White Collar Criminal Defense Lawyer Blog

Published on: February 16, 2018

Double jeopardy challenge rejected for therapists convicted of Medicare fraud

In US v Crabtree a therapist at a health care clinic in Miami was convicted along with her two therapist codefendants of conspiracy to commit health care fraud in violation of 18 U.S.C. 1349. In this appeal they raised several issues, including a constitutional challenge under the double jeopardy clause. The underlying facts involved the operation of a mental health centers in Florida and North Carolina called the Health Care Solutions Network (HCSN) which billed Medicare for over $63 million in fraudulent claims. Crabtree and two of the co-defendants were former employees of HCSN who worked therapists.

HCSN was set up as a “partial hospitalization program” (PHP) that was purportedly designed to provide intensive psychiatric therapy to patients with “serious and acutely symptomatic mental illnesses.” These programs serve as a bridge between restrictive in patient care (psychiatric hospitalization) and routine outpatient care.

A PHP complying with federal and state law may seek Medicare reimbursement for its services. However, HCSN was not following Medicare standards and practices. From intake to discharge HCSN organized its business around Medicare fraud by editing intake information, fabricating treatment plans, and falsifying therapy and treatment notes to support Medicare claims. Therapist fabricated therapy notes for absent patients, falsified details from therapy sessions, and cloned notes by copying and pasting therapy notes from one patient’s file to another’s.

At the conclusion of the first trial the jury acquitted Crabtree and her two codefendant therapists of the false statement counts but it failed to reach a verdict on the conspiracy counts. At the first trial the court gave an instruction for Pinkerton liability with the false statement instruction. Under the Pinkerton instruction if the jury found the defendant guilty of participating in conspiracy it could find the defendant guilty of the substantive false statement crime even though the defendant did not personally participate in the false statement crime. The defendants were retried and convicted of the conspiracy count at the second trial.

Published on: February 9, 2018

Case remanded because the judge failed to personally address the Defendant at sentencing

by The Swartz Law Firm

George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.

The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon. Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.

Published on: February 6, 2018

Conviction for fraudulent investment scheme upheld

by The Swartz Law Firm

Lawrence Foster was charged and convicted in Miami following a federal court jury trial of conspiring to commit wire fraud and six counts of wire fraud in violation of 18 U.S.C. section 1349. He raised three challenges. First, he claimed the trial judge erred by denying his motion for judgment of acquittal. Second, he claimed the loss amount was incorrectly calculated. Third, he claimed his verdict should be set aside due to jury misconduct.

Foster was charged with defrauding investors who thought they were investing in property in the island of Rum Cay in the Bahamas. He solicited investors by offering them two investment opportunities. They could either purchase Rum Cay land or lend money to his company Paradise is Mine (PIM) in return for a security interest in the land. Foster used several marketing strategies including celebrity endorsements to promote PIM. He also represented to prospective investors that hundreds of news organizations including USA Today and the Wall Street Journal had featured articles about PIM. But PIM was a scam because it never owned the land that it claimed it owned and the newspaper reports were not legitimate. Some articles were created by Foster himself. The investors never received tit to the land.

Published on: January 22, 2018

New sentencing for defendant but only for a chance to address the judge

by The Swartz Law Firm

George appealed his 259 month sentence imposed after a jury trial resulted in his conviction for conspiracy to engage in drug distribution, Hobbs act robbery, possession of unauthorized access devises, and aggravated identity theft activities. He was acquitted of possession of a firearm in furtherance of a drug trafficking offense.

The facts in George’s case began when responded to an advertisement for luxury car rentals and met Pinkow, the owner. Unbeknownst to George, Pinkow, the owner of the car rental company was an informant for the FBI. Pinkow introduced George to Velez, a licensed barber because George expressed and interest in opening a barber salon. The salon did open and was divided into two rooms. The front room contained the barber shop and the back room contained computers, phones, embossing machines, card-scanning machines and items that had nothing to do with the barber business operating in the front room. George also kept a firearm at the front of the salon.

Pinkow also rented luxury cars to a man named Banner, a successful drug dealer specializing in marijuana. Pinkow was present when Banner brought duffle bags filled with marijuana to George’s apartment and sold it to George. There was a subsequent sale to George for an amount that exceeded personal use.

Published on: January 6, 2018

Search warrant for Facebook account flawed but not enough to overturn a sex-trafficking conviction

by The Swartz Law Firm

Defendants Blake and Moore were convicted of child sex trafficking two underaged girls. The case arose when FBI investigations discovered that ads for prostitution services were posted on the classified website Backpage. Moore would take phone calls from potential customers who were responding to the ads and Blake would drive the girls to their appointments and provide muscle. The money was split 50/50 between the prostitute and the Blake and Moore. The FBI learned that Backpage ads had been posted using email address which the FBI learned had belonged to Moore.

In the course of the investigation the FBI executed a seize and search warrant electronics in Blake and Moore’s townhouse however the FBI could not access the Apple Ipad tablet seized due to its security features. The FBI requested and received a district court order issued under the All Writs Act 28 U.S.C 1651(a) (the Bypass Order) requiring Apple Incl to assist the FBI in bypassing the iPad’s passcode lock and other security features. The FBI also obtained a search warrant directing Microsoft which own \s Hotmails to turn over emails from Blake and Moore’s email accounts, specifying emails linked to the sex trafficking charges. Finally, the FBI applied for and received search warrants for Moore’s Facebook account requiring disclosure of every type of data that could be found on Facebook account including every private instant messaging.

The defendant’s appeal challenged the Bypass Order on the grounds that the order exceeded the authority granted by the All Writs Act, 28 U.S.C. sec. 1651(a). Though the court of appeals did not rule on whether they had standing to challenge the writ against Apple, the court found that the defendant’s challenge of the Bypass Order failed because it was necessary or appropriate to carry out the search warrant issued, the assistance sought was no specifically addressed by another statute, the bypass order was no inconsistent with Congress’ intent, Apple was not too far removed from the underlying controversy, and the burden the order imposed on Apple was not unreasonable.

Published on: December 29, 2017

Conviction for selling firearms on the dark web upheld

by The Swartz Law Firm

Focia’s conviction arose from his sale of firearms on the dark web. He was charged with a violation of 18 USC section 922(a)(1) for transferring firearms to a resident of a state other than his own without a federal firearms license in violation of 18 USC section 922(a)(5). In his appeal he challenged the sufficiency of the evidence arguing that the government failed to prove that he and each transferee were not residents of the same state at the timer of each sale. He claimed that the government failed to prove that Focia was a resident of Alabama, a different state than where the buyers lived in Nebraska and New Jersey. He argued that the government only established only that Focia used to live in Alabama at some point before the firearm sales and that he was present in Alabama several times over the span of two years.

The court of appeals rejected this challenge finding that the government introduced sufficient evidence of Focia’s residence at the time of the sale to sustain his conviction. The government presented evidence directly tying Focia to Alabama including his driver’s license showing an address in Alabama that did not expire until three months after Focia completed his transaction with the buyer and documents from E-trade Financial and a pawn shop in Alabama bearing Focia’s name and address in Alabama. Additionally, the government introduced powerful circumstantial evidence from which a jury could reasonably infer that Focia resided in Alabama at the time he shipped firearms to undercover agents located in the two states.

Published on: December 28, 2017

Conviction for Miami drug courier upheld

by The Swartz Law Firm

Max Jeri was convicted and sentencing for importing 7.95 kilograms of cocaine into the United States after he arrived from Lima Peru at the Miami International Airport. The evidence produced at trial showed that after his arrival in the Miami Airport a Customs and Border Patrol Officer inspected his luggage and discovered cocaine secreted in various items in his luggage including children’s jackets, notebooks, purses, and pillows. He gave the officers the person for whom he was transporting the items and was a travel agent and a long time friend who offered him a free round trip ticket to Peru and in exchange she asked him to take two bags of merchandise to her sister and to return to New York with the two bags.

He said the items he took to Peru were electronic items toys and shoes. For the return flight the sister went with him to the airport where she showed him the contents of the suitcases, which he checked and boarded the flight to Miami. Following the seizure, Jeri volunteered to make controlled calls to the friend in an attempt to elicit inculpatory comments about the drugs in the suitcase, but the friend repeatedly claimed the bags were clean. The agents attempted to arrange a controlled delivery of the drugs but the person who came to pick up the packages refused to take them.

Published on: December 26, 2017

Terrorist conviction and sentence upheld

by The Swartz Law Firm

Sami Osmakac was convicted and sentenced to 42 years in prison following a 10-day trial for attempting to carry out a terrorist plot in Tampa, Florida, and for possessing a firearm not registered to him. After the F.B.I. received a tip from a confidential informant a store owner selling trinkets and food items from the Middle East, reported that Osmakac asked about purchasing black flags referring to flags used by a variety of Islamist political movements, the store owner became a confidential source of information after gave Osmakac a job in his store. The F.B.I. began recording numerous conversations in which Osmakac discussed his plans to commit a several violent terrorist attacks in the Tampa area. Osmakac also made attempts to obtain guns from various individuals. Osmakac was charged in a two count indictment with committing one count of knowingly attempting to use weapons of mass destruction, specifically explosives grenades and similar devices in violation of 18 USC 2332 and with possessing a firearm not register to him ,specifically a AK-47 machine gun in violation of 26 USC 5861(d).

Prior to trial, the government informed Osmakac it planned to offer evidence of information obtained from electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (FISA) during the time that Osmakac was being observed. Osmakac filed a motion asking the trial court to order the government to disclose certain FISA materials including the underlying search warrant applications and orders issued by the FISA Court. The district court reviewed the requested materials, in camera and ex parte, and determined that there was no valid or legal reason for disclosing any of the FIA materials. Osmakac challenged the district court’s decision denying him access to the FISA applications and supporting documents and the FISA Court’s order authorizing the surveillance of Osmakac, who was a U.S. citizen. Osmakac argued that he wanted to review the applications and orders to determine whether the surveillance and searches were in fact legal.

Published on: December 25, 2017

Conviction for possession of a gun by an illegal alien does not require the alien know his status is unlawful

by The Swartz Law Firm

In U.S. v. Ali Rehaif, the defendant, Rehaif, was a citizen of the United Arab Emirates who was convicted of possessing a firearm and ammunition while illegally or unlawfully in the United States. In his appeals he challenges the jury instruction given by the Florida district court regarding whether he had to know he was unlawfully in the United States.

Rehaif was initially issued a student visa to study mechanical engineering at the Florida Institute of Technology on the condition that he pursue a full course of study. He agreed to this condition upon receiving his student visa. After three semesters he was academically dismissed on December 7, 2014, and one month later on January 21, 2015, the school sent Rehaif an email stating that his immigration status will be terminated on February 5, 2015, unless he transfers out before that date or notifies the school office that he had left the United States. Rehaif did not take any action and on February 23, 2015, the Department of Homeland Security officially terminated his foreign student status.

On December 2, 2015, Rehaif went to a shooting range and purchased a box of ammunition and rented a firearm for one hour. The firearm was manufactured in Austria and imported into the U.S. through Georgia. The ammunition was manufactured in Idaho.

Published on: October 15, 2017

Jurisdiction to search and prosecute defendants on vessel without nationality authorized

by The Swartz Law Firm

In U.S. v. Lopez Hernandez, the defendants appeal their convictions under the Maritime Drug Law Enforcement Act (MDLEA) which criminalizes individuals for possessing with intent to distribute a controlled substance while on board a vessel subject to the jurisdiction of the United States. In this case the defendants’ vessel fell under U.S. jurisdiction as a vessel without nationality. The U.S. Coast Guard officers stopped the four defendants in this appeal on board a go-fast boat without a flag in international waters about 120 nautical miles southwest of the El Salvador/Guatemala border in the Pacific Ocean. When the Coast Guard approached the boat, the crewmen began dumping packages overboard that were later found to contain 290 kilograms of cocaine. The four crew members were ultimately arrested. One defendant who identified himself as the captain claimed the boat was registered in Guatemala. The Coast Guard contacted the Guatemalan government which could neither confirm nor deny. With a certification that the ship was without nationality, the Coast Guard determined it had the authority and jurisdiction under the statute to search the boat.

The defendants filed a motion to dismiss the indictment on the grounds that the Coast Guard had information in their possession indicating the boat was not a vessel without nationality within the meaning of the plain text of the MDLEA.

While the Coast Guard stated that no registration documentation was provided to them prior to contacting the Guatemalan government, they claim they later found registration documents on the ship. The defendants on the other hand claim that the Coast Guard officers had the registration documents before it asked Guatemala about the boat’s registry.