Articles Posted in Sentencing Guidelines

It never ceases to amaze me when I am hired to represent a client at sentencing who has just been found guilty of Medicare fraud when they say to me, “You know Mr. Malove, I just didn’t see this coming.”

I don’t know what to tell these clients. At this stage of the game, I must admit that in my mind I wonder how they didn’t at least consider the possibility that a jury wouldn’t believe their version. Almost always I know their trial attorneys, who are among the best of the best. I am sure that these fine lawyers reviewed all of the government’s evidence with their clients and fully laid out the government’s theory of the case.

Yet, despite their attorney’s unequivocal advice to enter into a plea bargain with the government, you have got to wonder why most of these clients went to trial? Was it because the client was so much in denial (not the river in Eqypt) that they simply couldn’t grasp what the government was prepared to prove? Or that that they just couldn’t bring themselves to admit to themselves or to their families that they had fraudulently obtained money from the government that they didn’t legitimately earn? Is it more than just denial? Bravado? Machismo? Whatever it is, one thing for certain – the decision to go to trial in many, if not most, of these cases flies in the face of the statistics. We’ve all heard it before: numbers don’t lie!

The United States Circuit Court of Appeals for the Eleventh Circuit in Atlanta reversed one of my cases on July 31, 2008, and remanded it back to the district court for re-sentencing due to the sentencing judge’s failure to specifically follow the dictates of 18 U.S.C. § 3553(c). While this particular case had to do with a conspiracy to import a large quantity of cocaine aboard a ship boarded by customs agents on the high seas, the appellate court’s opinion has universal applicability to all federal sentencing matters and certainly must be paid careful attention by attorneys who represent healthcare fraud defendants at sentencing. To read the opinion click here.

BENSON WEINTRAUB, the nationally renown federal sentencing expert and ANTHONY C. VITALE of the Health Law Offices of Anthony C. Vitale, PA presented a novel issue in health care fraud during a 5-day sentencing proceeding against Rodolpho Ramirez, a DME operator sentenced by US District Judge Adalberto Jordan (S.D.Fl.) to 24-months imprisonment for making fraudulent claims to Medicare and paying kickbacks to a local physician.

Weintraub and Vitale were successful in persuading Judge Jordan to assume, without deciding the issue, that an obscure provision of “Special Rules” in the calculation of loss under the Federal Sentencing Guidelines is instructive and resulted in a significant exclusion of “relevant conduct” claimed by the government and a Guideline range approximately half of that requested by John Cunningam and Jay Darden, DOJ Trial Attorneys from the Fraud Section in Washington.

The case attracted considerable attention in the legal profession with both criminal defense lawyers and a Deputy Attorney General observing portions of the extraordinarily lengthy hearing characterized by expert medical testimony about medical necessity, Medicare billing procedures, and medical economics.

By

Benson Weintraub [Benson Weintraub is a sentencing lawyer is Of-Counsel to the Law Offices of Robert David Malove, P.A.,in Fort Lauderdale and former Visiting Professor of Law at Hofstra University. While in law school, he worked on the Hoffa litigation under the direction of civil rights lawyer, Leonard Boudin.]

The political implications of Lewis Libby’s commutation of sentence by President Bush continue to reverberate, but this case summons memories of the suspicious circumstances under which President Nixon commuted the sentence of former Teamsters President, James R. Hoffa, 1971.