Lengthy Medicare Fraud trial underway

The case is before Judge Seitz and it's expected to last 2-3 months. The Herald covered the first round of opening statements here, which included openings by the prosecutor Jennifer Saulino and defense lawyers Jose Quinon and Sam Rabin:

“Every fraud is about the appearance of legitimacy,” Justice Department lawyer Jennifer Saulino told a 12-person jury in Miami federal court. “The evidence will show that they worked hard to make this scheme look legitimate.” And so began one of the nation’s biggest healthcare fraud trials, in which seven defendants who mostly worked on the professional side of American Therapeutic Corp. were portrayed as common thieves bilking the taxpayer-funded Medicare program. Prosecutors said the elaborate racket enabled American Therapeutic to bill the federal government $205 million for group therapy sessions, purportedly to treat thousands of patients who they say faked depression, schizophrenia or bipolar conditions. Many also suffered from dementia and Alzheimer’s disease and could not have possibly benefited from the treatments, prosecutors said.

***

 But their defense attorneys painted a starkly different picture of the physicians, saying the business side of American Therapeutic — including four top executives who have already been convicted of Medicare fraud — kept the physicians in the dark. The executives collaborated to recruit patients from assisted-living facilities and halfway houses by paying the residential operators kickbacks in cash-filled envelopes. Then they coached the patients on how to fake mental illness to trick the doctors, the defense lawyers said. “When Dr. Willner worked at American Therapeutic, he didn’t know the fraud was going on,” attorney Sam Rabin told the jurors. “Dr. Willner was one of the people the fraud was hidden from.” Rabin said that Willner worked part-time at two Broward County clinics for American Therapeutic, visiting them once or twice a week as he interacted with his team of psychiatric nurses and others. Ayala’s defense lawyer, Jose Quiñon, said his client worked part-time at American Therapeutic’s main clinic in downtown Miami, visiting the facility once a week. Quiñon said the physician was unaware of the corruption carried out by the company’s top executives. Both Quiñon and Rabin told the jurors to be skeptical about the Justice Department’s key witnesses, especially American Therapeutic’s former chief executive officer, Marianella Valera, who was the girlfriend of the company’s one-time owner, Lawrence Duran.

I heard that the openings by Saulino, Quinon and Rabin were all very powerful.

I happened to be in court this morning and saw Mike Tein give his opening, which was great. Extremely moving and to the point.  One of the hard parts about giving opening in a lengthy trial with lots of defendants is keeping the jurors interested.  Tein kept the jury interested and got his theme across well -- I was on the edge of my seat.  If you get a chance, you should get over to the courtroom and watch some great lawyering on both sides.

Bob Dylan, Judge Goodman, and my dad

OK, so it's a very blurry picture. Sorry!

Anyway, Magistrate Judge Goodman spoke this afternoon at the federal bar luncheon series on Rock & Roll and judicial opinions. Fun stuff. Prizes were even given away...

Of course, Bob Dylan was referenced a bunch.

Speaking of Bob Dylan, check out this opinion from the 11th Circuit dealing with Dylan's song "Hurricane."

 My dad, Stuart Markus, represented the plaintiff and got to take Dylan's depo. The way he tells the story is that he was on one side of the conference room table, and Dylan with a dozen lawyers were on the other side...

Here's the song:

Judge Alex Kozinski speaks... (UPDATED)

... at UM Law in the Robert B. Cole Lecture Series.  And it was very entertaining.

Using a huge screen powerpoint presentation (see the picture below with the screen shot from Cheers), Kozinski spoke about IP law, persuasive lawyering, and when it's best not to file suit.  Examples included: the old Nintendo system and Mario Bros 3; Johnny Mathis's song When Sunny Gets Blue v. Rick Dees' song When Sunny Sniffs Glue; Barbie v. Bratz; the I'm a Barbie Girl song; Vanna White; Platoon; Cheers; Gay Olympic games; New Kids on the Block; and the Streisand effect... just to name a few.

Here are a few pictures from the extremely engaging talk, including yours truly with the good judge and Professor Ricardo Bascuas. 

And just in case you wanted to see the I'm A Barbie Girl video:




UPDATE -- Judge Kozinski issued this en banc opinion yesterday (while he was in Miami) concerning the computer fraud and abuse act, holding that the act did not criminalize violating a computer use policy:

Computers have become an indispensable part of our daily lives. We use them for work; we use them for play. Some- times we use them for play at work. Many employers have adopted policies prohibiting the use of work computers for nonbusiness purposes. Does an employee who violates such a policy commit a federal crime? How about someone who violates the terms of service of a social networking website? This depends on how broadly we read the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030.

Back at it -- Monday news and notes

So, I left the Barbara Medina post up for a few days because I thought it was important to let people know what happened and to put their comments about Barbara.  Really sad....  She was a really nice person.

-- The NY Times had an interesting article this weekend about the growing prison consulting industry.  I've never recommended that a client use a prison consultant.  Instead, I have the client and his family talk to someone who recently did time at the designated prison.  Each place is different and the rules change all the time, so it doesn't make sense to me to talk to someone who did time 8 years ago at a place on the other side of the country.

-- Should be an interesting talk about Rock and Roll by Judge Goodman:

LUNCHEON MEETING FEATURING

THE HONORABLE JONATHAN GOODMAN

Guest Speaker:

The Honorable Jonathan Goodman, United States Magistrate Judge,

will address the must-hear-this topic:

"Rock & Roll Music in Judicial Opinions"

When:           Wednesday, April 11, 2012

                       11:45 a.m. - 1:15 p.m.

Where:          The Bankers Club

                                   One Biscayne Tower

                                   2 South Biscayne Blvd., 14^th Floor

                                   Miami, FL 33131

-- Speaking of events, Roy Black and Matt Menchel will be speaking on closing arguments.  Seems like a cool event:

Upcoming Event - April 19, 2012

Persuasive Closing Arguments - A Demonstration and Discussion of a Closing Argument in the Helio Castroneves Case

Please join us for this complimentary seminar/webinar presented by one of the nation's premier criminal and civil trial lawyers Roy Black of Black, Srebnick, Kornspan & Stumpf, P.A.  Mr. Black will present a demonstration on how to prepare and deliver powerful closing arguments referencing his recent closing argument in the Helio Castroneves case. The demonstration will be followed by a dynamic Q&A session with Mr. Black as well as Kobre & Kim Center for Trial Advocacy founder, Matthew Menchel.

Live complimentary webinar and seminar:
Thursday April 19, 2012
6:30pm – 7:30pm EDT – Live Seminar and Webinar
7:30pm – 8:30pm EDT – Live Seminar Cocktail Reception
 
Live seminar will be held at:

The EPIC Hotel
270 Biscayne Boulevard Way, Miami, Florida

-- Paul Clement reads How Appealing and SCOTUSBlog.  What about SDFLA?!

RIP Barbara Medina

Very very sad -- Barbara Medina (Judge Altonaga's court reporter) passed away today after being diagnosed with cancer two weeks ago. Services are tomorrow at Riverside Gordon Memorial Chapels, 20955 Biscayne Blvd, Aventura, FL 33180

I am going to miss her.  She was always very understanding and listened to the lawyers before and after court.  She also told it like it was and didn't hold back how she felt about a particular case, witness or argument.  There was no better jury consultant during trial...  She was the court reporter in my very first trial, back when she was with Judge Graham.  She knew a hell of a lot more about trying cases than I did.   

Damn, very sad. 

Applicants for SDFLA judgeship

These are the applicants for Judge Jordan's seat:

 Cynthia G. Angelos
 Alice L. Blackwell
Beatrice A. Butchko
Jeffrey J. Colbath
Theodore M. Cooperstein
Maria Espinosa Dennis
Candace R. Duff
Kevin Hendrickson
Peter R. Lopez
Robin L. Rosenberg
Jeremy E. Slusher
William L. Thomas
John W. Thornton, Jr.
Daryl E. Trawick
Garth T. Yearick

Thanks very much to my tipster for the names.

In other news, Magistrate Judge Barry Seltzer is taking over as Chief Magistrate Judge for the District, and Alicia Otazo-Reyes is starting next week as Judge Brown is retiring.

Spring time

Well, what's up peeps? My favorite video of the weekend: Big sports week -- tonight is the NCAA basketball national championship. And the Marlins open up their new park this Wednesday. No block! The NY Times covered cell phone tracking this weekend. This seems much worse to me than the GPS tracking that the Supremes just found unconstitutional.

The presentation said that since the Supreme Court first ruled on wiretapping law in 1928 in a Prohibition-era case involving a bootlegger, “subtler and more far-reaching means of invading privacy have become available to the government.” Technological breakthroughs, it continued, have made it possible for the government “to obtain disclosure in court of what is whispered in the closet.” In interviews, lawyers and law enforcement officials agreed that there was uncertainty over what information the police are entitled to get legally from cell companies, what standards of evidence they must meet and when courts must get involved. A number of judges have come to conflicting decisions in balancing cellphone users’ constitutional privacy rights with law enforcement’s need for information. In a 2010 ruling, the United States Court of Appeals for the Third Circuit, in Philadelphia, said a judge could require the authorities to obtain a warrant based on probable cause before demanding cellphone records or location information from a provider. (A similar case from Texas is pending in the Fifth Circuit.) “It’s terribly confusing, and it’s understandable, when even the federal courts can’t agree,” said Michael Sussman, a Washington lawyer who represents cell carriers. The carriers “push back a lot” when the police urgently seek out cell locations or other information in what are purported to be life-or-death situations, he said. “Not every emergency is really an emergency.”

How bad was SG Verrilli's argument? Here's Law.com with some analysis:

CNN commentator Jeffrey Toobin, author of a best-selling book on the Court, went outside on March 27 to pronounce on the air that the argument was a "train wreck" for the government. Toobin asserted that Verrilli had done a "simply awful" job and was not "ready with good answers." Carrie Severino, a former Clarence Thomas clerk, chief counsel to the Judicial Crisis Network and an ardent opponent of the Affordable Care Act, also spoke of Verrilli's "rough start" and "stumbling" presentation. Other critics took Verrilli to task for failing to give a crisp answer to the request by conservative justices for a "limiting principle" that would reassure them that Verrilli was not asking for unlimited federal power to cure all ills. In addition, some said Verrilli should have repeatedly focused attention on Court precedents like Gonzales v. Raich in which the Court gave an expansive reading to the commerce power of Congress. But supporters of the law quickly came to Verrilli's defense, asserting that the contrasting styles of the lawyers who argued should not obscure the fact that the SG had made all the points he had intended to make. Mayer Brown's Andrew Pincus, another veteran advocate who was in the audience for most of the three days, said the government had "the harder side of the stick," adding that "the justices asked probing questions, which is what you would expect of an argument of this moment and magnitude.…I think Don did a good job of explaining why this market is unique." Thomas Goldstein of Goldstein & Russell, who also watched the arguments, said the "optics" of an argument can be affected by factors entirely outside the control of the lawyers. The Court's conservative justices are sharper questioners, for example, making their target — in this case Verrilli — seem like he is always on the defensive. "It's easy for Paul to look brilliant when he has them on his side," said Goldstein, referring to Bancroft partner Paul Clement, the lead lawyer arguing against the statute.

Romney was fooled yesterday:

Campaign workers took Romney to a room he thought was packed with supporters gathered for a pancake brunch. It was supposed to be his first campaign stop Sunday as he courted Wisconsin voters ahead of Tuesday's primary. Romney said Rep. Paul Ryan walked out into the ballroom first and introduced Romney as he waited backstage with his newest supporter, Sen. Ron Johnson, R-Wis. There were the standard backstage cues for where to stand, along with Secret Service protection. As Romney stood behind a black curtain, Ryan offered his usual enthusiastic endorsement, singing Romney's praises as applause filtered backstage. His staff warned him not to expect a big crowd. That was an understatement. Finally, it was time for Romney and Johnson to step into the room. "The two of us go out there, and it's completely empty. There's nobody there," a smiling Romney said when his staff later brought him to the right room, where supporters had gathered, upstairs. "Not only do they do that, but they caught it on camera," Romney said. "This is known as forgive, but remember." Staffers plan to post a video of the prank on their blog.

Robin Rosenbaum makes it out of Committee

Next step is the Floor vote. Glenn Sugameli tells me that this will likely happen after May 7, but at least we are moving in the right direction... Congrats to Judge Rosenbaum on today's vote.