Johnson & Johnson on Trial for Deceptive Marketing: A New Battle in the War on Drugs

Johnson & Johnson accused of being a kingpin in the opioid crisis in a white collar crime case

Over 47,000 people died from opioid overdoses in 2017 — more than 130 people meet the same fate every day in the United States alone. Opioids act on the nervous system to relieve pain and thus are often prescribed to patients who have injuries or are recovering from surgery. Common prescriptions opioids are fentanyl, oxycodone, and morphine, among several others. However, opioids cause euphoric, highly addictive feelings, as well as tolerance. As a person continues to take an opioid, he needs more of it to feel the same pleasurable effects — with higher and higher doses, overdosing and death become an increasingly realistic threat. The opioid epidemic has become a national public health crisis.

Oklahoma Takes a Stand

The state of Oklahoma (my home state) has made itself a soldier in the war on drugs by accusing several drug companies of furthering the opioid crisis. Already, Purdue Pharma and Teva have settled for $270 million and $85 million, respectively. However, Johnson & Johnson elected to proceed to trial, maintaining that its subsidiary company, Janssen, provides “medically necessary medications” which are prescribed lawfully, according to Larry Ottoway, in J&J’s opening statement on May 28th, 2019.

Johnson & Johnson has come under fire for two drugs in particular: Nucynta, an opioid tablet which it stopped making in 2015, and a fentanyl patch called Duragesic, that is still being produced and prescribed. The company has said that their products account for less than 1% of opioid prescriptions written annually since 2008.

The company, accused of being a “kingpin” in the opioid crisis, additionally argued how unlivable life would be with no option to treat chronic pain, from which 50 million adults suffer, suggesting its products are essential for maintaining many individual’s quality of life. Attorney Michael Burrage, counsel for the State, said in opening arguments that J&J “falsely and deceptively […] promoted opioids for treatment of chronic, non-malignant pain.” Attorney Brad Beckworth added that the company was aggressive in marketing its opioids to everyone, calling it “deceitful” and “brainwashing.” Meanwhile, counsel for Johnson & Johnson, John Sparks, has argued that the opioid-based medicines the company manufactures have a “miniscule market share in Oklahoma” and that “Janssen never manufactured, sold or marketed oxycodone or hydrocodone medications.” While counsel for the State believes that Johnson & Johnson will likely have to pay large penalties, the company has maintained that the claims against it are unsubstantiated. Johnson & Johnson has suggested it feels as though it is taking the fall for Big Pharma as a whole rather than standing trial for laws it has actually broken.

J&J’s purported deceptive marketing, the State argues, is a violation of Oklahoma’s public nuisance law. A “nuisance” in Oklahoma is created by unlawfully doing an act “that annoys, injures or endangers the comfort, repose, health, or safety of others” among other qualifications (this one being the most directly related to this case). Okla. Stat. tit. 50, § 50-1. A “public nuisance” means that an entire community is affected. Okla. Stat. tit. 50, § 50-2. The laws regarding public nuisance are similar in other states, including Arizona.  Applying nuisance laws to these kind of cases is nothing new — in the early 1990’s, over 40 states sued “big tobacco” asserting public nuisance theories.  

Proving that opioids are a public nuisance is much different than cigarettes. When used properly, opioids can be essential to treating serious medical conditions. In addition, opioids are not inherently a nuisance. Instead, the nuisance stems from misuse, overprescribing, and those who abuse opioids. Recently, a North Dakota court dismissed a nuisance suit against Purdue Pharma, finding that the company could not “control how doctors prescribe its products, and it certainly cannot control how individual patients use and respond to products.”  State of North Dakota Ex Rel. Wayne, v. Purdue Pharma, L.P. et. al, Case No. 08-2018-CV-01300.

The J&J case may only be the tip of the iceberg.

According to prosecutors, Johnson & Johnson marketed its opioids as “safe and effective for everyday pain,” but has failed to disclose its addictive properties to consumers. However, should J&J be held responsible for the way doctors prescribe, and patients use its drugs? Regardless, this trial may be a preview of how similar claims will play out in October when two Ohio municipalities take similar cases to trial against opioid drug makers and distributors in Cleveland, where more than 1,900 such cases have been gathered before one federal judge. The suing states and municipalities claim that they have spent billions in tax dollars on substance-abuse treatment, prevention and criminal enforcement.  Oklahoma is seeking $17.5 billion in damages.

Stay tuned….

Check out CNN to learn more about the trial and MM&M to read about the changes this case might bring about in healthcare marketing.

Pushing Back Against the “Blue” FLU (Financial Litigation Units)

Ashley D. Adams, Adams & Associates

United States’ Attorney’s Offices (“USAO”) across the country, are becoming increasingly aggressive in enforcing restitution orders, and civil judgments. In the past, USAO Financial Litigation Units (“FLU”) typically did not go after Defendants’ homes, retirement funds, and children’s college savings accounts. That has changed. Many lawyers may not be aware that certain assets which are protected under various state Homestead Act exemptions are not protected under federal law.

The Mandatory Restitution Act (hereinafter “the Act”) authorizes the government to collect restitution “in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.” 18 U.S.C. § 3613 sets forth the civil remedies available for unpaid fines, and applies to restitution per 18 U.S.C. §§ 3613(f) and 3664(m)(1)(A)(I). Section 3613(c) of the Act allows the government to treat a restitution order like an IRS tax lien. The only items exempted from collection are those found in the tax code at 26 U.S.C. § 6334(a)(1)-(8), (10), and (12). Self-Directed IRA’s, 401k plans, and other ERISA accounts are not included.

While prior court approval is required, the IRS regulations also allow the government to also levy on a taxpayer’s primary residence, if there is “no reasonable alternative for collection of the taxpayer's debt.” See 26 U.S.C. § 6334(e)(1)(A); 26 C.F.R. § 301.6334-1(d)(1); United States v. Brabant-Scribner, 900 F.3d 998, 999 (8th Cir. 2018). Thus, while a certain amount of the home’s equity may be protected state’s Homestead Act, it is not exempt property under Federal law. See for example, Birch v. Dodt, 2 Ariz.App 228, 407 P.2d 417 (1965) (Homestead exemptions prescribed by Arizona statute were ineffective with respect to statutory liens of United States for federal taxes.)

The government relies heavily upon the Federal Debt Collection Procedure Act, 28 U.S.C. 3001 et seq. (“FDCPA”) to also collect restitution and fines. According to the United States Attorney’s Manual:

…The Act also allows for a writ of attachment on the client’s property and writ of garnishment on property and earnings. If the court enters a judgment against the client, upon filing, the judgment creates a lien on all the client’s real property, which remains in effect for 20 years. The court can order the sale of the property to satisfy payment of the restitution or the property itself can by subject to levy pursuant to a writ of execution…After the court orders restitution, all of a client’s property becomes subject to a lien in favor of the United States and may be garnished following the same method as tax liens. Thus, any property that may be seized to satisfy a tax lien may be garnished to fulfill a restitution order…

The government, has, in many cases, taken the position, that its power to collect fines and judgments is unfettered. Such is not the case. There are many ways that a defense attorney can protect her client from FLU’s aggressive tactics, both before and after a client is sentenced.

Counsel should insist that a payment plan for restitution be included in the plea agreement and the judgment.

First, defense lawyers should insist that the plea agreement and/or the Court’s Sentencing Order specify how the restitution is to be paid. For example, the Order should specify the precise amount of the defendant’s monthly payment, and how long that payment schedule will last. Some Orders provide that the defendant is to pay 10% of his or her income each month, for a period of years. Most provide a specific monthly payment, depending on the Defendant’s financial condition and earning power.

In determining the manner in which the restitution is to be paid, the Court must consider the defendant’s financial condition, obligations, and projected earnings. 18 U.S.C. § 3664(f)(2)(A)-(C). The Court must craft its restitution order “in the interest of justice.” 18 U.S.C. § 3572(d) (i); U.S. v. Hosking, 567 F.3d 329 (7th Cir. 2009). The Court may order the defendant to make a single lump-sum payment, reasonable periodic payments, or, if the defendant is indigent, nominal periodic payments. See 18 U.S.C. § 3664(f)(3)(A)-(B).

Clients can seek relief from the Court for restitution payments causing hardship.

Counsel should also advise their clients that they can seek relief from burdensome restitution orders. 28 U.S.C. § 3013 gives courts broad discretion to issue an order denying, limiting, conditioning, regulating, extending, or modifying the use of any enforcement procedure under the FDCPA, including a restitution order. FTC v. Nat'l Bus. Consultants, Inc., 376 F.3d 317, 321 (5th Cir. 2004). Courts have held that a district court may consider a defendant's inability to pay under 28 U.S.C. § 3013, and may limit the government's enforcement remedies. United States v. Ogburn, 499 F.Supp.2d 28, 30–32 (D.D.C.2007); United States v. Crowther, 473 F.Supp.2d 729, 731 (N.D.Tex.2007); United States v. Kaye, 93 F.Supp.2d 196, 199 (D. Conn. 2000).

One member of Congress noted the following regarding what 28 U.S.C. § 3013 was intended to accomplish:

“The bill acknowledges that important role played by the court in supervising the enforcement process by expressly recognizing the court's authority to enter and modify protective orders on its own or otherwise. This broad and general authority to fashion an appropriate relief eliminates the need to anticipate all possible abuses or problems. We fully expect that the United States will not attempt to circumvent the exempt property rights of the debtor. We fully expect that the Government will generally seek to satisfy a judgment in a way that will minimize the adverse impact on the debtor and that will not unnecessarily disrupt the debtor's affairs. And we fully expect that the debtor will normally be able to elect which property should be applied to the satisfaction of his debt. But if the United States were ever to attempt to abuse its power under this bill, the courts can steadfastly protect the debtor.”

136 Cong. Rec. H13288–02, 1990 WL 168500 at *H13289 (Oct. 27, 1990) (Statement of Rep. Brooks.)

In sum, any enforcement remedy, be it a garnishment, lien, or wage withholding, will likely have adverse impact on a defendant. However, the government must act in a reasonable and responsible manner. Oftentimes, FLU’s power goes unchecked, because defendants do not have the resources to challenge the government’s aggressive tactics. Courts should examine the totality of the circumstances to determine whether the collection efforts on behalf of FLU leaves a defendant with adequate resources to pay reasonable family and household expenses.

The Fine Line Between Gifts and Bribes

White collar crime and fraud: Gifts vs. bribes

Sports events, entertainment and gifts have always been used to leverage business relationships, but when does a ‘gift’ cross the line into bribe territory?

The premise of giving gifts is an ancient way to express gratitude, appreciation and love. Giving in itself is fairly innocuous and it is based upon the philosophy of reciprocity which is commonly articulated by phrases such as “what goes around comes around" or “what you sow, you will reap”. While gifts are often given as a gesture of goodwill, overly generous business gifts tend to put pressure on the recipient to extend more than just goodwill to the giver. Thus, not surprisingly, the line between sincere giving and bribery is becoming increasingly distorted.

Gifts, even those of nominal value, can create the perception of undue influence. So what are gifts and bribes? Defining gifts and bribes may seem like a simple-minded activity, but, try posing the question another way and you will see why this is an important issue in business and professional ethics: What is the difference between a gift and a bribe? A gift is something of value given without the expectation of return; a bribe is the same thing given in the hope of influence or benefit. Gifts and bribes can be monetary, actual items or they can be tickets to a sporting event, entertainment, travel, rounds of golf or restaurant meals.

For those in the legal profession, it has become increasingly difficult to decide where to draw the line between permissible and impermissible actions. Sometimes accepting these gifts and amenities may be a proper part of a business relationship. In some situations, however, accepting them may be a serious breach of business and professional ethics, and perhaps even a violation of the law.

Policies and practices on handling gifts and invitations to special events vary from company to company. For some the potential harm to an organization’s credibility is not worth the risk and they ban all gifts to employees, excluding personal gifts from friends and family. Other organizations accept gifts, but when received, donate them to a non-profit organization. Then there are some organizations where gifts received must be declared and it is maintained in registers. In other organizations, unsolicited gifts are shared with all employees. If everyone benefits equally, it may lessen the perception that the gift was intended to influence the action of a single employee.

Clearly, it is unethical and in some instances illegal to accept gifts or invitations to any event where the intent is to buy favor or influence something. Recognizing that business is often conducted at social events and paying your own way to attend an event is not always feasible, some individuals do accept invitations to social events when the overall purpose is to further the company's interests. Others attend only those business-related social functions when they or their company or local office can pay for the cost of attendance because it is in the interest of maintaining good business relationships to participate.

There are codes of ethics for auditors, accountants, doctors, lawyers, government officials, pharmaceutical companies, journalists and most other professions. You will avoid embarrassment and unnecessary expense by researching what these are. You work hard to establish credibility and trust among your colleagues, the other businesses with whom you do business, and most importantly - with your shareholders. Credibility and trust in the practices of your business are built around accountability and appearances.

If you are facing criminal charges for a bribery case arising out of gifts or ‘perks’, contact the offices of Adams & Associates for a case assessment. Often, the small details matter in determining the intent of business gifting.

Is it Money Laundering or an Honest Mistake? You Might Be Surprised to Find Out

white collar crime: fraud and money laundering

Money laundering is simply the 'cleaning' or disguising of the origins of the proceeds of crime. It can be committed by someone with their own proceeds (self laundering) or by someone handling someone else’s proceeds. Money laundering schemes range from the simple through to the sophisticated and may involve chains of companies and offshore accounts.

There are three types of Money Laundering:

Placement - the process of getting criminal money into the financial system.

Layering - moving money in the financial system through complex webs of transactions, often via offshore companies.

Integration - the process by which criminal money is absorbed into the economy through activities such as investment in real estate.

The four cases below show just how easy it is for “innocent” people to assist in money laundering.

In my defense, I have always told friends when they are inadvertently assisting money launderers – at least as strongly as you can tell a friend. But their stories show why the war on money laundering is far more nuanced than regulators would have us believe.

The elderly lady

A woman was recently widowed and decided to sell her husband’s Bentley. The first prospective buyer offered her the full asking price which she accepted. He paid cash. She was relieved that the buyer didn’t haggle and all seemed good, then she went to her local bank.

The teller was shocked to see so much cash and asked where the money came from. When she explained her bereavement and the car sale the teller helpfully told her the single transaction and cumulative limits to prevent an “investigation”.

It is surprisingly easy to launder dirty money by mistake

Knowing the trigger amounts, the lady began slowly paying in the money and even opened an account with another bank, keeping the cash deposits under the limits.

According to investigators, the widow was was aiding and abetting money laundering but she had no idea until I told her, and even now she can’t comprehend what she did as money laundering. She doesn’t wear dark sunglasses, wear a shiny suit and have a numbered Swiss bank account. In short, she just looks like any other honest elderly person.

A secondary point is that the bank teller shouldn’t have “helped” the customer by telling them the transaction limits for triggering investigations.

The private banker

A private banker was so proud when he helped his firm avoid laundering money for a client. The bank’s client received a transfer of US$ 20m in his account and the compliance department correctly flagged it and enquired as to the source of the funds. So far, so good.

The client said they had sold a piece of art. The private bank realized that a US $20m piece of art would be well documented so asked for the sales invoice, purchase invoice, a professional valuation and insurance records. The client responded that the art was around 20 pieces of “low value” which were not individually documented.

Private bankers make mistakes

The bank realized that they were being played for fools and persisted in asking for more details. The client then transferred the money to another private bank.

My private banking buddy and the compliance department were delighted and very proud that they had not accepted the hot money. Kudos to them!

Unfortunately, they had tipped off their client and had failed to freeze the account. They had aided and abetted the client’s money laundering and hadn’t even realized it The client just found a bank which asked fewer questions and the hot money was successfully integrated into the banking system.

The retired businessman

A successful businessman retired a decade ago to play golf. He recently sold some development land to a New Yorker and was given $250,000 + an extra $50,000 in cash (he still has the money “under the bed”). The $50,000 was from a “cash business” back in New York.

The land buyer got an added bonus, they pay property tax on $250,000 and not the full value.

There are a lot of people who view cash payments as an innocent way to reduce their tax costs but evading tax is a crime, even if you don’t get caught.

Each case above shows how easy it is for good people to get into complicated money laundering situations.

If you have been accused of Money Laundering or other financial crimes, your best defense is a good defense. Contact Adams & Associates today for a case analysis.

I've Been Accused of Embezzlement, Now What?

Embezzlement defense

Whether you worked for a company for decades or only a short time, you probably earned some respect among your employers and co-workers. Because your boss was busy attending to other issues in the business, he or she entrusted the accounts to you, perhaps based on your resume or simply because of your reputation in the community.

It may have been challenging to handle the financial affairs of the business or organization, especially if you were struggling with your own budget. Your frustration may have increased if the owner of your company showed no interest in your work or spent no time with you reviewing the accounts. Now those accounts don't add up, and you’re being held responsible.

What is embezzlement?

If authorities have accused you of embezzling funds from your employer, you could be facing trouble. Simply put, embezzlement is theft, and it often involves employees who handle the accounts. The four elements authorities will investigate in your case include:

  • Determining that someone trusted you to maintain the financial records for your employer, and that your employer relied on you to do so

  • Proving that you used that relationship to gain access to the money

  • Demonstrating that you took the money or transferred it to someone else

  • Showing that you did this intentionally for your own benefit

It may be difficult for investigators to prove that you intentionally took the money for your own purposes, and not that you simply misunderstood your role in handling the accounts or the liberties granted to your position in the company.

Embezzlement is not limited to cash. In some cases, authorities may accuse someone of taking merchandise or gift cards. No matter the assets that are missing, it is common for authorities to level accusations against the person who had the easiest access to the assets.

A solid defense when your future is at stake

Embezzlement charges are serious and life altering. If convicted, you may spend years in prison and struggle to find meaningful employment for the rest of your life. Additionally, if the charges against you involve federal crimes, those penalties may be even more severe. Whether those charges have already been filed or you are in the midst of an investigation, having legal assistance as early as possible may improve the chances of building a strong defense.

With white-collar crimes such as embezzlement, it is often possible to avoid criminal charges altogether. Under certain circumstances, the person alleging the theft may be open to negotiating for restitution or reduced charges. However, you may benefit from leaving such negotiations to an Illinois attorney with experience defending those accused of white-collar crimes.

If you have been accused of embezzlement, contact the offices of Adams & Associates immediately by calling 1 (602) 524.3801
aadams@azwhitecollarcrime.com. At Adams & Associates, PLC, we have a well-established track record of success that can make a difference, whether in defending charges of white collar crime, health care fraud, financial fraud, general fraud charges, other criminal or civil matters, or representing our clients during a government investigation.

Don't Sign on the Dotted Line Until You Read This! Forgery in Arizona is on the Rise

defense against forgery allegations

Forgery in Arizona

Forgery is a fraud crime and is committed when a person creates or alters a writing so that it is false with the intent to defraud. Under Arizona law, forgery occurs when a person, with intent to defraud, "falsely makes, completes or alters a written instrument," or "knowingly possesses a forged instrument," or offers a forged instrument (whether it is accepted or not). A.R.S. §13-2002(A).


If a person is found in possession of five or more forged instruments, it "may give rise to an inference that the instruments are possessed with an intent to defraud." A.R.S. §13-2002(B). In Arizona, a written instrument may be considered a forged instrument if it has an altered dollar figure or other material information. This means that an instrument with an authentic signature can still be considered a forged instrument if it contains other forged information. 


Two examples of forgery involve check fraud and credit card fraud. A common check fraud scam is when someone, with the intent to defraud, signs someone else's name to a check, makes the check payable to "cash" or to him or herself, and then cashes it and takes the money. A common credit card fraud scam involves forging an application and opening a credit card in someone else's name. Forgery is a white collar crime.


Punishment for Forgery in Arizona

Arizona's criminal law statute makes forgery a class 4 felony. A.R.S. §13-2002(D). A first-offense, class 4 felony is punishable by one year in jail if the court finds mitigating factors, such as age or impaired capacity. Possible punishment for a class 4 felony can include a minimum prison sentence of 18 months (1.5 years) and up to 3 years maximum. The prison sentence can increase if the court finds aggravating factors as listed in A.R.S. §13-701(D). If a person has prior convictions, then the prison sentence increases. 


However, not all forgery crimes are class 4 felonies. If the forged instrument was "used in connection with the purchase, lease or renting of a dwelling that is used as a drop house," then it is a class 3 felony. A.R.S. §13-701(D). A drop house means property that is used to facilitate smuggling. Class 3 felonies carry harsher penalties than class 4 felonies.


Defending Against Forgery Charges

A charge for forgery is serious. If you are under investigation for or have been charged with forgery (or any crime of fraud) in Arizona, you need an experienced White Collar Criminal Defense Attorney by your side.


Depending on the prosecution's case against you, you may have a number of defenses available to you. For instance, you may not have known that the instrument was forged when you presented it to be cashed or you were given authorization to act on someone's behalf, which may have included writing checks. When you hire us, we will thoroughly investigate the evidence and we may be able to dismantle the case against you, or to get criminal charges dropped to lesser charges.


Ashley D. Adams is a former fraud prosecutor with the U.S. Attorney's Office. She understands how prosecutors operate and has insider experiences to use in your defense. Contact Ashley D. Adams, PLCor call now (480) 219-1366 to schedule a case evaluation. 

What You Need to Know About 'Business Email Compromise' Schemes

financial fraud over the internet

What is a "Business Email Compromise" Scheme? 

A Business Email Compromise (BEC) scheme is a cyber-enabled financial fraud scheme, in which a compromised email account is used to facilitate a fraudulent financial transaction. In a BEC scheme transaction, the email owner believes the transaction to be legitimate, but the money is re-routed to the perpetrator of the scheme. 

BEC schemes can be carried out in a number of different ways, including identity theft and online ploys like e-mail spoofing, use of malware, spear-phishing, or social engineering. 

Examples of Business Email Compromise Schemes

A common BEC scheme involves the perpetrator graining access to a company's internal network through a spear-phishing attack and the use of malware. The infiltration may go undetected for weeks or months, giving the perpetrator time to study the organization's billing systems, vendors, and the CEO's style of e-mail communication. Then, at a strategic time, the scammer will send a fraudulent email from the CEO's email account to a targeted employee who routinely makes company payments. The fraudulent request is usually for an immediate payment or wire transfer to a trusted vendor or other party who routinely receives payments from the company. 

Another common BEC scheme involves targeting real estate transactions. The perpetrator will gain access to and monitor a real estate transaction. Then, at just the right time during the normal course of the transaction, the perpetrator will send the buyer payment instructions. The buyer will have been expecting to make an escrow payment or down payment. The buyer then transfers money to the fraudulent account and the BEC scammer cashes out the funds.

Prevalence of Business Email Compromise Schemes

The FBI began tracking BEC cyber threats in 2013. Since then, large and small companies and organizations in every U.S. state, and more than 100 countries globally, have been targeted. Well-known corporations, non-profit organizations, churches, school systems, and many other types of organizations have unwittingly been involved in BEC schemes, totally losses in the billions of dollars. 

Defending Against Charges of Business Email Compromise Fraud

If you have been accused of Business Email Compromise fraud or any cyber crime you may face incarceration and significant fines. At Ashley D. Adams, PLC we are particularly knowledgeable regarding email fraud and cyber crimes and we have extensive experience with white collar criminal defense at both the federal and state level. 

When you hire us, we will thoroughly investigate the evidence and we may be able to dismantle the case against you. In the government's zeal to prosecute these types of crimes, officials may unfairly target honest people. Perhaps your rights were violated during the investigation. Here at Ashley D. Adams, PLCwe zealously defend all types of email fraud, cyber crimes, and internet fraud cases. 

We will fight back for you and protect your rights. Contact us or call now (480) 219-1366 for a consultation. Have your questions answered and obtain the peace of mind that comes from having a former Assistant U.S. Attorney on your side

Ding, Dong! Could Civil Forfeiture Be Dead?

Civil Forfeiture: White Collar Crime Defense

Ding Dong! Could the Witch (Civil Forfeiture) be dead?

In June 2018, the U.S. Supreme Court granted certiorari in Timbs v. Indiana, 138 S.Ct 2650 (June 18, 2018), to decide whether the Excessive Fines Clause applies to state civil forfeiture matters. Timbs was forced to forfeit his $40,000 Land Rover in a civil forfeiture matter to the State of Indiana, after he pled guilty to selling less than $200 worth of drugs. Timbs argued that forfeiting the Land Rover would violate the Eighth Amendment’s ban on “Excessive Fines.” The trial judge agreed and rejected the forfeiture as “grossly disproportional.” State v. Timbs, 62 N.E. 472 (Ind. App. 2016.) The Indiana Supreme Court reversed that decision. The court held that the Constitution’s Excessive Fines Clause provided no protection to Indiana defendants because the United States Supreme Court has not held that the Clause applies to the States through the Fourteenth Amendment. State v. Timbs, 84 N.E.3d 1179 (Ind. 2017). Oral argument is set for November 28, 2018.


Civil asset forfeiture laws are powerful tools that allow States and the federal government to seize assets, both tainted, and untainted, without any kind of an adversarial hearing. Between 2012 and 2017, law enforcement in Arizona seized over $200 million in personal property from many people who were never charged with crimes. See https://azcir.org/news/2017/01/10/arizona-asset-rico-seizures-net-200m-in-past-five-years/. Most forfeitures in Arizona are never contested. See for example Attorney General Seizure Report, third quarter 2018, http://www.azcjc.gov/fy18-seizure-and-forfeiture-report-3rd-qtr(showing that all Attorney General forfeiture matters during this period were either not contested, or were resolved via a plea agreement.)


Assets can be seized if the State simply establishes probable cause, a very low threshold. Civil forfeiture defendants do not have the same protections that they would be afforded in a criminal case. They do not have the right to counsel, the presumption of innocence, nor must the State prove its claims beyond a reasonable doubt. See generally A.R.S. 13-2314. Most defendants, whose bank accounts are frozen, cannot afford to hire an attorney. If they are fortunate enough to be able to retain an attorney, most lawyers, including criminal defense lawyers, are not skilled in civil forfeiture. Vast experience is needed to navigate the various pitfalls associated with parallel criminal and civil proceedings. Nine times out of ten, defendants forfeit their assets, either because they are unfamiliar with the stringent rules associated with filing a claim, or they enter “cash for freedom” agreements to avoid being prosecuted.


There is little, if any, equality in bargaining power in civil forfeiture cases. Some have even suggested that Civil Forfeiture laws may be unconstitutional. See https://harvardlawreview.org/2018/06/how-crime-pays-the-unconstitutionality-of-modern-civil-asset-forfeiture-as-a-tool-of-criminal-law-enforcement/. Just last year, Justice Clarence Thomas wrote a scathing concurrence in a civil forfeiture matter when the Supreme Court declined to hear the case of Lisa Olivia Leonard, who had over $200,000 in cash confiscated from a traffic stop in Texas. Leonard v. Texas, 137 S.Ct. 847 (March 6, 2017, J. Thomas concurring). “This system,” Thomas wrote, “where police can seize property with limited judicial oversight and retain it for their own use— has led to egregious and well-chronicled abuses,” citing various examples and the eye-opening article written by Sarah Stillman. Id. at 848 citing Stillman, Taken, The New Yorker, Aug. 12 & 19, 2013, pp. 54–56.


Thomas further criticized how “forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” who in turn are “more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.” Id. Thomas notes that Leonard’s Petition, “asks an important question: whether modern civil forfeiture statutes can be squared with the Due Process Clause and our Nation’s History.” Id. at 847. Because Leonard raised the due process issue for the first time in her Petition, however, certiorari was denied. Id


Justice Thomas’ concurrence in Leonard may be a preview of what is to come in Timbs. There is little consistency amongst the circuits when it comes to the proportionality of forfeiture, which may have caused the Court to accept certiorari in the first place. Timbs has attracted amicus briefs from prestigious groups such as the Cato Institute, American Civil Liberties Union, Southern Poverty Law Center, NAACP, Constitutional Accountability Center, and Pacific Legal Foundation. All have expressed concerns about the potential for perversion of the justice system in light of the revenue generated for state and local government from forfeiture. The Excessive Fines Clause was designed to curb these types of abuses. Could it be that the high court is looking for some way to limit government’s vast ability to cripple defendants right out of the gate? We will see in November.  

We practice excellence, one client at a time.

The attorneys at Ashley D. Adams, PLC handle federal criminal cases throughout the United States, including Arizona, Oklahoma, Utah, and California.

The attorneys at Ashley D. Adams, PLC handle state criminal cases throughout Arizona including the cities of Phoenix, Scottsdale, Glendale, Mesa, Tempe, Ahwatukee, Maricopa, Gilbert, Peoria, Surprise, Goodyear, Litchfield Park, Avondale, Chandler, Casa Grande, Florence, Queen Creek, Deer Valley, North Pinal and Sun City as well as those living in and around Maricopa County, Pinal County, Pima County, Yuma County and Yavapai County.

480-219-1366

www.azwhitecollarcrime.com

What is Procurement Fraud?

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A quid pro quo, or something given or received for something else, is common in business. It is the equivalent of ‘you scratch my back and I will scratch yours.’ While there is generally nothing wrong with mutually beneficial business arrangements, a quid pro quo favor can amount to procurement fraud in certain instances.

Procurement fraud occurs when a favor, payment, or other advantage is dishonestly exchanged, causing loss to the government, public, or private stakeholders. A common procurement fraud scheme involves a procurement manager awarding a contract for goods or services to a certain vendor in exchange for some sort of benefit or personal gain for awarding the contract.

When a Quid Pro Quo Favor Amounts to Procurement Fraud

Quid pro quo arrangements may amount to procurement fraud based on a number of factors. For example, arrangements where a contract-awarded vendor is paid well above market price is common in procurement fraud scenarios. The artificially inflated contract price is the incentive for the vendor to give cash or other benefits to the procurement manager who awarded them the contract.

Procurement fraud scenarios often include decision-making managers who have personal ties to the vendor, vendor costs that are significantly inflated above market price, contract bids that are manipulated by the use of fictitious vendors, and cash payments of bribes or kickbacks.

When a quick pro quo favor involves any of the above elements, it is beyond a simple business arrangement and may rises to the level of criminal procurement fraud.

Investigating Allegations of Procurement Fraud

The government invests significant resources to investigate and prosecute cases of alleged fraud perpetrated against the government. The DOJ’s Federal Procurement Fraud Unit, formerly the “Defense Procurement Fraud Unit,” helps coordinate law enforcement resources in prosecuting procurement fraud cases. The Unit handles a variety of fraud cases affecting civilian procurement and cases involving the Department of Defense’s multi-billion dollar procurement contracts for equipment and services. Procurement fraud cases can involve product substitution, false testing, cost mischarging, defective pricing, and illegal kickbacks.

Fraud Defense Attorney

Alleged procurement fraud scenarios are aggressively investigated and prosecuted. If you are being investigated, or have been charged with procurement fraud, reach out to our firm today. Ashley D. Adams has significant experience defending clients accused of complex white collar crimes, including procurement fraud. She will work diligently to ensure that your rights are protected.

Contact us or call now (480) 219-1366 for a case evaluation. Have your questions answered and obtain the peace of mind that comes from having a former Assistant U.S. Attorney on your side.


Medical Identity Theft

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Identity theft is generally associated with financial transactions and financial fraud, but it can happen with regard to medical care, too.

Medical identity theft occurs when:

  • Someone uses another person’s name or health insurance information to get medical treatment or prescription drugs.

  • Someone in a medical practice uses another person’s personal information to submit false claims for reimbursement to insurance companies or public health care programs, such as Medicare and Medicaid.

Medical identity theft is a concern for patients because it compromises their personal information, medical records, and medical history. Further, it can disrupt medical care or worse – it can cause a mix up between the patient’s legitimate health records and those of the perpetrator, which can complicate proper diagnoses and medical treatments. Also, medical identity theft may result in medical debts that will need to be disputed.

It is a concern for health care providers because fraudulent billing based on medical identity theft may amount to HIPPA violations or other regulatory violations, and may lead to licensure complaints, fines and penalties, preclusion from public health care programs, and damage to the reputations of the physician and medical facility.

Instances of medical identity theft may be hidden for a long time and can be difficult to detect. For a number of reasons, identity theft that results in financial fraud is often detected far sooner. This is because many people actively track their financial lives, banks contact consumers when charges raise an alarm, credit cards or other financial services may send an alert when a credit score decrease is detected. Whereas people do not necessarily track their medical services or read their Explanation of Benefits statements, or review benefits paid in their name or insurance reimbursements paid out as part of their plan.

Medical identity theft can be criminally charged under federal or state statutes. The criminal case may involve charges for identity theft, conspiracy, and depending on the facts, as health care fraud as well.

To get the best defense it is imperative that you hire an attorney knowledgeable with medical identity theft cases.

If you have been accused of medical identity theft, we are prepared to defend your rights. Our attorneys will work hard to provide you with the best possible defense. There may be aspects of your case that can be challenged in court in the early stages, so it is essential that you contact us as soon as possible. For a case evaluation contact us or call (480) 219-1366.

 

The attorneys at Ashley D. Adams, PLC handles state criminal cases throughout Arizona and federal criminal cases throughout the United States, including Arizona, Oklahoma, Utah, and California.

Accused of Internet Sales Fraud in Phoenix

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Crimes involving the internet are taken seriously by federal and state law enforcement and prosecutors. Specifically, Internet fraud crimes are heavily prosecuted. Internet fraud is the use of Internet services to defraud someone or otherwise take advantage of them.

Internet sales fraud is a type of internet fraud that encompasses a variety of fraudulent activity. Internet sales fraud schemes may involve failure to deliver on the promised merchandise, misrepresenting a product that is for sale, selling counterfeit items, selling stolen products, or not issuing a promised rebate.

A common Internet merchandise scam offers supposedly pricey goods like electronics, designer clothing, or other high-end items, and entices prospective buyers with promises of deep discounts. The use of online ads or other online advertising methods may be used to reach the prospective buyers. A few things may happen in such a scam:

  • The buyer may be directed away from a legitimate site and to the scammer’s site to input their payment information. The buyer will never receive any merchandise, and now the scammer has the money paid, the buyer’s personal information, and credit card number.

  • The buyer may make payment and be sent merchandise that was misrepresented. The product delivered may be subpar, perhaps a knockoff imitation of a designer brand, and is not what was advertised to the buyer.

Internet sales fraud may involve a merchandise scam, as well as identity theft, credit card or banking fraud, or other cybercrimes. Internet fraud schemes are often complex and involve multiple people across numerous states or countries.

The rise of internet fraud each year led authorities to focus resources on investigating and prosecuting these types of crimes. In the government’s zeal to stop Internet fraud innocent people may become targets of prosecution and rights may be violated during investigations.

If you are under investigation for, or being charged with, Internet sales fraud or related crimes, we urge you to consult with an experienced white collar criminal defense attorney immediately. Mounting a strong defense from the start helps ensure the most favorable outcome in your case.

Internet Sales Fraud Defense

Ashley D. Adams, PLC attorneys are well-versed in Internet fraud cases. If you have been accused of internet fraud, cybercrimes, or other computer crimes, our firm is prepared to defend your rights. Our attorneys will work hard to provide you with the best possible defense.

There may be aspects of your case that can be challenged in court in the early stages, so it is essential that you contact us as soon as possible. For a case evaluation contact us via the web or call (480) 219-1366.