Posts Tagged ‘fraud’

Supervised release does not run during period of imprisonment unless period is less than 30 consecutive days.

Wednesday, November 25th, 2009

U.S. v. JOHNSON, 581 F.3d 1310 (11th Cir. September 2, 2009)

The defendant challenged his supervised release sentence revocation on the ground that he had completed his three years of supervised release prior to the date of the supervised release revocation petition. Defendant had transferred to a Virginia state facility, on detainer, to answer pending criminal charges, after release from serving his federal sentence. The defendant remained in state custody until he plead guilty in Virginia, was sentenced, released, and credited for time served under the detainer.
Subsequently, the defendant was arrested for fraud and forgery charges and Probation filed a petition to revoke his supervised release. At the revocation hearing, the defendant argued that the district court lacked jurisdiction because his three year supervised release term had already expired and the time in custody in Virginia did not toll that term. The district court disagreed and revoked his supervised release.
On appeal, the defendant argued that his three year supervised release term began running when he was released from federal prison. In its decision, the Eleventh Circuit relied on a Supreme Court decision in 2000 which held that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” United States v. Johnson, 529 U.S. 53, 57 (2000). The Court found the defendant’s Virginia sentencing order mandated two years imprisonment, which was more than 30 days. As such, the term of supervised release did not run during the time he was in state custody.

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Posted in Jurisdiction, Supervised Release Conditions | No Comments »

A person who alters records that have been subpoenaed by a grand jury obstructs an investigation of Medicare fraud.

Friday, July 3rd, 2009

USA v. Hoffman-Vaile, No. 07-12629 (11th Circuit USCA)

The defendant, a dermatologist from Florida, appeals her convictions and sentences on charges of health care fraud, filing false claims, and obstruction of justice. The Defendant was billing Medicare at an aberrant rate under a billing code for an unusual and complicated procedure. It was determined that from 1993 through 1999, the defendant billed under this particular code more often and for greater amounts than under any other billing code. When contacted by the private contractor for Medicare, the defendant was asked to provide photographs that corresponded with the surgeries billed for. The defendant, after many chances, did not comply.
In 2002 the Department of Health and Human Services obtained a federal search warrant for patient files with the suspect billing code and seized over 3,000 files from the defendant’s office. However, the Department was unable to locate about 300 files.
In 2003, a federal grand jury issued a subpoena that directed the defendant to produce the missing files. The defendant produced 185 of the missing files but most of the records lacked the requisite photographs. The defendant’s attorneys later produced a box of loose photographs to the government.
The defendant was indicted in July 2005 on 44 counts of health care fraud, 44 counts of filing false claims, and one count of obstruction of justice-she instructed her employees to remove photographs from the subpoenaed files. The defendant was sentenced to 60 months of imprisonment for each fraud count and false claims count, to be served concurrently, and 18 months imprisonment for obstruction.
The 11th Circuit Court of Appeals affirmed the defendant’s convictions and sentences, but vacated and remanded the forfeiture money judgment for further proceedings.

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Posted in Search Warrant, Search and Seizure, Sentencing Guidelines, sentence enhancement | No Comments »

The En banc Court reversed the panel decision that overturned a fraud conviction for the failure to give the defense requested jury instruction.

Monday, April 27th, 2009

U.S. v. SVETE, 556 F.3d 1157 (11th Cir. 2009)

The panel reversed the conviction because the pattern jury instructions failed to instruct concerning whether it was reasonable for prudent investors to rely on defendants’ statements. The panel held that the inaccuracy in the jury instruction impaired the defendants’ ability to argue that, in light of the available documentation, it was unreasonable for any prudent investor to have relied on the defendants’ contrary statements, or not to seek independent advice. Svete, 521 F.3d 1302. The en banc Court reversed the panel, finding that the mail fraud statute does not require proof that a scheme to defraud would deceive persons of ordinary intelligence. A jury must only find that the scheme would have deceived a prudent and ordinary investor, and not simply one who may be gullible.

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Posted in Jury Instructions | No Comments »