Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

We have commented on the case of Alfredo and Niurka Rasco of South Georgia, who were charged in a $6.5 million Medicare fraud scheme. Well, despite a heated and well-founded defense against the charges based upon illegal use of immunized evidence by the government, Mr. Rasco and his wife pled guilty to the charges against them last week during their trial, according to a press release by the U.S. Attorney's Office for the Southern District of Georgia. Mr. and Mrs. Rasco face maximum terms of imprisonment of 12 years and 6 months respectively.

In other news, the U.S. Senate will convene next week to hold an impeachment trial of U.S. District Judge G. Thomas Porteous, Jr., of the Eastern District of Louisiana according to the National Law Journal. Judge Porteous is charged with corruption. Specifically, Judge Porteous is charged with accepting meals, trips and other gifts from bail bondsman Louis Marcotte III and his sister Lori Marcotte in return for giving the Marcottes and their clients special treatment while he was a state court judge. Judge Porteous is also alleged to have made false statements to the Senate and to the FBI in 1994 regarding his past.

Judge Porteous' attorneys are vigorously defending him, however, pointing out that much of the conduct charged against Judge Porteous occurred prior to his appointment to the bench. Furthermore, a federal grand jury had investigated Judge Porteous as part of wide-ranging probe into Louisiana corruption, however no charges resulted. The U.S. Department of Justice also decided to drop the case against Judge Porteous. Judge Porteous' attorneys have denied any wrongdoing by Porteous, and state that he has done nothing to justify his removal from office.  The defense also contends that the FBI and the Senate were aware of the allegations against Judge Porteous prior to voting to confirm his appointment.

A fascinating fact is that Congress is also the nation's least used court. The trial of Judge Porteous will be the Senate's first since the impeachment trial of President William Jefferson Clinton (who appointed Judge Porteous to the bench) in 1999, and the first of a federal judge since 1989. The U.S. House of Representatives has considered bringing impeachment proceedings against federal judges in the interim, but the judges had resigned before the proceedings could be brought. Judge Porteous was referred to the Senate for impeachment by the Judicial Conference of the United States, led by Supreme Court Chief Justice John Roberts Jr., in June of 2008. A committee of 12 senators will serve as both judges and jurors at his trial. Members of the House will serve as prosecutors, or "managers." The Senators will vote on whether to convict Judge Porteous, with a two-thirds majority required to convict. Any of the Senators may question witnesses following examination and cross-examination by counsel. The Senate Committee will first gather evidence for consideration by the full Senate. Each side will have 20 hours to put on evidence. The Senate can only vote to impeach Judge Porteous, and cannot impose any sentence of imprisonment or fine. The trial will take place in the same chamber the Senate uses for confirmation hearings.

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            In criminal cases, the government frequently employs the strategy of offering immunity to one defendant or witness for information to use in an investigation or against others. In some cases, the government may come to regret its agreement and may seek to get around it to prosecute the cooperating defendant or witness. However, as the Supreme Court held in Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the―affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Where the government reneges on an agreement of immunity in exchange for testimony or information and seeks to prosecute a defendant, the defense must seek to vigorously hold the government to its promise by requiring it to prove that all information used to prosecute the defendant was obtained from wholly independent, legitimate sources.

One such situation has arisen in the U.S. District Court for the Southern District of Georgia, in the case of U.S. v. Rasco, Case No. 4:08-100. Alfred Rasco was arrested May of 2008 as a result of Medicare fraud in relation to his operation of United Therapy, which operated infusion clinics. Following his arrest, Mr. Rasco offered to meet with the government. In May of 2008, Mr. Rasco and his counsel met with attorneys for the United States Attorney’s Office for the Southern District of Georgia and investigating agents. Mr. Rasco and his attorney understood that the purpose of the meeting was so that Mr. Rasco could make a proffer of information to the government for the government to evaluate, and that he would receive certain protections, including in not having any of the information which he provided used against him.

Mr. Rasco and the government entered into plea negotiations. In August of 2008, Mr. Rasco and his attorney met with representatives of the government a second time pursuant to a letter proffer agreement. The proffer agreement provided, in relevant part, that (1) the government would not make any “direct use” of the statements or information provided by Mr. Rasco against him, (2) the government could make “derivative use” of investigative leads suggested by any statements or information provided by Mr. Rasco, and (3) the proffer agreement would not protect against prosecution for perjury or false statements. Mr. Rasco provided the government with statements and information which the government used to indict Mr. Rasco’s co-conspirator, Riccy Mederos, in September of 2008.

Despite the government’s promises and the proffer agreement and the information provided by Mr. Rasco, in October of 2008, the prosecution obtained a superseding indictment against Mr. Rasco and his wife for conspiracy and health care fraud. Mr. Rasco moved to dismiss the indictment or to prohibit the government from using any evidence or information which it obtained during the proffer meetings against him, arguing that the government’s indictment was largely the direct result of evidence and information provided by Mr. Rasco. A hearing was held on the motion on August 31, 2009. The prosecution responded by returning to the grand jury again to obtain a second superseding indictment against Mr. Rasco.

The defense contended, however, that the evidence presented to the grand jury, which included testimony by Mederos, and the allegations in the second superseding indictment were directly derived from statements and information provided by Mr. Rasco to the government in his proffer meetings relating to false Medicare diagnostic codes and tests and Mederos’ advice to Rasco to locate the infusion clinic outside of Florida. It argued that Mederos’ testimony was tainted by statements and information provided by Mr. Rasco. The defense also maintained that the prosecution had presented the testimony of a case agent to the grand jury, who falsely testified to the grand jury that he had obtained his information from interviewing a key physician witness, when the agent had actually obtained the information from Mr. Rasco in his second proffer. In May of 2009, Mederos agreed to cooperate with the prosecution and attended proffer meetings with the same agents who had interviewed Mr. Rasco.

The defense has filed a Supplemental Motion to Dismiss and Motion In Limine, which may be viewed here, arguing that the government must be prohibited from using the statements and information provided by Mr. Rasco during his proffer meetings against him, pursuant to the proffer agreement, and requesting that the second superseding indictment be dismissed. Mr. Rasco has also requested a Kastigar hearing to require the prosecution to prove that it obtained the second superseding indictment based upon legitimate, untainted sources wholly independent of any statements or information provided by Mr. Rasco pursuant to the proffer agreement. Mr. Rasco also relies on Federal Rule of Evidence 410, which provides that evidence of plea negotiations is not admissible against a defendant participating in the negotiations.

The prosecution has responded to the defense’s supplemental motion, which response is viewable here. It contends that Mr. Rasco’s contentions regarding the relocation of the infusion clinic are moot because it has dropped these allegations from its indictment. It also defends that it obtained information regarding United Therapy’s false diagnostic codes and tests from sources independent of, or prior to, Mr. Rasco’s proffer to the government, and asserts that it did not falsely represent facts to the court during the August hearing or suborn perjured testimony before the grand jury.

Mr. Rasco is represented by Savannah, Georgia, attorney Julie M. Wade, of the Wade Law Firm. Assistant United States Attorney Brian T. Rafferty is representing the United States. On Friday, the Court issued a 60 page order, viewable here, in which it granted a Kastigar hearing. The Blog intends to keep track of the case and the outcome of Mr. Rasco's efforts to enforce the proffer agreement and hold the government to its word.

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