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The Federal Criminal Lawyers of Norman Spencer Law Group defend clients in all federal criminal cases nationwide. If you are summoned to testify as a Grand Jury witness, call us first to make sure your Fifth Amendment rights are protected.

What Exactly Does the Fifth Amendment Mean?

The Fifth Amendment everyone heard of actually protects against self-incrimination. It states that no one “shall be required in any criminal case to be a witness against himself.” The Self-incrimination Clause applies to all residents and non-citizens, as well as the federal and state governments. The Fourteenth Amendment makes it applicable to the states.

Grand Jury Witness and Self-Incrimination

Since the Clause mentions “witness against himself,” the question is what constitutes self-incrimination. Also, because the Clause mentions being “compelled,” another question is what constitutes compulsion.  Finally, since the text refers to a “judicial case,” the question is what proceedings count for purposes of invoking the Fifth Amendment protection arises.

In short, the witness’ testimony is incriminating if it provides information needed to prosecute the witness for a crime. The witness’ testimony is compelled if the witness is forced to testify (as if pursuant to a subpoena). For the purposes of the 5th Amendment, a grand jury proceeding qualifies as a proceeding for invoking the privilege of silence.

What Constitutes Incriminating Evidence?

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

The 5th Amendment only applies to domestic prosecutions but not to foreign prosecution. So, a witness can not claim the Fifth Amendment right against self-incrimination if he suspects that the evidence will be used against him in a potential criminal prosecution by a foreign government, even if the witness will be deported and prosecuted in another country.

What is Grand Jury Witness 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.  Being threatened with 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.

When Can a Grand Jury Witness Invoke Privilege?

The Fifth Amendment forbids a person from being forced to testify against himself “in any criminal case.” This includes not only existing and pending cases, but also potential criminal cases. So, a witness can invoke the privilege not only in a current criminal case against him but also in any proceeding in which the answers may incriminate him 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. However, the witness’ fear of potential indictment must be serious and actual, not speculative or imagined, in order to invoke the privilege.

The way the Fifth Amendment operates in the case of witnesses testifying in a Grand Jury is a little different. We suggest that you speak with a federal criminal attorney before appearing to testify. You will not be able to refuse to testify if you are subpoenaed. As a witness, you will have no choice but to take the stand. You will have to listen to every question the prosecutor asks and then decide when to plead the Fifth. Of course, you can only refuse to answer the questions that could open you to criminal exposure.

Federal prosecutors may sometimes offer a witness immunity in exchange for the testimony. The scope of that immunity is limited to what they testify to at the hearing. Alternatively, they can offer them general immunity from the crimes they are accused to have committed.

It is important to note that the government may also negotiate a plea bargain with a witness if the witness agrees to testify in another case. In that deal is reached, the government could agree to seek leniency for the witness at sentencing.

Convicted Witness’s Privilege Statement

The Fifth Amendment can also be used by a convicted witness. If the testimony would lead to additional criminal charges or may further incriminate the witness at sentencing, the witness could invoke the privilege.

What if a witness has been convicted but has not yet been sentenced (or if his appeal is still pending)? Can such a witness claim the Fifth Amendment right if he is called to testify before a grand jury investigating the conviction? When a witness appears and is interrogated, he has the right to claim the privilege in response to specific questions.

In the case of the convicted witness, the right to ask about the evidence that led to the conviction depends on the status of the conviction or 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 has been convicted, as long as the conviction is not final.

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.

When you’re facing an investigation into or charges of healthcare fraud headed up by the Office of Inspector General, to say that you can feel overwhelmed is an understatement. Along with the stigma that comes along with charges like these, and the court of popular opinion that you’ll have to contend with as a result, there’s also the fact that you could be looking at years or even decades of prison should you be successfully convicted. It goes without saying that anyone facing prospects like these is going to want to get someone in their corner who can effectively defend their case, ideally getting charges reduced or even dropped altogether before you’d ever need to go to court. But who should you turn to for help?

Not all legal firms are equal, and not every defense attorney or firm will have the experience, resources, and skill necessary to ensure the best possible outcome for you. You need a place that will fight hard for you and get you the results that you need and deserve. You need the Norman Spencer Law Group.

Contents

• What can the Office of Inspector General do?
• What should I do if I end up under investigation by the OIG?
• Who can I trust?
• The Norman Spencer Law Group can help you out.

What Can the Office of Inspector General Do?

As you might imagine, the Office of Inspector General has a very narrow and specific purview. While their methods might be extensive, their jurisdiction is quite specific. The Office of Inspector General, or OIG, gets involved in situations such as Medicare or Medicaid-related cases, routine audits of healthcare records, offenses related to healthcare insurance, and grant or contract fraud, especially as it relates to the healthcare system.

It’s important to note that the penalties here can be both civil and criminal in nature, and an investigation can shift at any time based on the investigator involved and any evidence that might come up in the course of said investigation. For instance, an investigation can start out as a civil one and then become criminal later, with the eventual penalties being civil sanctions, criminal penalties, or even both, all depending on the situation.

What to Do When Under Investigation by the OIG?

There are a few things that you should keep in mind should you find yourself under investigation by the OIG. While these are more general guidelines that could apply to a wide variety of charges or legal issues you might find yourself in, they still bear repeating.

To start with, you should keep the conversation with the investigator to a minimum. One of the biggest mistakes you could make is to assume that you have nothing to hide and that you should talk openly with investigators. The reality is that the scope of the investigation will almost always be wider than you think it’ll be, and a savvy investigator will be able to trip you up and get you to incriminate yourself. While you have an affirmative duty to cooperate with the investigator, you should only do this while under the advisement of a competent defense attorney.

Another thing to keep in mind is that you should under no circumstances represent yourself in court or assume that you can handle an OIG investigation on your own. An OIG investigator’s sole job is to find violations and pursue prosecutions. They will use everything at their disposal to do just that. They are not your friends, your defense attorneys are.

The last thing you should keep in mind is that not all legal firms are identical. While there are plenty of firms out there, not all of them will have the proper level of experience and skill that you need to win your case. Considering that the right defense attorney can literally be the difference between you spending the rest of your life in prison and having all charges against you dropped entirely, this is a very important decision for you to make.

Who to Trust with Office of Inspector General Issues

Trying to decide on the right legal firm can be overwhelming, to say the least. There are plenty of firms out there with slick marketing campaigns and funny catchphrases, but not all of them will have the know-how to actually win in court. A catchy jingle means very little if you end up in federal prison, so you need to be sure that the people you’ve chosen to represent you can actually cut it.

With that said, what are some of the things that you should be on the lookout for? Well, you’ll want a firm that has years of experience. A firm that has handled all types of cases, both big and small, simple and complex. A firm that has represented people from all walks of life, at both the state and the federal level.

The Norman Spencer Law Group Can Help

With a combined 70+ years of experience representing cases (many of which look just like yours), the Norman Spencer Law Group is the right firm for anyone who’s facing down an investigation from the Office of Inspector General.

Our top priority is our clients, and that begins with our focus on 1:1 service. We have a host of accessibility options, starting with remote legal consultations that we are able to host through Zoom, Skype, and Google Duo. Then, if you need someone to come to you, we can get someone from our team to do just that, no matter where you might be in the country. So if you’re facing any sort of legal trouble, don’t leave your fate up to chance. Get in touch with us today, and someone from our team will get back to you as soon as possible so we can get started on getting you the help that you need and deserve.

DEA controlled substance registration is one of few valuable assets in your possession if you practice medicine. It so happens, that this possession and your practice may depend on the DEA’s good graces. There may be many circumstances under which the physician may lose the DEA registration, and sometimes it is out of his or her control. However, you should never voluntarily surrender it to the DEA as this will have a dramatic negative effect on your practice and career. Federal criminal and healthcare attorneys with Norman Spencer are here to help you when you are targeted by the DEA, no matter where you are.

How the DEA Targets Physicians

Most DEA-related problems begin with the investigation. You may be visited by a duo of DEA agents. They often visit medical practices during regular business hours, disregarding your schedule and the fact that you may be busy with patients. The agents will ask you if they can speak with you and of course, you agree. The interview begins, and you are asked many questions about your controlled substance prescribing practices. Like countless others before you, you think that this is just a regular review.

You have nothing to hide and are eager to provide the information to the agent. At some point during the interview, the DEA agent will tell you that you violated a variety of regulations and that you are going to face some serious consequences. However, to save you some trouble, the agent will suggest that you just surrender your DEA controlled substance registration certificate. Why would you do that? Because if you don’t, the agent informs you, “the DEA will revoke it.”

If you are like most physicians faced with this situation, you are likely baffled, terrified, and are afraid of what the future holds for you. Unable to deal with the stress, you are likely to take the good agent’s advice and just sign off at the bottom of the surrender page. Actually, unlike your expectations, this is when your troubles really begin. Norman Spencer Law Group DEA lawyers are here to make sure this does not happen to you!

Why is this a bad idea to take legal advice from the federal agents? The answer is obvious: would you take advice from a car thief on where to keep your car keys? Would you ask a cigarette seller whether smoking is bad for you? If you think the agent is your friend, you are wrong. Federal Agents are professionals trained and paid for building cases against their targets. They don’t solve your problems, they create them!

Why You Should Never Voluntarily Surrender Your DEA Certificate of Registration

This is why you should always refuse to surrender your DEA certificate of registration. There are three main reasons:

• First, if you surrender your DEA registration, you can rest assured that this will lead to further investigations and administrative action against your other assets such as your medical license by your state’s Medical Board.
• Second, in all probability, you are not able to restore your DEA controlled substance registration certificate.
• Third and final point: if you chose to fight the DEA, you can benefit from the long delays in the DEA adjudication process. In other words, you could be able to practice while your DEA matter is pending.

Can the DEA Revoke or Suspend Your DEA Registration?

It is possible the DEA will summarily suspend or revoke your DEA registration, but that cannot be done arbitrarily and capriciously. For that to happen, the government must establish that one of the following took place:

• You submitted materially false information on any application filed pursuant to or required by subchapter I of Section 823 the Title 21 United States Code Controlled Substances Actor subchapter II of this chapter.
• You have a felony criminal record relating to any controlled substance.
• Your medical license or registration was suspended, revoked, or denied in any state
• You are not authorized by state law to manufacture, distribute or dispense controlled substances or list I chemicals
• Your registration is not in the public best interest (usually because of certain acts you committed)
• You were excluded from participating in some federal programs.

Before the revocation, the Attorney General will serve you with an “Order to Show Cause” why your registration should not be denied, revoked, or suspended. At that time you will have 30 days to respond. If you received the DEA Order to Show Cause, call Norman Spencer Law Group right away!

In some “emergency” situations, the Attorney General is authorized to summarily suspend the registration as soon as the DEA initiates proceedings. This can be done if the government can demonstrate that there is an imminent danger to public health or safety. Therefore, if you chose not to voluntarily surrender your DEA certificate, the DEA will have no choice but to submit an order to show cause and give you an opportunity for a hearing.

On the other hand, if you surrender your DEA registration, you automatically give up the right to a hearing. It will be all over. You will have to wait until the criminal, civil, or administrative case against you (that triggered the DEA action) is resolved before you can reapply for your registration. This can take a really long time. During this period you will not be able to practice.

It is a known fact that the DEA adjudication process is notoriously slow and long. This means that cases involving DEA suspension, revocations, and registration denials can take years. The Office of Inspector General issued a scathing report pointing to the DEA inefficiency and bureaucratic hurdles that result in significant backlogs in the adjudication of the case pending before it. The DEA doesn’t need more pending cases resulting in even longer backlogs, and this explains why the DEA agents are notorious for pressing physicians into giving up their rights to a hearing.

If you need to choose between voluntarily surrendering your DEA Certificate surrender without a hearing and immediate suspension, we would normally advise you to request a hearing, because there is always a chance that the DEA is bluffing and will not file an immediate suspension order and also you may have a chance to prevail at the hearing. However, if you voluntarily surrender your license and later want to get it reinstated, these delays will complicate your ability to practice after your criminal, civil, or administrative matter is resolved.

A Voluntarily Surrender of DEA Certificate Could Trigger Actions  

When a healthcare practitioner voluntarily surrenders his or her DEA registration, that is likely to cause of snowball of collateral consequences. The worse and most likely result of a DEA registration surrender is that the local state board will take an action against the practitioner’s professional license, leading to revocation, suspension, or other negative results.

However, if you refusing to voluntarily surrender your DEA registration, one benefit will be delaying or perhaps even avoiding this snowball effect. Also, having an active DEA registration is required by most hospital credentialing bodies and medical insurers. You must have the DEA registration to be employed or to participate in the plan. If you voluntarily surrender your DEA registration, you will be reported to your credentialing body and medical insurers, which will result in a credentialing action and loss of privileges.

The main point to take home from all of the above is that voluntarily surrendering your DEA registration will not benefit you. Don’t listen to promises from DEA agents that it’s better for you to surrender the certificate. The only time a surrender could be beneficial to you is if your lawyer negotiates it as part of a global resolution where you will actually benefit from it.

We Can Help You With Your DEA Certificate Registration Problems Nationwide

When the DEA agent tries to sweet talk you into signing a “Voluntary Surrender of Controlled Substances Privileges”, do not buy it. Tell them that you will not sign anything before speaking with a lawyer and call the Norman Spencer Law Group attorney who has experience with DEA and criminal healthcare matters.

At Norman Spencer Law Group, our team of DEA defense attorneys represents healthcare practitioners in all DEA matters, from investigations to administrative and criminal actions. Our clients come from a wide array of healthcare disciplines. We defend physicians, pharmacies, and all other DEA registration nationwide from losing their DEA registration.

The national healthcare criminal defense lawyers at Norman Spencer Law Group have broad experience in all DEA matters, administrative and criminal such as drug trafficking and diversion and other matters.  Call us immediately to start protecting yourself!

If the act of producing documents will amount to testimony about the presence and location of potentially incriminating evidence, a grand jury witness could invoke the Fifth Amendment right against producing documents. It’s called the “act of creation privilege”.

However, if the government is already aware of the documents’ presence and position, the act of production lacks a testimonial component, and the witness is unable to invoke the Fifth Amendment. A witness must prove both (1) evidence and (2) compulsion to claim a Fifth Amendment right against record production. The Fifth Amendment protects you from being forced to testify against yourself, which is why both testimony and compulsion are needed.

How Does Taking the Fifth Amendment Work?

The witness must first describe the evidence in question. A document may be the equivalent of testimony in one of two ways: (a) the document itself may be the equivalent of testimony, or (b) the process of making it may be the equivalent of testimony. Also, there are two ways to compel a document. It is possible to force the witness to (a) make it, or (b) create it.

If the witness argues that the document itself is evidence, he or she must show that the document was produced under duress. If a document was produced willingly, or in response to a regulatory requirement, such as a tax return, it is not compelled.

The Supreme Court has ruled that the Fifth Amendment cannot be used to prevent compliance with a regulatory system, such as tax laws, that was enacted for a reason unrelated to the enforcement of the country’s criminal laws. A witness cannot object to the production of a document simply because it is self-incriminating whether it was made willingly prior to the subpoena or was made pursuant to a regulatory requirement.

When Does it Apply?

For the Fifth Amendment to apply, there must be coercion in the creation if there is no compulsion in the making. If the witness argues that producing the document is the same as giving evidence, he or she must clarify the testimonial aspects of the development.

When the government did not know the presence and location of particular incriminating records, and the witness, by producing the documents, effectively testified about their existence and location, the Supreme Court held that development has testimonial aspects. Here are two examples of the problem when generating documents is equal to testimony. The Supreme Court ruled in Fisher v. United States that creation did not equate to testimony but it also ruled in United States v. Hubbell that it did.

The government was aware of the presence and location of potentially incriminating records in Fisher. The government was aware of the existence of working papers prepared by the taxpayers’ accountants, as well as their position, which was with the taxpayers’ lawyers. The government then presented the lawyers with a summons for their appearance. The taxpayers’ assertion of Fifth Amendment protection was rejected by the Court, which ruled that the “life and position of the papers are a foregone conclusion” and that “the taxpayer contributes little or nothing to the sum total of the Government’s knowledge by conceding that he in fact has the papers.”

Has the Fifth Amendment Ever Been Breached?

In Hubbell, on the other hand, the witness contributed a great deal to the government’s knowledge by delivering the letters. The government served a subpoena in Hubbell, requiring the submission of records before a grand jury. The witness invoked his Fifth Amendment right to remain silent in the face of self-incrimination. As a result, the government granted immunity to the witness, who then released the papers. The government then used details taken from the records to prosecute the witness, and the Fifth Amendment was breached, according to the Court.

In comparison to Fisher, Hubbel’s prosecutor had no knowledge of the existence or location of incriminating records, and reacting to the subpoena was “akin to answering a series of interrogatories requesting a witness to reveal the existence and location of specific documents fitting those broad descriptions.”

The most important issue in production proceedings, according to both rulings, is whether the prosecutor was aware of the presence and location of incriminating records prior to the subpoena. The witness would not be allowed to use the Fifth Amendment right against development if the prosecutor is aware, but if not, the witness can assert the Fifth Amendment.

The Supreme Court held in Hubbell that the government bears the burden of proof on this crucial issue: whether the prosecutor knew. The government argued in Hubbell that respondents had to prove a substantial connection between the coerced testimonial contact and some part of the evidence used in the investigation or at trial. The government’s claim was dismissed by the Court, which ruled that the government could prove that its testimony came from sources completely apart from the immunized correspondence. In Hubbell, the prosecution acknowledged its lack of prior knowledge as well as its unauthorized use of the records.

Document Production by Corporate Officers or Corporations

Corporations and other collective organizations, such as unions and partnerships, are not covered by the Fifth Amendment, according to the collective entity doctrine. Only their officers and employees may work on behalf of these companies and other collective bodies. According to the doctrine, workers and officers cannot assert the Fifth Amendment right on behalf of the company. The doctrine applies regardless of the size of the company or relationship. Due to the collection agency doctrine, a company’s right to assert the Fifth Amendment protection is solely contingent on its organizational structure.

If a company wishes to incorporate or form a relationship, it would be unable to assert the Fifth Amendment later. If it wishes to form as a sole proprietorship, however, its owner may claim Fifth Amendment protection. As a result, the application of the Fifth Amendment would depend on the nature of the business enterprise, which is generally made without regard for the Fifth Amendment.

Fifth Amendment Privileges

A corporate custodian of documents cannot object to a grand jury subpoena for corporate records by citing the Fifth Amendment right on behalf of the company because the corporation has no Fifth Amendment privilege.

Also, a corporate custodian cannot refuse a subpoena for corporate documents by claiming his or her own Fifth Amendment right. Even if the records would incriminate the individual and the custodian is the sole shareholder, the custodian cannot object to the creation of corporate records. Since the custodian keeps the corporate records in a representative, not a personal capacity, the custodian cannot claim personal privilege.

If you have been subpoenaed by the federal government, speak to nationwide federal criminal attorneys at Norman Spencer PC today to protect your rights!