Many clients seek counsel after they have been interviewed by federal agents. They spoke with the agents after the agents surprised them at home or work. When asked why they spoke to the agents without contacting counsel first, clients routinely say that they thought it would be a brief interview and that they didn’t want the agents to think that they had anything to hide. Afterwards, many clients realize that the interview was lengthy, detailed and at times confrontational.

It’s understandable that people in that situation talk with the agents – they are approached without notice, the agents are friendly and suggest that it won’t take long and that they are simply trying to gather some information. Agents count on people’s desire to be helpful and non-confrontational. What the agents get are “statements” from people who have not had time to think about their answers, review documents or emails that might refresh their recollection, let alone meet and discuss the matter with counsel to determine whether it would be beneficial or harmful to be interviewed. Those statements become memorialized in a report of interview that can later be used as potential evidence against the client. In addition, if any of the statements are materially false, the client could be separately prosecuted for false statements to a federal agent, in addition to whatever criminal conduct was originally under investigation.

While it is understandable that agents often get people to speak with them without counsel, it is unfathomable that clients would speak with the media about their cases. One such glaring example of a client not following their attorneys’ advice is the founder of the now bankrupt crypto exchange firm, FTX. Sam Bankman-Fried has been on a media tour recently sitting down with Andrew Ross Sorkin of the New York Times, as well as reporters from Vox and an appearance on Good Morning America. All this is in addition to his letters, statements and tweets where he portrays himself as a naïve kid in over his head.

FTX lost billions in investors’ monies. The court appointed liquidator has said that he has never seen such a complete failure of corporate controls and was having difficulty determining how much cash FTX has or where it could be. Recent reports indicate that Bankman-Fried and other corporate officers took “loans” in excess of $4.1 billion, with $121 million going towards 19 properties in the Bahamas, private plane trips, lavish parties and other luxuries. In the face of a bankruptcy liquidator, investigations by the SEC, law enforcement and a Senate Hearing, Bankman-Fried has publicly made material statements about the alleged facts, his knowledge and intent, and company operations. For instance, he has said that he didn’t knowingly commit fraud, that the company was disorganized and overleveraged, no one at FTX was in charge of risk management or for determining potential conflicts of interest, and that he didn’t know if funds were commingled with another one of his companies, the hedge fund Alameda Research, that may have borrowed significant sums of FTX customers’ monies.

Bankman-Fried readily admits that he is granting media interviews against the advice of his attorneys, but that staying silent it’s not who he is and that he has a duty to talk to people. Disregarding the advice of his attorneys, and likely his parents who are Stanford University law professors, will almost certainly turn out to be a huge mistake that will ultimately be used against him by the SEC, law enforcement and potential victims in a civil action. While it is human nature to want to defend one’s self and reputation, and a natural desire to try to counter bad press, with public reports of misuse of funds and potential fraud, it is reckless to talk to the media about an ongoing investigation.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively protect clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.

The Department of Justice just announced charges against 21 individuals in a nationwide crackdown of COVID-19 related prosecutions that resulted in $150 million worth of fraud. The schemes were varied and involved medical doctors, medical labs, marketers and others in the healthcare field.

For instance, two owners of a lab in California allegedly billed more than $125 million in fraudulent claims. In Maryland and New York drive through test site operators are accused of using confidential patient information to bill for lengthy office visits that never occurred. In New Jersey, five individuals were accused of paying or receiving kickbacks for referring COVID tests to a particular lab. Even though the tests were medically necessary, and the lab only billed the allowable rate to the government program, the lab was accused of violating the anti-kickback statute that prohibits paying individuals or companies to refer tests.

The Maryland case charged a physician with submitting false claims to Medicare and private insurers. The defendant owned drive through COVID testing sites. Employees gathered patient information at the sites and later submitted false claims for complex in office visits for other healthcare procedures that never occurred.

In Florida, a registered nurse was charged with signing huge numbers of medically unnecessary doctor’s orders in exchange for sham telemedicine consulting fees. Another case in Florida charged individuals with fraudulent Medicare billing for medical equipment that was obtained by paying kickbacks to marketing companies that solicited patients for equipment they didn’t need.

In other schemes, defendants in California were charged with allegedly counterfeiting vaccine cards. Another case involved a hospital pharmacy director who obtained authentic Moderna dose lot numbers and used them to falsify vaccine ecards.

In New Jersey, one of the District’s first healthcare fraud trials just resulted in a guilty verdict against a medical sales representative of a diagnostic lab who paid kickbacks to a physician for referring tests to the lab. In an effort to disguise the kickbacks, the marketer placed the physician’s medical assistant on the lab’s payroll. In a related scheme, the marketer was paid for promoting medically unnecessary compound medicines that certain insurance plans covered. The defendant and others paid kickbacks to doctors to prescribe the unnecessary compounds without even examining the patients.

Other cases have charged individuals with fraudulently obtaining relief funds from the Coronavirus Aid, Relief and Economic Security Act. A 2020 bill that provided billion in emergency financial assistance.

These and scores of other cases highlight federal authorities continuing investigations and DOJ’s aggressive prosecution of a variety of healthcare fraud schemes. These schemes involve medically unnecessary compound medicines, genetic cancer tests, kickbacks on prescriptions for DME – durable medical equipment – such as braces, as well as COVID-19 tests.

Federal healthcare laws and regulations are complex. There are countless ways for doctors, pharmacists, lab owners and marketers to violate these laws. Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals and corporations accused of healthcare fraud. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com.

It’s 6 a.m. or 8 p.m., your doorbell rings and two people are standing outside holding up their badges and credentials. They say they are Special Agents with the FBI or IRS and would like to talk with you for just a few minutes about something important. They ask if they could come in to speak with you privately. Caught off-guard, and not wanting them to think that you have anything to hide, you invite them in (and, of course, you don’t want your neighbors to see them talking to you on your front steps). The agents are “friendly” and just have a few questions to get your input, your side of things, or to serve you with a grand jury subpoena. You decide to talk to them, only for a few minutes, in the comfort of your own home or office. At the end, they thank you for your time and hand you either a grand jury subpoena or a “target letter.”

After they leave, you start to wonder – what did I say? How much did I tell them? Am I in trouble, did I implicate myself or others? You start to look for an attorney. You can’t ask your family or friends who they hired last time the FBI or IRS visited them because you don’t know anyone who ever faced such a situation. So, you scour the internet to find an experienced criminal defense attorney, one with a lot of federal experience because it’s a federal investigation.

The next day you’re in the attorney’s office. After talking to the attorney you realize that what you thought was an innocuous 15 -30 minute chat with the FBI was actually an hour and a half where you told them some things, but not others. You discover that it is a federal crime to lie to the agents. You learn that it doesn’t matter that they didn’t read you your rights, like in the movies, because you weren’t “in custody.” When you tell the lawyer that you only spoke to them because you didn’t want the agents to think you were involved or guilty, the lawyer tells you that the agents already think that you’re involved, that’s why they were at your house to interview you in the first place. You then learn that there were two agents so that the interview was witnessed by two of them for credibility later on if you dispute what you said. You learn that a “target letter” is issued by an Assistant U.S. Attorney because she believes that you are involved in criminal activity and wants you to come in with your attorney to negotiate a plea of guilty. You realize that it was a mistake to say anything to the agents without first talking with an experienced white-collar criminal defense attorney.

So, what should you do in such a situation? The safest course would be to politely tell the agents that while you would like to talk with them, you need to contact your attorney and that he will get back to them. Ask them for their business cards so that you can give the information to your attorney. If they don’t have cards, write down their names, agency and contact information. Do not under any circumstances talk with them about the subject matter of their investigation. After they leave, contact an experienced criminal defense attorney to discuss your rights, potential exposure and your options.

If you did talk with the agents, experienced criminal defense counsel can help you get through the situation and protect your rights going forward. The task will be to mitigate any statements made and develop an overall strategy to succeed.

Stahl Gasiorowski Criminal Defense Lawyers have successfully represented hundreds of individuals under federal and state investigations. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

When someone is being investigated or charged with a criminal offense, it is one of the most stressful and unnerving times of the person’s life. It is common to feel overwhelmed and uncertain about who to hire and what to ask in the initial consultation with a criminal defense attorney. Below are some tips on choosing the right attorney and the major questions a prospective client should ask the attorney.

First:

Look for an attorney and firm that specializes in criminal defense. But don’t stop there, find ones that have vast experience in the type of matter you face. If it is a federal investigation or indictment, make sure that the attorney has significant federal experience because federal cases are much different than state, county or municipal prosecutions. Focus on the type of charge as well. If the investigation or charge involves healthcare fraud, ask the attorney about his or her experience in healthcare fraud cases. Experience with both the type of case, and the prosecuting agency, is often critical to success. The more experience the attorney has usually results in better insights into the case, its defense and the type of resolutions that are realistic with the particular prosecuting agency.

Second:

An experienced criminal defense attorney should be able to talk, at least generally, about the strengths and weaknesses of the case. He or she should be able to identify the relevant issues, strategies going forward, and potential defenses. If the case is new, then the attorney can only give general insights because the prosecution has not yet provided any discovery – law enforcement reports, statements by witnesses or the client, recordings, photographs, documents, emails, text messages, etc. – that more fully detail the government’s case. But, the attorney should be able to explain how these types of cases are investigated and prosecuted, and be able to offer insights as to the type and scope of work that lies ahead. Be aware, however, that the attorney has no credible way of predicting the outcome of your matter at this early stage.

Third:

How long will it take to resolve the case? Experienced criminal defense counsel can inform you generally how long a case like yours usually takes, and what you can expect along the way. While each investigation and case are different, the attorney can give you a good idea of how long and what to expect for cases in the federal system or in each state or county that they practice.

Fourth:

How much will it cost to defend your matter? Most criminal cases are handled on a flat fee basis for certain portions of the case. A client needs to know that she can afford the representation and the attorney needs to know that the client has the resources to properly defend the case. In certain instances, particularly when the matter is still in the investigative stage and charges have not yet been brought, the representation will start on an hourly fee basis until the attorney has a better understanding of the scope and complexity of the case.

Fifth:

Who else will be working on your case, and does the firm have the time to handle your matter? These are important issues that the potential client should inquire about. The experience of the other lawyers in the firm, as well as their caseload, is critical to the quality of representation. Firms that handle a large volume of cases, with minimal staff, may not have the time and attention to detail that the client’s matter requires.

A Word of Caution:

These questions provide a good framework for the client to make an educated and informed decision about counsel. There are also the intangible areas of comfort and trust in the person and firm. But do not be lulled by boastful promises or talk of the attorney’s confidence that the case will be dismissed, or that charges will never be brought. Experienced and ethical counsel will reserve their opinions about the outcome until they have the relevant facts and can fully examine the evidence and the case law. Good defense counsel will tell you what you need to know, rather than what you want to hear for comfort.

Contact Stahl Gasiorowski Criminal Defense Lawyers

Stahl Gasiorowski Criminal Defense Lawyers have extensive experience in serious federal and state criminal cases. The founder of the firm, Robert Stahl, is a Certified Criminal Trial Attorney by the Supreme Court of New Jersey, a Fellow of the American College of Trial Lawyers and a former Assistant U.S. Attorney who tried some of the largest fraud and tax cases in the District of New Jersey. He has been aggressively defending serious cases in federal and state courts for more than 25 years.

In recent days we have witnessed the President and various pundits scream (or tweet) that the attorney-client privilege is dead or under serious attack. What they are referring to, of course, is the judicially authorized search of Michael Cohen’s home, office and hotel room by the FBI. Cohen is said to be one of the President’s long-time attorneys.

By way of background, the attorney-client privilege has long been recognized and protected by the courts as it serves two legitimate and essential functions.

First, it promotes and encourages clients to be truthful with their lawyers. A lawyer cannot properly represent and counsel a client if the client withholds the material facts of her matter for fear that her conversations are not protected and confidential.

Second, since a client cannot be compelled to testify against herself under the protections of the Fifth Amendment, that protection would be circumvented if the client’s attorney could be compelled to reveal what the client had said.

In order to properly analyze the Cohen search, one needs a basic understanding of the attorney-client privilege – what it protects and what it does not.

The attorney-client privilege protects conversations and communications (documents, emails, texts, etc.) between an attorney and his client while engaged in providing legal advice on a specific matter. The communications must be related to the scope and purpose of the legal engagement. In addition, only communications between the lawyer, his staff and the client are protected. If the client speaks about the protected matters with third parties, the client has waived the privilege as to those communications.

For example, the client hires an attorney to represent her in a criminal investigation. Anything the client tells the attorney about what she has done in the past regarding the scope of the investigation is privileged and protected. However, if the client discusses the same topic with her friends, or her accountant, or her family, she has waived that privilege and the non-attorneys that she disclosed that information to can be compelled to reveal those communications.

Communications with her attorney are not protected if they are in furtherance of an on-going crime or future planned crimes. The so-called “crime-fraud exception” allows the government to access communications between an attorney and his client if the client is using the attorney’s services to commit a crime, whether the attorney realizes it or not. A common example is when a client uses her attorney to help draft and submit an affidavit to the court that contains false statements. The client has used the attorney to commit a crime. If the government can demonstrate to the court that there is a sufficient basis to believe that a crime has occurred, then the attorney can be compelled to testify as to his interactions with the client. Other examples may include when a client uses an attorney to set up a shell company and that company is used by the client to defraud others. The crime-fraud exception applies when a lawyer’s advice is used to further the crime, whether the lawyer is knowingly involved or, as is most often the case, unwittingly used.

In Cohen’s case, a neutral and detached magistrate-judge reviewed a detailed affidavit from the FBI asserting facts that the judge found to establish probable cause to believe that crimes were committed and that evidence of those crimes would be located at the various locations searched. In addition, sufficient facts would have been provided to demonstrate, at least at this stage, that the evidence cannot easily be obtained through other means and that the government will utilize sufficient efforts to protect the valid attorney-client privileged communications and documents it may recover in the search. That is accomplished in most cases by using a “taint team.” The taint team is comprised of Assistant U.S. Attorneys who are not involved in the investigation and prosecution to review all the evidence seized and pass along to the prosecutors only the information that is demonstrably not subject to a privilege claim.

With these basic principles in mind, the Cohen case presents some fascinating legal issues because the facts are just so unusual. First, it seems that Cohen was not engaged in the full-time practice of law. He seemingly had only a handful of clients, including President Trump, Republican fundraiser Elliot Brody and Fox TV Personality Sean Hannity. Of those three, he negotiated non-disclosure agreements to pay a former porn star and a former Playboy Playmate to not reveal their affairs with Trump and Brody. Other than that, Cohen claims that his practice was limited to providing “strategic advice and business consulting” to his limited client base. Thus, the government has argued that very little of what was seized may actually be protected by the attorney-client privilege. Reporting also indicates that Cohen spends considerably more time working on his various business ventures than representing clients on specific legal matters. It may turn out that Cohen’s possible criminal conduct in his own business dealings, rather than his conduct on behalf of clients, resulted in most of the probable cause contained in the affidavit for the search warrant.

Robert Stahl, and his firm,Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.