As a Federal Criminal Defense Lawyer, I have been asked to discuss the cross-examination of the Government’s witnesses in a recent not guilty jury verdict in a Medicare fraud prosecution. As noted in prior blogs, I tried that case to a complete not guilty jury verdict on all Counts in the Northern District of Illinois (Chicago). The jury returned its verdict in my client’s favor on January 19, 2023. Consistent with the game plan employed by federal prosecutors in Medicare prosecutions in Illinois and nationally, the Government called as a witness at trial a purported expert on “Medicare.” It was important to obtain the transcripts of his prior testimony at trial for purposes of preparation for cross-examination in my case. However, because this expert had already testified at trial 100 to 150 previous times, it was not necessary to obtain all of his prior trial testimony. The body of trial testimony that we moved to have the Government produce in our case revealed that this expert consistently testifies essentially to a well-worn script, which includes; his years of experience working for private companies that serve, and make large sums from serving, the Medicare program; that he did not work for, and has never actually worked for, Medicare itself; that he never had anything to do with the underlying investigation of any case; that he (with the help of the Government’s lawyers) attempted to interject legal opinions and conclusions about what Medicare would agree to pay for/reimburse; that he trained others, including prosecutors and members of law enforcement, on Medicare’s laws, rules, policy statements and regulations. Accordingly, virtually every word that came out of his mouth during our trial was entirely consistent with his prior trial testimony. Accordingly, it was easy to predict what he would agree to for purposes of our cross-examinations at trial. Therefore, the points of emphasis on cross-examination for our trial included: his clear bias as a “professional” witness for the Government; that he did not speak or act for Medicare; that Medicare is so complex that he has to provide training even to prosecutors and members of law enforcement so that they can understand it. Finally, the most compelling testimony he gave at our trial, including for purposes of emphasis during closing argument, was the following: if one were to stack up all of the various Medicare laws, rules, policy statements, and regulations that were potentially applicable, they would constitute millions of pages and stretch for blocks. That admission was particularly compelling in light of the emphasis that the Government placed during trial on the Certifications that were submitted to Medicare – which required the attesting party to agree that he/she would comply with all such Medicare laws, rules, policy statements, and regulations. In short, that point helped to paint the obligations of the signing party (and by extension the co-Defendant, my client) as unfair and a Government overreach. In the next few blogs, the testimony of the other Government witnesses will be reviewed in terms of the trial.
Written by Michael Leonard
Leonard Trial Lawyers
January 26, 2023