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White Collar Defense & Compliance

Developments in Criminal Law, Federal Case Law and Statutory Developments

Third Circuit Opinion Cites Alain Leibman’s Fox WC Blog Entry

Posted in Sentencing

Alain Leibman writes:

Those of you who follow, or at least sporadically read, this blog know that it attempts to treat in a considered way important issues facing the white collar bar and our clients.  Still, like any blog, it exists largely in the ether, the cabined air of the blogosphere where interesting ideas are explored and debated.  Like the proverbial falling tree in a forest, though, one cannot be certain that any blog-based analysis finds resonance in the real world.

Until now, that is.  I blogged here recently about an inexplicable decision of the Third Circuit in United States v. Erwin.   Erwin had bargained for a cooperating plea agreement, gotten it, and performed his end of the bargain, both by pleading guilty and by cooperating successfully with the Government.  A minor, boilerplate provision in his plea agreement provided that he waived any appeal of his sentence.  Dissatisfied with his cooperation-reduced sentence, Erwin filed an appeal anyway, and a vindictive prosecution not only sought its dismissal as frivolous, but asked for, and was granted by the Circuit as a punitive measure, the right to a sentencing de novo where the Government would no longer be obliged to credit Erwin for cooperation.

Erwin sensibly moved for rehearing by the panel, or in the alternative, by the entire Court.  The entire Third Circuit, in a split decision rendered on December 31, 2014, but filed yesterday, denied rehearing.  However, several Judges joined an opinion written by Judge Ambro which would have affirmed only the dismissal of the appeal on the basis of the waiver, but which dissented from the broader judgment vacating the original sentence and granting de novo sentencing.  In so doing, and in a very unusual sight, Judge Ambro cited to and quoted from the earlier blog entry in this space, among other blog entries critical of the original panel’s decision:

The panel provides no sound reason for its new remedy, and I join the growing chorus of commentators who have lamented this decision.  See Kevin Bennardo, United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements, 71 Wash. & Lee L.Rev. Online (2014); Alain Leibman, “Third Circuit Holds that Breach of Agreement not to Appeal Justifies Government’s Withdrawal of 5K Motion,” White Collar Defense and Compliance (Sept. 18, 2014), available at http://whitecollarcrime.foxrothschild.com/2014/09/articles/sentencing-1/third-circuit-holds-that-breach-of-agreement-not-to-appeal-justfies-governments-withdrawal-of-5k-motion/ (“Not only did the court get it wrong in terms of appreciating the true nature of the parties’ exchange of commitments, but it did not even apply contracts law correctly.”) ….

No. 13-3407, at 6 (emphasis added).

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Alain Leibman And Fox Rothschild Acknowledged For Veterans’ Assistance

Posted in Uncategorized

Alain Leibman writes:

Departing from the usual subjects discussed in this space, I wanted in the spirit of the season to share with our readers an example of lawyers giving back to their larger community.  Three years ago, with the firm’s encouragement, I started at the site of the Veterans Administration hospital and campus in Lyons, New Jersey, a first-of-its-kind legal clinic.  With colleagues from Fox Rothschild, we have ever since set up shop there every other month in order to meet with any veteran with a legal problem or need.  In all types of cases — such as landlord-tenant disputes and child support and custody cases — we have made numerous court appearances, filed dozens of motions, and assisted our clients in navigating legal mazes.  Sometimes all that was needed was to ferret out information to allow someone to regain driving privileges, or to expunge an old conviction in order to create new employment opportunities.

All in all, we have been immensely rewarded by this opportunity to provide a service to those who have risked all for our country, only to find that their efforts are often inadequately appreciated at home.  We at Fox are there to say “thank you” to our honored veterans.  You may read about our efforts here.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Fox Rothschild Obtains Complete Dismissal Of Federal Trade Secret Theft Case

Posted in Health care fraud, Uncategorized

Alain Leibman:

On Friday, December 5th, the Department of Justice finally surrendered in a multi-defendant trade secret case being prosecuted in the Southern District of Indiana on behalf of complainant Eli Lilly and Company. (United States v. Cao and Li, Case No. 1:13-cr-150-WTL).  Following 14 months of hard litigation — including a successful three-month fight with Lilly over trial-subpoenaed documents it did not want to give up, and successive discovery and Brady motions which increasingly forced disclosure of Lilly and Government errors, miscalculations, and poor decisions – the Government last week finally acceded to our long-standing demand that the case be dismissed in its entirety, and requested dismissal of all charges against all defendants, which the Court quickly granted.

Our client was the lead defendant, and he and his co-defendant are scientists who were charged with misappropriating allegedly confidential and proprietary Lilly information concerning molecular targets under research and development for cardiovascular, diabetes, and oncology drugs.  They were arrested in their homes and then branded by the Government at their initial detention hearing in October 2013 as “traitors” who stole American trade secrets and transferred them to a Chinese pharmaceutical company.  My colleague, associate Matt Adams, and I took over the defense immediately thereafter, and in a series of bail motions and hearings showed that these drug targets were publicly known and hence not confidential, or, as the Court put it in an order revoking detention, we revealed “holes in the Government’s case.”  We first obtained their release to a halfway house, and then to house arrest.  At the same time, we hammered both Lilly and the Government in multiple court filings and hearings, leading the Government at first to abandon their trade secrets theory in favor of more ambiguous wire fraud charges, and then finally to give up altogether.  No plea of guilty to even a misdemeanor, not even a pretrial diversion or deferred prosecution – total dismissal was the demand and total dismissal was secured.

So, the U.S. Attorney’s Office moved to end arguably the highest-profile matter in that District, dealing a blow to the Indianapolis-based Lilly, which had invested substantial time and money standing up the case.  This is, appropriately, a complete vindication of our client, as reported in Ed Silverman’s Pharmalot blog in the Wall Street Journal, as well as here, here, and here.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

 

Alain Leibman’s Law360 Article About Justice Department’s Partial Retreat On Appeal Waivers

Posted in Constitutional law, Sentencing

Alain Leibman writes:

We recently blogged here  and here about the DOJ’s blatant and increasingly harsh use of leverage against pleading defendants to force their waiver of important rights attendant to the sentencing and appeal process.  A fuller treatment of this issue, and of the recently-announced change in DOJ policy intended to partially ameliorate this unfairness, is found in my article today for Law360, which may be read here.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Federal Prosecutors May No Longer Be Able To Demand Blanket Appeal Waivers

Posted in Sentencing

Alain Leibman writes:

Two weeks ago we posted here about a recent, fairly awful Third Circuit decision, United States v. Erwin, upholding boilerplate waiver-of-appeal clauses to the point of punishing a wayward appellant — who took a sentencing appeal in apparent violation of his waiver agreement — by setting his case down for resentencing and releasing the Government from its obligation to file a downward departure motion for cooperation.  Now it appears that the Department of Justice is rethinking its prosecutors’ insistence on broad waiver clauses which bar defendants from appealing at all.

In its September 27-28, 2014 edition, the Wall Street Journal reported in a story entitled “U.S. Moves to Curb Use of Waivers in Guilty Pleas” (Section A4) that the DOJ is finally considering amending its policy.  The Journal reports that fully a third of the 94 U.S. Attorneys’ Offices have moved to a standard waiver-of-appeal provision in all plea agreements.  The story further reports that bar associations in twelve states have condemned the practice as unethical and improper.  Normally, the DOJ does not much care what positions state bar associations take on a given subject, believing associations to be populated with criminal defense attorneys acting in their own clients’ interests.  But the Journal reports that, drawing upon such bar association positions, federal judges are becoming increasingly critical of the widespread use of waivers.   The DOJ cares a great deal more about what judges do, of course, than about what defense lawyers think.

The DOJ, according to the Journal, will this week announce that it will no longer allow its prosecutors to require defendants to waive all appeals, instead preserving for appeal any claim of ineffective assistance, presumably whether it occurs in the plea negotiation and hearing process or at sentencing.  Mr. Erwin would not himself have benefited from this change, since his appeal issues did not encompass poor attorney performance.  But this change, if it comes as reported, may at least stanch the momentum across the federal landscape in favor of standardized waivers.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Third Circuit Holds That Breach Of Agreement Not To Appeal Justifies Government’s Withdrawal Of 5K Motion

Posted in Sentencing

Alain Leibman writes:

It has become the norm for the Government to insist in plea agreements, cooperating or otherwise, that the defendant waive his/her right to appeal the resulting sentence, as long as the sentence is no more severe than augured by the applicable advisory Sentencing Guidelines range.  So, if the facts of the case stipulated by the parties in the plea agreement point to a 12-18 months Guidelines range, then the defendant can only appeal if his/her sentence ends up being more than 18 months in jail; anything less is deemed within the pre-sentencing expectations of the defendant and non-appealable.  This now-form provision has its roots in efforts by the Department of Justice to reduce sentencing appeals, and is no longer even capable of being bargained out of a plea agreement.  It comes with the territory.

So, it is remarkable that the Third Circuit recently held that not only had the Government in United States v. Erwin, 2014 WL 4194129 (3rd Cir., Aug. 26, 2014) bargained for inclusion of an appeal waiver, but that bargain was so material to the agreement that when the defendant improperly filed an appeal contrary to its provisions, his breach freed the Government from its (actually-bargained for and truly important) commitment to file a U.S.S.G. 5K1.1 cooperation downward-departure motion for Erwin.  In addition to the usual argument that the appeal should be dismissed as improper, the Government had argued to the Court of Appeals that mere dismissal was not enough of a sanction — dismissal would not “make the Government whole for the costs it has incurred because of Erwin’s breach ….” Id., at *6.  The Court agreed, finding that the Government had “devoted valuable resources to litigating an appeal that should never have been filed in the first place.”  Id., at 8.

Let’s pause for a moment.  These statements by the Court and the Government are nonsense.  As noted above, the appeal waiver is not even a subject of bargaining, and is now as boilerplate as any standard clause.   Also, the notion that a U.S. Attorney’s Office, with a cadre of attorneys dedicated entirely to handling appeals, has incurred material costs or lost valuable resources in moving to dismiss an appeal on procedural grounds is absurd.

What’s worse is the remedy sought by the Government and granted by the Court: a de novo sentencing with the Government freed of its obligation to re-file a downward-departure motion.  That motion, in contrast to the appeal waiver, was explicitly bargained for and is the sine qua non of the plea, without which the defendant may well have gone to trial rather than plead.  Conversely, the actual measure of the bargain obtained by the Government in exchange for that motion was (a) a guilty plea and (b) cooperation from Erwin, both of which were seemingly received in full measure.  Not only did the court get it wrong in terms of appreciating the true nature of the parties’ exchange of commitments, but it did not even apply contracts law correctly.  It is not every breach by one party which justifies a failure to materially perform by the other; it is only the most material of breaches which carry that consequence.  So, a defendant’s failure to enter the guilty plea or failure to fully cooperate and stay out of trouble would have been material breaches, justifying the Government’s non-performance of its essential promise to seek a reduced sentence.  But a defendant taking a frivolous appeal?  Not material by any measure.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

FBI Agent Cannot Testify As Human Lie Detector, Opining On Defendant’s Truthfulness

Posted in Evidence

Alain Leibman writes:

Sometimes, a court opinion reveals the prosecutorial tactic under scrutiny, the lower court’s endorsement of the same and defense attorney’s failure to object to the same, to be a real head-scratcher, a kind of “what in the world could they have been thinking?” experience.  The Tenth Circuit recently had such an experience involving a federal prosecutor’s decision to call an FBI agent as an expert witness on truth detection and to have the agent opine as to the deceptiveness of a defendant during a custodial interview; a defense lawyer’s inexplicable failure to object contemporaneously to any portion of that remarkable testimony; and the trial court’s allowance of clearly impermissible opinion testimony in contravention of its Federal Rule of Evidence 702 gateway function.

In United States v. Hill, 749 F.3d 1250 (10th Cir. 2014), a bank robbery suspect gave a custodial interview to FBI Agent Jones, in which the defendant made exculpatory statements challenged by the interviewer.  At trial, the videotaped statement was played, although the defendant unsurprisingly did not take the stand.  Agent Jones was called as the final witness on the government’s case, qualified as an expert interviewer based on his FBI training and allowed by the trial court, in the face of absolutely no objection to qualifications or the helpfulness of the testimony, to opine on all the ways in which the defendant had revealed himself in the interview to be untruthful: his mumbling; his avoiding certain questions; his use of the phrase “to my knowledge” in answering other questions; his invocation of religious belief; and the like.  (For fans of Monty Python, the recap of this testimony is worth reading, if only because its absurdity invokes the “Witch or not a witch” flotation test employed in a skit based on a fictitious version of medieval England).

The Tenth Circuit pointed out that not only was expert testimony on credibility ruled out by its own precedent as to Rule 702, but that every court of appeals to have considered the question had come to the same conclusion.  So awfully impermissible was this testimony that even on plain error review, necessitated because defense counsel had lodged no objection at trial, the conviction had to be reversed, making Hill “one of the exceptional cases in which we exercise our discretion to notice the plain error ….”  Id. at 1252.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts.)

Eleventh Circuit Broadly Defines FCPA “Instrumentality” To Include Commercial Businesses

Posted in Foreign Corrupt Practices Act

Christopher M. Varano writes:

At long last, a federal circuit court has stepped forward to provide guidance as to when an entity is an “instrumentality,” such that its employees are “foreign officials” under the FCPA.  In a recent ruling, the Eleventh Circuit held that it is a violation to bribe an employee of a commercial business if that commercial business is controlled by foreign state and performs a function that the foreign government treats as its own.  United States v. Esquenazi, 2014 WL 1978613 (11th Cir., May 16, 2014)

In Esquenazi, the Eleventh Circuit reviewed the conviction of the two co-owners of Terra Telecommunications Corp., a Florida company which purchased phone time from foreign vendors and resold the minutes to customers in the United States, for violations of the FCPA.  The defendants were found to have bribed the Director of International Relations of Telecommunications D’Haiti, S.A.M. (Teleco), a Haitian company with connections to the Haitian government.  The relationship between Teleco and the Haitian government was a disputed issue in the case.

The FCPA prohibits bribery of a “foreign official”, which is defined as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof.”  15 U.S.C. §§ 78dd-2(h)(2)(A) (emphasis added).  At issue in Esquenazi was whether Teleco was an “instrumentality” under the FCPA.  The FCPA does not define “instrumentality,” and according to the Esquenazi court, no previous circuit court had defined it, either.

Thus, the Eleventh Circuit in Esquenazi undertook to define an “instrumentality” under section 78dd-2(h)(2)(A) of the FCPA as “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.”  Thus, a commercial business becomes an “instrumentality” subject to the FCPA when it is controlled by a foreign state and serves a public purpose.

The DOJ failed to convince the court to automatically convert any business with government ownership into an instrumentality.  Instead, the Eleventh Circuit proffered a multi-factor test to determine whether a commercial enterprise should be considered an “instrumentality” under the FCPA.  First, according to the court in Esquenazi, the entity must be “under the control or dominion of the government to qualify as an ‘instrumentality’ within the FCPA’s meaning . . . and must be doing business with the government.”  The Eleventh Circuit provided the following factors to consider when deciding if the foreign government “controls” an entity:

To decide if the government “controls” an entity, courts and juries should look to the foreign government’s formal designation of that entity; whether the government has a majority interest in the entity; the government’s ability to hire and fire the entity’s principals; the extent to which the entity’s profits, if any, go directly into the governmental fisc, and, by the same token, the extent to which the government funds the entity if it fails to break even; and the length of time these indicia have existed.

The second element of the “instrumentality” test in Esquenazi is whether “the entity performs a function the government treats as its own.”  For this prong, the Eleventh Circuit provided the following factors to consider:

Courts and juries should examine whether the entity has a monopoly over the function it exists to carry out; whether the government subsidizes the costs associated with the entity providing services; whether the entity provides services to the public at large in the foreign country; and whether the public and the government of that foreign country generally perceive the entity to be performing a governmental function.

The Esquenazi court found that Teleco met the test for an “instrumentality” under the FCPA, and affirmed the convictions of the co-owners of Terra.

The takeaway here is that companies that deal with commercial businesses with close ties to foreign governments should ensure that proper FCPA compliance measures are in place.  Those compliance measures should take into account that employees of entities which meet the Eleventh Circuit’s “instrumentality” test could rise to the level of “foreign officials” under the FCPA, and thus dealings with those employees should be FCPA compliant.

(Christopher M. Varano, Esq., is an associate in the Philadelphia office of Fox Rothschild.  Chris  has guided clients through complex disputes involving white collar and securities issues, breach of contract claims, partnership rights and interests, unfair and deceptive business practices, employment issues, and administrative investigations.  He is adept at translating for his clients’
action the many nuances of business, partnership, and employment agreements and has experience in representing companies and individuals in these areas.)

Paper Records HIPAA Violation Results in $800,000 Payment under HHS Resolution Agreement

Posted in HHS Resolution Agreement, HIPAA Violation

Michael J. Kline writes:

My partner Elizabeth Litten was quoted at length by Alexis Kateifides in his recent article in DataGuidance entitled “USA: ‘Unique’ HIPAA violation results in $800,000 settlement.”  While the full text can be found in the June 26, 2014 article in DataGuidance.com, the following considerations are based upon points discussed in the article.  (Elizabeth herself has written many entries on the Fox Rothschild  HIPAA, HITECH and Health Information Technology blog relating to the topic of large breaches of protected health information (“PHI”) under HIPAA.)

The article discusses the U.S. Department of Health and Human Services (“HHS”) press release on June 23, 2014 that it had reached a Resolution Agreement (the “Resolution Agreement”) with Parkview Health System, Inc. d/b/a Parkview Physicians Group, f/k/a Parkview Medical Group, a nonprofit Indiana health provider (“Parkview”).  Pursuant to the Resolution Agreement, Parkview has agreed to pay $800,000 as a “Resolution Amount” and to enter a corrective action plan to address its HIPAA compliance issues.

There are several interesting aspects to the Parkview incident and Resolution Agreement, including those in Elizabeth’s comments quoted below.  The Resolution Agreement recites that it relates to an incident that was reported in a complaint to HHS on June 10, 2009 by Dr. Christine Hamilton, a physician.  Dr. Hamilton apparently asserted that Parkview failed to appropriately and reasonably safeguard the PHI of thousands of her patients in paper medical records that had been in the custody of Parkview from September, 2008 when Dr. Hamilton had retired.  The Resolution Agreement alleged that

Parkview employees, with notice that Dr. Hamilton had refused delivery and was not at home, delivered and left 71 cardboard boxes of these medical records unattended and accessible to unauthorized persons on the driveway of Dr. Hamilton’s home, within 20 feet of the public road and a short distance away (four doors down) from a heavily trafficked public shopping venue.

Elizabeth pointed out in the DataGuidance article, “The fact that Parkview left such a large volume of medical records in an unsecured location suggests that Parkview acted with ‘willful neglect’ as defined by the HIPAA regulations.”  Elizabeth went on to say in the article,

Although the resolution amount of $800,000 seems high given the fact that the records were, apparently, intended to be transferred from one covered entity to another, the circumstances suggest that Parkview was intentionally or recklessly indifferent to its obligation to secure the records. Second, the incident underscores the risks attendant to paper records. A majority of large breaches involve electronic records, but paper PHI is also vulnerable to breach and covered entities and business associates need to realize that large fines and penalties are also likely to be imposed for failure to secure PHI contained in paper form. . . .  While the Resolution Agreement does not provide very much information as to the events leading up to the ‘driveway dumping’ event, its recitation of the facts raises the possibility that Parkview may not have had proper authorization to hold the records in the first place. . . .  Parkview ‘received and took control’ of the records of 5,000 to 8,000 of the physician’s patients in September of 2008, because it was ‘assisting’ the physician with transitioning the patients to new providers and was ‘considering the possibility of purchasing’ the records from the physician, who was retiring and closing her practice. The ‘driveway dumping’ did not occur until June of 2009. It is not clear from the Resolution Agreement when the physician retired, whether Parkview ever treated the patients, and/or whether Parkview was otherwise appropriately authorized under HIPAA to receive, control and hold the records for this 10-month period.

In addition to the incisive analysis by Elizabeth in the DataGuidance article, there are a few other points worth making relative to the Resolution Agreement.  First, the incident is not posted on the HHS “Wall of Shame” for large PHI breaches affecting 500 or more individuals because it occurred several months before the effective date in September 2009 for such posting.  Second, it is noteworthy that it took almost five years after the incident for the Resolution Agreement to be signed between Parkview and HHS.  Third, the Web site of Parkview appears to be notably void to this point in time of any reference to the Resolution Agreement or payment of the Resolution Amount, although there is a report in the News Articles tab on the Parkview Web site dated as recently as July 2014 that “Parkview Receives Excellence in Healthcare Awards.”

Finally, the Resolution Agreement took great effort to make it clear that the $800,000 payment by Parkview was not a civil monetary penalty (“CMP”) but a “resolution amount”; in the Resolution Agreement, HHS reserved the right to impose a CMP if there was noncompliance by Parkview with the corrective action plan.  The HHS Web site says the following about the relatively few cases of resolution agreements (only 21 reported to date in the almost six years since the first such agreement):

A resolution agreement is a contract signed by HHS and a covered entity in which the covered entity agrees to perform certain obligations (e.g., staff training) and make reports to HHS, generally for a period of three years. During the period, HHS monitors the covered entity’s compliance with its obligations. A resolution agreement likely would include the payment of a resolution amount. These agreements are reserved to settle investigations with more serious outcomes. When HHS has not been able to reach a satisfactory resolution through the covered entity’s demonstrated compliance or corrective action through other informal means, civil money penalties (CMPs) may be imposed for noncompliance against a covered entity. To date, HHS has entered into 21 resolution agreements and issued CMPs to one covered entity.

(Michael J. Kline, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office, and is a past Chair of the firm’s Corporate Department. He concentrates his practice in the areas of corporate, securities, and health law, and frequently writes and speaks on topics such as corporate compliance, governance and business and nonprofit law and ethics.)

Defendant Who Goes To Trial And Loses Properly Receives Higher “Loss” Calculation

Posted in Sentencing

Alain Leibman writes:

It’s old news that, generally speaking, a defendant who rolls the dice by going to trial and losing may well get a more severe sentence than a defendant who pleads guilty and saves the court from conducting a trial.  This is not just a function of the former possibly losing the reduction for acceptance of responsibility under U.S.S.G. 3E1.1, but a result of systemic and judicial imperatives which seem intended to force guilty pleas from defendants about whom there is some evidence of guilt.

So, it is often futile to argue at sentencing that your jury-convicted defendant should have his/her sentence reduced under 18 U.S.C. 3553(a)(6) in order to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct” where the comparative defendants were adjudged guilty by virture of their own voluntary pleas of guilt.  Still, the operation of the Sentencing Guidelines themselves, their arithmetic formula for calculating the “loss” arising from similar conduct by different individuals, should be indifferent to the manner in which the defendant found himself at sentencing.  How else to accomplish the “pure real offense system” intended by the Sentencing Commission,which seeks to reduce the power of prosectors to “influence sentences by increasing or decreasing” the charges, as reflected in the policy pronouncements in Chapter I, Part A of the Guidelines.

The Ninth Circuit recently threw cold water even on this basic presumption, that the mathematics of loss calculation should be accomplished uniformly, even if courts could find other, discretionary ways to draw distinctions among defendants.  In United States v. Popov, 555 Fed. Appx. 671 (9th Cir., Apr. 24, 2014), the defendants were involved in a healthcare fraud scheme by which their clinics billed Medicare for non-existent patient visits and treatments.  While defendant-appellant Dr. Prakash, who went to trial and was found guilty, was sentenced based on a “loss” calculation driven by the entirely of the billings to Medicare, the Government had taken different, and lesser, views of the “loss” caused by the scheme as reflected in its plea agreements with cooperators.  Prakash made a disparity argument as a result of these inconsistent “loss” calculations, but the appeals court swatted it away in a paragraph.  Acknowledging the “dramatic” differences in loss calculation applied to various of the related parties, which led to an enormous, 120-month sentence for Prakash (Judgment, Doc. #743, Oct. 30, 2012), the Ninth Circuit blithely noted that a sentencing disparity based on cooperation is not unreasonable so long as — and here’s the important legal fiction — there is no indication that the defendant who gambled on a trial and lost is being retailiated against for exercising his constitutional right.

In other words, as long as the sentencing judge does not actually announce that he/she is punishing a defendant for going to trial, anything goes in terms of disparity — endorsing not just unequal terms of jail, but literally a different means of calculating the same “loss,” which is the single most important driver of the length of a jail sentence in fraud cases under the Sentencing Guidelines.

(Alain Leibman, Esq., the author of this entry and a co-editor of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)