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Showing posts from 2011

Med-Cal Fraud for billing device other than one used

The Second Appellate District in California affirmed a judgment of conviction for a physician who committed fraud for knowingly billing Medi-Cal for use of an expensive and approved medical device when he instead used a cheaper device that was not approved for reimbursement. 

From 2004-2006, the office of OB-GYN Eduardo Guzman billed Medi-Cal for the insertion of 176 IUDs. The billings used the precedure code designated for teh trade name "ParaGard" when in fact he used a cheaper type of IUD manufactured in Mexico.

The court found the evidence at trial was sufficient to show an intent to defraud Medi-Cal.

The case is: People v. Guzman, ___C.A.2nd; Dec. 12, 2011; B232299.

The Conrad Murray Sentence in the Wake of California’s Prison Realignment Act of 2011

Conrad Murray – to be known forever as the man associated with the King of Pop’s untimely death. Despite being convicted by a jury of involuntary manslaughter, Dr. Murray may never see the inside of a state prison cell. He has the California Realignment Act of 2011 and the United States Supreme Court to thank for that bit of good news (Brown v. Plata was discussed in our last email blast).

Upon his conviction for a violation of California Penal Code § 192(b), Dr. Murray faced a sentence of 2, 3, or 4 years. Prior to the passage of AB 109 (the Realignment Act of 2011), Dr. Murray would have had to serve these years in state prison pursuant to Penal Code § 193. Post-AB 109 – no longer the case. Dr. Murray, sentenced to 4 years on November 29, 2011 by the Los Angeles County judge presiding over the case, will now serve his time in a local county jail, which comes with its own benefits.

California’s Prison Realignment Act of 2011, passed in order to address prison overcrowding per a man…

No Challenge of Factual Basis for Plea

Defendants who plead guilty or no contest may not challenge on appear the trial court's conclusion that a factual basis existed for a plea, according to the 6th Appellate District in California.  The court held that a criminal defendant who pleads guilty or no contest is judicially estopped from seeking substantive appellate review of guilt or innocence by challenging a trial court's conclusion that there existed a factual basis for the plea.

The case is: People v. Voit, C.A. 6th; November 18, 2011; H035882.

United States v. Gilchrist: Federal Embezzlement and Bank Fraud

In United States v. Gilchrist, Dwight Gilchrist filed a civil law suit against Wells Fargo Bank after they refused to recover the amount of money that was supposedly stolen from his bank account. Failure to cooperate with Wells Fargo’s investigation on his fraud claim reports prompted a FBI investigation on Gilchrist and his bank accounts. This revealed he was involved in federal embezzlement and bank fraud. He pleaded guilty to those charges and was also sentenced for “obstruction of justice” because he committed perjury during his depositions in his civil law shit against Wells Fargo Bank.
On appeal, Gilchrist believed the district court erred in applying the sentence enhancement for willfully obstructing justice. He argued he was unaware that he was under a federal investigation at the time he committed perjury during his civil law suit against Wells Fargo Bank. 
The court disagreed with his contention and affirmed judgment. In Gilchrist, the Ninth Circuit agrees that “willful mean…

State Court Plea Used in Federal Court Proceedings

Federal Court proceedings indicted Richard Aguirre for racketeering and conspiracy to distribute narcotics after he pleaded guilty in state court to one count of maintaining a residence for purposes of selling cocaine in People v. Aguirre. Unaware that his guilty plea would be used in Federal Court, Aguirre appealed and entered a motion to withdraw his plea.
During his appeal, Aguirre stated that his plea was not “knowing, intelligent, and voluntary” because he was unaware that it might be used against him in a federal prosecution. He felt the trial court was obligated to tell him about the federal jury proceedings and that the federal indictment was a direct consequence from his plea in state court.
The Second Appellate District affirmed judgment on Aguirre’s case. They were not convinced with Aguirre’s contentions and held that the trial court does not have to advise the defendant that his plea might be used in a federal prosecution. In addition, Aguirre’s argument regarding his lac…

Tip from Informant Helps Police Arrest Wanted Ninja

In People v. Scott, an anonymous informant called the Riverside Police Department to notify them about David Scott, who was strongly suspected to have been involved in the murder of Brenda Kenny. The informant was Scott’s coworker at the movie theatre and told the police that he saw Scott several times dressed in an all black “ninja” outfit with a sword and a knife— the attire described to have been worn by Kenny’s murderer. The informant also stated that Scott told him he had a dream about killing someone, which closely matched the details of Kenny’s murder that the informant read about in the newspaper.
The police felt the informant was a reliable source who did not have any motive to lie. His phone message to the police led to Scott’s arrest and he was charged with murder in addition to rape and other crimes. While he denied being involved in the “ninja” crimes, he told the second interrogating officer the same dream he relayed to the informant. This was said after waiving his Mira…

People v. Torres: Transporting and Possessing Alcohol in Prison are Two Separate Criminal Acts

In People v. Torres, the Second Appellate District determined the acts of bringing alcohol into a jail facility and possessing alcohol in a jail facility are two separate punishable crimes that each have its own objective.
Alfonso Torres and Adan Barajas were two inmates at a minimum security prison fire camp who snuck alcohol into the facility with the help from a civilian. A correctional officer saw a car drive onto the facility making a stop at a trash can. The driver got out of the car and placed two trash bags in the trash can. The civilian quickly drove off while honking several times. Moments later, Torres and Barajas ran to the trash can, picked up the trash bags, and ran back to a nearby building.
To prove that Torres and Barajas “knowingly” brought alcohol onto the jail’s facility, the court explained several circumstances that showed they were fully aware of the crime they committed. A civilian cooperated with the defendants to successfully transport the contraband onto the…

Collecting DNA is Ruled Unconstitutional in CA Court of Appeals

With the advancement of technology, there has been a controversyin the legal community surrounding the seizure of DNA samples from felony arrestees. California’s DNA Act was amended in 2004, enabling law enforcement officials to take DNA samples from any adult arrested for or charged with a felony. This act led to the recent case of People v. Buza, where Mark Buza was convicted of arson, but still argued that his mandatory cheek swab violated his Fourth Amendment right.
In Buza, the Court of Appeals argued that obtaining DNA samples were a violation of the felony arrestees Fourth Amendment right to be free of unreasonable searches and seizures. Justices Anthony Kline, James Lambden and James Richman sided with Buza, deeming DNA sampling unconstitutional. When compared to fingerprinting, Kline dismissed that argument and said they were obtained for “identification purposes and not to solve crimes.” Moreover, Kline stated in his opinion for Buza, “even if DNA testing of arrestees was dem…

Implied Malice Theory

In People v. Canizalez, the Second Appellate District affirmed judgment on the convictions for Robert Canizalez and Martin Morones. On a busy city street, the two defendants engaged in a street drag race that ended in a collision with another car. The other car immediately burst into flames, killing the occupants, whom were a mother and her two young children.

Both Canizalez and Morones appealed, believing there was an insufficient amount of evidence supporting the prosecution’s argument for implied malice. The defendants argued that the elements of the incident did not prove they were aware of the danger involved in their actions and it also did not show they were lacking a conscious regard for life. The court of appeals disagreed, and affirmed judgment from the lower court.

Contrary to the defendants’ argument for appeal, the court of appeals provided an overwhelming amount of evidence that supported the implied malice theory. For instance, Canizalez and Morones were well aware of…

United States v. Evanston: no re-arguing during jury delibrations

In U.S. v. Evanston, the Ninth Circuit Court vacated a district court’s judgment because it allowed attorneys on both sides to re-address arguments after the jury declared its second deadlock. Calvin Evanston was charged with assault on his live-in girlfriend, leaving her with permanent damages on her face. The jury was unsure about the witness’s credibility and how the victim’s injuries were caused. Despite the defense’s objection to this order and two jury deadlocks, the judge gave both sides the opportunity to reargue the issues that were uncertain to the jury. Shortly after, the jury deliberated and reached a guilty verdict.

The court of appeals found the order for additional arguments as an interference with the jury’s role as the sole fact-finder. First, the jury’s deliberative secrecy was violated when they revealed to the judge that they were inconclusive about two particular issues. Secondly, additional arguments from both sides along with the judge insisting to continue aft…

California State Prison Overcrowding: The U.S. Supreme Court Decision and Its Aftermath

On May 23, 2011, the Supreme Court of the United States gave California officials a strict order to cut its prison population by at least 23%, reducing its inmate population from 143,435 to 109,805. In Brown v. Plata, Justice Anthony M. Kennedy made the concluding 5-4 vote, stating that “needless suffering and death have been the well-documented result” of overcrowded prisons. California must fulfill this order by May 2013 with four deadlines within the two years, requiring a 10,000 inmate reduction for each benchmark. If the state does not meet the deadlines, the courts have the authority to order prisoners released.

Issues stemming from California’s overcrowded prisons were first brought to the court’s attention over two decades ago as a violation of the 8th Amendment, which prohibits cruel and unusual punishment for crimes. What has come to light from these cases is that California’s prisons are designed to house no more than 80,000 inmates, but currently it is housing almost doubl…

Insider Trading Roundup: Wall Street on Trial

This week marks the start of the criminal trial against Galleon Group LLC co-founder Raj Rajaratnam in federal court in Manhattan. Rajaratnam is the central figure in the largest crackdown on hedge-fund insider trading in U.S. history. He is accused of making $45 million from confidential information leaked by corporate insiders and hedge fund traders. He faces up 20 years in prison if convicted of securities fraud. Rajaratnam has denied wrongdoing and has argued that investment advisers routinely speak to company insiders as they do research. The anticipated 10-week trial will determine whether his conversations (many, recorded) and subsequent trades were illegal or not.

Since the indictment of the Galleon case in 2009, the Justice Department and the SEC have brought insider trading cases against numerous hedge fund managers, consultants, bankers, lawyers, and individuals at “expert network” firms.

Just last week, the SEC filed a civil action against Rajat Gupta, a former Goldman Sac…

Court Reverses Decision on Cold Stone Creamery Caller

The State of California Court of Appeals has reversed a decision by the trial court in the case People v. Powers. The original decision in January 2009 charged David Thomas Powers with one felony count of criminal threats against a Cold Stone Creamery employee along with several misdemeanor charges of making annoying calls to an employee. The court, at first, found Powers incompetent for trial at the time and ordered him to be committed to a state hospital. Following treatment, the court dropped the felony charges against Powers and the case was continued in a trial court, whereupon Powers testified on his own behalf. The trial court found Powers guilty of four misdemeanors.

In the fall of 2008, David Thomas Powers left recorded messages after calling Cold Stone Creamery regarding his complaints and discontent with the service and other customers in the store. Powers claimed that he was being “ripped off” and continued to use profanity throughout the several messages he left after he …

Court Stands Strong Behind Sharp Tactics

The Ninth Circuit Court of Appeals has once again stood behind prosecutors’ tactics of fueling minimums in drugs cases in which defendants refuse to snitch. The court upheld, for the second time, the conviction of a drug dealer who refused to act as a government informant and was therefore subject to a higher minimum. The panel of three judges unanimously upheld this conviction.

Convicted drug dealer Jay Kent refused to act as a government informant after being caught with crack in July, 2008. The Assistant Federal Public Defender tried entering into a guilty plea for his client before the government filed the 851 information, triggering steeper penalties based on prior drug convictions. However, the guilty plea had to be withdrawn after the Assistant U.S. Attorney revealed the copies of the bolstered charges and the Court accepted the 851 information. This raised the exposure from five to forty to ten to life.

The appeals court later held that there was no evidence to support the c…

US v. Morris: Judge Patel Reversed

The 9th Circuit Court of Appeals reversed a district court judgment - that of Judge Patel. The court held that the government's decision to carry out an earlier threat to increase a defendant's potential sentence following his refusal to cooperate as a witness in a trial of a confederate did not violate the defendant's due process rights.  In other words, the court upheld the government's ability to threaten a defendant with the filing of his 21 U.S.C. §851(a)(1) priors if defendant would not cooperate against co-defendants and/or plead guilty.

The case is: United States v. Morris, 10-10009.

Defendant Granted Deferred Entry of Judgment Couldn't Be Terminated Based Solely on Inability to Pay Program Fees

In this case, Judge Cantil-Sakauye of the California Third Appellate District, held that a defendant granted deferred entry of judgment could not be terminated based solely on the inability to pay program fees of the drug diversion program she had been referred to.  She presented evidence of her inability to pay.  She should not have been terminated from durg diversion on this basis.

The case is: People v. Trask, C.A. 3d, Dec 29, 2010; C0684804