David M. Boertje

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This country faces a serious problem in terms of healthcare fraud, and authorities have not hesitated to impose serious consequences. As the most expensive white-collar crime in the country—racking up nearly $100 billion in lost funds — the state of California is more than willing to prosecute fraudsters. Both state and federal prosecutors, in fact, are going after individuals and organized groups who engage in this type of fraud on a daily basis.

Examples of Fraud

Fraud might occur involving individuals who work in hospitals, nursing homes, dentist offices, and more. Professionals and staff who try to cheat health insurance companies are a serious concern because there are multiple ways to engage in a swindle, and a successful fraudster can essentially steal big dollars and impact patient outcomes. Deliberately providing incorrect or false information to an insurance company is the bottom line of many fraud cases. 

  • Double billing insurance companies for a single procedure;
  • Coding procedures in a way that makes billing more expensive;
  • Charging for procedures and/or care to increase profits;
  • Prescribing unnecessary medications and/or procedures in order to get kickbacks from pharmaceutical companies.

 Legal Penalties

When the fraud involves under $950, offenders in California may face misdemeanor charges with up to six months in jail and fines of $1,000. Felony health care fraud, however, could mean up to five years behind bars and as much as $50,000 in penalties, or double the amount of the fraud. In the case of medical professionals being convicted, they could lose their professional license. Federal penalties are dependent on the degree of injury that occurs to a patient. Even with no injuries, perpetrators could wind up serving 10 years behind bars. That doubles when serious injury results from the fraud and becomes a life sentence if the fraud results in a fatality.  

 Federal False Claims Act

Any person or entity who knowingly submits a sham claim for Medicare, Medicaid, or other federally funded programs or who intentionally retains an overpayment for 60+ days is in violation of the federal False Claims Act. In addition to having to pay triple the damages suffered by the Government, perpetrators may have to pay nearly $22,000 per falsified claim. 

Defending Fraud Claims

One of the strongest defenses against claims of healthcare fraud is to demonstrate that any perceived billing irregularities were the result of misunderstandings and/or unintentional mistakes. Demonstrating that patients received legitimate care consistent with billing will be important, as will establishing a pattern of providing high-quality care aimed at patient well-being. Continue reading

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The First Amendment guarantees the right to free speech in this country. Nonetheless, we hear about judges issuing gag orders in high-profile cases, clearly restricting the speech of individuals connected to both civil and/or criminal trials. What gives? 

The Point of Gag Orders

Judges typically issue gag orders—sometimes called non-dissemination orders– to restrict people from talking about a case publicly. They can apply to witnesses, attorneys, plaintiffs, and defendants. Protecting the integrity of the court system is the goal of these orders, as judges strive to keep potential jurists from hearing about the case outside of the courtroom. Even so, they are quite controversial because limiting speech is contrary to the First Amendment. 

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If, while defending yourself, someone else, or property, you caused harm to another individual, it’s possible you could be charged with a crime like assault, battery, or even, in the most extreme situation, murder.  But you were only defending yourself, so how is this possible? Sometimes it takes a court of law to sort things out and come to an equitable and just conclusion. And when self-defense is a factor, having a good attorney to represent your interests is important.

Legal Requirements for Self-Defense

In California, there are three key elements that must be proven when self-defense is claimed:

  • You were in imminent danger of being harmed, touched illegally, or killed: This means that the danger was right in front of you, and you had to react to prevent it.
  • You had a reasonable belief that you needed to react with force in order to address the harm headed your way: Even if you  were mistaken in your perception of danger, if you had reason to believe you were in a precarious situation, your violent response may be considered reasonable by a jury.
  • You used just enough force to eliminate the threat: If your use of force was not proportionate to the threat, it is not a viable defense, meaning if someone slaps you and you beat them to death, you have probably exceeded the force necessary to protect yourself.

Stand Your Ground

Under California law, you are not required to back down or try to run away when facing a threat. You have every right to protect yourself and others when necessary. When it comes to property, it is legally permitted to protect yours and others’ too.

Deadly Force

Deadly force is allowable if that’s what it takes to provide a proper defense. Additionally, as per the Castle Doctrine, you are always allowed to use deadly force when protecting against a home invasion.  Even if you do not know the intent or the types of weapons an intruder may have, you are fully within your rights to use deadly force. That’s because when someone forcibly enters your home, it can be assumed they are up to no good, and it is reasonable to believe they will cause harm to you, your family, and/or your property. Continue reading

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Hazing occurs in high schools and colleges across the country, notwithstanding extensive publicity detailing the dangers associated with it, in concert with laws on the books penalizing those who perpetuate it. Here in California, we have seen our fair share of hazing resulting in horrendous outcomes: 

  • A high school football player in Rancho Cucamonga pleaded with teammates to stop while held in a chokehold and beaten with a belt in the locker room of the school.
  • A student attending a Riverside college died of heart failure in the course of five weeks of physical abuse.
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Here in California and across the nation, police use spit hoods to protect officers from being spit on or bitten when individuals engage in this behavior or threaten to, during arrests, transfers, or otherwise, as necessary. It is understandable that police want to avoid such attacks—but there are real concerns about the safety of these hoods.  

More About Spit Hoods

These hoods are really just mesh sacks that are placed over an offender’s head, sometimes made with material like what is used in medical masks on the bottom. They have an elastic ring around the opening. The mesh is made to allow wearers to breathe and see while containing any fluids that may be ejected.

These masks are viewed as a restraint, like cuffs or leg irons, and not a use of force. However, it seems that the use of hoods in conjunction with takedowns, strikes, pressure points and other uses of force can result in serious consequences.

Other factors that might make hoods more dangerous for wearers include having drugs in their system or suffering a mental health crisis that may have elevated a person’s heart rate and/or impacted breathing.

Study Conclusions

There is a fair amount of research showing that even the most heavyweight spit hoods out there are easier to breathe in than N95 masks. People who tested the masks say they could breathe even when artificial saliva was sprayed on the hoods to copy what a realistic situation might be like. 

But the studies were very different from real life in another way: they lacked the chaos and stress that go hand in hand with a typical arrest. Subjects in the study were not upset; they had not recently tried to escape by running from officers; they had not resisted arrest; and had not suffered tactical maneuvers at the hands of police to get them under control. In other words, they were likely not experiencing a rise in blood pressure, breathing, heart rate, and emotion.

In the Real World

What do people who have had to wear spit hoods outside of a controlled environment have to say about them? It is scary and makes one feel as though they could lose consciousness if things went too far. They also point out that saliva is thicker than the artificial material used in studies, and because arrestees in hoods may bleed or vomit, it makes breathing much tougher than studies imply.

Death Connected to the Use of Hoods

Over the course of ten years, more than thirty in-custody deaths occurred involving individuals who were wearing spit hoods. The hoods were used along with tactical moves or weapons, including stun guns, pepper spray, and hogties, aggravating breathing and heart issues. These facts bring to light the seriousness of decisions made by law enforcement as they arrest and restrain Americans every day. Continue reading

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It is a decision that must be weighed very carefully: should you testify in your own defense? About half of all defendants decide to take the stand to proclaim their innocence. Defendants with prior felony convictions are less likely to testify, often concerned that juries will discover they have had past problems with the law. Likewise, those accused of charges related to gang activity seem to believe juries will be biased against them and are usually reluctant to take the stand. What about you? Will you be able to make the case for yourself that no one else could? 

Possible Benefits

Every defendant has the right to testify.  Some reasons it may be a good idea include:

  • The obvious plus side of testifying in your own defense is that you get to set the narrative. You can directly challenge the testimony of other witnesses, clarify misunderstandings, and demonstrate your innocence by directly confronting the charges against you.
  • If you present as a sincere and credible person, the jury will have the opportunity to see you as a human being deserving of fair consideration and empathy.
  • The jury will be instructed not to infer guilt if you choose not to testify.  Even so, the fact that you are willing to testify demonstrates your confidence in yourself, taking away juror questions about what you may be hiding by refusing to take the stand.

Potential Risks

Although it is your right to defend yourself by taking the stand, doing so is not without potential pitfalls:

  • Prosecutors will take the opportunity to aggressively question you in the hopes of unnerving you, discrediting you, and generally undermining you.
  • While you may have a clear understanding of your own perspective, you likely do not understand the legal nuances related to the case.
  • Anything you say can be used by the prosecution to weaken your case. They will set traps, hoping you open the door to further inquiries along new lines. They can also call additional rebuttal witnesses to contradict your version of events.

If You Do Testify

If testifying is definitely something you want to pursue, keep these tips in mind:

  • Understand the allegations and thoroughly prepare your testimony, with plenty of rehearsal.
  • Be calm, respectful, and attentive.
  • Particularly during cross-examination, maintain eye contact, and answer only as much as you are asked.
  • If questions are misleading or unclear, rephrase them to get the information out that you want out.
  • Maintain positive body language.

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If you have been arrested for a felony, you are doubtlessly feeling frightened. What is in the cards for you? Should you accommodate police requests for information to demonstrate your innocence? Should you do anything and everything to get out of custody? No, and no! If you are looking at felony charges, your initial decisions will have a massive effect on your case. So sit tight and remember your rights. 

Fifth Amendment

Regardless of how pleasant or how threatening investigators may be, it is crucial that you remain silent. It is the first step toward avoiding self-incrimination and is your Constitutional right under the Fifth Amendment. This is the number one instruction to remember. Outside of identifying yourself, answer nothing. Then, courteously request an attorney, zip your lips, and stay cool. It will not necessarily be easy, especially if you believe you are innocent and you are being pressured by authoritative figures. Were you wrongfully arrested? Was excessive force used? Maybe. But it will require an attorney to get to the bottom of it, so forget the temptation to defend yourself or to accuse officers of misdeeds. It will not get you anywhere except in deeper trouble.

Pronto: Call an Attorney Right 

It is important to have experienced legal counsel by your side immediately. And that means a knowledgeable criminal defense attorney, not your hairdresser’s divorce guy. A good defense attorney will know all the tricks in the book and will protect you from saying things that will lead to trouble or signing a bogus plea deal. Remember: prosecutors and police are in cahoots to lock you up. A criminal defense attorney is working for you.

Tell Your Attorney the Truth

Any defense attorney will tell you there’s nothing worse than being blindsided by new information presented by the prosecution. You help your own defense when you spill it all, knowing that attorney-client privilege keeps that information private. It is the best way to build a strong defense.

Stay Mum Otherwise

It may be tough, but do not talk about the case on social media with reporters who want to know what you have to say for yourself or even with family or friends. And remember, what you say to friends is not protected—so if anyone gets the wrong idea or you reveal a defense strategy, the prosecution could get a hold of it. Let your attorney defend you in court and keep quiet otherwise.

This is Serious

If you are convicted of a felony, it could mean time in prison and hefty fines. And the punishment does not end after you have paid your debt to society. That is when you could re-enter a society that has no concern with your ability to find a home, a job, professional certifications, or happiness. Remember this and make smart decisions going forward. Continue reading

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The federal Witness Protection Program is operated by U.S. Marshals, with the goal of providing new identities to individuals who face the possibility of vengeance from organized crime groups like the Mafia, for example, when testifying against them. Groups like these who terrorize communities or are otherwise involved in violent crimes may be a real threat to witnesses. The government understands that government cooperation can be a serious safety concern for witnesses and their families and has been tasked with protecting them since 1971 as part of the Organized Crime Control Act of 1970.  Since that time, almost 20,000 people have been hidden and protected by the Marshalls, and the feds are proud to say that no person in the program who has adhered to the guidelines has ever been injured or killed by an adversary.  Even so, entry into the program is factually a mammoth disruption to life. What do you need to know about it? 

What to Know About Witness Protection

Some little-known facts about witness protection should be considered before agreeing to placement in the program:

  • The U.S. Attorney, the U.S. Marshals, and the Department of Enforcement Operations Eligibility must successfully vet and sponsor anyone entering Witness Protection.
  • Mental and physical testing is required of individuals prior to entering the program.
  • Appropriate jobs in the new location are determined through extensive skills testing.
  • New surnames are provided, although first names may remain the same.
  • Documentation, including new social security numbers, birth certificates, and driver’s licenses that support new identities, is provided.
  • The school records for minor children will be amended.
  • Although plastic surgery was offered prior to 1990, it is no longer part of the program.
  • Witnesses are provided with financial assistance for about six months in order to have time to develop self-sufficiency.
  • Furnished homes in neighborhoods with schools and churches will be provided.
  • After witnesses are asked where they would like to go, they are sent anywhere else so that no one can anticipate the move, although an effort is made to place them in an area in which they would be comfortable.
  • Witnesses may make phone calls to loved ones left behind on a secure line and are allowed to write letters through a secure system (although letters must be destroyed after being read).
  • Witnesses generally are contacted by the Marshals about once per year to make sure things are going satisfactorily.
  • Even if they get married later, people in the program can NEVER reveal their history.
  • When they leave, witnesses are not allowed to tell people where they are going. They must simply just disappear from their lives.
  • About 90% of witnesses in the program have a history of criminal activity themselves.

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We hear about the right to a speedy trial—a constitutional guarantee provided by the Sixth Amendment. Nevertheless, we hear about people who are behind bars awaiting trial all the time, which makes one wonder, what does the term “speedy” really mean in this context? And why are nearly 45,000 people sitting in county jails across California even though they have never been convicted or sentenced? Moreover, why have over 1,000 been rotting in jail for over three years, and why have another 332 been there for over five years? 

Speedy is Debatable

There is no actual definition of “speedy” in the Constitution, so scholars have landed on the term “reasonable” to describe the length of time someone must wait for a trial to occur.  Unfortunately, that word is no more definitive than the word we were originally trying to understand! We can look at legal precedent and see that the U. S. Supreme Court defined a speedy trial as essentially a balancing act where the conduct of both the prosecution and the defendant are contemplated. If that makes the definition sufficiently muddy, perhaps the four items to be considered will help:

  • The length of a delay;
  • Reasons for a delay;
  • Prejudice to a defendant;
  • Whether the defendant requested a speedy trial.

Still feeling a bit confused? Thankfully, the Speedy Trial Act puts some meat on the bone.  In general, a suspect must be charged with a federal crime within 30 days of a summons or arrest. Assuming the person pleads not guilty, a trial must be scheduled for no more than 70 days beyond that date or the date the person appears in court. Local statutes differ by state, but have similar deadlines.  Here in California, Penal Code 1382 PC has the following time limits:

  • Within 15 days of arrest formal charges must be filed;
  • Trials must occur within 45 days of arraignment for misdemeanors and infractions;
  • Felonies must go to trial within 60 days of arraignment.

Why Doesn’t This Always Occur According to Time Constraints?

Under certain circumstances, these rules may be modified, which can occur if either party asks the court for a continuance. For instance, the defendant may wish to waive their right to a speedy trial if they need more time to bolster their defense. There may be other reasons to delay the trial, including: 

  • If the case is extremely complicated and more time is needed;
  • If new evidence changes the route a prosecutor or defense attorney may wish to engage;
  • If the court calendar is too full to handle the cases in a speedy fashion;
  • If the defendant becomes ill or otherwise incapacitated and unable to attend trial;
  • If a natural disaster or other incident (like the pandemic) makes trying the case on time impossible.

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If you are facing criminal charges, there may be circumstances when a change of venue is appropriate. What are those situations, what are the benefits of such a change, and what are the procedures to get a change of venue?

When is a Change of Venue Request Appropriate?

There is an array of reasons for which a change of venue may be requested. Obviously, if the charges were filed in the wrong court, to begin with, there will be a venue change—but there are other reasons for a change, as well. The bottom line is that every defendant deserves a fair and impartial trial. One key reason might be if the defendant believes it will be impossible to find an impartial jury, such as when a case has been locally publicized and there is strong public sentiment about it. Especially if there has been frequent and significant coverage related to the event in question, it may heavily influence prospective jurors. Likewise, if the political climate in an area is decidedly against a particular defendant (for being Black or LGBTQ, for example), it is possible a change of venue might be granted. Additionally, a change might be in order if the judge appears to be prejudiced, if a qualified judge is not available, or if the location of the court is substantially inconvenient for the non-party witnesses involved such that it would interfere with providing an unbiased and timely trial.

Steps in the Change

In order to get a change of venue, a motion must be filed with the court within a particular time frame. If the request is granted, the judge involved will suggest alternate sites for the trial based on the specifics of the case. At that point, the Judicial Council of California looks into other courts to consider issues like security issues, staffing needs, media involvement, costs, the presumed length of the trial, and other considerations specific to the case. The Judicial Council then provides three or more alternative courts that could handle the case to the judge who granted the venue change. A hearing is then held by that judge where the opinions of both sides in the case are considered, and a new venue is chosen. That decision then makes its way to each court that had been under consideration. The whole process generally takes a couple of weeks in most cases. Continue reading

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