June 13, 2025 • 51 mins
Operation Brace Yourself, a massive 2019 Department of Justice operation involving the durable medical equipment (DME) industry, was one of the largest health fraud enforcement actions in history and had major legal and compliance repercussions for DME companies. In this two-part series, Stephen Lee, Solo Practitioner, Law Office of Stephen Chahn Lee, recounts the true story of two DME owners who unwittingly found themselves in the crosshairs of this massive government enforcement action.
In part two, Stephen speaks with Jonathan Meltz, Senior Attorney, Chapman Law Group, who, along with Stephen, represented the owners after the government indicted them on charges related to violating the Anti-Kickback Statute and committing health care fraud. They discuss the proffer interview process, the concept of “willfulness,” the government’s case, issues related to attorney/client privilege, trial strategies, and the jury deliberations and verdict.
Watch the episode: https://www.youtube.com/watch?v=eEm85ExPXVQ
Listen to part one: https://ahlapodcasts.buzzsprout.com/221709/episodes/17308135-operation-brace-yourself-part-one-advising-dme-clients
Watch part one: https://www.youtube.com/watch?v=TPgVnbVQhpc
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Episode Transcript
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SPEAKER_00 (00:00):
For more information, visit
AmericanHealthLaw.org.
SPEAKER_01 (00:18):
My name is Stephen Lee, and I am an attorney in
Chicago who previously was afederal prosecutor and the
senior counsel to the ChicagoU.S.
Attorney's Office's HealthcareFraud Unit.
And I'm very happy to be heretoday for part two of a two-part
podcast looking at OperationBrace Yourself in a real-life
case of how lawyers can helptheir clients through some very
(00:39):
difficult circumstances.
Now, in part one, we talkedabout Operation Brace Yourself.
how companies responded, and twobusiness owners, owner one and
owner two, who decided to shutdown their durable medical
equipment businesses in 2020after talking with a biller and
a lawyer.
Unfortunately, unbeknownst toowner one and owner two, the
(01:02):
Federal Bureau of Investigationhad already opened a criminal
investigation targeting them.
Now, I ultimately representedowner one, And I have with me
today on the podcast, a greatattorney, Jonathan Meltz, who
represented Owner 2.
Jonathan, can you introduceyourself?
SPEAKER_02 (01:20):
I sure can, Stephen.
Good to see you today.
I represented Owner 2.
And when I'm not representingOwner 2, I'm a senior attorney
with the Chapman Law Group.
We have three officers acrossthe country in Florida,
Michigan, and California.
And I represent...
folks mostly in healthcareinvestigations, doctors who are
charged with violations of theControlled Substance Act, and
(01:43):
other white-collar crimes.
SPEAKER_01 (01:46):
All right, so we'll get through what Jonathan and I
ended up doing to help owner oneand owner two through this very
difficult situation.
But we wanna start, by goingthrough some of the things that
happen in a lot of these typicalkind of investigations and some
things so that people who areout there listening can kind of
know how to navigate throughsome of these things maybe a
little bit better.
(02:07):
So basically the first thingthat happened as far as owner
one and owner two wereconcerned, well, first of all, a
lot happened, they had no idea.
A lot of stuff was going onwhere the government was
building up their investigationand clearly had ideas and
thoughts about them and they hadno clue what was going on.
The first time they heardanything about a criminal
(02:28):
investigation to them was in thesummer of 2021, when the FBI
approached owner two and askedhim some questions and served
him a subpoena.
He then got another lawyer, notus, who arranged for a proffer
interview.
Proffers come up a lot, and it'ssomething that Jonathan and I
dealt with in variouscapacities, and we want to talk
(02:50):
a little bit about that for thegeneral audience.
Jonathan, can you explain what aproffer is.
SPEAKER_02 (02:55):
Sure, Steven.
Absolutely.
So, You're right, proffers docome up a lot and I think
they're some of the mostimportant parts of any white
collar or fraud investigation.
And it's basically to define it,it's a meeting or an interview
between somebody who's underinvestigation and federal agents
(03:18):
and prosecutors.
So what people have tounderstand though, as you said,
this investigation has beengoing on for a while.
So the federal agents and theprosecutors have a ton of
information.
By the time they approachsomebody and they say, we'd like
you to give a proffer interview,it's like almost the exam where
(03:39):
they know all the answers,right?
And they're asking somebody tocome in and answer questions.
And the deck is already stackedagainst that person, meaning the
person's going in not realizinghow much information or how much
investigation has been done.
So here are some of the basicfactors of it.
(04:01):
The person has to be under oathto tell the truth.
and therefore anything they saywhich could be a lie or a false
statement could be held againstthem.
The person may get a smallamount or a limited amount of
what we call immunity, but itdoesn't give them full immunity
(04:22):
to avoid prosecution for anycrime.
So I also often call it the mostimportant audition of somebody's
life, right?
mean we're not talking a playwe're not talking an actor but
but it's an audition becausethere's a couple reasons that
the proffer may happen that thegovernment is trying to
(04:43):
determine if somebody's beingtruthful whether they know
information about a possiblecrime or whether there are they
are truly innocent or on theother hand if the person could
be a good witness right, for thegovernment.
So it's an audition for thatperson's future.
That's why it's so important,Stephen.
SPEAKER_01 (05:04):
Yeah, and I think that's what lawyers and clients
need to take it as seriously asthat because this is not
something you just walk into.
It's not something you just showup for one day and hope it'll go
as well.
Before I bring a client in for aproffer, I spend a lot of time
going through the materialbeforehand as much as I can to
iron out things and make surethe interview, the proffer is as
(05:27):
helpful for both sides aspossible because there's no
point in doing a proffer if thegovernment ends up thinking that
you're lying to them.
SPEAKER_02 (05:36):
Right.
And I think, Stephen, I thinkit's important for people to
note that we look at like threelevels of involvement for
somebody that the governmentwants to talk to, right?
At the bottom, it's somebodywho's just a witness, somebody
who may have documents or mayhave some knowledge.
They may know about the crime,but they don't have any criminal
(05:56):
liability, right?
They're just a witness.
They're a puzzle piece in thegovernment's overall puzzle,
right?
So those folks most times wouldbenefit from counsel, but
they're not within the scope ofthe government right now.
It's the other two levels whichare important.
The next one being somebodywho's a subject of an
(06:17):
investigation.
The government's not quite surewhere they fit in yet.
And that those folks could saysomething that puts them over
the edge in a real, realnegative light or a big problem.
So they would benefit fromhaving counsel.
And then of course, the mostsignificant role is somebody
who's in a target, right?
They received a target letter orthe government has told them or
(06:40):
their attorneys, you're thetarget.
of the investigation, and thoseare the people who really,
really have to be concernedabout moving forward.
I'm sure you're the same way,but sometimes we just say no,
right?
We're not going to bring ourclients in for a proffer,
because as their attorney, wedon't feel it's in their best
interest.
So there's certain situationswhere you have the right to say
(07:03):
no, and based on what you andyour attorney believe, that the
proffer isn't something that'sgoing to help you get the best
possible result.
SPEAKER_01 (07:12):
Yeah.
An extremely important part of acriminal investigation, a lot
can hinge on what happens in aproffer.
I've seen proffers go well andactually help clear up things.
I mean, look, I was a prosecutormyself, and sometimes proffers
actually did convince thegovernment, we got something
wrong.
And so it's like, okay, allright.
Okay, we were very glad to knowthat.
(07:35):
But proffers, if they go badly,can actually be disastrous and
make a person's situation worse.
I've seen people who evenconsidered pleading guilty to
crimes they didn't commitbecause that got said in a
proffer or got misinterpreted ina proffer.
So move very carefully.
Extremely powerful and helpfulif done right.
Extremely dangerous if donewrong.
(07:58):
So in this case, owner two wentin for a proffer.
Unfortunately, it did not reallyhelp.
Ultimately, the governmentbasically heard owner two out,
and they went ahead and indictedboth guys the very next week on
(08:20):
extensive charges.
Owner one and owner two did notknow about this.
In fact, the people who wererepresenting them at the time
actually continued to provideinformation to the government
for several weeks while ownertwo and owner two were already
indicted because the lawyers atthe time thought the government
was still keeping an open mindand actually continuing their
(08:42):
investigation.
The government then went aheadand the indictment was under
seal and they then went aheadand arrested or basically
arrested or ordered them tosurrender both owner and owner
two right before Christmas of2021.
They then hired Jonathan and me.
SPEAKER_02 (09:00):
And that's what I was going to say, Stephen.
It's important to note that youand I didn't represent owner
one, owner two at that point.
And, you know, a lot of timesyou talk about Monday morning
quarterbacking and what would wehave done.
But, you know, you and I boththink alike.
We would prepare our clients asmuch as possible, hours,
(09:22):
whatever it would take.
But sometimes the government'salready locked in.
right and it's almost um i hateto say it but i will it's almost
a trap sometimes right theproffer can be um that you no
matter what you say or do you'renot going to move them away from
filing charges so that goes intothe consideration and the
(09:45):
equation when you're decidingwhether or not to go in um for
that for that interview for thatmeeting but um you know i I
think there's some generaladvice for doing a proffer,
right?
That I think we can kind ofagree upon across the board is
that one, you have to carefullyconsider and think about it.
(10:07):
I look at almost two differenttracks for a proffer.
If you and your attorneys havealready decided it's in your
best interest to plead guilty,then a proffer is a lot of times
a very, very important,significant factor meeting to
attend and something could helpyour case because the government
(10:27):
may want to use you as a witnessand they need to gauge your
credibility and see how you areand that could help you in the
end to get a better sentence.
So ordinarily, I don't have aproblem if you've already done
all the work with your lawyerand you've decided that this is
the right route.
You already know you're going toplead guilty.
But if you haven't decided that,that's where you have to proceed
(10:49):
with the most caution aspossible.
So if you already are thinkingabout taking a case to trial,
then I'm really hesitant aboutbringing somebody in because if
I don't have a good sense thegovernment may back down and
dismiss charges, I don't want togive the government a free look
at our case and our defense andhave the next six, eight, 10
(11:10):
months to try and diminish knowour defense for a case and and
this is something i think thathappened in our trial with owner
one and two the proffer righti've never seen a proffer
interview statement recordedright so what happened there is
(11:31):
that since there's no recordingof what owner two said then the
government brings in the agentswho write a report based on
their best recollection of whatwas said and you know you can a
lot of times people hearsomething and interpret it
differently or they'rephysically writing down on a
(11:54):
notebook in the interview andthat's not you know ai that's
not a transcription that's not arecording and six months a year
two years later all of a suddenthat interview may come
extremely important and there'stwo, if not more versions of
what was really said.
And that can be reallyproblematic in a case.
(12:17):
So some of the other things yougotta be careful about with a
proffer is I would keep itlimited.
I would make sure that yourattorney is in there taking
notes.
So to have a witness as to whatwas said and maybe sometimes you
insist on a recording or atranscript.
And then no side can claimsomething was or was not said.
SPEAKER_01 (12:42):
Yeah.
And I've seen problems like thattoo, where people, there's so
much disagreement about what wassaid in a proffer.
But yeah, it is reallyimportant.
If you're going to do it, prepand take really good notes
during the proffer.
It's really, really importantfor both sides.
Okay.
So unfortunately, the profferhere, owner two's proffer, It
(13:07):
clearly did not change thegovernment's view of these guys.
And they went ahead and chargedowner one and owner two.
Jonathan, can you describe thecharges and what owner one and
owner two were looking at here?
Sure, sure.
SPEAKER_02 (13:19):
So there was basically, in the end, there was
four charges I believe we weredealing with.
There was a fifth one.
They were originally indicted onaggravated identity theft.
And I think, Stephen, I think toour credit for being diligent
and researching, we were able toconvince the government to drop
that charge before trial.
(13:40):
So I don't remember exactly whenit was, but at least then that
was an important aspect of thecase that we didn't have to
worry about trial preparationfor that particular charge.
But the four charges that werestill part of the indictment as
we went towards trial wasconspiracy to pay and receive
(14:01):
healthcare kickbacks.
And that's also known as theanti-kickback statute, AKS.
So that's a conspiracy, so it'san agreement two or more people
to commit that crime.
And then they also charged thecrime itself, which was payment
of illegal healthcare kickbacks.
So the actual violation of theanti-kickback statute.
(14:23):
And then the second set ofcharges was a conspiracy again,
so the agreement to commithealthcare fraud.
And then the fraud itself, therewere individual charges of
healthcare fraud.
So those are the four charges.
So it's really two differentbuckets that we were dealing
with.
SPEAKER_01 (14:43):
Yeah.
And each of these chargescarried their own various
penalties and that which, youknow, in order to face.
But also the key thing is eachof these charges have specific
elements that the government hasto prove beyond a reasonable
doubt in order to get aconviction.
And that's really importantbecause When you're dealing with
(15:06):
federal crimes, especiallycrimes like this, you have to
know exactly what the governmenthas to prove, and you have to
know exactly what you'redefending against.
And the key thing for both thehealthcare fraud charges and the
kickback charges is this conceptcalled willfulness.
I think this element actuallygets overlooked a lot, but I
(15:27):
think it's actually the key tocriminal cases like this.
Because Basically, look, we allknow, I think everyone listening
to this podcast knows, there arelots of times where people make
mistakes in terms ofinterpreting regulations, in
terms of billing, plenty oftimes where people make
mistakes.
Mistakes aren't crimes.
(15:51):
What is a crime is when thegovernment can prove
willfulness, meaning that theperson actually knew that what
they were doing was illegal anddid it anyway.
Not with the benefit ofhindsight, not second-guessing
themselves years later at thetime they knew it was illegal
(16:12):
and did it anyway.
That, I think, is the key thingthat often gets overlooked
because it really does go, andit really goes to what the
individual person was thinkingat the time.
So, wolfeness is kind of thisconcept that comes up a lot in
the kind of cases that Jonathanand I end up doing.
And so, we will talk a littlebit more about that.
So, Jonathan, can you give someexamples of like what Like what
(16:33):
really, what are some goodexamples of willfulness that
you've seen?
SPEAKER_02 (16:37):
Sure, sure.
So the most common one I see ina lot of the doctor cases where
I represent folks, you know,they're investigated, maybe
their records were lacking,incomplete, or sometimes no
records altogether.
Somebody may go back into theirelectronic health record system
(16:57):
or go into their computer andcreate records.
fake records.
For instance, that you, StephenLee, went to the doctor last
week and was evaluated, you weretested, etc.
It never happened.
But the individual may put anentry in the electronic health
record system, which istroublesome because they're all
(17:18):
date stamped and you know whenthe records were entered, and
that creates a big problem forour purposes.
Or If it's a computer going inand just creating a document,
one of the first things the FBImay do is search somebody's
computer and the forensic searchwill show creation of all
(17:42):
documents and there's a datestamp and there's a trail.
So those sorts of things, thatshows willfulness, right?
Somebody's creating fakerecords.
In the area of, say, kickbacks,where there is billing if there
is the creation of fakeinvoices.
(18:03):
right without a doubt somethingwas fake showing that services
were delivered or you know thatthere were tests done and now
there's going to be billing orsome sort of invoicing uh is an
absolute example of somethingwhich was done with a
willfulness to to break the lawi mean it's it's pretty much
right the specific intent to dosomething the law forbids right
(18:27):
you're doing it with a badpurpose or to disregard the law
so if you're going to createfake documents that's that's
that's a tough order to overcomeon our end.
SPEAKER_01 (18:39):
Yeah, and I think the tricky thing in a lot of the
cases that Jonathan and I end updoing is kind of like seeing
where is that lie?
Is it really enough to showwillfulness or is it not?
Fake documents, fake documentsthat are impossible to believe,
things like that, I think thatis very powerful evidence of
willfulness in a lot of cases.
(18:59):
When I was a prosecutor, I didhave a case once where a doctor
was told by a colleague, I thinkwhat you're doing is fraud.
And he kept doing it.
That was pretty good too.
Wait a minute, you
SPEAKER_02 (19:11):
couldn't defend that one?
SPEAKER_01 (19:12):
Well, I prosecuted that one and we won.
That was pretty good.
But it really depends.
And so that's a veryfact-specific thing.
And it really is about theindividual person.
Because the big thing is that ithas to be willfulness for that
person at that time.
(19:33):
Not what Jonathan or I or whatthe prosecutor might have
thought if we had been theperson at that moment in that
time, what the individualdefendant or business owner or
person was thinking.
So, and that gets tricky.
And basically, look, Jonathanand I, we thought, looked at
this case and we both of usthought the government didn't
(19:54):
really have the clear evidenceof willfulness that the
government thought they had.
And we think that they restedpretty heavily on some
assumptions which we had to dealwith at trial.
So one big assumption was thatthe government, I think, thought
that owner one and owner twoactually understood every nuance
(20:16):
of the anti-kickback statute andevery nuance of the Medicare
regulations involving DME.
They didn't.
As you may have heard from partone, they thought they knew
things, but they were getting alot of bad advice from the first
biller they were working with.
(20:37):
And so they believed a lot ofthings were actually being done
correctly when they weren't.
That was one big thing.
The government also thought thatthere was just so much money
involved, they must have knownthat this was improper.
That's really in the eye of thebeholder.
Okay, I think.
And they did not think that.
(20:57):
They did not think that based ontheir life experience and based
on what they were hearing fromthe biller.
Another big thing the governmenttried doing was talking about
customer complaints becausethere were customers who
complained.
But that really, to be honest,that was taken a lot out of
context.
And we'll talk about that a bitlater on when we talk about the
trial.
And another big thing thegovernment relied upon, I think,
(21:20):
in thinking they had willfulnessis they had this one particular
complaint.
audit letter that was sent bythe auditor.
That was a huge part, we think,of the government's case and why
they thought they had a strongcase.
It wasn't.
It was not what the governmentthought it was.
And we'll come back to that in alittle bit.
But basically, when you talkabout willfulness, one of the
(21:42):
big issues really isdistinguishing between what's
actual knowledge and should haveknown, right?
Because you should have knownbetter.
That's not the same thing asactually knowing, and it really
should be actually knowing inorder for it to be a criminal
case.
One of the big things I thinkabout a lot is there's this idea
(22:02):
out there called truth defaulttheory.
And if you haven't heard aboutit, I highly recommend reading
Malcolm Gladwell's Talking toStrangers, because that really
does talk a lot about thisconcept.
And I think it really helpsexplain this whole idea, because
I think what happens to ownerone and order two is, They
trusted the people they wereworking with.
They trusted the biller thatthey were originally working
(22:23):
with.
They trusted the marketer whomthe biller had recommended.
And they didn't see the redflags that were so obvious to
the government with the benefitof hindsight.
And because...
Truth default theory predicts,and I think this largely holds,
that when you're working withpeople, you generally assume
people are telling you thetruth.
(22:44):
You default to truth.
You don't second guess everysingle thing everyone tells you
because we just don't go throughlife that way.
That's a big problem, I think,because they kind of assumed
that they were being told thetruth and they weren't.
And the government comes inlater on and the government
thinks that they knew everythingand they actually knew that
everything was a sham when itwasn't.
(23:05):
So anyway.
So look, Jonathan and I getinvolved.
We try having some talks withthe government.
We try to see if there's any wayto resolve this case without a
trial.
And unfortunately, we go totrial.
There's no other way around it.
So it was a long trial.
It was three weeks stretchinginto the fourth.
(23:26):
There was a lot going on.
But there's a few things that wewanted to talk about here.
So the first, because again,this can apply in a lot of other
cases, is There was a lot ofissues involving attorney-client
privilege.
So that's something where wedon't get into all the details,
but both owner one and owner twohad basically, they did consult
(23:50):
lawyers during the course ofrunning their businesses.
And basically, one of the issuesthat comes up a lot of times in
criminal cases is whether peoplewill waive attorney-client
privilege.
And so this is something that wehad to consider and figure out
how to navigate.
And so, Jonathan, can you talkabout how we did it without
(24:11):
getting talking about what thesubstance of those
communications, how we navigatethe privilege issue?
SPEAKER_02 (24:16):
Sure, so when you talk about attorney-client
privilege, it's discussed a lotpre-trial with a lot of
defendants and a lot of lawyers.
Maybe we could use this intrial, but it's not actually
used very much, Stephen, right?
I mean, over the years, I mean,I've practiced over 25 years, a
(24:38):
handful of times have I everseen it really used.
And it's a very, very difficultconcept But it's a very powerful
defense for somebody charged ina trial because if you truly
relied upon what a lawyer toldyou, then there's no
willfulness.
You didn't try to break the law.
(24:59):
You relied upon a lawyer.
So it's something that ifthere's some evidence of it
existing, you wanna really doyour due diligence and try and
use it.
But it gets dicey.
in a trial or pretrial becausethe government's demanding to
see your evidence.
We have the rules of discoveryin trials in federal court where
(25:23):
the government has to give thedefense all the evidence which
shows that a crime was committedor shows that somebody may be
innocent of a crime, right?
For years, Steven, you alwaysturned over all your discovery,
even if it hurt your case.
That was your obligation as agovernment lawyer, and you
totally abided by thatobligation.
(25:44):
The defense has a little bit ofa different obligation, right?
If you intend to use somethingin trial, you do have to turn it
over.
It's part of discovery.
It gets a little different whensomething is privileged, right?
What we talk about with ourclients, attorney client
privilege confidentialityeverybody's heard those terms
(26:05):
for quite a while and andthere's a lot of information
whether it be emails whether itbe documents and things that go
back and forth so in our casewith owner one and owner two
with regard to those lawyers youtold the audience that our
client said hired there was alot of information that that was
(26:26):
passed back and forth.
And we thought a lot of thatinformation showed our clients
were not guilty or innocent.
But when you're preparing for atrial, you don't have the
obligation to turn that over ayear in advance or two years,
because you're not quite sure ifyou're gonna use that defense.
(26:46):
You don't have to use thatdefense.
If the government's case is soweak, Or if you're still trying
to convince the government todrop a case, you may not want to
turn over what's really the goldstandard of it all, your
attorney-client communications,right?
You don't want to turn that overunnecessarily.
So in our case here, thegovernment was demanding,
(27:07):
saying, if you're going to usethis defense, we want to see the
evidence.
So then the judge has to balanceboth sides.
The defendant's constitutionalrights communications between
them and their attorneys versusthe government's right to know
the evidence that's going to beused in a trial.
So we did so much research,Stephen, all the legal research
(27:30):
of how all the courts in thecountry have dealt with this
issue.
And it was wide ranging.
Some judges said, no, thedefense doesn't have to turn it
over to the day of trial.
Whereas some other judges said,no, you have to turn it over
four months in advance of trial.
So you and I were trying toobviously do what's best for our
(27:53):
clients, and we were fightingeach step of the way to make
sure their rights wereprotected.
So I think we struck a balanceand were able to have the judge
understand the delicate natureof it.
And so what we did, we craftedmore or less an agreement where
we would turn over certaindocuments, which were
(28:14):
privileged, so the governmenthad the opportunity to prepare
so they weren't unnecessarilysurprised at trial or something
that could delay the trial, butit was not considered a formal
declaration that we waived theprivilege.
So we sort of got it both ways,right?
We turned over the information,but we still reserved the right
(28:38):
to decide later at the trial ifwe were going to use that
defense.
So that was the balance I thinkthat we struck very nicely.
SPEAKER_01 (28:49):
Yeah, and I will say we had a lot of conversations
with the government, and thegovernment actually ended up
agreeing with us on some ofthis.
So I give them credit for that.
True.
Because they're right.
It was trying to find the rightbalance, and I think we struck
it.
And then we did actually– orJonathan, you did something very
interesting in terms of theactual trial.
(29:11):
So I'll set it up.
So when it comes to the actualtrial– You know, this is a very
complicated subject matter.
Lots of things going on.
And so the government goes firstand gives this opening
statement.
And then I got up and I gave anopening statement on behalf of
owner one.
And I said in my openingstatement that owner one is
(29:33):
going to testify and he's goingto explain to you everything
that happened.
But.
was very careful to not get intothe details of that i did not
mention attorneys because atthat point we still had not
waived and i still was we stillwe still want to see what the
government actually put inbefore we made a final decision
about waiver you what did you dowhen it came to owner
SPEAKER_02 (29:58):
two so traditionally in every trial tv movies or in
person government goes givestheir opening statement and if
there's more than one defendantlike we had the first
defendant's lawyer gets up theregives the opening statement and
the second one gets up there andgives you an opening statement
and a lot of times especiallywhen there's a joint or unified
(30:20):
defense theory like we had thesecond lawyer will get up and
say almost like what he saidright it's it's you're not
really adding much anythingdifferent.
So it's almost just repetitiveand there's not a lot of a
strategic or tactical differenceor advantage by doing that.
(30:41):
So what we decided to do was toreserve our opening statement.
So the way that would work is wewould hold it and then we would
present it after the governmentwas done with all their
witnesses, all their evidence,the weeks later.
So weeks later, and then wewould have the opportunity, if
(31:02):
we wanted to, is to give ouropening statement before the
defense would put on itswitnesses and evidence in a
defense case.
I can tell you that mostlawyers, even if they've tried
hundreds of cases, right,Stephen, probably have never
used it and never seen it,right, that you would reserve
(31:23):
your opening.
SPEAKER_01 (31:25):
So...
Yeah, I never saw it.
I never saw it before in my timeas a prosecutor and my time as a
defense lawyer.
I've never seen it happenbefore.
I thought it was reallyeffective.
It
SPEAKER_02 (31:35):
was hard.
I'll tell the folks why it'shard, right?
So, I mean, you got up there,you gave a powerful, strong
opening, basically telling thejury, looking them in the eyes
and telling them why owner onewas not guilty of a crime.
And this is after the governmentgot up there and said, why owner
one and owner two are reallyguilty of these crimes.
And then I'm sitting there nextto my client and it felt like we
(31:59):
were shrinking in our seats whenwe heard the government.
And then when we heard you, it'slike, okay, great, we're getting
a little taller.
But then we weren't sayinganything.
So it was hard.
It was hard not to be able toget up there and tell the jury
why the government has it wrongand why the evidence is gonna
(32:20):
show something totallydifferent.
But we got through it, we gotthrough it.
And the thinking was this, thebenefit of holding your opening
statement for three weeks later,it's sort of those ideals of
recency, you know, that now thejury's gonna hear from you.
(32:43):
You're gonna tell them, in anopening statement, you're
supposed to say the evidencewill show A, B, C, D, you know,
it's the map, if you will, ofsometimes of what the case is
about.
So now the jury gets to hearsomebody new, somebody different
telling them about the case.
after they've just heard thegovernment's presentation and it
(33:05):
refocuses and redirects orreframes the defense and the
issues, right?
Because you did a great job, butit was three weeks ago.
It's like, what have you donefor me lately?
So now I'm getting up there andwe're together and I'm now, and
a lot of times to begin a trial,there could be 10 issues.
(33:28):
The government presents its caseand a defense attorney is like,
wait a minute.
No, there's only like fourissues now, right?
Because the government failed toput forth evidence for all the
rest of it.
So now we're refocused, we'rereframed, and we're fired up,
ready to attack the government'scase.
So I think, you know, all thatbeing said, it gives you that
(33:51):
direct connection with the jury.
You're looking them in the eyesnow and you're telling them,
here's what you're gonna hear inour case and you get right at
it.
Whereas three weeks ago, theywould have to be waiting and
they could even forget what youhad said.
So it was really, I'd sayinvigorating at that point
(34:13):
because it, charged us up andit's almost yes it's an opening
statement but i also call itlike a mini closing statement or
closing argument right becauseyou're getting right up there
and you're basically tellingwhat the evidence is going to be
that that day the next day andthen pretty soon after you're
going to give closing argumentsfor the case
SPEAKER_01 (34:35):
yeah it really was a nice way to deal with the
privilege issue because againOwner one and owner two wait as
soon as Jonathan got up thereand started his opening.
Because that was the big piecethat I couldn't talk about
during my opening for owner one,but Jonathan could.
At that moment, we waved andopened the doors and went into
(34:58):
it.
And we were able to thus providea lot of context that the jury
hadn't heard before in thedefense case.
SPEAKER_02 (35:07):
Okay.
Let me add one last thing onthat, Stephen.
Remember, strategically, too, ifwe had waived at the beginning
of the trial for your openingstatement, the government could
have called our clients'lawyers, right, in their case,
right?
I mean, that was a bigconsideration, too, but we
(35:30):
didn't waive, so they couldn'tcall them as the witnesses, and
once we waived the privilege inthe second opening or the
reserved opening statement, thegovernment had already finished
their case.
So we were really in morecontrol too, of the presentation
of the defense theory and thedefense strategy and case
(35:51):
itself.
SPEAKER_01 (35:52):
Yeah.
Now the government did end upcalling to the former attorneys
in the rebuttal case.
But by that point, the jury hadheard from owner one about what
had happened in full.
So- Right.
Let me get onto, I wanna cover abit more from the trial.
So one big thing that came upand I think is useful for people
(36:13):
hopefully listening to this isreally just kind of the
complexity of the Medicareregulations at issue here.
And look, I really do think thebig things to keep in mind when
dealing with this is likescrutinize what the government
says, okay?
Because it's very confusing andchallenging for anyone to keep
(36:34):
up with Medicare stuff.
including the government's ownpeople.
And that came up really a lotthrough the trial.
Basically, I think thegovernment actually misread a
lot of the regulations.
I think they misread theanti-kickback statute, and that
was a big part of our defensekind of pushing back on those
things.
And I think the most clearexample of that came shortly
(36:56):
before trial when the governmentsent us some charts that they
plan to use at the trial,including some charts that
claimed that our clients hadviolated certain Medicare
regulations that didn't actuallyexist.
Like the government's own peoplehad misread the regulations.
(37:18):
They had basically in two ways.
One, they said that some thingswere improper based on the
current regulations as of 2024,but which of course were not in
effect back in 2018, back in2019 and 2020.
And second, there was somethingthat were still not even
(37:41):
prohibited in 2024 when thetrial happened.
So, We pushed back pretty hard,pretty fast on that, and I will
say we filed a motion,constitutional violations, ex
post facto clause, all of it.
Again, to its credit, thegovernment did back down the
next day and withdraw thosecharts.
But it was a really big thing, Ithink, to keep in mind because
(38:03):
you really do gotta scrutinizethis stuff for yourself.
Don't just accept thegovernment's version.
In fact, even the government'sown witness admitted on
cross-examination that it was,quote, impossible to keep up
with everything for Medicare.
So, because it is, it's reallyhard.
And again, this also goes backto why the willfulness aspect is
(38:23):
so important.
People make mistakes.
It happens all the time.
Even government people makemistakes.
Mistakes aren't crimes.
Okay, so that was one big thingwe had to deal with.
Another big thing that wealluded to is that owner one
testified.
And That was something that wehad decided before trial and
(38:46):
we're so sure of that I said itin opening statement that he was
going to testify.
And I thought it was reallyimportant because we really
wanted the jury to understandthings from his perspective,
right?
Because that's the thing.
If you hear about it, when thejury hears during the
government's case in chief, it'sall how the government has
packaged things or put thingstogether with the benefit of
(39:07):
hindsight, you know, andconstruct it.
That's what the governmentfound, and they did find lots of
problems.
They found lots of things thatthe marketer had done wrong.
They found lots of things thebiller had done wrong.
But really, the core of thetrial was not about that.
It was about whether Order 1 andOrder 2 knew that the marketer
(39:27):
and the biller were doing allthese things wrong and that some
of the things they were doingwere very problematic.
So the best way to show that isreally have Order 1 explain it
for himself, and that's what hedid.
He testified for three daysgoing through everything.
And we are very upfront aboutthat.
(39:48):
Everything the government hasthrown at these guys, owner one
is going to talk about.
And we went chronologicallythrough everything to show what
he knew, what he didn't know,the mistakes he made, things
like that.
We went through all of it toreally explain things and put
things in context.
So for example, We actually hadhim explain his understanding of
(40:10):
the anti-kickback statute andactually go through some of the
articles that he read at thetime.
That was important to understandwhat he was thinking and to show
that he did not understand someof the government's theory.
Some of it was prettyaggressive.
He did not understand the AKS toprohibit some of the things the
(40:31):
government thought were illegal.
Another big thing that we didwas show things like those
customer complaints.
Because we showed, yeah, he didhear about the customer
complaints.
And here's what he did inresponse.
And we show that he listened toaudio recordings with the
customers that actually weredifferent from the customer
(40:51):
complaints.
And he testified about how heand owner one actually spoke
with some of the customers whoactually basically thought like,
okay, yeah, actually, you knowwhat, I might have had you
confused with another company,things like that.
So we really kind of put it incontext.
And we also showed that thecustomer complaints were
actually a relatively smallpercentage of the overall stuff.
(41:12):
Because if you take it out ofcontext and you hear about 10,
15, 100 complaints, it soundspretty bad.
But not when you realize this isout of thousands, right?
Then it's like, okay, it's notgood, but it's also not as
powerful as the government mighthave suggested initially.
(41:33):
The other big thing we did waswe really went chronologically.
So it was kind of, so you reallygot to see it from his point of
view and how his knowledgechanged and evolved over time.
And so we did that.
But also the really big thing wedid was we talked about that
audit letter that came up.
Because again, the governmenthad made a big deal of the fact
(41:53):
that Medicare had audited, youknow, owner one and owner two's
business and had sent a letterto to their business, kind of
pointing out all the problemsthat the auditor found.
The thing is, she sent it to anaddress that owner one and owner
two had stopped using monthsbeforehand.
(42:17):
And so they had actually noproof that they actually ever
received the letter.
And that was one of the bigthings that we showed.
And we pointed that out from thevery beginning of owner one's
testimony.
Because the government claimed,when we first brought out the
idea that the audit letterwasn't there and should have
existed, the government kind ofbacked, well, you know, it
(42:37):
might've happened.
It's impossible to find thedelivery receipt at this point
in time.
So when owner one testified,that's actually the first thing
we covered because owner one'swife actually went online and
found the receipt herself, youknow, because you have to scroll
further down on the webpage topull it up.
(42:58):
And she did.
And it really showed that thegovernment had really botched
this one part of their case, andin fact, a pretty important part
of the case.
And so that was a big part ofhow we kind of went through
everything to really kind ofshow owner one's story and
really try to get the jury tosee things from his point of
view, which was extremelyimportant for the willfulness
aspect.
SPEAKER_02 (43:19):
Okay, yeah.
I have two quick things on thatstatement.
Number one is that yourpreparation with owner one was
so thorough and so detailed, andyou spent so much time together
that by the time you came tocourt or he came to court to
testify, I mean, the hard workhad already been done, right?
(43:40):
I mean, you guys really put ittogether nicely.
So that's number one.
Number two, because of histestimony was so good and so
complete, and it wasn't just meor I.
He included owner two becausethey were business partners.
So the fact that owner two didnot testify in a trial is partly
(44:02):
true.
Remember, because I argued, hedid testify because owner one
was so complete, so descriptive,and that was because of all the
work that you all did together.
So it was another, I guess,important strategy development
by using a unified joint defensebecause we had one defendant,
(44:25):
one client testified, but hereally testified for both
because they had done everythingin this partnership together.
SPEAKER_01 (44:33):
Yeah.
No, and that was pretty clearfrom the first time that
Jonathan and I got hired, to behonest, that this was
definitely, this was a casewhere the government's case, it
was pretty much identicalagainst both guys.
And so it really was, it madesense.
Other cases might be different,but this was a case where they
definitely stood together orwent down together.
And it is really important tokind of go through all that.
(44:58):
So, okay.
So, owner one testifies.
Three days, the governmentcross-exams him for about, I
guess, you know, I guess aboutmaybe about three quarters of a
day.
Government puts on a rebuttalcase.
Everyone rests.
We do closing arguments.
And then the jury gets the caseand they start deliberating.
(45:22):
And this was a case where theydeliberated for a while.
So, Jonathan, can you talk aboutkind of how that unfolded and
how the verdict ended up?
SPEAKER_02 (45:34):
Sure.
So whenever somebody has theunfortunate experience of being
a defendant in trial, the wholeexperience is just so much,
right?
So overwhelming.
But once everything is over andit's in the jury's hands, so
they're in the room deliberatingsomebody's future, their
destiny, it's unbelievable thejust amount of emotion that goes
(45:57):
on.
So we hang around the courtroom,we go downstairs, we do these
certain things, But we have tobe accessible in case there's
some issue to get back to court.
And I think in this case, thejury had questions or submitted
notes to the judge four or fivetimes.
So when we get a call from thecourt staff saying, can you come
(46:20):
back to court?
We don't know if it's a verdictor if it's a question from the
jury.
And I think it was, Stephen, thefirst four times there were
questions.
And of course, each question hasits own you know, hermabilities
and what we want the judge tosay to him.
But, you know, it's all just somuch to endure and to absorb.
(46:44):
So I remember the last time, Ithink it was number five, Our
clients were going to go out andget something to eat.
And then we got a call thatthere was another note.
We thought a note, get back tothe courtroom.
So we got back and waiting forthe clients.
Everybody rushes in half thefamily members were there.
The other weren't because ifit's just a note, you know, we
(47:05):
will figure it out.
We'll come back.
But then we're all in thecourtroom and the court clerk
said they have a verdict.
And it was just like, whoo.
like a drop in an elevator.
It was like something sosurreal.
And sometimes it's worse whenyou have to plan for something.
We had no time.
(47:26):
The jury was coming in with averdict.
You're sitting next to ourclients and you're just like, we
have obviously no idea, but wedidn't have a talk that we
usually talk.
And it's...
all of a sudden it's all gonnahappen.
And it was something like almostout of a dream sequence, I think
(47:47):
right there.
SPEAKER_01 (47:47):
Yeah, and I remember standing next to my client and
basically knowing that his lifehinged on what was about to
happen.
And standing next to him whilethe judge read count after count
(48:11):
not guilty to every single countwas an amazing an amazing moment
for for him owner two for us imean just to have to know that
this said that basically thejury understood the jury the
jury got it and to especiallybecause there have been
(48:33):
indications earlier in jurydeliberation that they might not
have reached an unanimousverdict but to know that they
they did come through and seeall that was amazing.
And then actually, I will saythat Jonathan and I and the
government and the judge, weactually all went back and
talked to the jurors afterwardsto hear their thoughts about the
(48:55):
case.
And it was very rewarding tohear how seriously the jurors
took it, how much theyconsidered the evidence, And how
much they got, ultimately, thatowner one and owner two, they
made a huge number of mistakes.
They made some mistakes intrusting people and things like
that, but that they were tryingto do the right thing.
And that's not willfulness.
(49:17):
So that was really great.
And really, it's an amazingmoment.
Yeah,
SPEAKER_02 (49:22):
I can tell you that.
Look, we don't have to like ourclients to give 110%.
We've won a lot of trials.
I've won a lot of trials forclients I don't particularly
like.
I don't care.
But when you like your clients,and we liked our clients a lot.
They're good people, beautifulfamilies, little children that
(49:43):
depended on them for theirfuture.
When you win a case like thisfor clients that you like, it's
just even so much morerewarding.
of just an achievement andsomething that just makes you so
fired up and feel so good aboutwhat you do.
SPEAKER_01 (50:03):
So, yeah, we just want to hope you've enjoyed
hearing about this real lifeexample of how people got cut up
in a lot of the aftermath ofBrace Yourself, how people kind
of got misled by people and howthey kind of got through a lot
of very difficult circumstancesto a lawyer and a biller you
(50:26):
heard about in part one andthrough the work that we did in
terms of the criminal case.
So I think, I really hope thatyou enjoyed this.
Jonathan, any final takeawaysfor the audience?
SPEAKER_02 (50:39):
No, you know, Steven, I'm so excited now
having gone through this againwith you.
I look forward to our nexttrial.
SPEAKER_01 (50:46):
All right.
Well, thanks, everyone.
And please reach out if you haveany questions.
Again, we hope that this hasbeen helpful and best of luck to
everyone.
SPEAKER_02 (50:55):
Take care, everybody.
SPEAKER_00 (51:01):
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(51:21):
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SPEAKER_01 (00:18):
My name is Stephen Lee, and I am an attorney in
Chicago who previously was afederal prosecutor and the
senior counsel to the ChicagoU.S.
Attorney's Office's HealthcareFraud Unit.
And I'm very happy to be heretoday for part two of a two-part
podcast looking at OperationBrace Yourself in a real-life
case of how lawyers can helptheir clients through some very
(00:39):
difficult circumstances.
Now, in part one, we talkedabout Operation Brace Yourself.
how companies responded, and twobusiness owners, owner one and
owner two, who decided to shutdown their durable medical
equipment businesses in 2020after talking with a biller and
a lawyer.
Unfortunately, unbeknownst toowner one and owner two, the
(01:02):
Federal Bureau of Investigationhad already opened a criminal
investigation targeting them.
Now, I ultimately representedowner one, And I have with me
today on the podcast, a greatattorney, Jonathan Meltz, who
represented Owner 2.
Jonathan, can you introduceyourself?
SPEAKER_02 (01:20):
I sure can, Stephen.
Good to see you today.
I represented Owner 2.
And when I'm not representingOwner 2, I'm a senior attorney
with the Chapman Law Group.
We have three officers acrossthe country in Florida,
Michigan, and California.
And I represent...
folks mostly in healthcareinvestigations, doctors who are
charged with violations of theControlled Substance Act, and
(01:43):
other white-collar crimes.
SPEAKER_01 (01:46):
All right, so we'll get through what Jonathan and I
ended up doing to help owner oneand owner two through this very
difficult situation.
But we wanna start, by goingthrough some of the things that
happen in a lot of these typicalkind of investigations and some
things so that people who areout there listening can kind of
know how to navigate throughsome of these things maybe a
little bit better.
(02:07):
So basically the first thingthat happened as far as owner
one and owner two wereconcerned, well, first of all, a
lot happened, they had no idea.
A lot of stuff was going onwhere the government was
building up their investigationand clearly had ideas and
thoughts about them and they hadno clue what was going on.
The first time they heardanything about a criminal
(02:28):
investigation to them was in thesummer of 2021, when the FBI
approached owner two and askedhim some questions and served
him a subpoena.
He then got another lawyer, notus, who arranged for a proffer
interview.
Proffers come up a lot, and it'ssomething that Jonathan and I
dealt with in variouscapacities, and we want to talk
(02:50):
a little bit about that for thegeneral audience.
Jonathan, can you explain what aproffer is.
SPEAKER_02 (02:55):
Sure, Steven.
Absolutely.
So, You're right, proffers docome up a lot and I think
they're some of the mostimportant parts of any white
collar or fraud investigation.
And it's basically to define it,it's a meeting or an interview
between somebody who's underinvestigation and federal agents
(03:18):
and prosecutors.
So what people have tounderstand though, as you said,
this investigation has beengoing on for a while.
So the federal agents and theprosecutors have a ton of
information.
By the time they approachsomebody and they say, we'd like
you to give a proffer interview,it's like almost the exam where
(03:39):
they know all the answers,right?
And they're asking somebody tocome in and answer questions.
And the deck is already stackedagainst that person, meaning the
person's going in not realizinghow much information or how much
investigation has been done.
So here are some of the basicfactors of it.
(04:01):
The person has to be under oathto tell the truth.
and therefore anything they saywhich could be a lie or a false
statement could be held againstthem.
The person may get a smallamount or a limited amount of
what we call immunity, but itdoesn't give them full immunity
(04:22):
to avoid prosecution for anycrime.
So I also often call it the mostimportant audition of somebody's
life, right?
mean we're not talking a playwe're not talking an actor but
but it's an audition becausethere's a couple reasons that
the proffer may happen that thegovernment is trying to
(04:43):
determine if somebody's beingtruthful whether they know
information about a possiblecrime or whether there are they
are truly innocent or on theother hand if the person could
be a good witness right, for thegovernment.
So it's an audition for thatperson's future.
That's why it's so important,Stephen.
SPEAKER_01 (05:04):
Yeah, and I think that's what lawyers and clients
need to take it as seriously asthat because this is not
something you just walk into.
It's not something you just showup for one day and hope it'll go
as well.
Before I bring a client in for aproffer, I spend a lot of time
going through the materialbeforehand as much as I can to
iron out things and make surethe interview, the proffer is as
(05:27):
helpful for both sides aspossible because there's no
point in doing a proffer if thegovernment ends up thinking that
you're lying to them.
SPEAKER_02 (05:36):
Right.
And I think, Stephen, I thinkit's important for people to
note that we look at like threelevels of involvement for
somebody that the governmentwants to talk to, right?
At the bottom, it's somebodywho's just a witness, somebody
who may have documents or mayhave some knowledge.
They may know about the crime,but they don't have any criminal
(05:56):
liability, right?
They're just a witness.
They're a puzzle piece in thegovernment's overall puzzle,
right?
So those folks most times wouldbenefit from counsel, but
they're not within the scope ofthe government right now.
It's the other two levels whichare important.
The next one being somebodywho's a subject of an
(06:17):
investigation.
The government's not quite surewhere they fit in yet.
And that those folks could saysomething that puts them over
the edge in a real, realnegative light or a big problem.
So they would benefit fromhaving counsel.
And then of course, the mostsignificant role is somebody
who's in a target, right?
They received a target letter orthe government has told them or
(06:40):
their attorneys, you're thetarget.
of the investigation, and thoseare the people who really,
really have to be concernedabout moving forward.
I'm sure you're the same way,but sometimes we just say no,
right?
We're not going to bring ourclients in for a proffer,
because as their attorney, wedon't feel it's in their best
interest.
So there's certain situationswhere you have the right to say
(07:03):
no, and based on what you andyour attorney believe, that the
proffer isn't something that'sgoing to help you get the best
possible result.
SPEAKER_01 (07:12):
Yeah.
An extremely important part of acriminal investigation, a lot
can hinge on what happens in aproffer.
I've seen proffers go well andactually help clear up things.
I mean, look, I was a prosecutormyself, and sometimes proffers
actually did convince thegovernment, we got something
wrong.
And so it's like, okay, allright.
Okay, we were very glad to knowthat.
(07:35):
But proffers, if they go badly,can actually be disastrous and
make a person's situation worse.
I've seen people who evenconsidered pleading guilty to
crimes they didn't commitbecause that got said in a
proffer or got misinterpreted ina proffer.
So move very carefully.
Extremely powerful and helpfulif done right.
Extremely dangerous if donewrong.
(07:58):
So in this case, owner two wentin for a proffer.
Unfortunately, it did not reallyhelp.
Ultimately, the governmentbasically heard owner two out,
and they went ahead and indictedboth guys the very next week on
(08:20):
extensive charges.
Owner one and owner two did notknow about this.
In fact, the people who wererepresenting them at the time
actually continued to provideinformation to the government
for several weeks while ownertwo and owner two were already
indicted because the lawyers atthe time thought the government
was still keeping an open mindand actually continuing their
(08:42):
investigation.
The government then went aheadand the indictment was under
seal and they then went aheadand arrested or basically
arrested or ordered them tosurrender both owner and owner
two right before Christmas of2021.
They then hired Jonathan and me.
SPEAKER_02 (09:00):
And that's what I was going to say, Stephen.
It's important to note that youand I didn't represent owner
one, owner two at that point.
And, you know, a lot of timesyou talk about Monday morning
quarterbacking and what would wehave done.
But, you know, you and I boththink alike.
We would prepare our clients asmuch as possible, hours,
(09:22):
whatever it would take.
But sometimes the government'salready locked in.
right and it's almost um i hateto say it but i will it's almost
a trap sometimes right theproffer can be um that you no
matter what you say or do you'renot going to move them away from
filing charges so that goes intothe consideration and the
(09:45):
equation when you're decidingwhether or not to go in um for
that for that interview for thatmeeting but um you know i I
think there's some generaladvice for doing a proffer,
right?
That I think we can kind ofagree upon across the board is
that one, you have to carefullyconsider and think about it.
(10:07):
I look at almost two differenttracks for a proffer.
If you and your attorneys havealready decided it's in your
best interest to plead guilty,then a proffer is a lot of times
a very, very important,significant factor meeting to
attend and something could helpyour case because the government
(10:27):
may want to use you as a witnessand they need to gauge your
credibility and see how you areand that could help you in the
end to get a better sentence.
So ordinarily, I don't have aproblem if you've already done
all the work with your lawyerand you've decided that this is
the right route.
You already know you're going toplead guilty.
But if you haven't decided that,that's where you have to proceed
(10:49):
with the most caution aspossible.
So if you already are thinkingabout taking a case to trial,
then I'm really hesitant aboutbringing somebody in because if
I don't have a good sense thegovernment may back down and
dismiss charges, I don't want togive the government a free look
at our case and our defense andhave the next six, eight, 10
(11:10):
months to try and diminish knowour defense for a case and and
this is something i think thathappened in our trial with owner
one and two the proffer righti've never seen a proffer
interview statement recordedright so what happened there is
(11:31):
that since there's no recordingof what owner two said then the
government brings in the agentswho write a report based on
their best recollection of whatwas said and you know you can a
lot of times people hearsomething and interpret it
differently or they'rephysically writing down on a
(11:54):
notebook in the interview andthat's not you know ai that's
not a transcription that's not arecording and six months a year
two years later all of a suddenthat interview may come
extremely important and there'stwo, if not more versions of
what was really said.
And that can be reallyproblematic in a case.
(12:17):
So some of the other things yougotta be careful about with a
proffer is I would keep itlimited.
I would make sure that yourattorney is in there taking
notes.
So to have a witness as to whatwas said and maybe sometimes you
insist on a recording or atranscript.
And then no side can claimsomething was or was not said.
SPEAKER_01 (12:42):
Yeah.
And I've seen problems like thattoo, where people, there's so
much disagreement about what wassaid in a proffer.
But yeah, it is reallyimportant.
If you're going to do it, prepand take really good notes
during the proffer.
It's really, really importantfor both sides.
Okay.
So unfortunately, the profferhere, owner two's proffer, It
(13:07):
clearly did not change thegovernment's view of these guys.
And they went ahead and chargedowner one and owner two.
Jonathan, can you describe thecharges and what owner one and
owner two were looking at here?
Sure, sure.
SPEAKER_02 (13:19):
So there was basically, in the end, there was
four charges I believe we weredealing with.
There was a fifth one.
They were originally indicted onaggravated identity theft.
And I think, Stephen, I think toour credit for being diligent
and researching, we were able toconvince the government to drop
that charge before trial.
(13:40):
So I don't remember exactly whenit was, but at least then that
was an important aspect of thecase that we didn't have to
worry about trial preparationfor that particular charge.
But the four charges that werestill part of the indictment as
we went towards trial wasconspiracy to pay and receive
(14:01):
healthcare kickbacks.
And that's also known as theanti-kickback statute, AKS.
So that's a conspiracy, so it'san agreement two or more people
to commit that crime.
And then they also charged thecrime itself, which was payment
of illegal healthcare kickbacks.
So the actual violation of theanti-kickback statute.
(14:23):
And then the second set ofcharges was a conspiracy again,
so the agreement to commithealthcare fraud.
And then the fraud itself, therewere individual charges of
healthcare fraud.
So those are the four charges.
So it's really two differentbuckets that we were dealing
with.
SPEAKER_01 (14:43):
Yeah.
And each of these chargescarried their own various
penalties and that which, youknow, in order to face.
But also the key thing is eachof these charges have specific
elements that the government hasto prove beyond a reasonable
doubt in order to get aconviction.
And that's really importantbecause When you're dealing with
(15:06):
federal crimes, especiallycrimes like this, you have to
know exactly what the governmenthas to prove, and you have to
know exactly what you'redefending against.
And the key thing for both thehealthcare fraud charges and the
kickback charges is this conceptcalled willfulness.
I think this element actuallygets overlooked a lot, but I
(15:27):
think it's actually the key tocriminal cases like this.
Because Basically, look, we allknow, I think everyone listening
to this podcast knows, there arelots of times where people make
mistakes in terms ofinterpreting regulations, in
terms of billing, plenty oftimes where people make
mistakes.
Mistakes aren't crimes.
(15:51):
What is a crime is when thegovernment can prove
willfulness, meaning that theperson actually knew that what
they were doing was illegal anddid it anyway.
Not with the benefit ofhindsight, not second-guessing
themselves years later at thetime they knew it was illegal
(16:12):
and did it anyway.
That, I think, is the key thingthat often gets overlooked
because it really does go, andit really goes to what the
individual person was thinkingat the time.
So, wolfeness is kind of thisconcept that comes up a lot in
the kind of cases that Jonathanand I end up doing.
And so, we will talk a littlebit more about that.
So, Jonathan, can you give someexamples of like what Like what
(16:33):
really, what are some goodexamples of willfulness that
you've seen?
SPEAKER_02 (16:37):
Sure, sure.
So the most common one I see ina lot of the doctor cases where
I represent folks, you know,they're investigated, maybe
their records were lacking,incomplete, or sometimes no
records altogether.
Somebody may go back into theirelectronic health record system
(16:57):
or go into their computer andcreate records.
fake records.
For instance, that you, StephenLee, went to the doctor last
week and was evaluated, you weretested, etc.
It never happened.
But the individual may put anentry in the electronic health
record system, which istroublesome because they're all
(17:18):
date stamped and you know whenthe records were entered, and
that creates a big problem forour purposes.
Or If it's a computer going inand just creating a document,
one of the first things the FBImay do is search somebody's
computer and the forensic searchwill show creation of all
(17:42):
documents and there's a datestamp and there's a trail.
So those sorts of things, thatshows willfulness, right?
Somebody's creating fakerecords.
In the area of, say, kickbacks,where there is billing if there
is the creation of fakeinvoices.
(18:03):
right without a doubt somethingwas fake showing that services
were delivered or you know thatthere were tests done and now
there's going to be billing orsome sort of invoicing uh is an
absolute example of somethingwhich was done with a
willfulness to to break the lawi mean it's it's pretty much
right the specific intent to dosomething the law forbids right
(18:27):
you're doing it with a badpurpose or to disregard the law
so if you're going to createfake documents that's that's
that's a tough order to overcomeon our end.
SPEAKER_01 (18:39):
Yeah, and I think the tricky thing in a lot of the
cases that Jonathan and I end updoing is kind of like seeing
where is that lie?
Is it really enough to showwillfulness or is it not?
Fake documents, fake documentsthat are impossible to believe,
things like that, I think thatis very powerful evidence of
willfulness in a lot of cases.
(18:59):
When I was a prosecutor, I didhave a case once where a doctor
was told by a colleague, I thinkwhat you're doing is fraud.
And he kept doing it.
That was pretty good too.
Wait a minute, you
SPEAKER_02 (19:11):
couldn't defend that one?
SPEAKER_01 (19:12):
Well, I prosecuted that one and we won.
That was pretty good.
But it really depends.
And so that's a veryfact-specific thing.
And it really is about theindividual person.
Because the big thing is that ithas to be willfulness for that
person at that time.
(19:33):
Not what Jonathan or I or whatthe prosecutor might have
thought if we had been theperson at that moment in that
time, what the individualdefendant or business owner or
person was thinking.
So, and that gets tricky.
And basically, look, Jonathanand I, we thought, looked at
this case and we both of usthought the government didn't
(19:54):
really have the clear evidenceof willfulness that the
government thought they had.
And we think that they restedpretty heavily on some
assumptions which we had to dealwith at trial.
So one big assumption was thatthe government, I think, thought
that owner one and owner twoactually understood every nuance
(20:16):
of the anti-kickback statute andevery nuance of the Medicare
regulations involving DME.
They didn't.
As you may have heard from partone, they thought they knew
things, but they were getting alot of bad advice from the first
biller they were working with.
(20:37):
And so they believed a lot ofthings were actually being done
correctly when they weren't.
That was one big thing.
The government also thought thatthere was just so much money
involved, they must have knownthat this was improper.
That's really in the eye of thebeholder.
Okay, I think.
And they did not think that.
(20:57):
They did not think that based ontheir life experience and based
on what they were hearing fromthe biller.
Another big thing the governmenttried doing was talking about
customer complaints becausethere were customers who
complained.
But that really, to be honest,that was taken a lot out of
context.
And we'll talk about that a bitlater on when we talk about the
trial.
And another big thing thegovernment relied upon, I think,
(21:20):
in thinking they had willfulnessis they had this one particular
complaint.
audit letter that was sent bythe auditor.
That was a huge part, we think,of the government's case and why
they thought they had a strongcase.
It wasn't.
It was not what the governmentthought it was.
And we'll come back to that in alittle bit.
But basically, when you talkabout willfulness, one of the
(21:42):
big issues really isdistinguishing between what's
actual knowledge and should haveknown, right?
Because you should have knownbetter.
That's not the same thing asactually knowing, and it really
should be actually knowing inorder for it to be a criminal
case.
One of the big things I thinkabout a lot is there's this idea
(22:02):
out there called truth defaulttheory.
And if you haven't heard aboutit, I highly recommend reading
Malcolm Gladwell's Talking toStrangers, because that really
does talk a lot about thisconcept.
And I think it really helpsexplain this whole idea, because
I think what happens to ownerone and order two is, They
trusted the people they wereworking with.
They trusted the biller thatthey were originally working
(22:23):
with.
They trusted the marketer whomthe biller had recommended.
And they didn't see the redflags that were so obvious to
the government with the benefitof hindsight.
And because...
Truth default theory predicts,and I think this largely holds,
that when you're working withpeople, you generally assume
people are telling you thetruth.
(22:44):
You default to truth.
You don't second guess everysingle thing everyone tells you
because we just don't go throughlife that way.
That's a big problem, I think,because they kind of assumed
that they were being told thetruth and they weren't.
And the government comes inlater on and the government
thinks that they knew everythingand they actually knew that
everything was a sham when itwasn't.
(23:05):
So anyway.
So look, Jonathan and I getinvolved.
We try having some talks withthe government.
We try to see if there's any wayto resolve this case without a
trial.
And unfortunately, we go totrial.
There's no other way around it.
So it was a long trial.
It was three weeks stretchinginto the fourth.
(23:26):
There was a lot going on.
But there's a few things that wewanted to talk about here.
So the first, because again,this can apply in a lot of other
cases, is There was a lot ofissues involving attorney-client
privilege.
So that's something where wedon't get into all the details,
but both owner one and owner twohad basically, they did consult
(23:50):
lawyers during the course ofrunning their businesses.
And basically, one of the issuesthat comes up a lot of times in
criminal cases is whether peoplewill waive attorney-client
privilege.
And so this is something that wehad to consider and figure out
how to navigate.
And so, Jonathan, can you talkabout how we did it without
(24:11):
getting talking about what thesubstance of those
communications, how we navigatethe privilege issue?
SPEAKER_02 (24:16):
Sure, so when you talk about attorney-client
privilege, it's discussed a lotpre-trial with a lot of
defendants and a lot of lawyers.
Maybe we could use this intrial, but it's not actually
used very much, Stephen, right?
I mean, over the years, I mean,I've practiced over 25 years, a
(24:38):
handful of times have I everseen it really used.
And it's a very, very difficultconcept But it's a very powerful
defense for somebody charged ina trial because if you truly
relied upon what a lawyer toldyou, then there's no
willfulness.
You didn't try to break the law.
(24:59):
You relied upon a lawyer.
So it's something that ifthere's some evidence of it
existing, you wanna really doyour due diligence and try and
use it.
But it gets dicey.
in a trial or pretrial becausethe government's demanding to
see your evidence.
We have the rules of discoveryin trials in federal court where
(25:23):
the government has to give thedefense all the evidence which
shows that a crime was committedor shows that somebody may be
innocent of a crime, right?
For years, Steven, you alwaysturned over all your discovery,
even if it hurt your case.
That was your obligation as agovernment lawyer, and you
totally abided by thatobligation.
(25:44):
The defense has a little bit ofa different obligation, right?
If you intend to use somethingin trial, you do have to turn it
over.
It's part of discovery.
It gets a little different whensomething is privileged, right?
What we talk about with ourclients, attorney client
privilege confidentialityeverybody's heard those terms
(26:05):
for quite a while and andthere's a lot of information
whether it be emails whether itbe documents and things that go
back and forth so in our casewith owner one and owner two
with regard to those lawyers youtold the audience that our
client said hired there was alot of information that that was
(26:26):
passed back and forth.
And we thought a lot of thatinformation showed our clients
were not guilty or innocent.
But when you're preparing for atrial, you don't have the
obligation to turn that over ayear in advance or two years,
because you're not quite sure ifyou're gonna use that defense.
(26:46):
You don't have to use thatdefense.
If the government's case is soweak, Or if you're still trying
to convince the government todrop a case, you may not want to
turn over what's really the goldstandard of it all, your
attorney-client communications,right?
You don't want to turn that overunnecessarily.
So in our case here, thegovernment was demanding,
(27:07):
saying, if you're going to usethis defense, we want to see the
evidence.
So then the judge has to balanceboth sides.
The defendant's constitutionalrights communications between
them and their attorneys versusthe government's right to know
the evidence that's going to beused in a trial.
So we did so much research,Stephen, all the legal research
(27:30):
of how all the courts in thecountry have dealt with this
issue.
And it was wide ranging.
Some judges said, no, thedefense doesn't have to turn it
over to the day of trial.
Whereas some other judges said,no, you have to turn it over
four months in advance of trial.
So you and I were trying toobviously do what's best for our
(27:53):
clients, and we were fightingeach step of the way to make
sure their rights wereprotected.
So I think we struck a balanceand were able to have the judge
understand the delicate natureof it.
And so what we did, we craftedmore or less an agreement where
we would turn over certaindocuments, which were
(28:14):
privileged, so the governmenthad the opportunity to prepare
so they weren't unnecessarilysurprised at trial or something
that could delay the trial, butit was not considered a formal
declaration that we waived theprivilege.
So we sort of got it both ways,right?
We turned over the information,but we still reserved the right
(28:38):
to decide later at the trial ifwe were going to use that
defense.
So that was the balance I thinkthat we struck very nicely.
SPEAKER_01 (28:49):
Yeah, and I will say we had a lot of conversations
with the government, and thegovernment actually ended up
agreeing with us on some ofthis.
So I give them credit for that.
True.
Because they're right.
It was trying to find the rightbalance, and I think we struck
it.
And then we did actually– orJonathan, you did something very
interesting in terms of theactual trial.
(29:11):
So I'll set it up.
So when it comes to the actualtrial– You know, this is a very
complicated subject matter.
Lots of things going on.
And so the government goes firstand gives this opening
statement.
And then I got up and I gave anopening statement on behalf of
owner one.
And I said in my openingstatement that owner one is
(29:33):
going to testify and he's goingto explain to you everything
that happened.
But.
was very careful to not get intothe details of that i did not
mention attorneys because atthat point we still had not
waived and i still was we stillwe still want to see what the
government actually put inbefore we made a final decision
about waiver you what did you dowhen it came to owner
SPEAKER_02 (29:58):
two so traditionally in every trial tv movies or in
person government goes givestheir opening statement and if
there's more than one defendantlike we had the first
defendant's lawyer gets up theregives the opening statement and
the second one gets up there andgives you an opening statement
and a lot of times especiallywhen there's a joint or unified
(30:20):
defense theory like we had thesecond lawyer will get up and
say almost like what he saidright it's it's you're not
really adding much anythingdifferent.
So it's almost just repetitiveand there's not a lot of a
strategic or tactical differenceor advantage by doing that.
(30:41):
So what we decided to do was toreserve our opening statement.
So the way that would work is wewould hold it and then we would
present it after the governmentwas done with all their
witnesses, all their evidence,the weeks later.
So weeks later, and then wewould have the opportunity, if
(31:02):
we wanted to, is to give ouropening statement before the
defense would put on itswitnesses and evidence in a
defense case.
I can tell you that mostlawyers, even if they've tried
hundreds of cases, right,Stephen, probably have never
used it and never seen it,right, that you would reserve
(31:23):
your opening.
SPEAKER_01 (31:25):
So...
Yeah, I never saw it.
I never saw it before in my timeas a prosecutor and my time as a
defense lawyer.
I've never seen it happenbefore.
I thought it was reallyeffective.
It
SPEAKER_02 (31:35):
was hard.
I'll tell the folks why it'shard, right?
So, I mean, you got up there,you gave a powerful, strong
opening, basically telling thejury, looking them in the eyes
and telling them why owner onewas not guilty of a crime.
And this is after the governmentgot up there and said, why owner
one and owner two are reallyguilty of these crimes.
And then I'm sitting there nextto my client and it felt like we
(31:59):
were shrinking in our seats whenwe heard the government.
And then when we heard you, it'slike, okay, great, we're getting
a little taller.
But then we weren't sayinganything.
So it was hard.
It was hard not to be able toget up there and tell the jury
why the government has it wrongand why the evidence is gonna
(32:20):
show something totallydifferent.
But we got through it, we gotthrough it.
And the thinking was this, thebenefit of holding your opening
statement for three weeks later,it's sort of those ideals of
recency, you know, that now thejury's gonna hear from you.
(32:43):
You're gonna tell them, in anopening statement, you're
supposed to say the evidencewill show A, B, C, D, you know,
it's the map, if you will, ofsometimes of what the case is
about.
So now the jury gets to hearsomebody new, somebody different
telling them about the case.
after they've just heard thegovernment's presentation and it
(33:05):
refocuses and redirects orreframes the defense and the
issues, right?
Because you did a great job, butit was three weeks ago.
It's like, what have you donefor me lately?
So now I'm getting up there andwe're together and I'm now, and
a lot of times to begin a trial,there could be 10 issues.
(33:28):
The government presents its caseand a defense attorney is like,
wait a minute.
No, there's only like fourissues now, right?
Because the government failed toput forth evidence for all the
rest of it.
So now we're refocused, we'rereframed, and we're fired up,
ready to attack the government'scase.
So I think, you know, all thatbeing said, it gives you that
(33:51):
direct connection with the jury.
You're looking them in the eyesnow and you're telling them,
here's what you're gonna hear inour case and you get right at
it.
Whereas three weeks ago, theywould have to be waiting and
they could even forget what youhad said.
So it was really, I'd sayinvigorating at that point
(34:13):
because it, charged us up andit's almost yes it's an opening
statement but i also call itlike a mini closing statement or
closing argument right becauseyou're getting right up there
and you're basically tellingwhat the evidence is going to be
that that day the next day andthen pretty soon after you're
going to give closing argumentsfor the case
SPEAKER_01 (34:35):
yeah it really was a nice way to deal with the
privilege issue because againOwner one and owner two wait as
soon as Jonathan got up thereand started his opening.
Because that was the big piecethat I couldn't talk about
during my opening for owner one,but Jonathan could.
At that moment, we waved andopened the doors and went into
(34:58):
it.
And we were able to thus providea lot of context that the jury
hadn't heard before in thedefense case.
SPEAKER_02 (35:07):
Okay.
Let me add one last thing onthat, Stephen.
Remember, strategically, too, ifwe had waived at the beginning
of the trial for your openingstatement, the government could
have called our clients'lawyers, right, in their case,
right?
I mean, that was a bigconsideration, too, but we
(35:30):
didn't waive, so they couldn'tcall them as the witnesses, and
once we waived the privilege inthe second opening or the
reserved opening statement, thegovernment had already finished
their case.
So we were really in morecontrol too, of the presentation
of the defense theory and thedefense strategy and case
(35:51):
itself.
SPEAKER_01 (35:52):
Yeah.
Now the government did end upcalling to the former attorneys
in the rebuttal case.
But by that point, the jury hadheard from owner one about what
had happened in full.
So- Right.
Let me get onto, I wanna cover abit more from the trial.
So one big thing that came upand I think is useful for people
(36:13):
hopefully listening to this isreally just kind of the
complexity of the Medicareregulations at issue here.
And look, I really do think thebig things to keep in mind when
dealing with this is likescrutinize what the government
says, okay?
Because it's very confusing andchallenging for anyone to keep
(36:34):
up with Medicare stuff.
including the government's ownpeople.
And that came up really a lotthrough the trial.
Basically, I think thegovernment actually misread a
lot of the regulations.
I think they misread theanti-kickback statute, and that
was a big part of our defensekind of pushing back on those
things.
And I think the most clearexample of that came shortly
(36:56):
before trial when the governmentsent us some charts that they
plan to use at the trial,including some charts that
claimed that our clients hadviolated certain Medicare
regulations that didn't actuallyexist.
Like the government's own peoplehad misread the regulations.
(37:18):
They had basically in two ways.
One, they said that some thingswere improper based on the
current regulations as of 2024,but which of course were not in
effect back in 2018, back in2019 and 2020.
And second, there was somethingthat were still not even
(37:41):
prohibited in 2024 when thetrial happened.
So, We pushed back pretty hard,pretty fast on that, and I will
say we filed a motion,constitutional violations, ex
post facto clause, all of it.
Again, to its credit, thegovernment did back down the
next day and withdraw thosecharts.
But it was a really big thing, Ithink, to keep in mind because
(38:03):
you really do gotta scrutinizethis stuff for yourself.
Don't just accept thegovernment's version.
In fact, even the government'sown witness admitted on
cross-examination that it was,quote, impossible to keep up
with everything for Medicare.
So, because it is, it's reallyhard.
And again, this also goes backto why the willfulness aspect is
(38:23):
so important.
People make mistakes.
It happens all the time.
Even government people makemistakes.
Mistakes aren't crimes.
Okay, so that was one big thingwe had to deal with.
Another big thing that wealluded to is that owner one
testified.
And That was something that wehad decided before trial and
(38:46):
we're so sure of that I said itin opening statement that he was
going to testify.
And I thought it was reallyimportant because we really
wanted the jury to understandthings from his perspective,
right?
Because that's the thing.
If you hear about it, when thejury hears during the
government's case in chief, it'sall how the government has
packaged things or put thingstogether with the benefit of
(39:07):
hindsight, you know, andconstruct it.
That's what the governmentfound, and they did find lots of
problems.
They found lots of things thatthe marketer had done wrong.
They found lots of things thebiller had done wrong.
But really, the core of thetrial was not about that.
It was about whether Order 1 andOrder 2 knew that the marketer
(39:27):
and the biller were doing allthese things wrong and that some
of the things they were doingwere very problematic.
So the best way to show that isreally have Order 1 explain it
for himself, and that's what hedid.
He testified for three daysgoing through everything.
And we are very upfront aboutthat.
(39:48):
Everything the government hasthrown at these guys, owner one
is going to talk about.
And we went chronologicallythrough everything to show what
he knew, what he didn't know,the mistakes he made, things
like that.
We went through all of it toreally explain things and put
things in context.
So for example, We actually hadhim explain his understanding of
(40:10):
the anti-kickback statute andactually go through some of the
articles that he read at thetime.
That was important to understandwhat he was thinking and to show
that he did not understand someof the government's theory.
Some of it was prettyaggressive.
He did not understand the AKS toprohibit some of the things the
(40:31):
government thought were illegal.
Another big thing that we didwas show things like those
customer complaints.
Because we showed, yeah, he didhear about the customer
complaints.
And here's what he did inresponse.
And we show that he listened toaudio recordings with the
customers that actually weredifferent from the customer
(40:51):
complaints.
And he testified about how heand owner one actually spoke
with some of the customers whoactually basically thought like,
okay, yeah, actually, you knowwhat, I might have had you
confused with another company,things like that.
So we really kind of put it incontext.
And we also showed that thecustomer complaints were
actually a relatively smallpercentage of the overall stuff.
(41:12):
Because if you take it out ofcontext and you hear about 10,
15, 100 complaints, it soundspretty bad.
But not when you realize this isout of thousands, right?
Then it's like, okay, it's notgood, but it's also not as
powerful as the government mighthave suggested initially.
(41:33):
The other big thing we did waswe really went chronologically.
So it was kind of, so you reallygot to see it from his point of
view and how his knowledgechanged and evolved over time.
And so we did that.
But also the really big thing wedid was we talked about that
audit letter that came up.
Because again, the governmenthad made a big deal of the fact
(41:53):
that Medicare had audited, youknow, owner one and owner two's
business and had sent a letterto to their business, kind of
pointing out all the problemsthat the auditor found.
The thing is, she sent it to anaddress that owner one and owner
two had stopped using monthsbeforehand.
(42:17):
And so they had actually noproof that they actually ever
received the letter.
And that was one of the bigthings that we showed.
And we pointed that out from thevery beginning of owner one's
testimony.
Because the government claimed,when we first brought out the
idea that the audit letterwasn't there and should have
existed, the government kind ofbacked, well, you know, it
(42:37):
might've happened.
It's impossible to find thedelivery receipt at this point
in time.
So when owner one testified,that's actually the first thing
we covered because owner one'swife actually went online and
found the receipt herself, youknow, because you have to scroll
further down on the webpage topull it up.
(42:58):
And she did.
And it really showed that thegovernment had really botched
this one part of their case, andin fact, a pretty important part
of the case.
And so that was a big part ofhow we kind of went through
everything to really kind ofshow owner one's story and
really try to get the jury tosee things from his point of
view, which was extremelyimportant for the willfulness
aspect.
SPEAKER_02 (43:19):
Okay, yeah.
I have two quick things on thatstatement.
Number one is that yourpreparation with owner one was
so thorough and so detailed, andyou spent so much time together
that by the time you came tocourt or he came to court to
testify, I mean, the hard workhad already been done, right?
(43:40):
I mean, you guys really put ittogether nicely.
So that's number one.
Number two, because of histestimony was so good and so
complete, and it wasn't just meor I.
He included owner two becausethey were business partners.
So the fact that owner two didnot testify in a trial is partly
(44:02):
true.
Remember, because I argued, hedid testify because owner one
was so complete, so descriptive,and that was because of all the
work that you all did together.
So it was another, I guess,important strategy development
by using a unified joint defensebecause we had one defendant,
(44:25):
one client testified, but hereally testified for both
because they had done everythingin this partnership together.
SPEAKER_01 (44:33):
Yeah.
No, and that was pretty clearfrom the first time that
Jonathan and I got hired, to behonest, that this was
definitely, this was a casewhere the government's case, it
was pretty much identicalagainst both guys.
And so it really was, it madesense.
Other cases might be different,but this was a case where they
definitely stood together orwent down together.
And it is really important tokind of go through all that.
(44:58):
So, okay.
So, owner one testifies.
Three days, the governmentcross-exams him for about, I
guess, you know, I guess aboutmaybe about three quarters of a
day.
Government puts on a rebuttalcase.
Everyone rests.
We do closing arguments.
And then the jury gets the caseand they start deliberating.
(45:22):
And this was a case where theydeliberated for a while.
So, Jonathan, can you talk aboutkind of how that unfolded and
how the verdict ended up?
SPEAKER_02 (45:34):
Sure.
So whenever somebody has theunfortunate experience of being
a defendant in trial, the wholeexperience is just so much,
right?
So overwhelming.
But once everything is over andit's in the jury's hands, so
they're in the room deliberatingsomebody's future, their
destiny, it's unbelievable thejust amount of emotion that goes
(45:57):
on.
So we hang around the courtroom,we go downstairs, we do these
certain things, But we have tobe accessible in case there's
some issue to get back to court.
And I think in this case, thejury had questions or submitted
notes to the judge four or fivetimes.
So when we get a call from thecourt staff saying, can you come
(46:20):
back to court?
We don't know if it's a verdictor if it's a question from the
jury.
And I think it was, Stephen, thefirst four times there were
questions.
And of course, each question hasits own you know, hermabilities
and what we want the judge tosay to him.
But, you know, it's all just somuch to endure and to absorb.
(46:44):
So I remember the last time, Ithink it was number five, Our
clients were going to go out andget something to eat.
And then we got a call thatthere was another note.
We thought a note, get back tothe courtroom.
So we got back and waiting forthe clients.
Everybody rushes in half thefamily members were there.
The other weren't because ifit's just a note, you know, we
(47:05):
will figure it out.
We'll come back.
But then we're all in thecourtroom and the court clerk
said they have a verdict.
And it was just like, whoo.
like a drop in an elevator.
It was like something sosurreal.
And sometimes it's worse whenyou have to plan for something.
We had no time.
(47:26):
The jury was coming in with averdict.
You're sitting next to ourclients and you're just like, we
have obviously no idea, but wedidn't have a talk that we
usually talk.
And it's...
all of a sudden it's all gonnahappen.
And it was something like almostout of a dream sequence, I think
(47:47):
right there.
SPEAKER_01 (47:47):
Yeah, and I remember standing next to my client and
basically knowing that his lifehinged on what was about to
happen.
And standing next to him whilethe judge read count after count
(48:11):
not guilty to every single countwas an amazing an amazing moment
for for him owner two for us imean just to have to know that
this said that basically thejury understood the jury the
jury got it and to especiallybecause there have been
(48:33):
indications earlier in jurydeliberation that they might not
have reached an unanimousverdict but to know that they
they did come through and seeall that was amazing.
And then actually, I will saythat Jonathan and I and the
government and the judge, weactually all went back and
talked to the jurors afterwardsto hear their thoughts about the
(48:55):
case.
And it was very rewarding tohear how seriously the jurors
took it, how much theyconsidered the evidence, And how
much they got, ultimately, thatowner one and owner two, they
made a huge number of mistakes.
They made some mistakes intrusting people and things like
that, but that they were tryingto do the right thing.
And that's not willfulness.
(49:17):
So that was really great.
And really, it's an amazingmoment.
Yeah,
SPEAKER_02 (49:22):
I can tell you that.
Look, we don't have to like ourclients to give 110%.
We've won a lot of trials.
I've won a lot of trials forclients I don't particularly
like.
I don't care.
But when you like your clients,and we liked our clients a lot.
They're good people, beautifulfamilies, little children that
(49:43):
depended on them for theirfuture.
When you win a case like thisfor clients that you like, it's
just even so much morerewarding.
of just an achievement andsomething that just makes you so
fired up and feel so good aboutwhat you do.
SPEAKER_01 (50:03):
So, yeah, we just want to hope you've enjoyed
hearing about this real lifeexample of how people got cut up
in a lot of the aftermath ofBrace Yourself, how people kind
of got misled by people and howthey kind of got through a lot
of very difficult circumstancesto a lawyer and a biller you
(50:26):
heard about in part one andthrough the work that we did in
terms of the criminal case.
So I think, I really hope thatyou enjoyed this.
Jonathan, any final takeawaysfor the audience?
SPEAKER_02 (50:39):
No, you know, Steven, I'm so excited now
having gone through this againwith you.
I look forward to our nexttrial.
SPEAKER_01 (50:46):
All right.
Well, thanks, everyone.
And please reach out if you haveany questions.
Again, we hope that this hasbeen helpful and best of luck to
everyone.
SPEAKER_02 (50:55):
Take care, everybody.
SPEAKER_00 (51:01):
If you enjoyed this episode, be sure to subscribe to
AHLA's Speaking of Health Lawwherever you get your podcasts.
For more information about AHLAand the educational resources
available to the health lawcommunity, visit
AmericanHealthLaw.org.
And stay updated on breakinghealthcare industry news from
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(51:21):
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