When Can You Appeal a Medicare Fraud Conviction?

Experienced Federal Fraud Defense Attorneys Assisting with Medicare Fraud Conviction Appeals

If you have been convicted of Medicare fraud in federal court, it is critical that you assess your options for filing a post-conviction appeal. The criminal penalties for Medicare fraud can be devastating; and, outside of the criminal justice system, the consequences of a Medicare fraud conviction can impact the rest of your personal and professional life.

In order to preserve your right to appeal, you need to act quickly. Under federal law, you only have 10 days to file a notice of appeal. While filing a notice of appeal is, in itself, a fairly simple process, there are many important decisions to be made before you decide to file, and your appellate attorney will need to get up to speed on your case as soon as possible.

This article is broken into two sections, each with critical information for individuals who have been convicted of Medicare fraud:

• What You Need to Know About the Federal Criminal Appeals Process

• Choosing an Attorney for Your Medicare Fraud Appeal

What You Need to Know About the Federal Criminal Appeals Process

1. To Preserve Your Rights, You Must File a Notice of Appeal

We mentioned this above, but it bears repeating: If you do not file a “notice of appeal” within 10 days of your conviction, you could lose your right to challenge the outcome of your criminal trial. While you can find sample notice of appeal forms online or ask your trial counsel to prepare your notice of appeal (in fact, if you do not hire appellate counsel in time, your trial attorney may have an obligation to assist you in preserving your rights), there are a number of reasons why you will most likely want to have your notice filed by an appellate attorney.

For one, while the notice filing is fairly simple, at this juncture you cannot afford any mistakes. If you use an online form or rely on a trial attorney who does not have the specific appellate experience, you run the risk of inadvertently waiving your right to appeal.

For another, you will want to begin working with your appeals counsel as soon as possible. While there is no harm in filing the notice and then ultimately deciding not to file an appeal, you are at a stage where you need to be making informed decisions. An experienced appellate attorney will be able to provide an initial assessment of your case and help you understand your likelihood of success on appeal.

2. An Appeal is Not a Retrial

The nature of a federal criminal appeal is very different from that of a federal criminal trial. During your trial, your defense attorney and the prosecutor presented evidence to the factfinder (the judge or jury), and then the factfinder rendered a decision applying the legal standard of proof (beyond a reasonable doubt). During your appeal, however, your attorney will not argue the evidence. There is no jury, and very often the outcome is not simply a confirmation of the guilty verdict or a reversal entitling you to walk free. Instead, your attorney must argue one or more of a very specific (and limited) set of grounds for appeal; and, if your appeal is successful, your case could very be set for retrial.

3. There are Four Primary Grounds to Appeal a Federal Criminal Conviction

The title of this article is, (When Can You Appeal a Medicare Fraud Conviction?) Here is where we provide the answer. In most cases, there are primary four grounds upon which individuals who have been convicted of Medicare fraud can seek to have their convictions overturned:

• If the trial judge made a “plain error”, or a serious error in applying the law to the facts of your case.
• If the weight of the evidence does not support the verdict rendered against you.
• If the trial judge abused his or her discretion at any stage during the course of your trial.
• If you received ineffective assistance of counsel.

Only very rarely will the facts be at issue in a federal criminal appeal. Instead, appeals involve questions of law arising out of events that occurred at the trial level.

4. Not All Appeals Result in a Hearing Before the Court

The majority of federal appeals are resolved without a formal hearing. This means that the judges sitting on the appellate court render their decision based upon the attorney’s written submissions without hearing oral arguments in open court.

As someone who has been convicted of Medicare fraud, while it would be nice to receive a call from your attorney telling you that your conviction has been overturned, you also want to have as many opportunities to argue your case as possible. If your case is set for a hearing, this means that the judges assigned to your case have real questions about the validity of your conviction, and this is the first step toward winning a successful appeal. How do you get a hearing? It comes down to your appellate counsel’s ability to write a compelling brief based upon thorough research, an insightful application of the law, and an understanding of the types of issues that can carry the day at the appellate level.

5. You Might Lose Your Appeal, But This Does Not Mean Your Case is Over

Winning on appeal is not easy. Frankly, as someone who has been convicted in federal court, when it comes to your appeal the cards are stacked against you. But, even if you lose your appeal, this does not mean that your case is over. There are multiple levels of appeal in the federal judiciary; and, for many people, filing an appeal is just the first step in a long series of steps toward exhausting all of the options that are available.

Choosing an Attorney for Your Medicare Fraud Appeal

Reasons to Hire a New Attorney for Your Appellate Case

When you file an appeal, you have two options regarding your legal representation: (i) you can continue to rely on your trial attorney; or, (ii) you can hire new appellate counsel. While it is important to weigh the pros and cons of both options, it will frequently be in the appellant’s best interests to seek new appellate representation. There are five primary reasons why:

• An Appeal is Not a Retrial As we mentioned above, an appeal is very different from a criminal trial. Even if you had a great trial lawyer, he or she may not be knowledgeable about the substantive and procedural issues unique to federal appeals.
• You Do Not Want Your Case to Be Your Lawyer’s First Appeal With so much on the line, you simply cannot afford to trust your case to an attorney who is inexperienced at the appellate level. If your trial attorney does not maintain an active appellate practice, you will likely be better off with someone who devotes his or her time to complex criminal appeals.
• It May Be Time for a New Perspective After a hard-fought trial, it is easy for any attorney to have a narrow perspective. Your trial counsel focused on narrowing down the issues to present the strongest possible defense, but now it is time to step back and take a fresh look at what happened.
• You May Need to Claim Ineffective Assistance of Counsel Criminal defendants are entitled to effective representation under the Sixth Amendment to the U.S. Constitution. If you are facing criminal punishment because your trial attorney was ineffective, you will need a new attorney who can identify the issues with your representation and present an effective appeal on your behalf.
• You May Need to Go Through Multiple Levels of Appeal As we discussed above, if you do not win on your first appeal, you may need to appeal again. When your case gets to this stage, you will almost certainly want an attorney whose career is devoted to federal appellate practice.

Qualifications to Consider When Choosing an Appellate Attorney

Assuming you should hire a new appellate attorney, you will need to make an informed decision, and you will need to make it relatively quickly. So, how do you choose the right attorney for your appeal? Consider these qualifications:

• Education
• Clerkship A clerkship is a highly-prestigious position working under a judge. Has the attorney clerked at the appellate level?
• Trial Experience Does the attorney have previous experience as a trial lawyer so that he or she will know first-hand the types of issues that play out on appeal?
• Appellate Experience Is the attorney recognized for his or her extensive appellate experience?
• Medicare Focus Does the attorney have specific experience in the complex area of Medicare fraud?

Get to know Medicare fraud appellate attorney Elizabeth Stepp.

Contact The Criminal Defense Firm for a Free Consultation

If you have been convicted of Medicare fraud, we urge you to contact us promptly to discuss your appeal. To schedule a free and confidential consultation, call us at (888) 452-2503 or submit your case online now.

Brian J. Kuester

Brian Kuester offers his extensive experience to counsel companies and individuals under civil or criminal government investigation. When resolution requires litigation, clients choose Mr. Kuester’s proven court and litigation experience.