Posted On Friday, May 23, 2014
On May 22, Attorney General Eric Holder announced that the DOJ had enacted a new policy that statements made by an individual in federal custody (following their arrest but prior to their first appearance in court) will be electronically recorded.
The policy, which will go into effect on July 11, 2014, establishes a broad presumption that the FBI, DEA, ATF and U.S. Marshals Service will electronically record all interviews occurring in a place of detention where persons are held in connection with federal criminal charges. Video recording should be used when possible, however if suitable video equipment is not available, audio recording may be conducted.
The policy does allow for some exceptions – where a detainee requests no recording or when the recording is not practicable.
The practice of recording interrogations can help avoid issues with Miranda and also issues as to the admissibility and voluntariness of confessions. Accordingly, criminal defense practitioners have long been seeking for federal authorities to electronically record interrogations. The DOJ’s new policy shift, establishing a presumption that all interviews post-arrest and prior to the initial appearance be recorded, is a triumph in that regard.
Posted On Thursday, May 22, 2014
Earlier this week, several former executives of WellCare, which operates HMOs in several states, were sentenced by a federal judge in Florida to much shorter sentences than had been sought by prosecutors. The executives, including WellCare’s CEO and CFO, had previously been convicted of health care fraud – for illegally retaining Medicaid payments that should have been returned.
Florida law requires Medicaid HMOs to expend 80 percent of the Medicaid premium paid for certain behavioral health services on the actual provision of those services (HMOs are allowed to keep 20 percent for administrative costs and profit). In the event that an HMO expends less than 80 percent of the premium, the statute requires that the difference be returned to the Florida agency administering Medicaid. The convicted WellCare executives were found to have fraudulently inflated expenditure information in the company’s annual reports in order to reduce the HMOs’ obligations to repay the premiums. The Government instituted criminal actions against WellCare and the executives. WellCare entered into a deferred prosecution agreement, under which it paid $40 million in restitution and another $40 million to the United States. Wellcare also agreed to pay $137.5 million in civil fines and penalties, in a related civil qui tam case.
At sentencing of the former executives, the Government sought significant prison time – roughly 20 years for WellCare’s former CEO, 20 years for its former CFO, and 10 years for a former VP. The Court, however, imposed sentences well below the prosecutor’s requests. The former CEO received 3 years, the former CFO receiver 2 years, and the former VP was sentenced to one year and a day. The Judge explained his departure from the guidelines by stating that the fraud “was a complete aberration of the lives and careers of these defendants. . . . They have been punished in the community and this has been a blow to their reputations.” Despite the significant departure, the Government proclaimed the sentences as a victory. “Today, [the defendants] are being held accountable for their actions. The sentences serve as a warning to other corporate executives who may contemplate such action and are a testament to justice truly being blind to power, position and status.” The Government’s bravado aside, these reduced sentences demonstrate that despite the recent emphasis on prosecuting and deterring health care fraud, Courts may still be swayed by the fact that the crimes are nonviolent, that the defendants often have no prior offenses and that the defendants will suffer professional and reputational harm that may never be repaired.
