Norman Spencer

New York Grand Jury Decisions & Proceedings

August 24, 2015 by Norman Spencer

WHAT IS A GRAND JURY?

A grand jury is a group of no fewer than 16 and no more than 23 persons, which is convened by a superior court. Grand Jury investigates offenses by hearing and examining evidence to determine whether to permit prosecution of those offenses.

The district attorney;
A clerk or other public servant authorized to assist the grand jury in the administrative conduct of its proceedings;
A stenographer;
An interpreter;
A public servant holding a witness in custody;
An attorney representing a witness who has signed a waiver of immunity, while that witness is present;
A video operator;
A social worker, rape crisis counselor, psychologist, or other professional providing emotional support to a child witness 12 years old or younger who is called to give evidence in a grand jury proceeding concerning a certain crimes

NYC Insider Trading Investigations

August 20, 2015 by Norman Spencer

Prosecutors and lawmakers have taken a more aggressive approach against insider trading. You might have been successful in evading criminal charges in the past, but there are new systemic changes designed to make this type of evasion much more difficult.
[Read more…] about NYC Insider Trading Investigations

What Are The Best Defenses Against The IRS Tax Fraud Investigations?

August 4, 2015 by Norman Spencer

Best Defenses During The IRS Investigations

The IRS is authorized to issue administrative summonses to tax payers during civil audits and criminal investigations. In a way, these summonses serve as subpoenas and are enforceable in federal court. The government uses its power to issue administrative summonses as a way to engage in fishing expeditions, looking for incriminating information. When you are issued an administrative summons, you should speak with an experience defense attorney right away. Just because the government wants the documents doesn’t mean they are entitled to it and it certainly doesn’t mean that you should give up and not try to limit the scope of the summonses.

There are several defenses that are available in defending taxpayers in criminal tax investigations when the government demands production of documents.

Fifth Amendment

When you receive a summons to produce books and records, or if the IRS agents ask you to produce any documents, you may raise the Fifth Amendment privilege to refuse production. The Fifth Amendment provides that you may not be forced to make any self-incriminating statements, and that protection extends to producing documents that can be potentially incriminating. To raise the 5^th Amendment argument you have to show that you are being compelled to respond, that the response required is testimonial in nature, and that the testimony is incriminating.

You need to be very careful about what you tell the agents because the 5^th Amendment does not protect voluntary statements, it only applies to cases when you are forced or compelled to give testimony, not when you give it to the government voluntarily. The 5^th Amendment also doesn’t protect against turning over documents, which you are obligated to create and keep by law. If the government only wants such documents and not your testimony, the 5^th Amendment protection may not apply.

This can get more complicated. In one case, the Supreme Court dealt with a situation when the government served a subpoena on a small business owner ordering him to produce the records of the business. The Supreme Court held that even though the records themselves were not privileged, producing them would be testimonial communication because the owner would have to be compelled to admit that the records existed and that he was in possession of them, and that they were authentic.

In another Supreme Court case, the question was whether the custodian of corporate records may resist a subpoena for corporate records on the basis that the act of production would personally incriminate the custodian. The Court held that the records were not privileged and that artificial entities such as corporations and partnerships are not protected by the 5^th Amendment. The Court also held that a corporate custodian couldn’t claim a privilege as to corporate records even if the records, or the act of producing them, would personally incriminate the custodian.

So, in short, to successfully use the 5^th Amendment defense in these cases, the compulsion should be directed at the one who may be incriminated, not a third party.

How can we know if the testimony the IRS wants to receive is incriminating for the purposes of invoking the 5^th Amendment privilege?

Testimony is considered to be incriminating if the answer would either result in a criminal conviction or even could be used as a link in the chain of evidence that potentially could result in criminal prosecution. The taxpayer has a burden of prove to demonstrate that the testimony could be incriminating. For this, he needs to show that he has a reasonable basis to believe that it will be. In many case it is clearly obvious. In some case, though, it is not obvious at all that the questions are incriminating in nature. In those cases, the argument is that the questions could be potentially incriminating under certain circumstances. Also, the taxpayer must demonstrate that his fear of being criminally prosecuted is reasonably justified.

Fourth Amendment

The Fourth Amendment protects against “unreasonable searches and seizures,” and states that no warrant shall be issued unless it “particularly describes the place to be searched and the persons or things to be seized.”

Even though an IRS summons does not involve a search and seizure and is not a search warrant, the Fourth Amendment applies to IRS summons enforcement cases. While the Fifth Amendment doesn’t apply to corporate representatives, the Fourth Amendment provides protections to individuals and corporate representatives.

In order to invoke a Fourth Amendment defense in theirs summons enforcement case, you must have standing, meaning that you must have personally suffered a Fourth Amendment violation. For that, you need to have an interest in the place searched, own or have a right to possession of the property seized, or have a legitimate expectation of privacy.

What if the summons is served on a third party such as the taxpayer’s bank, accountant, or attorney? In this situation the taxpayer cannot use the Fourth Amendment protection – he has no interest in the requested documents unless the third party is an attorney and the attorney-client privilege applies.

Third Party Summonses

What if the IRS sends the summonses to a third party such as a taxpayer’s record-keeper? In some cases the taxpayer may be able to challenge the summons administratively. This becomes relevant when the IRS is seeking business or financial records from banks, financial institutions, or consumer reporting agencies as well as other record keepers such as lawyers, accountants, brokers, etc. For a successful challenge of an IRS summons you need the help of an experienced attorney. Keep in mind that the IRS is allowed to demand production of documents from third party record keepers and when it comes to banks and financial institutions, issuing summons is the only administrative way the IRS can do it. If the IRS issued summonses to a third party requesting information that relates to your case, you may have the right to intervene to quash it in the US district Court. You have 20 days for such application from the day the notice of summons is given to you.

If you are investigated by the IRS for potential tax fraud, contact our New York based tax fraud defense attorneys to set up a confidential consultation.

What Happens If You Get Caught Lying To Welfare in NYC?

August 2, 2015 by Norman Spencer

Can I Be Deported For Medicaid Fraud Or Welfare Fraud In New York City?

At Norman Spencer Law Group PC we deal with criminal Medicaid fraud cases on a daily basis. In our practice we see a number of non-US citizen clients accused of Medicaid fraud or Welfare fraud. One of the main problems faced by non-citizens accused of criminal acts is immigration consequences of a criminal conviction. The issue of being charged with a crime when you are not a citizen is crucial and I’ll analyze its main points in this post.

First, committing a crime is not in itself grounds for deportation. However, being convicted of a crime may be. There are two basic types of crimes that could result in deportation. One is a crime of moral turpitude, and the other is something the federal law considers an aggravated felony.

What is and is not a crime of moral turpitude is a matter of a separate discussion, but for our purposes, most theft related crimes are considered a crime involving mortal turpitude, meaning that the person who has been convicted of this crime (or pled guilty to it) is not fit to be a US citizen and may be subject to deportation. An aggravated felony, on the other hand, is something else, but as applied to theft crimes, it the theft involved more than $10,000 and/or if the sentence for the crime was one year in jail or more, the crime is an aggravated felony for immigration purposes. This means that the alien convicted of it is subject to deportation.

Medicaid fraud or welfare fraud are just special names for an old fashion fraud, or theft. Defendants accused of lying on their public benefits applications in order to get benefits for which they are ineligible commit larceny, which is charged not only as larceny (theft) but also as welfare fraud and filing of a false business instrument.

If the case is still in its early investigative stage, it is always better to prevent criminal charges from being filed in the first place. This solves all the problems at once. Unfortunately, it is not always the case and many individuals in New York City are criminally charged for public benefits fraud (including Medicaid, food stamps, welfare, and Section 8) in New York City every year. They are all charged with grand larceny if the amount of benefits received exceeds $1,000.

For those defendants who have not became US citizens, this means that if the case results in a criminal conviction, the prospect of deportation is close and very real. It doesn’t matter that you’ve live in this country for many years, that you have family and business, and paid your taxes. If you are not a citizen, a criminal conviction for fraud will become a problem for you.

There are some ways a good criminal lawyer can minimize the possibility of deportation, or at least make your immigration case easier to defend. Of course, if there is a valid legal defense to welfare fraud charges, they must be fully exploited. But even if the case is indefensible, not all is lost. For example, we can negotiate with the prosecutor a deal that allows the defendant to plead guilty to a charge that doesn’t make the defendant automatically deportable.

This is one of very few (but very effective) techniques that experienced defense lawyer can use. In some cases, we can reach a deal under which the defendant is allowed to pay restitution administratively, before the charges are filed, so that the outstanding balance is under ,000 and the defendant will be charged with stealing under ,000, which may resolve the issue of aggravated felony.

If you are a target of a fraud investigation or have been charged with Medicaid or Welfare fraud in New York City, our experienced NYC criminal lawyers are here to help you.

Call us today at (212) 577-6677 to set up an immediate consultation.

Can I Be Arrested And Prosecuted For Medicaid Fraud In New York City?

May 3, 2013 by Norman Spencer

Absolutely! Moreover, with the latest policy changes in New York City Human Resources Administration, criminal prosecution for public benefits fraud, including Medicaid and food stamps in NYC is not only a hypothetical risk but a real possibility.

In the past, cases involving Medicaid fraud and food stamp fraud were mostly resolved administratively, meaning that the target recipient was allowed to repay the agency the money paid for illegally received benefits. Those days are gone. While many cases can still be resolved administratively, the number of Medicaid cases referred to local NY district attorney offices for prosecution has increased dramatically in the past year. The HRA has recently expanded its Bureau of Fraud Investigations (BFI) responsible for investigating public benefits fraud. Under their new policy, more and more cases are send over to the DA for prosecution.

Which Medicaid Fraud Cases Are More Likely To Be Prosecuted in NYC?

Technically, making a false statement on an application for public benefits is a crime. A false statement doesn’t have to be an actual lie; an act of omission is also a false statement. For example, if the questionnaire asks to list all persons living with you in the house or list all sources of income, leaving the box blank is equivalent to making a false statement because the government will interpret this as entering zero in determining? your eligibility.

Not all public benefits fraud cases are prosecuted. In our experience (and our office has handled literally hundreds of such cases), the most likely targets are benefits recipients who have the combination of the following factors: maintaining out of city addresses, owning multiple properties, not disclosing sources of income, either from business or rental properties. The amount of money lost to the city is also an important consideration, although we have seen persons prosecuted for receiving as little as $4,000 in benefits to as much as $250,000. Each case is reviewed individually, but the ultimate decision to refer the case to the District Attorney’s Office rests with the individual investigator.

What Happens When My Medicaid Fraud Case Is Sent Over To The DA’s Office?

Once the case is transferred to the DA’s Office, it is usually reviewed by the supervising prosecutor in the public fraud crimes unit. This is when the final decision to? file charges is made. Some cases are sent back to the HRA. When the DA is ready to proceed with the case, a detective will contact the targets by phone or mail informing them that they must surrender to the DA. This is when you need to contact an attorney before doing anything else.

Once the target recipient surrenders, the DA will charge them with multiple felonies. Those who surrender voluntarily are generally released the same day without bail.

What Will Happen To Me If I’m Arrested For Medicaid Fraud in NYC?

Submitting a false application in order to receive public benefits is a crime. Because most defendants had been receiving benefits for years, submitting new applications every year, they will be charged with multiple felony counts.

All clients who find themselves in this situation ask whether they will go to prison. The answer is this: while there is certainly a risk of incarceration in any criminal prosecution, a good defense lawyer knowledgeable in Medicaid fraud issues should be able to minimize that risk to zero, as well as reduce the criminal charge and help avoid deportation for non-citizen defendants.

SEE THIS FOR MORE INFORMATION

How Do I Choose A Medicaid Fraud Lawyer in New York City?

Just like you would choose your doctor. You want an attorney that will make you comfortable. Make a phone call, schedule a consultation. Ask whether the lawyer has handled Medicaid fraud cases in the past and how many. How were they resolved? Is the lawyer familiar with New York rules concerning public benefits eligibility? You will not take long before finding the right person.

If you or someone you know has issues related to Medicaid or food stamp fraud in New York City, call our office today at (212) 577 6677 to schedule an immediate consultation with? a highly experienced NYC Medicaid Fraud lawyer.

Do You Know the New York State Pharmacy Laws and Regulations to Operate Your Business?

April 25, 2013 by Norman Spencer

If you are a pharmacy owner in New York City, you are likely aware of the many regulations and new york state pharmacy laws governing the operation of a pharmacy. While the bulk of these laws and regulations address the safe and legal dispensation of medications, a pharmacy?s business operations are also closely regulated. A NY pharmacists who fails to follow these rules may risk an Office of Professional Conduct (OPD) investigations and other license consequences.

According to the law in New York, pharmacies that are registered with the New York State Board of Pharmacy (Board) are required to report certain changes in their business operations to the Board. These changes are as follows:

1. Renovations

Registered pharmacies that wish to renovate their premises must submit their proposed renovation plans to the Board before they begin to make any changes.

2. Temporary Closings

If a registered pharmacy needs to temporarily close its operations, for whatever reason, the Board must be notified before the scheduled closing takes place, and then again before the scheduled reopening.

3. Natural Disasters

Registered pharmacies that have suffered damage from fire, flood or other disaster are required to contact the Board within 48 hours of the event.

4. Sale of the Business

Since the Board will be issuing a new registration upon the transfer of ownership of a registered pharmacy, the Board recommends that the new owners apply for a new registration approximately six weeks prior to the date of transfer. As with all new registrations, the Board will conduct an inspection before it registers the pharmacy.

5. Change in Corporate Officer/Principal Stockholder

If a registered pharmacy sustains a change in officers or principal stockholders, it must report this event to the Board within 30 days of the change. A principal stockholder is defined by the Board as a holder of 10% or more of the stock of the corporation

6. Supervision Change

Any changes in the supervising staff of a registered pharmacy must be reported to the Board within 7 days of the change.

7. Relocation

If a registered pharmacy wishes to move its location, it must notify the Board at least 30 days prior to the expected date of relocation. An inspection from the Board will likely take place prior to the relocation.

8. Name changes

Any changes to either the corporate name or the assumed name of the pharmacy must be reported to the Board before the pharmacy begins to use the new name.

9. Drug Auctions

The pharmacy must notify the Board at least 7 days before its drugs are sold at an auction. A Board inspector will attend the drug auction.

10. Closing Shop

Before a registered pharmacy discontinues its operation, it must make arrangements for its inventory and records. The Board has established a process for the discontinuance of operation of a registered pharmacy, which must be followed strictly before the pharmacy can close.

If the registered pharmacy is also enrolled with Medicare and/or Medicaid, it is also important to follow each program’s reporting requirements.

Failure to comply with these regulations can result in fines and other penalties, among the gravest of which can be exclusion from Medicare and Medicaid and/or loss of license. The specific penalty will depend heavily on the nature and circumstances of the violation in question.

If you have concerns about your pharmacy’s compliance with the applicable regulations, or you have been contacted by investigators or law enforcement concerning accusations of violations, contact an experienced health care defense attorney at once to protect your rights and your livelihood.

Call our experienced attorneys if your pharmacy license is in jeopardy at (212) 577-6677 to schedule an immediate consultation.

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