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As a licensed healthcare professional, regulatory compliance defense is just part of your job.  That said, things are complicated when you consider the ever-evolving network of administrative statutes, rules, and other regulations that can sometimes even seem to conflict with each other. It is confusing and may even lead to inadvertently violating the law.

The team of experienced defense attorneys over at the Norman Spencer Law Group share your concerns. We understand that compliance is imperative for maintaining a successful practice. That’s why we work closely with licensed healthcare professionals to help ensure compliance with every single transaction that they make.

We have helped many clients identify and correct compliance issues before allegations of non-compliance could even occur. We’ve successfully defended clients facing allegations of non-compliance. Our goal is always to protect your right to continue practicing medicine in your field.

Complexities of Healthcare Compliance

Regulatory compliance is extremely complicated. Sometimes it takes more than one attorney to help you with it.  Oftentimes,  it takes a team effort. Our team of experts will help with reviewing your compliance as well as defending you against allegations of non-compliance. Hospitals and larger organizations may have compliance officers. However, most individual healthcare providers need to rely on themselves to ensure the entire compliance. We are here to help.

Even hospitals and much larger healthcare facilities can find regulatory compliance to be particularly challenging. It’s, even more, intimidating for smaller providers and practitioners out there. Ensuring compliance takes up a large number of resources, time, and effort.

If you visit the website for the Center for Medicare and Medicaid Services (CMS) you’ll immediately see why. The website even states that it contains about 37,000 procedure and guidance documents. These total more than 7 million pages altogether. The sheer number of documents and pages alone makes it look like CMS and the Health and Human Services are in the sole business of writing regulations. Our business over at the Norman Spencer Law Group is to help ensure that your practice adheres to them.

Adhering to Regulatory Compliance Defense

All healthcare practitioners that bill Medicare and Medicaid must comply with all applicable regulations. With that said, the requirements don’t stop there. Healthcare professionals are also beholden to the regulations of their states. Don’t forget about private health insurance companies.

There are state safety regulations, OSHA regulations, state board regulations. There are the labor department rules, the DEA regulations, and rules and regulations from other entities that are simply too numerous to list here. All it takes is one violation of one rule to cause an investigation to be brought up against you.

Providing Regulatory Compliance Defense

CMS does try to provide healthcare professionals with the details of each rule that they might have broken through a variety of channels. CMS offers small entity compliance guides as well as the Medicare Learning Network. Small entity compliance guides explain the specific actions that you would have to take in order to be in compliance. However, they are not necessarily straightforward to follow in every case.

MLN’s purpose is to provide education on compliance information for any and all Medicare providers who work under the fee-for-service structure. Here you’ll find a range of training and educational materials that will try to simplify Medicare policy by presenting it in plain language with actionable tips.

The MLN also tries to deliver a coordinated healthcare provider education program. You can access this information through national educational articles, web-based videos, and other types of training courses, fact sheets, brochures, and many other channels. The program can help your overall level of comprehension to some degree. However, simply going through the MLN materials takes a lot of time and effort that not every healthcare provider has.

How Our Regulatory Compliance Lawyers Can Help

The compliance defense lawyers at the Norman Spencer Law Group are here to help you wade through and figure out the plethora of compliance rules and regulations so that we can help ensure you’re meeting all of them. With years of serious experience in the legal healthcare field, we’ve helped countless healthcare professionals during all stages of the compliance process. Our team has experts from various healthcare disciplines and compliance fields. We can help you no matter where you are.

We’ve helped them establish and maintain an internal compliance program for their specific practice that will then significantly reduce the risk of audits and investigations due to non-compliance allegations. We’ve also represented and defended other clients that have already been accused of violating various rules and regulations.

If your practice could use a strong and effective compliance program, or if you’re in need of an experienced defense attorney to handle your case, our lawyers are ready to help. Call the offices of the Norman Spencer Law Group to schedule a consultation today.

If you are facing federal criminal tax charges, you need to understand how federal sentencing works and which factors affect it. In the federal justice system, judges have the ultimate say as to what the sentence will be. You need an experienced criminal tax attorney at your side that knows how to argue convincingly. Norman Spencer Law Group is here to help you anywhere in the country!

Our lawyers have decades of experience representing clients at all stages of federal criminal cases from investigation to trial and appeal. We provide this short guide so that you can familiarize yourself with how federal sentencing with respect to criminal tax cases works.

Federal Sentencing Guidelines

When a person charged with a criminal tax case is convicted after trial or pleads guilty to a tax crime, the next step is sentencing. Unlike state law, the federal court sentence process largely depends on the Federal Sentencing Guidelines that apply to all federal crimes.

Until the Supreme Court case of the United States v. Booker was decided in 2005, Federal sentencing Guidelines were required to be used by all federal trial courts in calculating and imposing federal criminal sentences.

However, the Supreme Court in Booker ruled that the Guidelines are now advisory, not mandatory.

When it comes to tax crimes, the Guidelines are strict, mandating imprisonment for essentially all tax crimes except some minor tax violations.

In general, the sentence under the Guidelines depends on the “tax loss”. The higher the “tax loss”, the higher is the sentence required under the Guidelines.

Base Offense Level

The amount of the tax loss determines what a base offense level is. Each base offense level has a range of sentences under Sentencing Tables. This principle applies to all federal crimes, not only tax crimes. As the tax loss increases, the base offense level increases and so does the corresponding sentencing range.

So, the base offense level is one of the most important numbers in federal sentencing, and the way to determine the offense level is to calculate the tax loss.

Other Factors Affecting Federal Criminal Tax Sentencing

 However, both the offense level and the sentence itself may vary, increasing and decreasing based on many other factors. These factors may include the other relevant conduct, various adjustments, and departure rules.

These and other factors are extremely important at sentencing. They may be crucial in the court’s decision to increase or decrease the ultimate sentence. Only a very skilled attorney, experienced in federal criminal law and knowledgeable in the Federal Sentencing Guidelines can be most effective at federal sentencing.

What Are The Potential Imprisonment Terms For Tax Crimes

Let’s assume that the court determines the base offense level based on the tax loss. Let’s further assume that this level is not adjusted based on other factors. Finally, let’s assume that the defendant has no prior criminal history.

Under the Guidelines sentences for tax crimes, vary between no jail time to six months for tax losses of $3,000 or less and between 63 months and 78 months for tax losses in excess of $80 million.

Federal Sentencing Guidelines for Tax Crimes

The federal tax evasion statute is one the most commonly used in tax prosecutions. As discussed above, we start with the base offense level, which depends on the tax loss. The Guidelines define the “tax loss” as the total amount of tax that was the object of the offense (i.e., the loss that would have resulted had the offense been successfully completed).

Sometimes we can accurately calculate what that tax loss is, and we will use that number. In some cases, it could be difficult to know the exact number. In those cases, courts will make a reasonable estimate.

“Tax loss” does not include interest or penalties. However, it may include interest derived by the defendant from the unreported income. Under the Guidelines, there are different methods of calculating the tax loss depending on whether the tax evasion involved an underreporting of income or a false claim of deduction or exemption.

It is important to note that in calculating the tax loss, the court may include losses from years not charged in the indictment.

Base Tax Loss Table

This is how the base tax loss offense level is calculated. Understand, that this is the base level only. It could increase or decrease based on additional factors.

 

Tax Loss (apply the greatest)	Offense Level
(A) $2,500 or less	6
(B) More than $2,500	8
(C) More than $6,500	10
(D) More than $15,000	12
(E) More than $40,000	14
(F) More than $100,000	16
(G) More than $250,000	18
(H) More than $550,000	20
(I) More than $1,500,000	22
(J) More than $3,500,000	24
(K) More than $9,500,000	26
(L) More than $25,000,000	28
(M) More than $65,000,000	30
(N) More than $150,000,000	32
(O) More than $250,000,000	34
(P) More than $550,000,000	36

 

How Can The Base Offense Level Change

The base offense level in this Tax Loss Table can increase under certain specific offense characteristics. For example, there is a two-level increase if the defendant did not report or correctly identify the source of income from criminal activity exceeding $10,000 in any given year.

Another example is a two-level increase in the base level if the defendant used “sophisticated means” to impede the discovery of the nature or extent of the offense. Sophisticated means any conduct that is more complex or demonstrates greater intricacy or planning than a routine tax-evasion case. Here are examples of sophisticated means: using offshore bank accounts, shell corporations, and sham transactions in the definition.

What matters here is that the scheme is sophisticated, not necessarily the taxpayer. So, your offense level may increase even if you were only a minor participant in a complicated scheme devised by someone else.

Assisting in the Preparation of Fraudulent or False Documents 

There is a separate sentencing Guideline for these cases, but the calculations of the base level and the tax loss are the same as in the Guideline for tax evasion.

There is also a two-level increase in the base offense level for the use of “sophisticated means”. Furthermore, there can be a two-level increase if you committed this offense as part of your business as a tax preparer or an accountant, or if this scheme was a substantial portion of your income.

Norman Spencer Law Group for Federal Criminal Tax

Our federal criminal attorneys have years of experience defending clients against criminal allegations. We are very familiar with the Federal Sentencing Guidelines and are extremely industrious when it comes to convincing judges to show lenience at sentencing.

Our team includes not only lawyers but also professional sentence mitigating specialists and other experts whose opinions can be very helpful before and during the sentencing process.

If you are facing federal criminal tax charges, call us today to set up an immediate consultation with an attorney!

The IRS and the Department of Justice are extremely aggressive when it comes to going after what they believe is failure to pay taxes or tax evasion. Thousands of taxpayers become their targets each year. If you experience tax evasion investigations, Norman Spencer Law Group PC is by your side!

Whether you are being investigated by the IRS or are facing criminal tax charges, you are not alone. Our tax fraud federal defense lawyers will protect you anywhere in the United States or around the world. We have years of experience defending criminal tax matters and the strongest support team of forensic accountants and former IRS officers. If you find yourself in the IRS cross-hair, take no chances with your future! Call Norman Spencer immediately!

What to Do When the IRS Agents Contact You

No one is looking forward to the prospect of dealing with the IRS, let alone the IRS Special Agents. As much as you would not like this to happen, chances are, if you are reading this page, it did happen. Hopefully, you read this before you speak with the agents.

Here is the shortlist to highlight our best recommendations for safe interactions with the IRS agents.

• Do not agree to speak with them without your lawyer present (in fact you should not speak with them even with your lawyer present)
• Do not give them any documents
• Politely ask for their business cards and tell them that your lawyer will contact them
• Immediately contact Norman Spencer Law Group to speak with an experienced federal defense attorney.

If you follow these simple recommendations, the likelihood of the best possible outcome will have increased in the most significant way. Failure to follow these recommendations will cost you much more than what you would be prepared to pay.

For years our criminal tax attorneys have represented clients before the IRS in both criminal and administrative matters. This simple advice is not just words, it is borne out of years of practice and experience. Call Norman Spencer before you speak with the agents!

How We Can Help With Tax Evasion Investigations 

The outcome of the criminal case is impossible to predict. No lawyer knows what will happen. No lawyer should be promising the Moon. However, the pledge we make to our clients is to do everything possible to resolve your IRS case administratively without charges even filed. Many of our clients enjoyed just this. There are many strategies we use to achieve this, including working with forensic accountants to mitigate the tax liability and convince the agent to recommend that the case is not prosecuted. This requires patience and expertise, which we have in abundance. Call our office today to find out what we can do for you.

Background on Tax Enforcement in the United States

The US government is devoting significant resources to vigorously and uniformly implementing internal revenue laws. Individuals and companies who breach tax laws face criminal penalties, which the government hopes will discourage others. The Tax Division of the United States Department of Justice has the power to administer all federal criminal tax enforcement and to allow or refuse tax investigations and prosecutions.

Administrative Investigations By the IRS

The IRS investigative protocol is quite complex and involves a heavily bureaucratic process. IRS Special Agents with the Criminal Investigation Division (CID) investigate complaints of criminal violations and related provisions of Title 18, United States Code.  CID normally launches an investigation in response to one of the following:

• Fraud referrals from other IRS divisions;
• Information from other government entities;
• Information from private parties; or/and matters or projects created by CI.

CI approves investigations into matters that it suspects have the potential for criminal fraud prosecution or warrant further investigation. Special agents may investigate certain crimes to the degree that their resources allow. They also perform joint investigations with IRS operating division members. Special agents and revenue agents typically work together to investigate situations where taxpayers file false returns or willfully refuse to file tax returns.

What is the Special Agent Report

A joint inquiry with revenue officers normally follows a deliberate failure to pay tax. When the administrative investigation is done, the special agent prepares a special agent’s report (SAR). The report recommends that the government prosecutes the case.

The SAR, which includes a written account of the investigation and the special agent’s recommendations, is reviewed by both the special agent’s superiors and the Chief Counsel, Criminal Tax Division (CT Counsel). CT Counsel then drafts a Criminal Enforcement Memorandum (CEM) that includes information about the essence of the crime(s) for which the special agent recommends prosecution, the facts used to prove the crime(s), technological or legal challenges, anticipated prosecutorial problems, and the special agent’s particular recommendation.

What Happens if the IRS Wants to Prosecute a Taxpayer

If the CI Special Agent-in-Charge (SAC) decides that the government should prosecute the case, they will refer it to the Tax Division or, in some cases, the United States Attorney’s Office. A copy of the transmittal letter is submitted to the Tax Division when the IRS refers a case directly to the US Attorney’s Office. If the case involves only legal-source income (i.e., no drugs or organized crime) and the taxpayer’s attorney tell the IRS that the taxpayer wants to enter a guilty plea during an administrative investigation of a criminal tax case, the IRS may refer the case to both the United States Attorney’s Office and the Tax Division for an expedited guilty plea.

The IRS can send tax returns or tax return details with the Department of Justice when it refers a criminal case to them. If the IRS makes the criminal referral, they won’t continue or start a new administrative investigation with respect to the taxpayer for the same tax and taxable period.

However, if the Tax Division decides not to prosecute a case submitted to it by the IRS, the IRS can take any disciplinary action it sees fit in the circumstances, including referring the case to CI for further investigation. If CI wishes to investigate the case further, it will issue IRS summonses and the case will continue. The IRS always has the option of referring the case back to the Tax Division.

Inquiries by Grand Jury in Criminal Tax Evasion Investigations 

 Although a federal grand jury investigates both tax and non-tax violations, the Tax Division must first approve and allow the use of a grand jury to investigate criminal tax violations. At times CID can’t complete its investigation or decide that the administrative process would not be enough to collect sufficient evidence. It will request that the Tax Division permit a grand jury investigation.

Once a criminal referral has been made, the IRS, including CID, stops its administrative process. The case is now in the federal prosecutor’s hands and the grand jury process may begin. Before a United States Attorney’s Office may file information or request the return of an indictment in an extended investigation concerning criminal tax matters, the Tax Division must first give the go-ahead with regards to the relevant tax charges.

Without the Tax Division’s approval, the prosecutor will not start the grand jury investigation on a tax case. The US Attorney’s Office and the IRS must send a written request to the Tax Division for approval before they start. The request must provide the necessary foundation for the Tax Division to approve the investigation’s extension.

What Happens After a Grand Jury Investigation?

At some point, a grand jury investigation is completed and the prosecutor decides that there is sufficient evidence to prosecute. The US Attorney’s Office will ask the special agent assigned to the case to prepare a SAR. The US Attorney’s Office must give the Tax Division a written recommendation about the prosecution for tax violations. The Tax Division will review the prosecution recommendation. A grand jury investigation’s recommendation against indictment must also go to the Tax Division for review. Alternatively, the IRS would inform the Tax Division that they have no recommendations for action. The Tax Division will complete its analysis within thirty days of obtaining the recommendation and either approve or decline prosecution.

What to Do When Experiencing Tax Evasion Investigations

If you believe that the IRS is targeting you, do not wait to call our firm! The sooner you reach out to us the better the results may be. Norman Spencer PC criminal federal attorneys represent clients in federal criminal cases nationwide. Call us today for a consultation!

Tax fraud investigations and prosecutions can have a devastating effect on your life. Defending against these allegations takes strategy and skills not too many lawyers have. You can rely on the tax fraud defense attorneys with Norman Spencer Law Group for the most effective defense strategy if you face the IRS and the Department of Justice.

Nationwide Tax Fraud Investigations Attorneys

When representing a client in a tax investigation, it is the absolute must that that lawyer has a firm grip on the nature of the prosecution case and the relevant facts. Because federal tax prosecutions involve a very complex multi-level bureaucratic review process, the lawyer should be familiar with it and know how to use it to the client’s advantage.

Our team includes federal criminal attorneys, former IRS agents, forensic accountants, and certified fraud investigators. At Norman Spencer Law Group we are knowledgeable about the IRS and the DOJ process and we can help you right now.

We share this shortlist of the best practices we follow and the advice we give when representing clients in criminal tax investigations.

Our Best Advice to Clients and Employees

The best advice we can give to any client, whether corporate or individual, as well as the client’s employee is this. Never disclose information to government investigators before you speak with us.

Anything ever disclosed to the investigators must be reviewed and approved by an attorney beforehand. You should never give any information until you show it to the attorney who understands the facts of your case.

In real life, of course, clients do disclose information to investigators before speaking to a lawyer. This happens for many reasons. It is actually normal for an average person to try to exonerate himself or herself when first contacted by the investigators. It can be extremely damaging to them, but there is nothing we could do about that after the fact. The cake cannot be un-backed. However, we must examine anything you disclosed, so making and keeping copies of all the documents is extremely important.

Being Proactive Is Important

Not everyone plans on being investigated by the IRS. However, if the IRS contacts you, it is time to get ready and be prepared and proactive. We advise clients to call our firm as soon as the IRS agents first contact you. The early gathering of the facts in a tax fraud investigation is essential.

We will immediately conduct our own defense investigation before anything else. Our law firm is using various experts, including forensic accountants and tax specialists.

Kovel Agreement

The way to hire these specialists is directly through our office. We prepare what is known as the Kovel agreement, which sets up the relationship of the accountant to our firm. Any work the accountant will do on your case in preparation for the defense will be done under the umbrella of our firm, and we will own all the materials the accountant generates. This gives you the protection you would have by dealing with a lawyer but not by dealing with the accountant directly.

Maintaining Tax Records And Protecting Your Rights

The government’s ability to investigate and ultimately prosecute you for tax fraud and evasion depends on whether they have access to your records and other documents.

As you know, the records and documents you give your lawyer are protected by the attorney-client privilege and the attorney work-product doctrine. However, the records you give your accountant who was not hired by an attorney to help defend you, are not protected by anything. There is no Fourth or Fifth Amendments protection, no attorney-client privilege, or attorney work-product protection.

Here is the solution that solves the problem. If you transfer the records to your lawyer, you could raise a Fifth Amendment privilege to the production of these records and the attorney could interpose an objection under the attorney-client privilege.

How We Defend Taxpayers Against Tax Fraud Investigations

If we take your case, one of the first important issues we need to decide is whether and to what extent we should cooperate with the IRS. This requires serious consideration. At times, the IRS agents view failure to cooperate as an indication of possible fraud. They may get even more suspicious as they continue their investigation. They may also expand the scope of the investigation, the exact opposite of what we want.

On the other hand, cooperation with the agents is a perilous proposition in itself. Any admissions you or your lawyer make are generally admissible at trial. Agents are trained to solicit voluntary admissions from their targets. Being cooperative never means that you will not be prosecuted. This applies to dealing with the IRS Special Agents at the beginning of the investigation as well as dealing with the IRS after the case became criminal.

Keeping the dialogue open allows us to disclose a defense, which might cause the government to decide to terminate the investigation. Furthermore, the dialogue provides us the opportunity to listen to any information the government is willing to disclose. At the same time, the last thing we want is to do the prosecutors’ work for them and help them make their case. What we say and submit to the government must be thought through and measured.

To balance these considerations we exercise the cautious approach. We know how to walk a thin line between avoiding stirring the agent’s suspicion and avoiding saying too much. Once we review the case and have a full grasp of the facts, we determine the best tactics.

Your Best Choice For Tax Fraud Investigations

There are plenty of defense attorneys offering their services. Most of them are good at what they do. When you deal with the IRS criminal investigation, you need to make sure your attorney has experience with the IRS criminal investigations, not any criminal case that comes through the door. You need to make sure that they have successfully handled such cases before.

Information is the key. We invite you to call us for a consultation to see what we can do for you. Our federal criminal lawyers have handled numerous criminal tax matters at all stages. Our team has former IRS agents, forensic accountants, and tax specialists. We have the knowledge and the resources to take your case to the optimal conclusion. Call us today to learn how we can help.

The Fifth Amendment protects against self-incrimination by stating that no one “shall be required in any criminal case to be a witness against himself.” The Self-incrimination Clause covers all residents and non-citizens, as well as the federal and state governments. The Fourteenth Amendment makes it applicable to the states regarding the right to refuse to testify. The clause’s text raises at least three questions. First, since the Clause mentions “witness against himself,” the question of what constitutes self-incrimination arises. Second, because the Clause mentions being “compelled,” the question of what constitutes compulsion arises. Finally, since the text refers to a “judicial case,” the question of what proceedings count as part of the case for purposes of invoking the Fifth Amendment protection arises.

What Does the Fifth Amendment Cover?

In short, these issues apply to a grand jury witness in the following ways: first, the witness’ testimony is incriminating if it provides a link in a chain of evidence needed to prosecute the witness for a crime; second, the witness’ testimony is compelled if the witness appears pursuant to a subpoena; and third, a grand jury proceeding qualifies as a proceeding for invoking the privilege of silence.

What Constitutes Incriminating Evidence and Your Right to Refuse to Testify?

To begin with, testimony is incriminating as it provides a link in the chain of evidence used to convict the witness for a crime or to increase the severity of a criminal punishment. The connection must be to a criminal penalty; penalties at work, as well as civil penalties such as deportation, do not count.

A domestic prosecution must also be linked; a foreign prosecution does not count. As a consequence, a witness can not claim the Fifth Amendment right against self-incrimination if he or she suspects that the evidence will be used against him or her in a potential criminal prosecution by a foreign government.

The right could not be invoked by the witness even if a foreign government with which the US has an agreement requiring the US to provide the witness’ testimony; the witness has a legitimate fear of deportation from the United States; and the government admits that the witness’ fear of being prosecuted in a foreign country is true and serious.

The case of Hoffman v. United States is the most well-known example of what constitutes a necessary relation. In Hoffman, a witness before a federal grand jury used the Fifth Amendment right by refusing to answer questions about his occupation and interactions with a wanted witness, and was found in contempt for his refusal. The United States Supreme Court, in overturning the contempt conviction, held that a witness may invoke the privilege if he or she has fair grounds to assume that the answers will provide a link in the chain of evidence required to prosecute the witness for a crime. The Court said that the district court should have recognized that, since the grand jury was looking into racketeering, answers about occupation would include answers about violations of gambling laws. The district court should have known that answers about the fugitive could link the witness to actions related to hiding the witness, according to the Court. For grand jury witnesses seeking to qualify their evidence as self-incriminating, Hoffman sets a low bar.

What is Testimony Compulsion?

Grand jury testimony is considered coerced if the witness is served with a subpoena, or if the witness is threatened with the loss of anything so valuable that the threat is considered coercion. Not all forms of pressure or punishment are compulsion. For example, termination of employment, loss of a professional license, ineligibility to obtain government contracts, and loss of the right to engage in political associations and hold public office are all considered compulsion by the United States Supreme Court.

However, a threat to move the person to a maximum security facility, on the other hand, would not count as compulsion.

The fines that the Court determined to be coercive should not be applied to grand jury witnesses. As a result, the United States Supreme ruled that a New York law violating the Fifth Amendment by requiring people who refuse to forfeit their immunity before a grand jury investigating public contracts to be ineligible for government contracts for five years.

When Can a Witness Invoke Privilege and Refuse to Testify in a Court Case?

The Fifth Amendment forbids a person from being forced to testify against himself “in any criminal case.” The courts have interpreted “any criminal case” to include not only existing and pending cases, but also potential criminal cases. As a result, a witness can invoke the privilege not only in a current criminal case against him or her, but also in any proceeding in which the answers may incriminate the witness in a future criminal case.

The grand jury, as well as non-criminal proceedings such as civil forfeiture and deportation, and informal proceedings such as an interview with a probation officer, are examples of where a witness can invoke the privilege. The witness’ fear of potential indictment must be serious and actual, not speculative or imagined, in order to invoke the privilege.

The Court Decides If Privilege Is Involved

A court must decide if the Fifth Amendment right extends after a witness invokes it. The fact that the witness “says so” does not prove that a statement will be incriminating. It is up to the court to determine if the witness’ silence is justified, and to order the witness to respond if the court believes the witness is mistaken. The United States Supreme Court held in Hoffman v. the United States that a trial court can uphold the right if it is clear from the implications of the issue that a responsive response to the question or clarification of why it cannot be answered will be risky due to the risk of injurious exposure. Otherwise, the witness asserting the right must back up his or her argument. If the witness is asked to support the claim of privilege, counsel should step in to provide the reasons instead of the client. If the witness provides the reasons without the assistance of counsel, the witness’ responses can be harmful.

Convicted Witness’s Privilege Statement

The Fifth Amendment right against self-incrimination can also be used by a convicted witness. If the testimony would expose the accused witness to further criminal charges or may further incriminate the witness at sentencing, the witness could invoke the privilege.

The Sixth Circuit has ruled that a witness who had already pleaded guilty to one count of an indictment did not lose his Fifth Amendment right to withhold incriminating evidence because he was facing charges in another state. A guilty plea only waives the right in relation to the crime confessed to; it does not constitute a blanket waiver of the privilege in relation to any offenses that might be the subject of future charges.

To what degree can a witness who has been convicted of such crimes but has not yet been sentenced (or whose direct appeal is still pending) effectively claim the Fifth Amendment right against self-incrimination when called to testify before a grand jury investigating the conviction? The convicted witness, like any other witness summoned to testify before the grand jury, must comply with the subpoena to the point of making an appearance before the grand jury. On the grounds of Fifth Amendment immunity, the witness cannot seek to quash the subpoena. When a witness appears and is interrogated, he or she has the right to claim the privilege in response to specific questions. Whether or not a claim of privilege is true in a particular case can be determined by the clear questions posed to the witness.

Determining Your Right to Refuse to Testify

In the case of the convicted witness, the right to inquire about the evidence that led to the conviction would be determined by one of two factors: (1) the status of the conviction, or (2) the likelihood of future punishment based on those facts. A witness can legitimately invoke the Fifth Amendment right in response to questions about a crime for which he or she has been convicted (either by trial or by a plea of guilty), as long as the conviction is not final.

As an example, as long as the witness is not convicted, the courts have recognized that a witness found guilty of a crime will legitimately claim the right in relation to questions about the crime.

The same is valid if the witness is prosecuting an appeal of a conviction when he or she is called before a grand jury. One court has also upheld the use of the right while the accused witness was facing a motion to overturn his conviction at the time of questioning.

Where a conviction is based on a guilty plea, however, some courts have ruled that the accused witness does not reasonably claim the right as to the offense for which the plea was entered because the penalty has not yet been enforced.

The fact that both the indictment and the sentence are final by the moment the witness is questioned about the evidence that led to the conviction does not preclude the witness from asserting Fifth Amendment privilege over those facts. While a conviction establishes a clear assumption that answers to concerns about the evidence surrounding the conviction would not further incriminate the witness, the mentioned cases do consider the privilege’s continued viability where it is shown that there is a risk of further federal, state, or international prosecution arising from the same facts.

Should a witness want to invoke the right under these cases, the witness must be able to justify precisely which offences may indeed be brought against him or her. As a result, prior to the grand jury appearance, our federal defense lawyers carefully consider all potential federal, state, or international charges based on the same evidence as the existing conviction and inform the witness of these possibilities.

For example, the witness can inform the lawyer that testifying truthfully before the grand jury will be inconsistent with prior trial testimony; the lawyer will then advise the witness that the threat of a perjury prosecution stemming from the earlier testimony may now be used to invoke the Fifth Amendment privilege when questioned before the grand jury.

We Help Protect Your Rights

Any of the prosecutor’s questions before the grand jury which seek information that goes beyond the reach of the prior conviction’s evidence. The witness who has been accused of a crime is in the same place as any other witness before the grand jury in such cases. To put it another way, the witness will use the Fifth Amendment right to refuse to testify or answer any questions that may lead to new criminal charges.

Federal Criminal Lawyers with Norman Spencer will talk to you about your criminal matter or investigations at any time – no matter where you are. Call us today for a consultation.

If you are a health care professional under investigation for unlawful prescribing or dispensing of drugs, you are facing serious, career-ending consequences. Our law firm has been defending physicians, physician assistants, and other professionals for years. We provide effective and aggressive defense to those who need our help!

Defending Healthcare Providers Against Charges of Unlawful Prescribing

Unlawful prescribing or dispensing of controlled substances is a very complex area of law. There are numerous regulations, statutes, and agencies involved in the process. A criminal case would only be part of the problem that you might face as a defendant.

At Norman Spencer Law Group we have the knowledge and the experience needed to handle these cases. Our clients included physicians, chiropractors, and other licensed healthcare professionals charged with or investigated for unlawful prescribing.

Healthcare practitioners who face these accusations often deal with administrative and civil penalties and other consequences. Depending on the state, the law may also prevent you from practicing medicine or billing Medicaid and Medicare.

When you’re choosing an attorney to protect your freedom and your career, it’s vitally important that you choose an established law firm, one that has the ability to handle the criminal, civil, and administrative parts of the case. The Norman Spencer Law Group is just such a law firm.

What Are the Regulations For Drug Dispensing?

Prescription drug abuse is a particularly fast-growing drug problem nationwide. This puts doctors under serious pressure to adjust their use of prescription narcotics while upholding their standard of care. Many doctors and lawyers understand the regulations that control prescribing prescription narcotics. Few of them fully understand what makes up a criminal departure from that standard of care.

Federal and state guidelines on this issue differ, and this creates even more issues down the line. Penalties for crossing this unclear line are severe. They can include the revocation of your DEA and state professional licenses, hefty fines, and even possible jail time.

Medicine is a difficult and complex profession. It comes as no surprise that the regulations are also complex and difficult to understand. A defense lawyer must have specialized knowledge in this field. Otherwise, they will be caught off guard when advising healthcare professionals on the implications of their practices.

What Kind of Scrutiny Can Unlawful Prescribing Come Under?

There has been an increase in funding of federal programs in use to combat illegal prescribing.  The number of enforcing agencies and their budgets has also increased.  They have established methods for tracking and identifying healthcare professionals who deviate from the norms. Insurance companies also conduct a number of undercover ops to identify and prosecute licensed healthcare professionals who prescribe outside the statistical norm, outside of their particular scope of practice, or for other than medical purposes.

Healthcare practitioners facing the allegations of prescribing for medically unnecessary purposes can also face federal and state criminal charges, along with administrative consequences.

Exemptions From Criminal Prosecution of Unlawful Prescribing

Depending on the state, a licensed healthcare professional can avoid criminal prosecution in certain circumstances. Exemptions can sometimes happen as long as the healthcare professional prescribes solely for legitimate and professionally recognized scientific or therapeutic purposes or is acting within the scope of their practice.

Healthcare providers can face criminal charges as well as licensing consequences for violating the Public Health Code that governs these exemptions. Retaining a qualified defense attorney is vital if a healthcare practitioner is found in violation.

What is the Controlled Substance Act (CSA)?

The Controlled Substance Act (CSA) is the principal legislation in use for combating drug abuse and controlling dispensing of prescription narcotics. Licensed medical professionals have to be registered with the DEA to prescribe controlled substances included in Schedules II to V. They have to also be acting within the scope of their practice and prescribing the controlled substance for a legitimate medical purpose.

Under the CSA, the DEA has the authority to revoke or suspend a doctor’s prescription privileges if that physician is found to have engaged in acts that would make their DEA registration “inconsistent with the public interest.” This standard is much lower than the standard found in many criminal cases so you may lose your DEA privileges even if you’re acquitted in criminal court.

Defense Attorneys For Unlawful Prescribing or Dispensing of Drugs

If you’re in legal trouble, you need to hire an attorney right away. However, most law firms wouldn’t be the right fit for you because they lack expertise in this complex field. Keep in mind that the best attorneys in this area have years and years of the very unique experience of representing clients in matters like this.

With decades of defending healthcare professionals and thousands of completed cases, Norman Spencer Law Group has what it takes to find success for you. We’ve represented all types of cases, including ones that look just like yours. There’s no case too big or small for us, and complexity is no issue for us either. If you’re a healthcare practitioner facing an investigation or charges of unlawful prescribing or dispensing, get in touch with us today. Let us know who you are, what you’re dealing with, and how we can get back in touch with you. Call us today to set up your consultation!