Medicare Fraud Criminal Defense

October 26, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Medicare fraud is hotly prosecuted by the Department of Justice where they accuse medical providers of a host of different criminal activities.  Common accusations include fraudulent or over-billing and “kick-back” schemes where a person receives money for referring a medicare patient to a health care provider.

The federal government also often prosecutes what they consider to be conspirators or accomplices.  So simply because a person doesn’t work directly for a medical provider doesn’t mean they’re “out of the woods” on a medicare fraud prosecution or investigation.

What are the Possible Punishments for Medicare Fraud?

If you think you’re being accused – then this is probably the first thing on your mind.  Unfortunately there is no truly one-size fits all answer.  Medicare fraud is a general term but in reality there are several different statutes which cover different types of allegations.  It depends on a handful of factors such as what type of medicare fraud is being accused and the monetary amount of the alleged fraud.

Penalties can include jail time, civil fines, and future exclusion from the Medicare Program.

You can read the statutes government medicare fraud here.

Fraudulent or Over-billing Medicare

Billing medicare for unnecessary work as well as billing for work never done at all is a big source of medicare fraud cases.  Also, incorrect insurance coding can be investigated so health care providers must take special care to be on top of those seemingly mundane office responsibilities.

Kickbacks

A kick-back is where a person receives compensation for steering or sending patients to someone who will use medicare as a billing mechanism.  The compensation doesn’t necessarily have to be direct — other words where a physician joins an investment group of some type along with a patient referral source – the federal prosecutors could allege the investment group is a cover for kick backs.

Medicare Fraud is Extremely Complex and the allegations are very serious.  I tell my clients the Federal Government’s money “burns to the center of the Earth.”  By that I mean the department of justice is relentless in getting what they think they’re owed.

Take action immediately if you are being investigated for medicare fraud.  It’s not a situation you can easily talk your way out of.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

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What Are The Federal Sentencing Guidelines

October 25, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

The federal sentencing guideline is an elaborate and detailed chart which are designed to make federal sentencing uniform – or close to it – across the country.

Here is the current sentencing table (November, 2018):

Interpreting The Guidelines

This is the million dollar question.  Literally.  There is an entire manual published by the United States Sentencing Commission (“USSC”) discussing how to interpret the guidelines.  You can visit them here.  Each of the numbers in the center of the chart are the range months in federal prison a person could be sentenced to serve.

Base Offense Level

Very Generally Speaking, the column on the far left is labeled “offense level.”  Every federal offense is given a starting level and this level can be adjusted upwards or downwards based on various factors in the case.

For example, a person typically has their base offense level lessened if they cooperate with the government.  A person normally gets their base level increased if there are aggravating factors for their offense – such as they took a leadership role in a conspiracy.

Criminal History Category

The row at the top of the chart is for criminal history points.  The more trouble the person has been in throughout their life, the higher it can kick the sentence range.

The Guidelines are Advisory – Not Mandatory

The USSC was created by congress as an independent branch of the judiciary in the mid 1980’s.  They conceived of the sentencing guidelines and the guidelines were mandatory for judges to follow until the US Supreme Court ruled the right to trial by jury required the guidelines to be advisory only.  See United States v. Booker, 543 U.S. 220 (2005).

Though advisory, they are still typically followed.  Federal judges can and often do issue “downward departures” from the sentencing ranges for mitigating circumstances.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

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Netflix American Murder: The Family Next Door and 21st Century Courtroom Storytelling

October 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

What a horrific, tragic, and deranged murder!

Trying to compartmentalize and separate the legal aspects of Netflix “American Murder: The Family Next Door” from the human aspects is difficult to do – but it’s exactly what we do as criminal defense lawyers.

I’m writing because I’m very impressed with how Netflix was able to tell the story through all the text messages, home and police videos, and social media.  It’s really a view into what 21st century crime investigation and courtroom story telling can look like.

This story in particular is nothing short of soul-crushing and everyone is happy Shannan Watts, her children and her family got the justice they deserved and Chris Watts is behind bars for the rest of his life.  But 21st century evidence such as cell phone texts, videos, social media including police advances in body-camera evidence are revolutionary ways to prove innocence too.

How Netflix Told the Story

I was fascinated by how Netflix was able to tell the story – not through talking heads or narration – but just by showing us the text messages, then showing us police body-cam videos, sprinkling in home movies, showing us social media posts and comments, and on and on.  Isn’t it amazing how our technology and ways of communicating can tell our stories this way?

Cell Phone Evidence

I lecture on the topic of cell phone evidence in the courtroom and have written about it as well.  It’s not nearly as easy to do as Netflix made it look.  We were able to see victim Shannan Watts’ texts to her family and friends as well as to Chris.

Notably absent in my mind were Chris’ texts to anyone other than Shannan — and this tells me they weren’t able to get into his phone.

Police Body-Cam Evidence

I can’t understate what an amazing, wonderful tool police body-cameras are.  In the American Murder: The Family Next Door, we got to see Chris Watts’ charade with our own eyes when the police initially came over to his house to locate Shannan the day after the killing.  We got to see Chris Watts face, demeanor, and mannerisms — the smallest details.

In the past – we’d have gotten a police officer’s recollection from the witness stand and potentially some of the other people there too.  Their testimony would be almost always be shaded and slanted for no other reasons they are humans with a particular perspective.  If this case had turned into a trial – they’d have had to have testified anyway… but the point I’m trying to make is the body-cameras cut through all of that.  We see what we see.

The law has often pushed police towards recording interviews and statements.  Texas has a statute (Tex.Code.Crim.P. 38.22) which requires custodial interrogations to be recorded.  It protects both the police and the accused from an unfair spinning or characterization of how the interview actually went.

Unfortunately, in the past it has been a law enforcement tactic for a police officer to “forget” their recording device before an interview – so they can spin the interview how they’d like in court later.  Police agencies who require bod-cams basically put an end to it.

And as a side note – sometimes the police forget to turn off the body cameras and we get to see the water-cooler talk about the case and we hear weaknesses about the cases we’d never hear in a courtroom from the police.

Social Media Evidence

It’s difficult to know what, if any, artistic license Netflix took in this arena.  They presented several home videos as if they were social media posts.  Perhaps they were and perhaps that was just how they presented them. What they did use was effective in telling the story.

Legally this would be far more complicated to use in a courtroom than in a documentary.  There are issues with what we call “authentication” and it could involve having to deal directly with social media mega-giants who often treat both prosecutors and defense lawyers like fleas they shake off when they get annoyed with us.

Police Interviews and Polygraph

This was the part of the Chris Watts story which is more old-school and presented nothing new. Bringing in a suspect for a polygraph is a very common investigative tactic.  The polygraph itself is inadmissible in court and as lawyers we’re always very leery of who is conducting the polygraph… because they’re all based on the questions and the questions can be slanted in certain directions.

When Police do a polygraph they almost always want to do a follow-up interview.  They think the person will fail the polygraph, and just like a linebacker wants to crush the quarterback after the ball is snapped — the police want to get a confession right after someone takes the polygraph (even if the results are inconclusive or if they accuse the person of using “countermeasures” or trying to game the test).

It worked for the police like a charm against Chris Watts.  They even used  the age old, “are you a monster or just some guy who made a mistake” line on him — which is a question we hear all the time in cases like sexual assault, child abuse, or domestic violence.  If the suspect chooses, “I just made a mistake” then the police have their confession.

The police also pretended to know more about Chris’ life than they actually knew at the time.  I don’t recall anything they’d seen at the time of his interview which suggested they would know he was having an affair – but when he admitted to it, they represented to him they knew this all along.  It’s a part of the Reid method of interrogation (that’s another topic).

Overall I found the show — again horrific and tragic — yet fascinating from a lawyer’s perspective.  The Chris Watts murder may be a high-budget and high profile outlier in how the story was able to be told… but during the 21st century, I’m pretty certain we’ll be using text messages, home videos and police body-cams to tell much more complete stories for other types of cases too.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

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What is the Difference Between a Felony and a Misdemeanor?

October 23, 2020

By Criminal Defense Attorney Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

A misdemeanor is any criminal charge which carries a potential jail sentence of a year or less, and a felony is anything which has a potential jail sentence over a year.

What dictates is the punishment range – not the actual punishment itself.

Here’s an example:

  • In Texas we have a classification known as a “State Jail Felony.”  Many street drugs such as cocaine in trace or user amounts fit in this category.
  • State jail felonies carry a possible punishment between 6 months and 2 years confinement.
  • Let’s say a person is sentenced to 6 months of state jail
  • The case is a felony because the punishment range or potential punishment from the outset is over a year.
  • Even if the 6 months is probated and the person never goes to jail – the case is still a felony.

What Does it Mean if a Case is a Felony?

Felonies usually carry with them collateral consequences in addition to the potential increased jail.  States can typically restrict voting and professional licenses to felons as an example.  Many employers ask questions to candidates about felonies.  In Texas, some rights are restored to felons after they are no longer under the Court’s thumb.

The Federal Government’s View

Each state may define a felony or misdemeanor however they’d like – but the federal government in making policy on things like immigration, lending, and firearms makes it clear this is how they define the difference.  The US Constitution also has “the Supremacy Clause” which dictates federal law is superior to state law.

For this reason – the federal government labeling someone a felon can be more severe than the state doing so.  As an example, a felon in Texas is permitted to carry a firearm five years after their sentence is complete.  But because the federal government also regulates firearms and they strictly prohibit felons from owning pistols or handguns ever – the Texas law allowing a felon to possess such a weapon is somewhat meaningless.  You’re still breaking the law.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

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Will I Be Arrested if I Shoot an Intruder?

October 22, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law allows you to use “deadly force” in certain circumstances to defend yourself.  One of those circumstances is when an intruder has forcefully and unlawfully entered your home.

Will you be arrested?  Perhaps, but the law may let you out of it if you qualify.

 

What is Deadly Force?

“Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.  Tex.Pen.C. 9.01(3).

When Can I Use Deadly Force to Protect My Home?

Tex.Pen.C. 9.32 discusses the defense of use of deadly force and in relevant part says this:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

….(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

The Statute Translated and Broken Down

In English – if you are in your habitation, vehicle, or place of business AND someone has not only unlawfully entered but did so by using force AND you have done nothing to provoke the person AND you yourself are not committing a crime – then if you shoot the person, you have self defense available to you.  Additionally, you do not have the duty to retreat.

What Does it Mean My Actions are “Presumed to be Reasonable”

Remember – the law could very well go to a jury in any legal case.  The jury decides whether what a person did to defend their home was reasonable.  This law assists them and ‘nudges’ them to tell them it was reasonable.  It also encourages police and prosecutors not to arrest or go forward where cases where this applies.

Why Does the Intruder Have to Use Force to Break In for Me to Be Able to Shoot Him?

This prohibits situations where someone is invited over, an argument ensues, and then the person doesn’t leave despite being told to do so.  In that instance, the person’s entry into the home would be unlawful yet not forceful.

What Does it Mean I Can’t Be Committing a Crime?

This is a confusing part of the statute.  Remember, this law is designed to protect the homeowner who wakes up at 3 in the morning to find a burglar in their home or who comes home for lunch to find their door kicked in and someone rummaging through their possessions.

The law isn’t designed to protect someone running a drug house or prostitution ring.  Also, the law had to have a touch of flex too because it covers car-jacking situations – and not bar fights which turn into fights in a car.

But if you Recklessly Shoot a Third Person…

If you use deadly force and in doing so harm or kill a different – innocent – person, then the self defense protections are unavailable to you.

*Jeremy Rosenthal is Board Certified in Criminal Law.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

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