White Collar Criminal Defense Group

Third Circuit Rules That Criminal Defendants Who Violate A Plea Agreement’s Waiver Of The Right To Appeal May Suffer Consequences Beyond The Mere Dismissal Of The Appeal

The Third Circuit has held that a criminal defendant who files an appeal after entering into a plea agreement in which the defendant agrees to waive his or her appellate rights may forfeit the benefits he or she received from the government in return for the guilty plea. 

In United States v. Erwin, No. 13-3407 (3d Cir. August 26, 2014), Christopher Erwin pled guilty to conspiracy to distribute and possession with the intent to distribute oxycodone.  As part of the plea agreement, Erwin waived the right to appeal his sentence if it was within or below the guidelines for a particular offense level.  The government agreed not to bring further criminal charges against Erwin related to the conspiracy and to ask for a downward departure to Erwin’s sentence.  During sentencing, the government complied with its obligations and Erwin was sentenced within the range in question. Erwin appealed arguing that the district court did not properly calculate the downward departure in arriving at the sentence and that he should have released a shorter prison term.  The government responded to the appeal by arguing that Erwin had breached the appellate waiver, that his sentence should be vacated and that the case should be remanded for resentencing.

The Third Circuit initially determined that Erwin’s appeal fell within the scope of the appellate waiver.  The court went on to note that while it would normally simply dismiss the appeal, the government had argued that this was not enough because it had been forced to commit resources to litigating an appeal that should not have been filed.  The government also stated that dismissal, alone, would not deter other criminal defendants from breaching their plea agreements.  In analyzing this issue, the court found that Erwin had clearly violated the agreement.  The court went on to note that the criminal justice system depended upon plea agreements and that they had to be enforced in order to maintain the integrity of the process.  A new sentencing was said to be feasible because Erwin’s plea agreement specifically stated that the government would not be required to ask for a downward departure if Erwin violated any provisions in the agreement.  In light of these factors, the Third Circuit concluded that Erwin’s sentence would be vacated, that he would be resentenced and that the government would be released from its earlier promise to ask for a downward departure during the re-sentencing process. 

It is unclear to what extent the Third Circuit’s decision depended upon the fact that there was language in the plea agreement stating that the government did not have to comply with its obligations if Erwin failed to abide by all of the terms of the agreement.  However, in light of Erwin, it is anticipated that the government will be including these types of provisions in future plea agreements.

Erwin did not change the established principle that appellate waivers will not be enforced if the criminal defendant did not knowingly and voluntarily give up his or her right to appeal, if the issues raised on appeal do not fall within the scope of the waiver or if enforcement of the waiver would result in a miscarriage of justice.  However, the Erwin court made it clear that a criminal defendant who decides to pursue an appeal despite the existence of such a waiver must accept the risk that dismissal of the appeal might not be the only consequence he or she faces if the appeal is not successful.

New York Times Reports On How Medicare Fraud Is A Tough Nut To Crack

As discussed previously on White-Collared (for example – here, here, and here), the federal government is hot on the trail of alleged health care fraudsters.  A recent New York Times article by Reed Abelson and Eric Lichtblau provides interesting insight into the expensive efforts – over $600 million annually – by the government to identify and stop fraudulent Medicare billing.  While DOJ and HHS often laud their successes in health care fraud investigations and prosecutions, the article pointed out the apparent irony in the government’s use of inefficient or ineffective contractors to investigate overbilling and health care fraud.

Rarely advertised by the government, much of health care fraud investigations are outsourced to private contractors to augment government agents and prosecutors.  The price tag on the war on health care fraud is over $600 million each year, which seems reasonable compared to the $60 billion in losses believed to be associated with fraud and systematic overcharging each year.  However, the Obama administration recovers only $4.3 billion of that $60 billion annually as the fruit of their labors. 

The limited success of the fight against Medicare fraud is reportedly attributable to “recovery audit contractors” hired to identify hospital overbilling.  These contractors are credited with the return of $8 billion to government coffers since 2009.  The Times article concludes that contractors’ success is hampered by hospitals’ refusal cooperate with the contractors and a Medicare appeals process that’s stretched to its limit, a perspective not likely shared by many hospitals and healthcare systems. 

The article also cites to an example of HHS taking action that adversely impacted the level of its contractors’ success by pointing out that HHS shut down a successful tipster hotline in South Florida, claiming that it was no longer needed.  However, the hotline resulted in over 1,000 fraud investigations and identified tens of millions of dollars in questionable billing over the last five years.  Operated by an outside contractor, tips were received via the hotline and passed to investigators within 48 hours.  Now, calls are reportedly routed to a general Medicare number where it can take months for a complaint to be addressed.

An interesting read, the New York Times article provides a unique perspective on the often unreported limitations of the government’s efforts to address health care fraud.  While it can be expected that HHS and DOJ continue efforts to remedy some of these problems, this uneven approach to addressing the multitude of conduct that falls under the umbrella of “health care fraud” is likely to continue to frustrate the principals on all sides of this issue.

Link: http://www.nytimes.com/2014/08/16/business/uncovering-health-care-fraud-proves-elusive.html?_r=0