GUEST BLOGGER-SOLOMON L. WISENBERG
Here is the slip opinion. According to the Court's syllabus, Section 1346 is not unconstitutionally vague, but only proscribes the "bribe-and-kickback core of the pre-McNally case law." More to come.
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Tag: Fraud
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The opening panel of this conference was United States Sentencing Guidelines Developments and a View from the District Court Bench. Moderating this panel was Professor Frank Bowman. Judges Frederic Block (ED NY), Steven Merryday (MD Fl) and Robert Pratt (SD Iowa) offered their perspectives. Judge Pratt had some important advice for defense counsel – sentencing is fact intense and you need to bring out the facts. You need to make a record. My favorite line was when he said that there are a "number of opportunities to make the law more human."
The panel – Sentencing Issues in Securities Cases – had Henry "Hank" Asbill as the moderator. It's all about "loss" is the way it started. Listening to the speakers ( Mark Harris – Proskauser Rose, LLP; Michael Horowitz, Calwalder, Wickersam & Taft; Peter Spivack – Hogan & Hartson) it is clear that an expert is needed to assist in measuring loss. But as noted by one of the speakers, "[i]f you go down the expert road these are very complicated issues." Hank Asbill asked "[w]ere the guidelines based upon assumptions in the market?"
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I'll pass on the jury prejudice issue and leave it to crimprof to handle this one. But the honest services exchange was fascinating. You have several justices asking where to find this pre-McNally law. (see here). Do you need lawyers, do you have to carry around treatises - but then Justice Alito hits the homerun. He asks the important question of whether we would find this scenario in the pre-McNally cases. Mr. Dreeben says "not to my knowledge." A "logical extension" is what he offers. I call that – stretching.
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Addendum -See Lyle Denniston, Scotus Blog here ; Tom Kirkendall, Houston Clearthinkers here; Mary Flood, Houston Chronicle, Justices worried about fair trial for Skilling; Robert Barnes, Wash Post, Skilling case latest to test 'honest services'
Second Addendum – The more I keep reading, the more I keep thinking about the Court's words in the Carpenter case, where they found the "right to intangible property" covered under the mail fraud statute, but noted that the Wall Street Journal "was defrauded of much more than its contractual right to his honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute…" Clearly this was pre-1346, but it is telling.
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In a recent speech by AG Holder he recapped this year's health care fraud prosecutions and predicted that more would be coming. (see press release) Holder was speaking at the National Summit on Health Care Fraud. He said that:
"last year brought record levels of achievement in our fight against health care fraud. In 2009, the Justice Department reached an all-time high in the number of health care fraud defendants charged, more than 800. We also obtained more than 580 convictions. And on the civil enforcement front, our health care fraud recoveries last year under the False Claims Act exceeded a stunning $2.2 billion dollars."
He spoke of five things that would be happening to combat health care fraud. One of them was:
"we must strengthen HEAT. We will continue to combine and leverage our agencies’ resources and expertise, including the FBI and the Office of Inspector General at HHS, to prevent and prosecute fraud. HEAT will continue to work closely with local U.S. Attorneys Offices to pursue both civil and criminal cases. And in bringing these fraudsters to justice, we will use the power of the Internet and the media to inform the public and the health care industry about how to prevent future fraud schemes."
And just looking at this past month, one finds the emphasis on health care matters. See DOJ Press Release, Former Los Angeles Medical Center Owners Agree to $10 Million Consent Judgment for Medicare and Medi-Cal Fraud Scheme; DOJ Press Release, Jury Convicts Detroit Area Doctor of Health Care Fraud Conspiracy
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