Prosecutorial power of the federal government: The imbalance of the DOJ

In Department of Justice investigations and prosecutions, the government has a clear advantage over the defendants.

One of the most enduring debates engaging the American public concerns capital punishment.

The differing views on capital punishment are often framed by issues such as: is a crime so heinous that the perpetrator deserves to die; is the death penalty truly a deterrent; the societal effects resultant from a government that engages in killing as a punishment; and the inevitability that innocent people are sometimes put to death.

Missing from this discussion is an issue that criminal defense lawyers who handle capital cases are well-familiar. When the state indicts a defendant on a capital offense, the consequences of a conviction are so overwhelming the defendant may be coerced in to entering a plea bargain to save his or her life. Procedural protections for citizens accused of a crime are so important they are enshrined in the Constitution; the Founding Fathers were aware of the enormous asymmetry between the power of the state and that of the ordinary citizen.

The Department of Justice

In many respects Department of Justice (DOJ) prosecutions of criminal defendants is as intimidating as capital cases. There are many reasons why there is an inherent imbalance between the DOJ and a federal criminal defendant in federal prosecutions. A partial list would include the following:

B. Sonny Bal

Lawrence H. Brenner

• The DOJ is no ordinary litigant. Rather, it is perceived as the “government,” creating a presumption that its judgments are institutionally correct.

In a recent interview, a federal judge was asked about his confirmation process. His answer was surprising but astute. He expressed concern that his appointment was reviewed by the DOJ and its recommendation solicited. He doubted whether he would have been confirmed had the DOJ not recommended his confirmation, noting the DOJ is the most frequent litigant to appear before him as a federal judge and that no other litigant is given an opportunity to review and recommend federal judges. Granting the DOJ the right to participate in the selection of federal judges disadvantages the ordinary citizen who is a federal litigant.

In many other respects the ability of the DOJ to present itself as the “government” may create a conscious or subconscious affinity with federal judges and jurors. After all, as a responsible citizenry, our natural inclination is to assume that the government is correct which may cause those with decision-making power to favor the government’s position no matter how misguided.

• The DOJ has the ability to influence witness testimony, an influence that a criminal defendant is unable to exercise.

In federal prosecutions, the most common plea bargain is offering a co-defendant leniency in exchange for testimony. While this is a common practice, it has the potential for abuse whether or not the motive is benign or malicious. The threat of incarceration is frightening to anyone who is caught within the web of a federal prosecution. When offered an opportunity to avoid prosecution or to have the harshness of the sentence mitigated, most people will agree to testify against a co-defendant. Since this testimony is linked to the fate of this witness, there is a tendency to offer testimony that will create an alliance with the United States Attorney’s Office. A federal criminal defendant, on the other hand, has nothing to offer a witness. He or she lacks the leverage to alter the co-defendant/witnesses fate in a way that would motivate them to testify favorably on their behalf.

• The DOJ has investigative powers that a federal criminal defendant cannot possibly match.

The investigatory powers of the DOJ are immense. Its investigations are typically conducted by the Federal Bureau of Investigation with resources that overwhelm those of any federal criminal defendant. The DOJ can convene a grand jury or a series of grand juries and can conduct its grand jury investigations without the defendant or the defendant’s attorney being present. The DOJ also has the right to petition the court for search warrants to search and seize evidence as an investigative tool. That tool is unavailable to federal criminal defendants.

Case analysis

The recent case of the United States v. Srivastava demonstrates the sweep of government powers in the prosecution of federal offenses. In it, a criminal investigation was initiated by the Department of Health and Human Services and other government agencies into an alleged health care fraud scheme involving Srivastava, a licensed cardiologist, and two of his associates. Authorities suspected that he submitted false claims in violation of federal law. The federal government applied to a magistrate judge for three search warrants seeking seizure of the “fruits, evidence, and instrumentalities of false claims submissions” at both the doctor’s office and home.

A 19-page affidavit executed by a federal agent was submitted to the magistrate itemizing the various ways that the government believed Srivastava was defrauding the government and indicating that there was a possibility that evidence existed at the doctor’s home supporting the allegations — one category of evidence noted included accounting and tax records.

A search of both the office and home was conducted; among the items seized at the doctor’s home was personal banking information including a transfer of more than $4 million to an overseas bank. The federal agent charged with the investigation forwarded a copy of the bank transfers to the Internal Revenue Service (IRS).

Although Srivastava was being investigated for allegedly committing health care fraud, he was indicted for tax evasion and making false statements on his tax return based upon the seized evidence. The basis for this indictment was related to information discovered by the IRS that was incidental to the federal health care fraud investigation.

A motion was filed by the defense to suppress the seized evidence on the grounds that it was beyond the scope of the investigation. The trial court granted the motion to suppress, stating, “Even if … some of the documents at issue here were within the scope of the warrant, these documents would be excluded as well because the conduct of the agents who executed this warrant was so inappropriate as to warrant the exclusion of all evidence seized.” The U.S. Attorney appealed the decision and the Court of Appeals reversed the trial court’s decision, allowing admission of the seized evidence.

Relating to orthopedics

This case should be of interest to orthopedic surgeons who have been under scrutiny by the federal government for their relationships with the orthopedic industry. The criminal standard by which orthopedic surgeons are being judged by the DOJ can be vague, ie, did they provide “fair market value” to industry in their consulting relationships; did they have “corrupt intent” and were business transactions with industry “sham transactions?”

While there has been a demonstrable effort in orthopedics to modify suspect conduct, the orthopedic community should continue the following efforts:

• Develop a collaborative relationship with the federal government to demonstrate its commitment to principled relationships with the orthopedic industry.
• Work diligently to define what constitutes “fair-market value” so that orthopedic surgeons can make legally sound business decisions.
• Promote resident education that includes acceptable business practices so that residents can begin their careers in a manner that both encourages legitimate entrepreneurship and prevents them from engaging in any inadvertent conduct that would create a suspicion of health care fraud.

From the OMLA editors:

We are interested in creating an environment where orthopedic surgeons can thrive as quality practitioners, innovators, and role models for the health care industry. Should you have an opinion on this subject or others related to the medicolegal environment in which we work, please tell us about it.

For more information

• B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.