Types of Criminal Cases

According to the FBI, crime rates in our region have held relatively steady over the past fifteen years. However, the lingering recession has resulted in an increase in corporate and government agency scrutiny of their financial performance, operating expenses, and the appropriateness of beneficiary payments. It is this oversight, not an increase in criminal activity, that correlates to a tsunami of economic crime prosecutions. Our attorneys have observed a dramatic increase in five distinct types of prosecutions: medical, insurance and prescription fraud, bank fraud, corporate work place embezzlement, government employee/contractor theft and collateral administrative professional license suspension proceedings.

We represent many physicians, chiropractors, pharmacists, and physical therapists. These clients have experienced overwhelming pressure from insurance companies, Department of Health and Human Service inspectors and state insurance departments. Allegations of billing fraud for unlicensed medical treatments, prescription and insurance fraud for ghost services, and drug delivery are common. The sources of these investigations include unhappy clientele, suspicious insurance adjusters, and pro-active special investigative units of insurance companies. Federal narcotic indictments and state related insurance fraud and theft prosecutions are increasing every day. One need only open the newspaper to read about another doctor or pharmacist charged with unprofessional and illegal conduct.

Here, in addition to jail, professional licenses, prescription writing capabilities, and Medicare and Medicaid billing authorization are immediately at risk, even prior to conviction. Our legal practice in this medical licensing subspecialty has risen one hundred percent over the last year. These high profile clients represent a significant catch for any federal or state prosecutor. Significant legal issues need be addressed emergently. In these cases we spend a significant time contesting federal or state forfeiture proceedings of personal and business assets. Various government agencies will seek forfeiture not only for punitive reasons, but to recoup improper insurance payments and payment for the costs of prosecution. These civil proceedings compound the loss of the professional license.

Recently completed mortgage fraud investigations originating from the 2008 housing bubble are spawning numerous federal prosecutions of mortgage providers and their related participants. Common threads in many of our cases are range from allegations involving sales of fake properties, fraudulently inflating property values, property flipping, fraudulent appraisals, and equity skimming to straw buyer mortgage fraud and foreclosure rescue scams. These cases typically carry federal criminal charges of committing, and conspiring to commit, bank fraud, wire fraud, mail fraud, money laundering, and honest services. Our attorneys are seeing increases in cases that center upon jumbo/non-conforming loans, low/no doc loans, liar loans (stated income loans), home equity line of credit, and secondary market/subprime loans from 2005 and after. Questions of who is the victim, who bore the loss, the materiality of the loss, the actual value of the property in question, the veracity of all bank documents submitted, and the intended loss are issues common to each of these types of cases.

White and blue collar employees alike began committing work place theft at the beginning of the 2009 recession. These schemes are now being discovered through management changes, internal audits, and basic expense analysis. The theft offenses include extensive personal use of shipping accounts or company credit cards, submission of fabricated invoices from fictitious entities, or paying personal bills through company electronic bank payments. Potential criminal charges in these cases range from wire fraud, identity theft to forgery. The uptick in this area of criminal defense practice started in 2010, after the first wave of corporate downsizing and its associated work place managerial changes and operating board internal investigations. It continues to this day as more and more work-place frauds are being uncovered.

On the quasi-governmental front, our practice has seen elevated oversight of social service professionals either being investigated for, or charged with, theft from state administered Medicare and Medicaid programs. Many of these cases involve independent contractors hired by separate staffing agencies to provide in-home occupational social services to qualified low-income families. The allegations include overlapping hourly bills submitted by the service provider. Theft amounts range from under ten thousand dollars to over hundreds of thousands of dollars. Here, too, these prosecutions result not only in criminal charges but also in collateral sanctions by state professional licensing authorities and potential exclusion from state administered welfare programs that disburse federal Medicare and Medicaid funds.

Separately, there has been an increase in state investigations and prosecutions for food stamp and welfare-benefit theft. These cases have involved our clients who are government employees and are accused of either fabricating welfare clients to secure improper food stamps, rent, and emergency financial benefits or granting incorrect benefits for actual beneficiaries in exchange for a percentage of the overpayment of benefits. These complex financial investigations last many months and look back over several years of an accused employee’s work place conduct.

Similarly, our small retail food store clients that participate in federal food stamp programs have experienced increased undercover enforcement of Department of Agriculture regulations. A greater percentage of our clients are being charged with fraudulent schemes to process food stamp vouchers into cash for a fee. In these investigations, the government attempts to minimize fraud through criminal prosecution and exclusion from future participation in the food stamp program. Restitution is pursued through seizure of personal and business assets and placement of liens on both personal and business real property and bank accounts. Representation in these matters starts with addressing the criminal charges and possibly maintaining participation in the Food Stamp program. Thereafter, removal of liens on real estate and bank accounts and contesting any forfeiture of non-business related assets is paramount to each client.

The investigators’ pattern of approaching the target in these fraud investigations is the same; appearing at the target’s home, late in the day, seeking a non-confrontational conversation with the employee, pharmacist, doctor, or small business owner. If any admissions are secured, then the target is advised to retain counsel. If the target either denies the allegations or fabricates a story, an obstruction charge is added and a target letter is issued. We preemptively advise all clients that if they are contacted by any investigating authority to identify us as their counsel and ask for a meeting at more convenient time.

Our role as counsel is then immediately clear to any investigator and the client. We then extensively interview the client, timely respond to all investigative queries, determine if pre-arrest cooperation is in the best interest, coordinate any imminent surrender, timely respond to the emergent administrative licensure filings, and legally rally the client’s assets before seizure. Thereafter, issues such as bail, an indictment, business closure or ex parte license suspension proceedings begin to present themselves in short order. Choosing appropriate and experienced counsel is paramount.

Juvenile MEgan’s Law update 2012

On December 20, 2011, Governor Corbett signed into law SB 1183 (1857) as Act 111 of 2011 (Megan’s Law IV). The law makes extensive revisions to Pennsylvania’s classification and registration requirements of adult and juvenile sexual offenders. Juvenile registration responsibilities are now extensive and violation consequences severe. The revised classification and registration matrix can be found on the Pennsylvania Sentencing Commission’s website, http://www.pcs.la.psu.edu, in the About the Commission, Meeting and Materials page, item sixteen.
The revised registration scheme now requires previously adjudicated fourteen year or older juveniles, not subject to Megan’s Law, but whose criminal acts are now classified and fall within Megan’s law, to be subject to Megan’s Law if they are under supervision (jurisdiction) of Juvenile Court on December 21, 2012. Also, after December 20, 2011 any juvenile who admits to, or is adjudicated delinquent for, committing a major sex offense will be subject to Megan’s Law if they are under court supervision after December 21, 2012.
A “Juvenile Offender” is an individual 14 years of age or older after December 21, 2012, who is adjudicated delinquent for committing a major sex offense or any time prior to that date was adjudicated delinquent for committing such an offense, regardless of age at the time the offense was committed, and as of December 21, 2012 is still under court supervision.
Juvenile Offenders must now register for life (with quarterly confirmation), receive lifetime monthly counseling, and are subject to the same community notification requirements as adults. It is a separate, first degree felony offense for the Juvenile Offender to knowingly fail to comply with any post-adjudicatory treatment and/or registration requirement. 18 Pa. C.S.A. § 4915.
Arrest and detention without a warrant is possible if the investigating officer has probable cause to believe a registration violation has occurred. Id. Other registrants subject to either fifteen or twenty-five year registrations commit felonies of the 3nd and 2rd degree, respectively, if they knowingly fail to register. It is a first degree misdemeanor, as well as a violation of court supervision, for lesser registrants who fail to comply with all treatment requirements. Id.
Depending on the supervisory tier classification, mandatory minimum incarceration of between two and five years shall occur for the registrant, adjudicated or convicted, who fails to register for the first time. A second or subsequent conviction for failure to register carries with it a mandatory minimum jail term of twenty five (25) years to life, depending on the underlying criminal offense. 42 Pa.C.S.A. § 9718.4.
If the Commonwealth provides notice of intent to proceed with the mandatory minimum sentence after a conviction or adjudication for failing to register, the court shall impose at least such minimum sentence. 42 Pa.C.S.A. § 9718.4 (C). If the court does not, the Commonwealth has a right of appeal and the appellate court shall vacate any deficient sentence and remand with instructions to impose at least the mandatory minimum sentence. 42 Pa.C.S.A. § 9718.4 (D).
Forfeiture of any personal or real property that the court finds aided or assisted the commission of the major sex or failure to register offenses is now possible. This means houses and cars in addition to computers and other more typical instrumentalities of the crime.
Most significantly, the reclassification scheme fundamentally alters the post-adjudication lifetime supervision compliance requirements of all juveniles, regardless of whether they are in custody or supervision on their 20th birthday. Juvenile Offenders, “sexually violent delinquent children”, and juveniles previously civilly committed are now required to be annually psychologically assessed and are exposed to yearly involuntarily civil commitment. 42 Pa.C.S.A. § 6403. Importantly, sexually violent delinquent children are those children, regardless of what sex offense they were adjudicated of committing, who have been assessed as such by the Sex Offenders Board.
At a civil commitment hearing, the Commonwealth must prove by clear and convincing evidence that “the person has a mental abnormality or personality disorder which results in serious difficulty in controlling sexually violent behavior that makes the person likely to engage in an act of sexual violence.” 42 Pa.C.S.A. § 6404(D). If the court makes such a finding, it shall immediately commit the individual for one year for treatment, with only an annual review.
If the offender is released from involuntary civil commitment, there is an additional year of involuntary outpatient treatment, with extensive supervision restrictions, including polygraph testing, prior to discharge from court supervision. 42 Pa.C.S.A. § 6404.2. A juvenile, or adult by now, who violates any term of the out-patient treatment plan shall be judicially recommitted for a year without a hearing upon presentation of such violations to the court. 42 Pa.C.S.A. § 6404.2(E).

Assault’s Against Police with a Gun and Mandatory Sentences

On October 17, 2008 the legislature enacted two related sentencing modifications. Under provision 42 Pa.C.S. § 9719.1 (2012), the Legislature enacted a mandatory minimum sentence of twenty years in jail for those persons convicted of the first degree felony against a police officer, under the specific statutory charge in 18 Pa.C.S. § 2702.1(a) (relating to assault of law enforcement officer) — not less than 20 years.

In conjunction therewith, the legislature amended § 2702.1(1) to read § 2702.1. Assault of law enforcement officer: (a) Assault of a law enforcement officer in the first degree. –A person commits a felony of the first degree who attempts to cause or intentionally or knowingly causes bodily injury to a law enforcement officer, while in the performance of duty and with knowledge that the victim is a law enforcement officer, by discharging a firearm.

Further, the law now provides at § 2702.1(b) Authority of court in sentencing. –There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

As well, the statute provides at § 2702.1(c) Appeal by Commonwealth. –If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section. 18 Pa.C.S. § 2702.1 (2012), Act 2008-131 (H.B. 1845), P.L. 1628, § 1.1, approved Oct. 17, 2008, eff. in 60 days.

Significantly, this new mandatory minimum sentence is a second mandatory minimum sentence that seals with any offense committed with a fire arm. If a person is convicted of the general firearms offense but not convicted of Aggravated Assault charge against the police office, there is still a mandatory sentence. 42 Pa.C.S. § 9712 (2012) (a) states: Mandatory sentence. –Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.

There is not a trial on these issues. Rather, the law provides, (b) Proof at sentencing. –Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.