White Collar Criminal Defense Group

Supreme Court Update – A “DIG” In Fifth Amendment Case City Of Hays, Kansas V. Vogt

What Happened?

Back in February, I wrote on the blog about the Supreme Court oral argument in City of Hays, Kansas v. Vogt, which sought to address whether the government’s introduction of a compelled statement at a probable cause hearing violated the Fifth Amendment.  Last week, the Supreme Court issued a one-sentence order dismissing the case as improvidently granted (known as a “DIG”). 

The Rundown

During Vogt’s application process for a job with the Haysville Police Department he disclosed that he had kept a knife he obtained in the position he held at the time with the Hays PD.  Vogt told the Hays PD about the knife because Haysville conditioned his job offer upon the requirement that he do so, and Hays then demanded that Vogt provide more information or else he would lose his job.  Vogt provided the additional information and then accepted the job with Haysville, which rescinded his offer after he was charged with a crime in connection with the information he told Hays.  The state introduced Vogt’s statement to the Hays PD at his preliminary hearing, but it ultimately dropped the charges against him.

Vogt sued both Hays and Haysville, claiming that the use of his compelled statements against him in his preliminary hearing violated the Fifth Amendment.  The trial court granted the defendants’ motion to dismiss and the Tenth Circuit reversed.

The discussion anticipated at the February 20^th oral argument would have focused on the Fifth Amendment’s use of the term “criminal case,” and whether previously held compelled statements can be introduced at various types of proceedings, including for example, preliminary hearings and suppression hearings.  But the Supreme Court, however, emphasized throughout the argument that the case’s procedural posture was odd, and hinted that some information outside of the record called the truth of Vogt’s factual allegations into question.  Those concerns, combined with the gravity of the constitutional issue at question, which Justice Ginsburg suggested had the potential to “shrink” the Fifth Amendment to “almost a vanishing point” since courts resolve most criminal cases without a trial, may have led the Court to dismiss the case. 

The Take-Away

The Supreme Court’s DIG means the Tenth Circuit’s finding that the Fifth Amendment applies to preliminary hearings stands, leaving open a circuit split.  Additionally, the three month delay between the argument and the Court’s eventual DIG may indicate discord between the Justices on substantive Fifth Amendment issues that could eventually come to a head if another petitioner presents a more factually clear and developed petition to the Court.

Former Nurse Gets Stiff Sentence For Medicare Fraud

What Happened?

On May 9, 2018, Joan Cicchiello, a 67-year-old former registered nurse, was sentenced in the U.S. District Court for the Middle District of Pennsylvania to 72 months’ imprisonment for aiding and abetting health care fraud in violation of 18 U.S.C. §§ 1347 and 2.

The Rundown

Cicchiello pleaded guilty to one count of aiding and abetting health care fraud on October 5, 2017, pursuant to a written agreement. According to the government, Cicchiello, the former owner and operator of a mental health services provider, recruited and hired unlicensed or otherwise unqualified individuals to administer psychiatric care to elderly patients throughout central and northeastern Pennsylvania, as well as to adolescents at her Mount Carmel, Pennsylvania office.  Among the counselors Cicchiello employed were a convicted Megan’s Law offender, an 80 year-old chiropractor, and social worker whose license had been suspended due to felony drug convictions. Cicchiello created false records indicating that her counselors had proper training and represented via bills submitted to Medicare that she, a licensed and qualified practitioner, was providing the psychotherapy services.   

Based in part on a loss amount of more than $150,000 and the vulnerability of the victims, Cicchiello’s advisory range under the U.S. Sentencing Guidelines was the statutory maximum of 10 years’ imprisonment.  She requested a probationary sentence to enable her to make restitution payments and due to her advanced age and the low probability of recidivism.

Before imposing a sentence, the Court, Judge John E. Jones II, noted that the fraud was particularly disturbing, given that it was largely perpetrated on the elderly, the infirm, and adolescents. Nevertheless, accounting for her age, he varied downward from the guidelines range to 72 months’ imprisonment.

For the Record

“This brazen fraud was compounded by the fact that it was perpetrated on some of our most vulnerable citizens,” said U.S. Attorney David J. Freed.  “The hard-working agents of HHS-OIG and the FBI should be commended for their tireless work on this investigation.  The outstanding efforts of these investigators resulted in appropriate punishment for the offender, recovery of taxpayer funds and the opportunity for the victims to receive the legitimate help that they need.”

The Take Away

Although Cicchiello received a downward variance, it is difficult to count 72 months’ imprisonment as a defense victory. The substantial sentence reflects the brazenness of the offense and the susceptibility of those affected by the conduct.