Posted by Quiz Questions:
1. Is the government entitled to more time for its closing argument than defense counsel because it has the burden of proof?
2. The federal Anti-Kickback Statute prohibits—among other things—knowingly and willfully receiving money or other things of value in return for referring an individual for an item or service for which payment may be made under a federal health care program, such as Medicare or Medicaid. Let’s say a doctor was paid kickbacks (in cash) to write more prescriptions. To obtain a conviction, does the government have to prove that payment for the prescriptions actually came from the federal healthcare programs?
3. Must a judge follow a particular process or script to ensure a defendant knowingly waives his right to counsel?
Eleventh Circuit Opinions:
Elizabeth Hernandez, nurse practitioner, appealed her conviction and sentence of 20 years confinement for committing Medicare fraud to the tune of $111 million. Hernandez was convicted of writing bogus prescriptions for durable medical equipment, genetic testing, and COVID-related telemedicine appointments and receiving $1.66 million kickbacks. At trial, she was denied equal time for her closing argument. The court allotted the government 40 minutes and Hernandez only 30 minutes. After her time expired, Hernandez asked for 10 more minutes because the government exceeded its time, and because she was unable to cover several topics relevant to her defense. The court denied her request, explaining that the government should receive more time for closing because it had the burden of proof. In United States v. Hernandez, the Eleventh Circuit held that the district court abused its discretion by justifying the unequal time based upon the burden of proof. It distinguished several multi-party cases, where a trial court’s discretion is broad, and found error. The error, however, was deemed harmless because Hernandez was not prejudiced, either by an inability to raise key arguments or by the government’s advantage, given the overwhelming evidence of guilt. [By Tom Hawker].
A doctor and a pharmaceutical company sales representative were charged with conspiracy and Anti-Kickback Statute (AKS) violations for their roles in an alleged bribery scheme involving a fentanyl-based pain medication. At trial, the VP of Sales for the pharmaceutical company that manufactured the pain medication testified that the doctor was a “whale”—an industry term for a doctor who is particularly valuable to a sales rep because, for cash, the doctor will write a significant number of prescriptions to new patients and increase the doses of current patients. The payments to the doctor were disguised as compensation for participation in pharmaceutical “speaker programs.” Although these programs were “ostensibly to introduce [the pain medication] to physicians in the community,” in reality, often, only the doctor, the sales representative, and maybe a family member were in attendance. The jury convicted the pair on all counts. On appeal, the doctor challenged the sufficiency of the evidence supporting the conspiracy and AKS convictions. In United States v. Chun, the Eleventh Circuit affirmed. With respect to the conspiracy and AKS convictions, the Court concluded that the government presented sufficient evidence for the jury to find that the doctor knowingly and willfully accepted remuneration in connection with referrals involving patients who could be covered by a federal healthcare program. That evidence included testimony from the pharmaceutical company’s former CEO, who described the “speaker programs” as trading cash for prescriptions. The panel also addressed an issue of first impression: What must the government prove to establish the requisite connection between an alleged kickback scheme and a federal healthcare program? On this point, the panel held that the government need only show that the defendant knowingly agreed to accept renumeration for referring patients that could be federally insured. After reviewing the sufficiency of the evidence de novo, the Court found that the convictions were supported by the record. [By Jeff Carr].
Much like his employer the Jacksonville Jaguars in recent seasons, Samuel Thompson showed early promise before collapsing late. Thompson operated the Jags’ jumbotron, but was fired when his child sodomy conviction came to light. Not content to fade away quietly, Thompson engineered a glitch that disrupted the screen during home games. The team set up a “honeypot” operation to catch the perpetrator, then passed the evidence on to the FBI, which traced it to Thompson. Searches of his home and electronics led to a slew of charges involving child pornography, gun possession, sex offender registration violations, and computer hacking. Continuing his questionable decision-making, he asked to represent himself in court and was allowed to do so after a Faretta hearing. At trial, Thompson was convicted on all counts and then sentenced to 220 years in prison. He appealed, this time with counsel, raising three claims: (1) the waiver of counsel was not valid, (2) the motions to compel discovery and continue trial were wrongly denied, and (3) a child witness was improperly permitted to testify by closed-circuit television. In United States v. Thompson, the Eleventh Circuit rejected each claim. First, the Faretta hearing, though not required, was perfectly adequate, and no “mechanical repetition” of the same process was needed once a superseding indictment was filed to add more charges. Second, Thompson was given appropriate access to the discovery under the Federal Rules of Criminal Procedure, and denying his continuance requests was fine given their vagueness and Thompson squandering the prep time he was already given. Third, the record supported allowing one child victim to testify by CCTV, based on the likelihood the child would suffer debilitating anxiety if required to testify live in front of Thompson. The convictions were affirmed. [By Joe Austin].
Quiz Answers:
1. No. There must be a valid reason offered for the disparity in time for closing arguments, which may not be present in single-defendant cases.
2. No. The government does not have to prove that specific prescriptions were actually reimbursed by a federal healthcare program. It is sufficient to show that the defendant knowingly agreed to accept remuneration for referring patients who could be covered by a federal healthcare program.
3. No. Although a Faretta hearing—at which the judge explains the perils of self-representation and the basic procedure of a case—is the best way to ensure a knowing waiver, it is not required, so long as the record reflects that the defendant knows and freely chooses to face the dangers of self-representation.
