Try to Recognize when an Attorney is Needed

When is it important to hire an attorney in a licensing and criminal defense case? When case agent first contacts you!  Do not talk to them.  Just say thank you, I will call you back; can we meet next week; no you can not come into my house!!

Every day licensing board investigators, police detectives, human resource departments, or other government investigators reach out to targets or “individuals of interest” in a wide range of potential investigations. These law enforcement officers (most state investigators are retired police detectives) are trained to secure statements from the subject of the investigation.  They call you, show up at your house, or try to meet with you at work.  This is when you know you need a lawyer.

My blogs generate phone calls from potential clients.  A recent theme of these calls sticks out;  investigators are employing consistent, heightened and aggressive investigative techniques to surreptitiously secure statements and admissions of criminal conduct, unprofessional licensing behavior, or illegal behavior.  This is explained in one sentence; why do an investigation when an admission from the target will solve the case.

Targets give statements for one reason: ignorance and naïve understanding of the law.   Targets  or potential criminal defendants give statements because they think they are obligated to cooperate, should cooperate, or that cooperating is in their best interest.  These reasons are incorrect.

Admitting to engaging in questionable or criminal conduct eliminates investigator’s obligation and duty of proving their case through means other than an admission by the target.  Admissions to detectives and investigators eliminates their need to perform basic investigator police work.  It satisfies  the police officer’s burden of proof in securing evidence of illegal or criminal conduct against you.

Licensees who admit to a Board investigator to practicing outside the scope of their license, stealing from their clients, overcharging for services, or any other offense does the investigator’s job.  In many cases, before the statement is secured, there is only a mere suspicion of inappropriate behavior.  There is no specific evidence of a criminal act. The statement itself becomes the evidence against you. The person giving the statement creates the criminal evidence for the investigator that they did not otherwise have.   (I feel the same way  about licensees who cooperate in the PHMP VRP assessments.  Do not give the Board’s any evidence they do not have.)

Once a criminal admission is given, the police officers don’t do anymore work. The state investigators don’t do anymore work. This is why there is no legal obligation to cooperate.

Giving statements to employers in work place investigations has the same ultimate result. I have written about this many times. Choosing to not give a blood test, write a personal statement, or even provide copies of medical records cannot be held against you. You can be fired, but it can’t be held against you. At times it’s more important to choose to remain silent then to keep your job.  Anything you say in the employment setting is merely turned over to the board investigator or police.

Remaining silent and not cooperating with any investigation  — not disclosing truly damaging information — sometimes is the best defense of your license or against criminal charges.  Do not succumb to the police officer bullying. Suggestions by police that they can secure search or arrest warrants should not persuade you to give up your constitutional rights.

You do not have to give a statement. You do not have to give a DNA test. You do not have to participate in any polygraph evaluation.   If the officer does not believe your word or accept your version of events, agreeing to provide objective forensic evidence will not change their mind. You will just be giving them evidence to accumulate and use against you at a later date.

Hopefully you have the opportunity to read this blog before you have spoken to an investigator about a licensing issue, participated in the workplace related investigation, or cooperated with any police inquiry inquiry about your job or your behavior. If not, call me as soon as possible.

Whether you hire me or any other lawyer, stop stop cooperating with any police investigation.

Automobile Warrantless Searches and the Exclusionary Rules

Sometimes crazy things happen on the way to surrendering to federal prison. A recent case discusses issues a convicted federal felon confronted when he chose to not surrender but flee to the New Mexico border. When U.S. Marshals found him sitting in his car in the parking lot of a border motel, strange search and seizure constitutional violations of his hotel room and car began to take place. I am sure many of these search techniques are utilized daily.

The case is U.S. v. Donahue, out of the Middle District of Pennsylvania. The searches of his hotel room and car were incident to his arrest for failing to report to federal prison as ordered. However, at the suppression hearing, it was discovered that upon Donahue’s detention near his car, U.S. Marshal searches of Donahue’s car and hotel room were pursuant to instruction for a Scranton, Pa U.S. Marshal, not investigative in nature.

Importantly, the Court determined that the U.S. Marshal’s office in Pennsylvania authorized a search of Mr. Donahue’s car. An inventory search of the car was performed one day later by the New Mexico FBI office. It is at that time a gun was found. Donahue moved to suppress the search of his vehicle aiming to not be convicted of being a federal felon in possession of a firearm.

Donahue argued 1) he had standing to move to suppress the illegal car search as he was a permissive user of the car, 2) the searches were illegal because they were not pursuant to either a warrant or probable cause of criminal activity, 3) there were no exigent circumstances present allowing for the warrantless search of his car, and 4) the inevitable discovery doctrine regarding inventory searches was equally inapplicable.

The government argued that Mr. Donahue had stolen the car and therefore did not possess standing to seek to suppress the evidence. Thereafter, the government argued that the search was pursuant to a reasonable suspicion of criminal activity (a federal felon not reporting for prison), and even if there was no probable cause, FBI search procedures of vehicles impounded pursuant to criminal investigations warranted application of the inevitable discovery doctrine.

As the car was being inventoried, seats were moved and the gun was found underneath. My experience with these cases and the law addressing propriety of U.S. Marshall, FBI, and state police officers searching and inventory tactics is expansive. This case presents clear overreaching by government investigative measures and on the scene search techniques.  The governmental attorneys failed in their attempt to masquerade the search as a legal on the scene warrantless search or policy driven inventory search.

First the court addressed Donahue’s standing to contest the car search. The Court found that the vehicle was not stolen. The government cited a psychiatrist report stating Mr. Donahue stole the vehicle. The defendant presented vehicle owner testimony whom provided authority to operate the vehicle. As such, Mr. Donahue had standing to contest the search of his vehicle.

Having standing to object to the search, Mr. Donahue then contested the government’s search of his vehicle without a warrant. The Fourth Amendment guarantees that: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend IV. “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself. The automobile exception to the warrant requirement requires the search occur on a readily mobile car for which exigent circumstances present itself.

The government argued that because Mr. Donahue was a convicted felon who did not surrendered to prison, the car was the instrumentality of that crime and thus the warrantless vehicle search was proper . The same argument applied to the hotel room. The court expressly disagreed, citing the elements of the offense of failing to report to prison as a formal court order and failing to be present at the federal prison on the date and time identified. There is no requirement in the statute that the defendant be in a house, hotel room, or car. As such, searching Mr. Donahue’s hotel room or car did not present a fair probability that evidence of the crime (failure report to prison) would be discovered. Hence, the car and hotel room searches without a warrant were illegal.

Having determined that the search of the car illegal, the government argued that the government was still permitted inventory the contents of the car for the purposes of further investigative reasons. The court disagreed with this position as well. Because the car was searched based upon U.S. Marshal instruction and not FBI investigative procedures, the government’s argument was contrary to the evidence.  As such, there was no basis to inventory the items in the vehicle or apply the inevitable discovery doctrine. All evidence secured from the initial illegal search was therefore precluded and determined to be inadmissible.  The gun was suppressed and any additional criminal charges of a felon possessing a firearm while failing to report to prison would have to be dismissed.

Please call me to discuss your case.

Health Care Fraud Cases

Being investigated by any governmental health insurance program carries with it both significant responsibilities and repercussions if the representation is handled incorrectly, wrong advice given, or false statements made to those investigators. Emergent counsel needs will become clear depending on the nature and extent of the investigation, employee conduct, and the amount of insurance proceeds secured through improper billing.

In the typical health care fraud indictment, the United States government charges both individuals in control of the company or the appropriate workers and the corporate with one or multiple counts of Health Care Fraud in violation of Title 18, United States Code, Sections 1347 and making False Statements Relating to Health Care Matters in violation of Title 18, United States Code, Section 1035(a)(2). Theft of government funds is also always present.

The factual allegations match the criminal violations of § 1347, by setting forth a factual scheme in which the perpetrators: knowingly and willfully execute, or attempts to execute, a scheme or artifice– (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services.

Charges of violationing § 1035 relate to false statements relating to health care matters. Here, whoever, in any matter involving a health care benefit program, knowingly and willfully– (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or (2) makes any materially false, fictitious, or fraudulent statements or representations, or makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry,

Lying to a § 1035 health care investigator regarding their investigation of the delivery of or payment for health care benefits, items, or services, garners imprisonment of not more than 5 years. Committing the fraud in any manner relative to falsifying submissions for payments of services not rendered in violation of § 1347 can warrant imprisonment of not more than 10 years. If someone is seriously injured due to the fraud (as defined in 18 USCS § 1365) the maximum is 20 years. If death to a patient results from the fraud, any term of years or for life is possible.

In one case, the court held that the record amply supports the jury verdict that the defendant, the owner of the company, directed his employees to falsify records so that they did not accurately reflect the deplorable conditions. The falsified records were then provided to the Pennsylvania Department of Health (“DOH”) for the specific purpose of deceiving it into believing that Atrium complied with applicable regulations, so that Atrium would maintain its certification under Medicare and Medicaid and, hence, the flow of government money. Bell was properly found guilty of health care fraud “based upon a scheme to falsify records” that she used “in an attempt to conceal from state and federal regulatory agencies the substandard care which was being provided to residents at Atrium. United States v. Bell, 2010 U.S. Dist. LEXIS 42947, 5-6 (W.D. Pa. May 3, 2010).

Please call to discuss your health care fraud investigation, questions, and compliance issues. Please visit my web site to review collateral licensure complications associated with any medical and nursing license issue.