Criminal Defense

Every year thousands of health care providers from all industries become targets of government investigators. Our firm, Norman Spencer Law Group has been defending physicians, PTs, pharmacies, medical groups, nursing agencies, home health agencies, durable medical equipment suppliers, laboratories, therapists, billing services, and many others for years.

We provide advice for the healthcare professionals whose employees come in contact with government investigators. If you train your employees to follow them and remember to follow them yourself, the outcome of your case will be much better. Contact us as soon as you believe you may be under a government investigation.

What to Do When a Government Investigators Contact You or Your Employees

There are many ways you may find out about a government investigation. You can get a call or a visit, usually without any prior notice. The investigators may visit you or your employees at home or work and start asking questions.

This is a perilous situation and you must be prepared for it. We recommend that you provide cooperation, however, it is even more important to protect your rights and the rights of your employees. At this time you do not know what is really happening and you should assume that there is an active investigation is in progress. Your job is to minimize any potential liability. The best way to do this is to contact an experienced defense lawyer such as the one you will find at Norman Spencer Law Group.

Train Your Employees

If you have employees, it is important that you train them to deal with government agents. Of course, the level and the scope of this training depending on the size of the practice of the business. Larger entities should have a Government Investigation Procedure Policy. If you are a smaller business, something less formal should be enough. Norman Spencer Law Group can assist you in both drafting the Investigation Policy and educating your employees on-site.

Avoid Obstructing Government Investigators

This is very important. You should not do anything the government could see as obstructing their investigation. In larger entities, employees should be trained to report any government interactions to a designated person. This could be the compliance officer or another supervisor. In smaller settings, the employee should report to the owner, the manager or the supervisor. Please remember that you are not allowed to tell your employees not to talk to investigators. This may be considered obstructing justice or witness tampering.

Follow These Basic Rules

To make it easier, these are the basic rules we recommend employees to follow (this also applies to anyone contacted by government investigators):

• Train employees to be polite and cooperative. Tell them that they are not required to speak with investigators. They are not required to make any statements without consulting with a lawyer first. If they do volunteer information, they can stop speaking at any time. Of course, this applies to you, too!
• You should also tell them that if they refuse to speak with the investigators, the government could potentially subpoena them. However, they would still have the right and the opportunity to seek legal advice. The Fifth Amendment protection will be a useful tool at that time!

Always Speak to a Lawyer First

No one should ever lie to government investigators. That would make the situation worse and could subject you and your employees to criminal prosecution. Always stress to your employees that they have a right to a lawyer at all times and that should always consider speaking to a lawyer before agreeing to an interview – for their own protection.

Of course, legal services cost money and may be expensive. Many employees may not be able to afford an attorney or may not be necessarily willing to hire one even if they could afford it. Some employers may even pay for the legal services in this situation. The lawyer, of course, will only represent the employee, to avoid any conflict of interests.

The point to take away is this: anyone who agrees to be interviewed by government agents before speaking to a lawyer only has himself or herself to blame for the consequences.

Obtain Information From the Government Investigators

Always ask the agent for basic information such as the one that appears on a business card. You want to know their names, titles, the agency they work for, and the contact information. Ask them for the reason for wanting to speak with the employee (or you). Don’t expect them to share anything detailed, but this could provide some useful information for the attorney when you reach out to one.

Call the Compliance Officer or Lawyer Immediately

Instruct your employees to immediately call the compliance officer (or whoever is the designated person for this in the business) and an attorney. Make sure that the records and documents do not get destroyed when you know there is an investigation. Following these rules can save you and your employees a lot of problems down the road.

Remember to always be polite to the agents, take their business cards, and tell them that your lawyer will call them shortly. Train your employees to follow these steps. Then call our office to speak with one of our healthcare defense lawyers.

How Norman Spencer Law Group Can Help You

We are a team of experienced criminal defense attorneys who have handled hundreds upon hundreds of healthcare fraud and compliance investigations. No matter where you are, we can help you as we helped countless others over the years.

If you retain us early in the case, hopefully before you volunteer any information, we can work quickly to protect you and mitigate any potential liability you and your business may have.

It only takes one phone call to speak with a lawyer and get the best service you can get.

If you are a healthcare provider and government investigators visit you, be aware! Speaking with them and giving them any records can seriously jeopardize you. Norman Spencer Law Group federal health providers attorneys are here to protect you. Call us before as soon as you know you are under investigation!

Visits to Health Providers by Federal Agents and Investigators

Government agents often pay visits to healthcare providers’ places of business – without prior notice. Sometimes they want to talk, and in many cases, they ask the provider to give them documents. If this happens to you, you need to be prepared. Read on. In this short guide, we share the best advice on how to handle government investigators who seek documents.

When Health Providers Are Served a Subpoena

If government investigators show up at your clinic looking for documents, you need to know if they have a subpoena or a search warrant. There is a difference. A “subpoena” is a written demand signed by a judge. It orders you to produce documents or even testify at the grand jury. If the agents serve you with one, you need to show it to an experienced lawyer immediately. There are different ways to handle subpoenas and an early start is always helpful.

What is a Search Warrant?

Unlike the subpoena, which the government uses to fish for evidence, prosecutors use a search warrant where they believe they will find evidence of the crime. All they have to do is go to court and convince the judge that there is probable cause that evidence of a crime will be found.

With the search warrant, agents have the right to enter private property without notice or permission. They can look for evidence of criminal activity, and seize the documents listed or described in the warrant. This is an important point to remember. The agents cannot seize anything they want, only what the warrant identifies. Also, they may only search the premises listed on the warrant.

During the search, the employees do not have to speak to the investigators. However, they have to turn over the documents specified in the warrant. Search warrants usually happen during regular business hours and cause tremendous stress and disruption. If the government investigators are at your door with a search warrant, call our law firm immediately.

Larger entities may have developed protocols for cases like this. Smaller providers are generally unprepared. It is not much you can do to prevent the agents from searching your premises, but following these simple steps will help and help you protect your rights, the rights of your employees, and your business.

As Health Providers, Be Prepared

This is crucial that you call legal counsel as soon as you see the investigators at your door and see the search warrant. If possible, ask the lawyer to come to your business. Because it is often impossible, ask the agent to tell the lawyer what documents and premises the warrant specifies.

You should instruct your employees to be prepared for such events. If you are not on the premises when the agents arrive, the employee should call you immediately and ask the agent to wait for you to come.

Hopefully, you already have an attorney on the retainer. If this is the case, make sure the employees know the attorney’s name and contact information. They should inform the agents that they would contact a lawyer. That does not mean the investigators will wait for the lawyer or you to arrive, but they may.

If you see the agents, you should tell them that you want to speak you’re your attorney. If they refuse, tell them that this is a violation of your constitutional rights.

Protect Your Employees  

You should tell the investigators to direct all questions to your attorney. Ask them not to interview your employees without a lawyer. Let the agents know that the employees have no authority to consent to any search or seizure. Moreover, you should instruct your employees not to make any statements to the investigators that could be interpreted as giving consent to searching beyond the scope of the warrant.

Remember that you are not allowed to tell your employees not to speak to the agents, but you can certainly tell them that they have the right to have their attorney present and that that they are not required to speak with the agents other than as required to help the agents conduct the search as the specified in the warrant.

It is a good idea to send most staff home for the day except for some people who would watch the agents. You should never leave the investigators alone. Always make sure they are watched. And make sure that no employee is left alone with them.

Cooperate as Health Providers to the Extent Required

You and your employee should cooperate with the investigators. However, that doesn’t mean that you should do something beyond of what you have to.

Here are the things you should never do during the search. First, do not speak with the agents under any circumstances. Second, do not attempt to interfere with them by hiding or destroying any documents, or denying them access. If you speak with them, you could incriminate yourself. If you interfere, you will be charged with obstruction of justice.

Get a Copy of the Search Warrant Affidavit

A search warrant affidavit is a document which prosecution needs to show the court to demonstrate why they believe they need a search warrant. Usually, one of the agents on the case will prepare and sign it. Under the law, you have the right to have the copy of this affidavit. The agents will give you a copy during the search. Have it handy when you speak with a lawyer, hopefully before the search begins.

A Search of Privileged Documents

The agents are not allowed to exceed the scope of the warrant. If they do, object and tell them that they are not supposed to do that. Make sure the agents do not search privileged information. This includes attorney/client communications or attorney work product documents.

If you have been speaking with an attorney before the search, under some circumstances, the attorney could protect some of the most sensitive documents by arguing that the documents are privileged.

Keep Track of All Health Providers Documents  

Ideally, you should be keeping track of anything you give the agents. You should always try to make copies of all documents so that your attorney can have them. You will also need many documents, such as medical records, to run your practice. So, document management is extremely important.

What Norman Spencer Law Group Can Do

When the government raids your practice, we need to deal with this the best we can under the circumstances. Our lawyers will call the prosecutor immediately to discuss the terms and scope of the subpoena or warrant. We will also try to find out the nature of the investigation and whether the prosecutors see you as the target or subjects of their investigation.

We could ask the government to stop the search. If successful, we can negotiate alternatives to the search and seizure. If they refuse, some of the available options are asking for the delay so that we can ask the federal court to hold an emergency hearing for a stay of execution of the warrant.

That would give us time until the full hearing.

Our criminal defense lawyers will do what is necessary to negotiate an acceptable solution with the government so that your business operations are not disrupted and you get resume work

Call our HealthCare Defense team as soon as the search begins or ends. The sooner you retain us the better the outcome of your case will be. Norman Spencer Law Group is dedicated to protecting the rights of healthcare providers anywhere in the country. Call us today to speak with one of our lawyers!

Even though the defense provided by the Fifth Amendment does not apply to corporations, the Fourth Amendment’s protections, on the other hand, do apply. Grand jury duces tecum subpoenas would be struck down if the terms are far too broad to be considered fair under the Fourth Amendment.

A court can only quash an otherwise lawful grand jury subpoena on the grounds that it is excessively burdensome if there is a strong showing of the government’s unreasonableness and abuse of process.

What Are Reasonable Duces Tecum Subpoenas?

The three-pronged test of reasonableness used by federal courts is as follows:

1. The subpoena must command only the processing of materials related to the investigation
2. The subpoena must define the materials to be generated with some specificity
3. The subpoena must ask for materials covering only a reasonable period of time

It’s important to note that the relevancy and materiality tests used to determine the reasonableness of subpoenas served at trial are more rigorous than those used by grand jury subpoenas. A grand jury doesn’t have a catalog of what books and papers exist, and it doesn’t have any way of knowing what they’re about. As a result, it’s unlikely that it’ll be able to specify exactly what it wants. Since the grand jury’s quest for probable cause has no limitations other than that of a rational pursuit, it has a right to a fair margin of scope for evidence, notwithstanding Fourth Amendment objections.

Scope of Grand Jury Subpoenas

In its quest for documents that may help in its investigation, the grand jury has the right to do any exploring or fishing. Arguments on validity are particularly difficult to create because a grand jury subpoena does nothing more than define, for example, 18 U.S.C. ß 371 (the federal conspiracy law) as the statute by which the prosecutor is investigating.

There is, however, a limit on how far a “fishing expedition” will be tolerated. In Schwimmer v. United States, a subpoena directing an attorney to appear before a grand jury and bring with him “all books, records, files, logbooks, diaries, memoranda, correspondence, and other documents” with no time limit was found to be excessive.

The court held that a subpoena ordering an attorney to appear before a grand jury and carry with him all documents relating to eight designated joint projects, where some of the papers were over ten years old and filled four to six legal size file drawers, was overreaching and would be quashed.

When Duces Tecum Subpoenas Can Be Quashed

A court can only quash a subpoena if it is obvious that the subpoena is too wide. A subpoena cannot be quashed solely on the basis of the amount of information requested. In a subpoena duces tecum demanded the creation of “the contents of all three file cabinets” at a given address before a grand jury in connection with a fraud inquiry. The court narrowed the scope of the subpoena so that the government would have to prove that any document dated before the year in which the alleged fraud began was appropriate. The burden of proof for papers dated after that will be on the owners to prove that the records had no conceivable connection to any valid investigation target.

It seems that a warrant would not be quashed if there is a proper time limit. In another Supreme Court case, a grand jury subpoena duces tecum requesting “all documents relating to the operation of the process needed to be maintained… pursuant to New York City Department of Consumer Affairs Rules and Regulations relating to process servers from April 1, 1970, to the present” was found not to be quashable on the ground that it was overbroad.

In In re Grand Jury Investigation (Local 542-International Union of Operating Engineers), the union’s motion to quash a federal grand jury subpoena duces tecum requiring the creation of “all original books and documents of above-referenced organization for the period January 1, 1972, through June 30, 1974” was rejected on the grounds that it was unfair and too large.

A subpoena demanding the production of nearly all of the witness’s law firm’s financial transactions for a period of 51/2 years did not breach the Fourth Amendment in En re Berry, despite the fact that it was too large.

The New Jersey Superior Court recognized in In re Grand Jury Subpoena Duces Tecum, that a grand jury should be given wide leeway in conducting its inquiry: “If the investigation is to be substantive, some discovery or fishing must be inherent and entitled to occur in all documentary production pursued by a grand jury.”

Our Defense Lawyers Handle Duces Tecum Subpoenas

Thus, it appears that a subpoena duces tecum will be quashed when it is extremely broad in time limitation as well as scope. However, reasonableness under the Fourth Amendment must be determined by the facts of each case. As stated in Schwimmer: “The constitutional safeguard against unreasonable searches and seizures is more than a reach at mechanics in the process. It is concerned with intrinsic as well as extrinsic aspects, and its look is a reality, not theory, in respect to the whole of what is being done.”

If you are facing a federal grand jury, please call federal criminal lawyers with Norman Spencer PC to speak with a defense attorney today.

There are two main types you might be charged for when it comes to tax fraud: civil or criminal.  Although they have some overlap, there are also some pretty significant differences. Civil tax fraud will typically end with penalties brought against a taxpayer (loss of their money or assets). In contrast, criminal tax fraud usually results in either jail time or probation (loss of their freedom).  When it comes to civil vs. criminal tax fraud, it’s important to remember that a taxpayer can be found liable for both, even for the exact activities/charges.

What is Civil Tax Fraud?

Under the Internal Revenue Code, the government can bring up civil penalties on taxpayers for any type of fraudulent conduct. This fraudulent conduct can include a few different things, from either willfully filing a return that doesn’t have correct information or willfully failing to file their tax return at all.

Section 6663(a) of this code generates a penalty if any underpayment of tax due to fraud shows on a tax return. In situations like these, the government is allowed to bring on a penalty equal to 75% of the part of the underpayment resulting from fraud. To prosecute this fraudulent underpayment penalty, the government needs to provide clear and convincing evidence. Suppose the government can meet this requirement. In that case, the entire underpayment will be assumed to be the result of fraud unless the taxpayer can show by a preponderance of the evidence that any part is not because of fraud. If a joint tax return is filed, the fraud penalty will not apply to both spouses unless a portion of the underpayment is actually because of the spouses’ fraudulent conduct.

It’s essential to note that the fraud penalty even survives the taxpayer’s death who committed the fraud. In various cases, the tax court has also held that the fraud penalty applies where a taxpayer files a fraudulent return and then files an amended return trying to correct the fraud.

Another notable section is section 6651(f). This provides authority for the government to bring on a fraudulent failure to file a penalty. Under this code, the government can charge a 75% penalty on the tax shown on a return. This is usually pursued if the taxpayer fails to file their return, specifically with the intent to evade tax. To successfully pursue this, of course, the government has to prove by clear and convincing evidence that the taxpayer’s failure to timely file was intentional on their part and that they were trying to evade the tax that they owed.

What is Criminal Tax Fraud?

Many different provisions have to do with criminal tax fraud in the code. These include tax evasion, willful failure to collect or pay over tax, and even failure to file a return or provide information to pay your taxes.

What About Tax Evasion?

When people think of criminal tax fraud, they’re probably the first to think of tax evasion. It’s a felony for any person to try to evade paying their taxes willfully. The law is pretty broad on purpose to cover the many different ways that defendants might avoid paying their taxes. In legal terminology, a person can only be found guilty of tax evasion if the government can show beyond a reasonable doubt that there was willfulness, there was a tax deficiency, and there was some sort of affirmative action that the person took part in avoid paying taxes. In general, tax evasion falls either under an evasion of an assessment or an evasion of tax payment.

Civil vs. Criminal Tax Fraud Differences

There are some definite similarities in civil and criminal tax fraud, but there are also some crucial differences. The main differences between civil and criminal tax fraud are:

• Statute of Limitations: In general, there is no statute of limitations for the government to bring up fraud penalties when it comes to civil tax fraud. With that said, for most criminal tax fraud cases, the government has six years to bring up a criminal case.
• Burden of Proof: The burden of proof is a legal term, but it has to do with the obligation that’s brought upon one party in a court proceeding to offer evidence to a judge or jury. For civil tax fraud, the burden of proof is on the government to show clear and convincing evidence of fraud. For criminal tax fraud cases, there’s a constitutional requirement that makes it, so the government needs to prove all the elements of the statute that are at issue beyond a reasonable doubt.

The Importance of Experienced Lawyers 

To advise you properly, a lawyer must thoroughly understand the differences between civil and criminal tax fraud. In many cases, if there are allegations of civil tax fraud, there are also going to be allegations of criminal conduct. When a client is exposed to either civil or criminal tax exposure, it’s a good idea to take advantage of all the different programs that the IRS offers to taxpayers to become compliant with little criminal exposure. This is by no means an exhaustive breakdown of civil vs. criminal tax fraud, but it should give you more information on the similarities and differences involved. At Norman Spencer Law Group, we can advise you and represent you in any type of tax fraud. Call for more information today!