The statute provides that relief should be sought within 3 years of the enactment of the statute or later for good cause. You do not know what you could be doing in 3 years or how this can effect your future. Do not put it off and do it now.  

How Can Penal Code Section 1170.18 (Prop. 47) Affect A Licensing Board's Determination on Discipline?
If a felony is reduced to a misdemeanor, then the disciplinary guidelines will be more favorable to a misdemeanor conviction. With Section 1170.18, this gives individuals convicted of certain felonies the opportunity to reduce it to a misdemeanor.  In addition, this can be used to help show rehabilitation and mitigating evidence.  

Some felonies known as "wobblers" can be reduced to a misdemeanor under Penal Code Section 17(b) but that reduction is discretionary with the court. This new statute gives individuals convicted of felonies another avenue.

Who Is Eligible?
Anyone who has been convicted of the following  California state crimes (not federal) and meets the eligibility criteria:

Health and Safety Code Section 11350 [Possession of a controlled substance] 
Health and Safety Code Section 11357(a) [Possession of a concen. cannibis] 
Health and Safety Code Section 11377(a) [Possession of methamphetamine] 
Penal Code Section 459 [Second Degree Burglary] or Section 459.5
Penal Code Section 473 [Forgery]
Penal Code Section 476a [Bad Checks/Fraud]
Penal Code Section 496 [Receiving Stolen Property] 
Penal Code Sections 484/666 [Felony of Petty Theft With a Prior/Shoplifting]

For theft charges to be reduced, the amount at issue must have been less than $950.

Also the court will not change your charges from felonies to misdemeanors if you have certain strike priors, or if you are required to register pursuant to Penal Code Section 290(c). 
  
What Will Be The Effect of Having The Petition Granted? 
A re-designation means that the conviction is now deemed a misdemeanor for all purposes, except that re-designation does not permit the defendant to own, possess, or have in their custody or control, any firearm or prevent their conviction under Chapter 2 (commencing with Penal Code Section 29800 felon with a gun) of Division 9 of Title 4 of Part 6.  

What Does The Court Consider And Will Be The Effect of Having The Petition Granted? 
If the person is eligible under Section 1170.18(f), the court shall grant the petition.  Section (f) eligibility is where the felony conviction, whether by trial or plea, would have been a misdemeanor under this act had Section 1170.18 been in effect at the time of the offense. No hearing is necessary to grant or deny an application filed under subsection (f) but a hearing can be requested.

For other offenses, where there are no disqualifies present under Penal Code Section 1170.18(b)(1)-(3) and (i), a re-designation will be granted unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. In exercising its discretion, the court may consider all of the following:

(1) The petitioner's criminal conviction history, including the type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and the remoteness of the crimes.

(2) The petitioner's disciplinary record and record of rehabilitation while incarcerated.

(3) Any other evidence the court, within its discretion, determines to be relevant in deciding whether a new sentence would result in an unreasonable risk of danger to public safety.

"Unreasonable risk of danger to public safety" means an unreasonable risk that the defendant will commit a new violent felony within the meaning of Penal Code Section 667(e)(2)(C)(iv).

How Long Does This Process Take?  
The petition process may take between 15 to 60 days, depending on the details of the case and the amount of time it takes to prepare the petition.

Our office is handling these matters and contacting clients to make sure they take advantage of this new law.  If you want your case evaluated, feel free to call or email our office for a complimentary 15 minutes consultation.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Email: tgreen@greenassoc.com
Call:    213-233-2260

Co-Owner of Florida Home Health Company Sentenced to Serve 70 Months in Federal Prison and Ordered to Pay $6.2 million in Restitution for Participation in a Health Care Fraud Scheme Where Services Were Medically Unnecessary, Services Were Not Provided, Kickbacks Were Paid, And Patient Documentation Falsified

The criminal cases against home health owners continue to increase. On August 26, 2014, a co-owner of Professional Medical Home Health LLC, Annarella Garcia, 44, of Florida was sentenced to serve 70 months in prison and ordered to pay $6.2 million in restitution for her participation in a health care fraud scheme involving the now defunct home health care company. U.S. District Judge Federico A. Moreno of the Southern District of Florida imposed the sentence.

According to court documents, Ms. Garcia was a co-owner of Professional Medical Home Health, a Miami home health care agency that purported to provide home health and therapy services to Medicare beneficiaries.  On June 25, 2014, Ms. Garcia pleaded guilty to conspiracy to commit health care fraud.  Ms. Garcia admitted in her plea that between December 2008 and February 2014, she and others were engaged in a scheme to bill the Medicare Program for expensive physical therapy and home health care services that were not medically necessary or were not provided.   During that time, Professional Medical Home Health was paid approximately $6.25 million by Medicare for the fraudulent claims.

Specifically, Ms. Garcia admitted that she and her co-conspirators paid kickbacks and bribes to patient recruiters in return for their providing patients to Professional Medical Home Health for home health and therapy services that were not medically necessary or were not provided.   In furtherance of the scheme, Ms. Garcia admitted that she and her co-conspirators falsified patient documentation to make it appear that beneficiaries qualified for and received home health care services, when, in fact, many of the beneficiaries did not actually qualify for such services and did not receive such services.

Attorney Commentary:  This is a lengthy sentence for a plea. The determining factor may have been that in the Indictment there was a money laundering count due to cashing checks for cash that gave exposure up to 20 years' in prison while the health care fraud charge carries a maximum of 10 years. The plea was to the conspiracy to commit health care fraud which saved exposure on the money laundering count.  There were also false statement charges that could carry additional consecutive time. This case moved quite quickly from indictment to plea to sentence, just over 3 months.  

Posted by Tracy Green, Esq.
Office: 213-233-2260
Email: tgreen@greenassoc.com
Green and Associates, Attorneys at Law

Ex-Marine Officer Sentenced For VA Disability Fraud And Submitting False Expenses For Active Duty

In a disability and travel payment expense fraud case, a former Marine Captain Shawn A. Joyce was sentenced to four months in federal prison, to pay restitution of $90,602, and three years of supervised release by U.S. District Court Judge John Houston on June 30, 2014. This case was charged as two counts of wire fraud in violation of 18 U.S.C. Section 1343 based on the fact that the Veterans Affairs Administration (VA) and Department of Defense directly deposited funds into Mr. Joyce's bank account.

The facts that Mr. Joyce admitted in his plea agreement regarding expense fraud are as follows.  On November 1, 2008, Mr. Joyce was discharged with the rank of Captain and entered the Marine Corps Reserve. Under certain circumstances, reservists who are called to active duty become eligible for an allowance for lodging, transportation, meals and incidental expenses (travel payments). From 2009 to 2010, Mr. Joyce admitted in his plea agreement that he falsely claimed to be paying $4,030 per month for rent in Solano Beach and in 2011, falsely claimed to be paying $3,700 month per rent in Fountain Valley. The Prosecution intended to prove intent to defraud by the fact that Mr. Joyce created documents that were not real or bona fide rental receipts and created an email in the name of a former roommate and landlord which was used to forward information to the Department of Defense.

The disability fraud was based on knowingly receiving VA benefits while on active duty. Before his initial discharge in November 2008, Capt. Joyce applied to the VA for disability benefits and received a disability rating. Under federal law, a service member receiving VA disability benefits is not entitled to simultaneously receive active duty pay. In November 2008, before his initial discharge Mr. Joyce applied to the VA for disability benefits. In 2010, as a reservist Mr. Joyce was back on active duty which was scheduled to end on June 22, 2010. On June 17, 2010, Mr. Joyce applied for an increase in his VA disability rating. Mr. Joyce began receiving disability benefits effective June 22, 2010 but then received a new set of active duty orders that same date.

The Prosecution intended to show intent to defraud on the disability payments since there was evidence that after Mr. Joyce received a new set of active duty orders effective June 22, 2010, he contacted the VA afterwards in September 2010 and January 2011 and asked for increased amounts in his disability rating without telling the VA he was on active duty.

There appear to be mitigating circumstances in this case that relate to Mr. Joyce's disability and psychological conditions. However, that did not prevent the Court from sentencing Mr. Joyce to federal prison for a short term which should make him eligible for house arrest.

There is an increase in the prosecution of disability insurance fraud cases especially where the individuals are government employees such as former military and law enforcement and professionals. One common factor that I see in these cases is that individuals receiving the benefits fear stopping the benefits or misrepresentations for fear of being discovered even though these are facts that will assist them greatly in the event charges are ever filed. In addition, there are ways to repay the amounts to mitigate the damages before charges are filed. Voluntary disclosure works in many cases although each case is different. Often the individuals in the midst of these issues cannot evaluate them objectively.

Posted by Tracy Green, Esq.
Phone; 213-233-2260
Email: tgreen@greenassoc.com

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.