What Do You Wear to a "Charting Party"?

No, I don't have big weekend plans. And it's a slow pre-holiday weekend news day. So, let's talk healthcare and the Medicare "charting party" case unsealed this week in the SDFLA. DOJ's Medicare Strikeforce has indicted 3 doctors and 17 others, in what the government has dubbed the "nation's largest mental health racket," alleging that unneeded group therapy sessions and sleep studies were being routinely provided at several community mental health centers. Judge Seitz, whose courtroom was my second home as a young AUSA, has drawn the case. The charges stem from an ongoing probe into Miami-based American Therapeutics Corp. Last October, the company and four executives were charged with defrauding Medicare out of more than $200 million dollars. The government claims that medical records were altered at "charting parties" as part of the scheme. [Ok, it's not the go-go "Cocaine Cowboys" days.]

Having spent a lot of time defending and prosecuting health care cases, this case stands out to me for a few reasons. First, doctors have been arrested. You don't see doctors charged very frequently and the stakes could not be higher for them. A conviction, in almost all likelihood, will cost them their medical license and livelihood (not to mention debarment from Medicare). Second, the government is going after medical services provided to patients that are alleged to be unnecessary. Such medical necessity cases focus on medical judgment and proving criminal intent on the part of the physician can be difficult. In the case of mental health services like group therapy, where diagnoses are not black and white, it is even harder. As a defense lawyer, those are facts I like.

SDS, It's Not.

Above the Law has a funny article about our beloved UM School of Law (again). From Cairo to Coral Gables, revolution is in the air. Apparently, there are stirrings (no doubt inspired by Tahir Square) of a student movement to adopt a "Student Bill of Rights." What rights you wonder, since most of the really good ones (the ones people are dying for in Bahrain and elsewhere) already are covered in our real Bill of Rights. What noble selfless cause has gripped the student body politic? Well, fairer grading of course and less "professor autonomy" in the classroom (the obvious problem in higher education). There are 12 "amendments" posted at ATL but here are my 3 favorite with suggestions in italics:

1) The right of students to be given an unbiased legal education shall not be infringed. [And enforced by a well regulated militia. Amend. II]

2) The right of students to take exams that proportionally cover the material discussed in class and presented in the required reading shall not be contravened. [Or Else Cruel and Unusual Punishment Shall be Inflicted on the Professor. Amend. VIII]

[To reduce professor autonomy in the classroom, all professors shall blow a foghorn in class before lecturing on any tested material.]

3) The right of a student to receive a clear explanation from the professor as to how the student received their grade on any graded assignment. [And then petition the Administration for a redress of grievances. Amend. I]

Hey, I'm all for student energy but let's breathe a little. Yes, UM, like a lot of law schools, has a large student class in a depressed job market. So, I have a lot of sympathy for those hard-working students knee-deep in loan debt stressing about their future. Grades matter. I get that.

But, here's the teachable moment. Law students learning how to succeed under a professor's rules in the classroom is great training for . . . being a lawyer. We practitioners have our own professors (they're called Judges) and they lecture us on courtroom practice, not the other way around.

Barry Bonds On Deck; Clemens, Armstrong to Follow?

New developments in the Barry Bonds case now set for trial next month centering around Bond's childhood friend, trainer, and alleged PED pal Greg Anderson. You may recall that Anderson spent a year in the pokey for refusing to testify against Bonds before the grand jury. And Anderson, literally the strong silent type, has not budged since despite a promise from the bench that he'll be jailed for the duration of the trial. All of which posed a major "empty chair" problem for prosecutors or did it? In a surprise, Judge Susan Illston ruled yesterday that portions of an audiotape between Anderson and Bonds' former business partner in which Anderson discussed giving Bonds "the cream" and "the clear" were admissible despite the hearsay nature of the evidence. Judge Illston also has recently suggested that she will tell the jury "something" about why Anderson is not a witness at trial without explicitly mentioning his refusal to testify. Hard to say anything in that spot that isn't downright misleading or prejudicial to Bonds (hmm, "The dog ate our witness"?). So, it looks like an 0-2 count for Barry with Clemens due up later this year. You'd think at some point these guys would listen to some good legal advice and shut up. It's the testifying, stupid. The substance itself, juicing without a prescription, is not the stuff a federal case makes. Everyone knows they're users not traffickers.

Which brings us to today's "Retirement 2.0" announcement by Lance Armstrong, a decision he attributed in part to his "off field" issues (can you say Jeff Novitzky). Rumors have been swirling since the fall about potentially "imminent" charges in the federal investigation. But I am hard-pressed to see a viable charge absent any perjury. Defrauding the U.S. Postal Service out of sponsorship monies? C'mon. Trafficking PEDs to racing teammates? A stretch. Plus, how do you even charge a procedure like blood spinning?

So Lance when you get that subpoena, Just Don't Do It.

Justice Breyer at the DCBA

Great DCBA Event this afternoon at the Hyatt where Justice Stephen Breyer spoke to a packed audience about his new book, "Making Our Democracy Work: A Judge's View," published last September. In the book, Justice Breyer lays out his theory of "pragmatic" jurisprudence, an intellectual counterweight to Justice Scalia's textualist approach. At the talk, Justice Breyer actually credited conversations with Justice Scalia for inspiring him to write the book (now those sessions would be pay-per-view worthy). Justice Breyer was on his game and quite funny at times. You can see why he was known as a great law school professor back in the day. For those that missed or enjoyed like I did, here's a link to a transcript of a Terry Gross ("Fresh Air") interview with Justice Breyer from last September on the book and more.

Yo Ho Ho

You know you've been a bad boy when your lawyer agrees to a low-end sentence of 27 years. Abduwali Muse, the sole survivor of a four-person Somali pirate gang that hijacked the Maersk Alabama in April 2009, will be sentenced Wed. in the SDNY. Muse and his cronies kidnapped 53 people in a five-week stretch before a daring Navy Seal raid freed the hostages. The plea deal avoided a conviction for federal piracy which carries a mandatory life sentence. Muse was somewhere between 16 and 18 years of age at the time of the spree. Prosecutors are arguing for the high-end range which is just shy of 34 years. The NYT has coverage here.

My Kingdom for a Home

Ok, it's not quite Shakespeare but the SDFLA criminal trial of former Lancer hedge fund impresario, Michael Lauer, is inching closer to DDay and love is most definitely NOT in the air. They're up to docket entry #917, which is worth the read, and Judge Jordan (who seems to get more than his fair share of big paper cases) is umpiring. It's been a rough go for Lauer who had his assets frozen in a 2003 SEC enforcement action and his Greenwich home auctioned off by the IRS. The asset freeze also cost him go-to lawyer, Norman Moscowitz (always on my speed-dial), but luckily for Lauer the Court qualified him as indigent and appointed an FPD team ably led by Chief Assistant Michael Caruso.


Lauer, now living in NYC, is trying to get the government to pay for his housing during the expected two-to-three month trial in Miami slated to begin at the end of the month or else transfer venue to SDNY. As part of his down-and-out pitch, Lauer pointed to the total asset freeze and ongoing eviction proceedings against him for failure to pay for his NYC apartment rental. Which got the government digging into gumshoe landlord-tenant terrain. In its papers, the government paints Lauer as a closet John Le Carre fan who obtained the said apartment by posing as one "Misha" or "Michal Lauer" with an identity card from, of all places, "the Republic of Poland." The pleading also contains this deadpan scholarly footnote from AUSA Harry Schimkat who gets in the Valentine's mood: According to one internet dictionary, 'Misha' is a Russian nickname for Mikhail. It also means little bear or teddy bear. If the government can prove this up, Lauer may be feeling like this when all is said and done.

But beyond the bear humor, there are real issues raised with pre-trial asset freezes. It's been more than 20 years since a 5-4 Supreme Court found, in a drug trafficking case, that depriving a criminal defendant of his ability to pay for a private attorney through an asset freeze does not violate the 6th Amendment. The majority's reasoning was that "a robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his." Of course, the argument presupposes guilt, prior to adjudication, and is a particularly awkward fit in many white collar cases where a defendant earns income from a legitimate financial sector job but stands accused of some type of workplace fraud. In the civil context, a defendant is not even entitled to appointed counsel leaving some once-wealthy defendants to have to go pro se against the SEC and federal regulators. And though in today's climate there is little public sympathy for those accused of financial fraud, the truth is these complex heavy-document cases require hefty resources to adequately defend. To have the Lauers of the world swallow up large amounts of taxpayer-financed indigent defense resources has never made much sense to me. Here's hoping the Supremes revisit this case law in the white collar context soon.

And then there's the added question of trial detention. To detain a defendant, who has complied with bond conditions and has been found to not be a flight risk, during a lengthy out-of-state trial because he cannot afford a hotel, seems unfairly punitive. Well, there's certainly plenty of local foreclosure vacancy. Maybe Judge Jordan will get creative.

Stay tuned . . .

Happy V Day!

The (much) less famous Marcus (but more importantly better Beth Am basketball player) in the house covering for the Big D. I haven't won a grammy or anything but I'm feeling pretty good this morning. At the shiny controls of the Blog mothership, my spiritual journey from prosecutor to defense lawyer is now complete. And the week already is a personal success because I learned the important stuff like inserting pics. Time to put the toys down and figure out something to write for you all. Feel free to email me noteworthy items this week at jeffmarcus@bellsouth.net.

Welcome a new guest blogger

Starting Monday, I'm excited to announce that we'll have Jeff Marcus guest blogging for the week.

Enjoy!