Articles Posted in Grand Jury Practice

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The Eleventh Circuit held, today, that a person cannot be compelled to unencrypt encrypted files under the Fifth Amendment in In re Subpoena Duces Tecum issued March 25, 2011.

John Doe [FN1] is a man who knows how to keep quiet. He came to the government’s attention in the worst of ways. In March of 2010, the government found that someone was uploading child pornography to You Tube. [FN2]

965843_computer_bit.jpgLaw enforcement tracked the IP addresses of the person who did the uploading. The IP addresses led them to a series of hotels. The only person common to all the hotels where things had been uploaded from was John Doe.

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Testifying before a grand jury can be nerve wracking. Your lawyer can’t be with you. The prosecutors can ask you almost anything, including questions that call for hearsay. You have a right to refuse to testify based on your Fifth Amendment Right against self-incrimination, but the government can overcome that by giving you immunity (for a fuller discussion of immunity, see this article on the topic that I co-wrote with Roger Spaeder).

If you are testifying under an order of immunity, the only way you can refuse to answer a question is if the question calls for an answer that would reveal a privilege, such as the attorney-client privilege or spousal privilege. And it’s up to the witness, without his lawyer, to make the determination of whether privilege applies.

To make things even worse for witnesses, you don’t have a right to get the transcript of your testimony when you’re done. You could testify for hours, based on a stack of documents that you may never have seen before, and at the end of the time you may not remember what documents you saw or what you said about them. Even if you’re intending to be fully honest, the most steel-trapped minds can get turned around in a grand jury proceeding.

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The Eleventh Circuit recently decided a case that highlights why responding to a grand jury subpoena needs to be taken seriously. The case is United States v. Hoffman-Vaile. As a teaser, a doctor is going to prison for longer than she should because of how she handled a grand jury subpoena.

In the case, a doctor, Dr. Hoffman-Vaile, was being investigated for upcoding a series of dermatological procedures. Basically, the doctor was billing Medicare for a surgical procedure called “an adjacent tissue transfer or rearrangement that measures more than 30 square centimeters and is unusual or complicated.” This procedure was billed under code 14300.

The government’s suspicion was that Dr. Hoffman-Vaile using the billing code 14300, but, in fact, she was do a simpler dermatological procedure, with a different billing code. Telling Medicare that you’re doing a procedure that pays better than the one you’re actually doing is called “upcoding,” and it’s one form of medical billing fraud.

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