From Indictment to Dismissal

Most people are arrested and charged within a day of an offense being committed. Here, the DOJ charged my client with its most recent charges thirteen years after the offense supposedly happened. Healthcare fraud and money laundering. This was perplexing as my client was 81 years old and had retired from medicine over half a decade ago. He was a 50-year-old doctor with a perfect record. No medical board issues. No criminal record. Married for 50 years with three daughters. The only thing he had been doing the past six years was volunteering at homeless clinics and working for free, serving three homeless medical clinics in parts of Houston you don't want to wander into at night. The offenses charged carried a punishment of up to 20-plus years! My first thought was…what in the world are they doing. Mind you, I had been a federal prosecutor in this very office, working fraud cases in this exact same department from 2007 to 2015. So I went and met with the prosecutors, thinking that might help. It did not.

We argued first that he was innocent. We also argued that the statute of limitations had run even if he were not. I also sprinkled some policy arguments in there about what possible good does it do for society to lock up an 81-year-old doctor for the rest of his life. Die in prison over this? Are you kidding? Their response…wait for it…the doctor purchased $10,000 worth of stock (literally a 1% share) of a company that he did not run, had never been to, and had no visibility into whatsoever, and received a return on his investment. Seriously? Yes, seriously. I started to wonder if all my stock purchases on NASDAQ would suddenly land me in prison for companies I know nothing about. Would my Tesla stock suddenly land me in the slammer for a life sentence like Dr. Wolf? Yikes.

What made matters worse was that the charlatan who put my old unsuspecting (and admittedly over-trusting) doctor into this bad deal was a long-time "friend" of his, who was really doing some shady stuff with the business. Mind you, the charlatan made 90% of the money. The same charlatan had conned almost a dozen unsuspecting doctors into the same deal. There was no evidence my doctor had any idea what his "friend" was doing, but he got charged nonetheless. Why, you may ask? Guess who cut a deal with the government and was serving all these unsuspecting doctors up as indictment fodder – the charlatan was the government's star witness. And why – well, he cut a deal getting his two sons and wife entirely out of the indictment. And he got a charge reduction and sentence reduction for himself! My doctor and his kids and wife were bewildered. So was I.

So I dug in. I took the case to the Gerry Spence Trial Academy in Wyoming, and for 3 weeks, 12 hours a day, 6 days a week. I lived on the ranch with 60 other lawyers. I worked on this case day and night. I had multiple mock juries made up of other lawyers. We tweaked it. Attacked it from every angle. Worked every conceivable argument we could think of. Then I traveled to Houston to step into the shoes of my client. I walked the streets of Houston and went in and out of the homeless medical clinics for hours on end. I watched as my old doctor bent down to treat nasty wounds and feet. He handed out free tennis shoes to the homeless who came into all the clinics. In addition to being a swell old man, loving father, great husband, and caring doctor, my doctor would handwrite letters to all the shoe companies he could locate, every week, to donate shoes to the homeless. Then he would go around Houston and give them to homeless people (who traditionally have rough times with their feet and ankles). We would drive from one homeless clinic to another. To my surprise, he had a clip of one-dollar bills attached to his visor. And every time he would see a homeless person, he would hand them money.

I ate with his wife and kids. I met his staff. I met his disadvantaged patients. At the end, I was ready. No way was I letting DOJ convict this man. In my 26 years of criminal law, I have seen a lot of guilty people. But standing before me was the most innocent man I had ever encountered.

So my wonderful colleagues (who represented the other doctors) and I plowed forward. Some pled guilty just because they were terrified or could not afford to defend themselves, but we were not going to plead. That was not an option for us. Little did the government know that every mock jury in my last week had walked my client. Despite the "odds" of being successful in a federal case (which I think are nonsense given I've prevailed in many), I was the favorite here. Not them. And they had failed to look at their own discovery, whereby my doctor had retired and was not in the company anymore. He had formally withdrawn and sold his 1% share (and thus had not received any money) for over 5 years before the original indictment. But given their inability to hear reason, I was going to save that little nugget for them on the last day of the trial.

So we fought. And a group of us lobbed the ever dismal, and rarely granted, motion to dismiss out there. But this judge actually took note of the arguments. Defense attorneys typically just get ignored. She gave us a hearing. She was tough and fair. And she even chastised the government a bit for their sloppy job on the Indictment. Maybe there is light at the end of the dismissal tunnel. She also asked them to take measures to fix mistakes made by the previous prosecutors. When they finally did, she set the case for another hearing. And we all prepped for that and for the jury trial – because motions to dismiss rarely get granted.

Then the day before Valentine's Day, the DOJ actually sent me an early Valentine. This was surprising as all they typically do is send me and my clients indictments, search warrants, and armed men in slick jackets adorned with letters from the alphabet on them. But not this time. CASE DISMISSED. I immediately called my doctor, who, despite facing life in prison for a crime he knew nothing about, was at the homeless clinic caring for a patient.

I learned something that day. Even when you are faced with all the resources of the federal government, the might of the FBI, the brawn of the US Attorney's Office, and the threat of life in prison pressuring you to "just plead", sometimes you simply must stand your ground even if you are a frail 81-year-old man.