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Short Wins – Missing Evidence, Medicare Fraud, and How Normal People React To Federal Prosecutions

There was only one published criminal case in the federal circuits last week where the defendant won. It’s a good case on jury instructions for missing evidence, and the short write up is below.

In other news – I stumbled across this lovely write up of a Medicare Fraud prosecution by a doctor.

I often am talking to people who are amazed at how the federal criminal justice system works when they encounter it for the first time. The article is titled “Is a charting error a federal crime?” (spoiler alert: the author thinks that it is, but shouldn’t be)

Many folks in the medical profession who take federal health care benefits observe, as this article does, that

the laws are increasingly designed to deter expensive care of the elderly, and that the judicial system focuses more on procedural rules than on substantive justice.

In the case, a doctor who was under investigation for years was charged with health care fraud. He lost at trial. The article is written by a doctor who went to watch the appellate arguments.

It sounds like things at the argument went well for the doctor – one judge apparently said that the government’s position meant that “[a]ny error in any medical record related to a health program could be a federal crime.” I’m betting the judge didn’t mean that this was a good legal rule.

Though, in the end, the author concludes that

Doctors need to know that anything in the medical record can be used against them — as can errors by their own million-dollar attorney.

The first part probably isn’t literally true, but one can forgive some folks in a highly regulated industry who are, mainly, just trying to help people, for thinking that it is.

To the Victory!

1155650_berlin_siegessule.jpg1. United States v. Sivilla, Ninth Circuit: Appellant was convicted of offenses arising out of the discovery of cocaine hidden in the engine manifold of his car. Instead of preserving the car as evidence, it was sold for parts by the government notwithstanding appellant’s attorney’s requests to preserve it, the prosecutor’s pledge to do so, and a court order compelling such action. At trial, the court denied appellant’s request that the jury be instructed that the defense was not given a chance to inspect the car because it was not preserved as evidence, despite the court’s order to do so. Because the government’s poor conduct in failing to preserve the car significantly prejudiced appellant, the court abused its discretion in denying the request for a jury instruction. The case was remanded for a new trial with instructions to grant appellant a remedial jury instruction.

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