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Pietragallo's White Collar Criminal Defense Group

In today's environment, the government has never more aggressively regulated, investigated, pursued and prosecuted white collar crime. If you or your company becomes embroiled in any type of federal or state government investigation, you need experienced trial lawyers who have gone toe-to-toe with prosecutors and government agents.

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    Proposed Email Privacy Act Gains Support

    What Happened?
    Technology companies publicly voiced their support for the Email Privacy Act, a new email privacy regulation passed by the House that would require a warrant to access all email content.

    The Rundown
    In May, the House of Representatives approved the Email Privacy Act as an amendment to the National Defense Authorization Act (NDAA). The 1986 Electronic Communications Privacy Act (ECPA) sets out the current state of the law, which does not require warrant protections to access email communications older than 180 days. Further, DOJ has interpreted the ECPA as not requiring warrants to access emails that have been opened. 

    The House version of the Email Privacy Act now seeks to codify the Sixth Circuit’s ruling in Warshak v. United States, 631 F.3d 266 (6th Cir. 2010), which held that the Fourth Amendment requires the government to obtain a probable-cause warrant before accessing email content. In that case, the government directed Warshak’s email provider to preserve copies of his future emails, which it later subpoenaed. The Email Privacy Act will also extend to protect texts, notes, photos, and other private information in the cloud. 

    More than 50 civil liberties organizations and technology companies filed a joint letter stating their support for the Email Privacy Act and urging that it be included in its current state in the final version of the NDAA. The letter noted that the version of the bill passed by the House already represents significant compromise, as it did not include a key provision that would have required the government to notify individual customers when it served a provider with a warrant for their information. Signatories to the letter included Amazon, Adobe, Facebook, Google, the ACLU, the U.S. Chamber of Commerce, and the American Library Association.

    The Take-Away
    The passage of the NDAA with the current version of the Email Privacy Act, while noteworthy, would likely not change current practices. As the letter notes, post-Warshak, “DOJ and FBI policies already require law enforcement officials seeking content to obtain a search warrant, and many providers will not provide their users’ content without one.” Rather the new Act would serve to ratify Warshak and update the current state of the law, which was enacted years before the public even had access to the internet. Warshak’s codification, however, could take on more significance in light of the current administration’s opportunity to fashion a more conservative Supreme Court. 


    Tailoring RFP For Preferred Contractors Leads To Guilty Verdicts Of A State University’s President And Construction Executives

    What Happened?
    On July 10, 2018 a federal jury in Manhattan convicted a State University of New York’s Polytechnic Institute (SUNY Poly) former president and three executives of two construction companies of wire fraud, conspiracy to commit wire fraud and making false statements to investigators for rigging the public competitive process. SUNY Poly is a system of public institutions of higher education which receives federal monies. It created a non-profit entity, Fort Schuyler Management Corporation, for the purpose of engaging contractors in building development projects. Because the non-profit entity was funded with federal monies it must adhere to a competitive process of bidding for construction projects.

    The Rundown
    According to the indictment, Dr. Kaloyeros, SUNY Poly’s president at the time, oversaw the steering of lucrative state contracts worth millions of dollars to two construction companies owned by his co-defendants. The government alleged, and the jury found convincing, that Dr. Kaloyeros used his official position to tailor Requests for Proposals (RFP) to fit the qualifications of the two construction companies. Furthermore, the construction companies worked with a lobbyist to obtain advanced copies of the RFPs and obtained secret information which gave them a distinct advantage over its competitors in bidding. The government successfully argued to the jury that the winners of the RFPs, Kaloyeros’ co-defendants, were selected before the issuance of the RFPs and that the appearance of a competitive bid was a sham. The government was able to prove that Dr. Kaloyeros used his official position and fraudulently represented to the Board of Directors of Fort Schuyler that the competitive process was fair, open and competitive when in fact, was not. Dr. Kaloyeros and the executives of the construction companies are facing a maximum of 45 years in prison.

    For The Record
    Contractors and vendors often develop relationships with government officials and employees when seeking government contracts. It is a common and well-established method for vendors and contractors to establish relationships with potential buyers to sell their wares or gain a contract. While this method of selling goods and services in the private sector is sound and lawful, public employees and officials must be careful. Municipalities and public entities have a duty to prevent waste and the fraudulent use of public funds, therefore, procurement of certain goods and services must be obtained through a fair, transparent and competitive bidding.

    The Take Away
    Public officials and employees must keep communication with potential vendors at arms-length and avoid inappropriate communications or the appearance of inappropriate communications. There should be clear and robust procurement and ethics policies, such as prohibiting all communication with potential vendors or bidders for a certain time during the issuance of an RFP until after the contract has been awarded. Key personnel and potential vendors must be trained on the policies and compliance plans should be adopted and monitored. Failure to establish, train and monitor good governance may lead to a civil lawsuit under the False Claims Act and/or criminal prosecution.


    New Initiatives Announced by DOJ in Opioid Response

    With the opioid crisis showing no signs of abating, Department of Justice officials are undoubtedly feeling pressure to take additional steps to address it.  The Trump Department of Justice has taken several steps over the past year including, in August 2017, the creation of the Opioid Fraud & Abuse Detection Unit to target opioid-related over-prescribing and healthcare fraud through the use of data analytics.  The Unit enlisted government attorneys and agents from the hardest-hit jurisdictions in the United States, including western Pennsylvania and southern West Virginia.

    More recently, in December 2017, DOJ created a director-level role at DOJ dedicated solely to opioid enforcement, titled Director of Opioid Enforcement and Prevention Efforts.  Long time DOJ prosecutor Mary Daly is in that position.

    Just last week, DOJ announced two new initiatives regarding opioid enforcement:

    • July 11, 2018: DOJ announced the finalization of regulatory steps designed to improve the DEA’s ability to reduce drug diversion through control of opioid production. Initially announced in April, the DEA will be empowered to limit the amount of opioids that manufacturers produce in a given year if the DEA believes that a particular opioid or a particular company’s opioids are being diverted for misuse. The regulation also requires DEA to share notices of proposed production limits to state attorneys general. In certain instances, it also allows for a hearing to resolve an issue of fact raised by a state in objection to production limits if related to a legitimate United States’ need.
    • July 12, 2018: DOJ announced Operation Synthetic Opioid Surge (“S.O.S.”), a new program to reduce the supply of synthetic opioids in jurisdictions hardest hit by the opioid crisis.  Through Operation S.O.S., DOJ will launch an enforcement “surge” in ten federal judicial districts with some of United States’ highest drug overdose death rates. The surge will involve a coordinated DEA Special Operations Division operation to insure that leads from street-level cases are used to identify large scale distributors.  Additionally, the Organized Crime Drug Enforcement Task Forces (“OCDETF”) Executive Office will provide additional Assistant U.S. Attorneys to each participating district to assist with these prosecutions.  The ten districts participating in Operation S.O.S. include the Western District of Pennsylvania, Northern and Southern Districts of West Virginia, and Northern and Southern Districts of Ohio.
    Obviously, the Department of Justice – and the Trump Administration as a whole – is identifying new strategies and initiatives to address the opioid crisis.  We undoubtedly haven’t seen the last initiative on this important topic.

    Medical Marijuana in Pennsylvania: A Primer

    What Happened?
    Although signed into law in April 2016, Pennsylvania’s Medical Marijuana Program is still very much a work in progress.  Pennsylvania Patients have only recently been able to receive medical marijuana at approved dispensaries – and only for approved “serious medical conditions.”  There are 17 – soon to be 21 – approved conditions which include ALS, autism, cancer, Crohn’s, glaucoma, HIV/AIDS, multiple sclerosis, Parkinson’s and PTSD. 

    The Rundown 
    Interested patients must register by completing an online profile on the Pennsylvania Department of Health’s website called the “Patient and Caregiver Registry” – before obtaining a physician’s certification stating that he or she has one of the approved conditions. This month, opioid addiction disorder was approved by the Department of Health as a “serious medical condition” for use of medical marijuana. Pennsylvania is one of the first states to approve medical marijuana for opioid addiction.

    With physician certification, the patient returns to the Registry to purchase a medical marijuana identity card. The card will allow the patient, or his or her caregiver, to obtain medical marijuana from an approved dispensary. Caregivers needing to provide medical marijuana to a minor follow a similar process, but may also request a Safe Harbor letter.

    The Pennsylvania Department of Health is quick to emphasize that participation in the Medical Marijuana Program does not provide immunity from federal prosecution. As readers likely know, the federal government still lists marijuana as a Schedule I substance, like heroin and cocaine – indicating their view that marijuana has no legitimate medical use and a high potential for abuse. However, Pennsylvania Department of Health literature also notes that criminal investigations and charges or civil enforcement actions, “may be unlikely” as long as the patients, physicians, dispensaries and growers/processors are in conformance with the Medical Marijuana Program’s laws. The Department points to U.S. Department of Justice guidance for that statement which can be found here.

    Physicians interested in certifying patients under the program follow a similar process. They register on the state’s Physician’s Registry, which triggers a validation of the physician’s medical license. The physicians must then complete a mandatory 4-hour training course provided by an approved Department of Health provider. The last step is a final review and approval by the Department of Health to become an approved “Practitioner” able to issue patient certifications for the approved serious medical conditions.

    Medical marijuana will only be dispensed from approved dispensaries, not pharmacies. The approval process requires aspiring dispensaries to obtain a permit through demonstration of sufficient controls to prevent diversion, abuse, or illegal conduct, sufficient capital (at least $150,000), a diversity plan, and payment of a non-refundable fee of $5,000 and a $30,000 fee thats refundable if the permit isn’t granted. Successful permit applicants must complete a 2-hour training course. Growers and processors use a similar process to obtain a permit by showing sufficient controls, proof of at least $2 million in capital and payment of a $100,000 non-refundable fee and a $200,000 fee that is refundable if the permit isn’t approved.

    The Take Away
    As of this writing, there are over 10,000 approved patients, 200 approved physician “Practitioners,” 16 approved dispensaries, and 12 approved growers/processors. 


    In the War Against Opioid Prescriptions, Health Care Providers Should Know their Rights

    What Happened?
    In the past several years the prescription and distribution of opioids have been increasingly scrutinized by federal and state law enforcement agencies, insurance companies, the media and the medical profession itself. The Department of Justice (DOJ) is using everything in its toolbox to fight the opioids crisis – from criminally prosecuting low level drug dealers to prosecuting medical professionals for prescribing pain killers. Numerous grand jury indictments have been presented charging physicians, nurses, pharmacists and others in the industry with distribution of narcotics, conspiracy, health care fraud, mail fraud, bribery, anti-kickback laws, RICO and other related charges. In addition to the aggressive criminal prosecutions, in its latest intervention, the Department of Justice filed a motion to participate in settlement discussions in civil litigation filed by numerous cities and counties in the United States against drug manufacturers and distributors. It seeks to provide expertise to the court and help craft non-monetary remedies to fight the opioid epidemic.

    In addition to DOJ’s aggressive prosecutions, the Center for Medicare and Medicaid (CMS), who is Medicare and Medicaid’s watchdog, has been heavily criticized for its lack of supervision over the prescriptions of opioids under the Medicare and Medicaid programs. On May 29, 2018 U.S. Senator Pat Toomey, who chairs the U.S. Senate Committee on Finance’s Subcommittee on Health Care, convened a hearing in Bensalem, PA where a number of health care professionals and government personnel testified about Medicare and Medicaid’s oversight, or lack of oversight, over opioid prescription. Testimony revealed that CMS failed to identify more than 90 percent of patients who were at risk for addiction. It should be expected that CMS will be more diligent in their supervision of the Medicare Part D and Medicaid and refer more cases of suspected fraud or abuse to the Department of Justice for criminal enforcement. 

    The Rundown - What to do if law enforcement comes knocking at your door
    With the increase in criminal, civil and administrative enforcement, medical professionals need to understand their rights in case of an investigation. There are many ways a medical provider who has become a “target” or “suspect” of an investigation learns of an ongoing investigation. He or she may hear from a third party that law enforcement officers, such as the FBI or DEA, has been visiting the medical provider’s employees or business associates and inquiring about his or her business practices. He or she may hear from the Medical Board about an investigation. In some instances, law enforcement may make a surprise “friendly” visit to the medical provider’s office or home. Other times, law enforcement may arrive at the medical provider’s office or home with a platoon of agents and armed with a search warrant. Many times when search warrants are executed, the information is leaked to the press and targets of investigations find themselves on the six o’clock news.

    If you learn of an investigation - don’t panic. Contact an attorney who has experience with government enforcement actions and who can adequately advise you. If law enforcement agents pay you a “friendly” visit, please remember that they have a purpose to that visit. They want information that they may use against you at a later date. You should politely thank them for their visit, ask for their business cards and tell them that your attorney will contact them. They may try to convince you to speak to them by telling you that you have nothing to worry about. Again, be polite and tell them that your attorney will be calling them. You do not have to speak to them.

    If law enforcement arrives with a search warrant, read the warrant and make sure it is for your premises. Once you have determined that the search warrant is accurate, allow them to enter and conduct the search. You are not required to speak to them. Advise them that you would like to contact your attorney. Some agents will allow you to use the phone. If so, contact your attorney immediately and he/she should instruct you on what to do. If your attorney does not practice in the area of federal criminal law, or if the agents do not allow you to call an attorney, advise the agents that any questions they may have will be handled by your attorney at a later date. Again, take their contact information and allow them to conduct the search.

    The Take Away
    You may not be present when the government comes knocking at your door with a search warrant or a “friendly visit”. Have a plan of action for your employees to follow. Your staff should be trained on that plan. Information gathered by government officials at any meetings with you, your employees or family members can serve as a weapon against you. Being well informed of your rights and knowing what to do in case you are a target or subject of an investigation will protect you from overzealous prosecution.


    Supreme Court Update – A “DIG” in Fifth Amendment Case City of Hays, Kansas v. Vogt

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

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

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

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

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


    Former Nurse Gets Stiff Sentence for Medicare Fraud

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

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

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

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

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

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


    John Schwab Speaks on Opioid Enforcement

    On April 27, 2018, John Schwab spoke at The New York State Pain Society: 2018 Annual Meeting & Scientific Sessions. Mr. Schwab presented on "Opioid Enforcement in 2018: DOJ, HHS, DEA, FBI - Who Does What?" during the Legislative Update Session. This conference was held at the Renaissance Westchester Hotel in West Harrison, NY. 


    DOJ Rolls out New Initiatives for Opioid Enforcement

    What Happened
    In mid-April, the Department of Justice announced several new initiatives in the war on opioid-related crime:
    • On April 17, 2018, Attorney General Jeff Sessions announced that the DEA reached information sharing agreements with 48 states to exchange prescription drug information to aid law enforcement investigations.  These agreements will allow states to share information gathered through programs like state-run Prescription Drug Monitoring Programs.  In turn, the federal government will share information with states, including the data gathered by the DEA Automation of Reports and Consolidated Orders System (“ARCOS”) program, which collects information on the 80 million transactions for distributors and manufacturers.  This information – from both state and federal governments – will be used by law enforcement to, in DOJ’s words, “find the tell-tale signs of crime.”
    • Also on April 17, 2018, DOJ announced the DEA’s proposed rule change which will set limits on opioid production in the United States.  The proposed rule is in response to the belief that the United States produces far more prescription opioids than necessary, far more than other countries and, thus, is more susceptible to drug diversion.
    For the Record
    Attorney General Sessions indicated, “Under the proposed rule, DEA’s opioid production limits would be more responsive to the risk of drug abuse by explicitly taking diversion into account. It’s a common sense idea: the more a drug is diverted, the more its production should be limited. Today’s proposed rule will give DEA more information to help the agency protect law-abiding Americans from the threat of drugs—and that makes all of us safer.”

    A Quick Look at the President’s 2019 Budget Request for DOJ


    What Happened
    President Trump requested $28 billion for the Department of Justice in his budget proposal for the 2019 fiscal year.  

    The Rundown
    The request reemphasizes this administration’s priorities in fighting violent crime and crimes related to immigration, and of course in combating the opioid epidemic. 

    $295 million of the total budget request is slotted for program enhancements related to the opioid epidemic.  This amount includes $31.2 million to fund eight new heroin enforcement groups that will target DEA field divisions that have identified heroin as the first or second greatest threat to the area.  It would also provide for $6.8 million to expand the DEA’s Fentanyl Signature Profiling Program and $2.5 million for identification technology and protective equipment for agents to prevent exposure to deadly opioids in the field.  The vast majority of the $295 million will go to facilitating coordination of the DEA’s High Intensity Drug Trafficking Area Programs with other DEA programs to focus resources where drug trafficking poses the greatest threats. 

    $65.9 million of the budget would focus on immigration-related enhancements, such as border security and enforcement and the hiring of 76 additional immigration judges and their support staff.  Other budget highlights include $109.2 million for combating violent crime; $10 million for BOP’s apprentice program; $3 billion for the Crime Victims Fund, including $486 million for Violence Against Women programs and $45 million for victims of human trafficking; and $3.9 billion in discretionary and mandatory funding for Federal grants to State, local, and tribal law enforcement.

    The Take Away
    Given the political conflict over the budget for the remaining portion of 2018, which almost led to a government shutdown in mid-March, the President’s proposed 2019 budget, which was introduced in mid-February, may not carry much weight by the time Congress acts on it.  Though some political commentators have argued that the 2019 budget proposal is nothing more than a political document, it does provide criminal practitioners with some insight into the administration’s law enforcement priorities.