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We Convince 11th Circuit to Reverse 35 Year’s of Precedent in Anti-Kickback Act Cases: A Lesson on How Hard It Is to Win

Kish Law LLC

Readers know I am a federal criminal defense attorney in Atlanta who handles such matters throughout Georgia and the remainder of the country.  I recently took on the appeal in a case here in the 11th Circuit (which covers the federal courts in Florida, Georgia and Alabama).  The case was an appeal by a doctor who had been criminally prosecuted and then found guilty of what is called an “Anti-Kickback Act” violation, referred as an “AKA” case for shorthand.  The story of what happened is a lesson on how hard it is to win, even if we convince the courts that we are right on the legal issues.

When I took on the case, it seemed clear that the main issue for appeal was the use of what is called the “one purpose rule” in AKA cases.  We faced an almost unbroken line of 35 years worth of other federal courts around the country that had all affirmed the use of this “one purpose” test.  Basically, the rule says that a person, like my doctor, is guilty if he or she orders a medical procedure, equipment or prescription if even”one purpose” of the order is to get paid by someone else.  I noted that all the other courts had affirmed the one purpose rule, but that the 11th Circuit had not yet issued a binding and published opinion on the subject.

Like I do in all cases, I sat down one day to read the relevant materials, including the AKA statute in full.  I rubbed my eyes, walked around in circles a few times, then re-read the law.  Absolutely nothing in the language authorized by Congress said anything at all about “one purpose” or “any purpose” in an AKA case.  I then re-read the 35 years’ worth of earlier decisions, and realized they all relied on a single 1985 ruling that simply misapplied the words written by Congress. I felt a bit like the little boy who says “the emperor has no clothes” when I wrote my briefs and pointed out that everyone had been wrong up to now.

We had an oral argument recently in the 11th Circuit.  The Court then issued a speedy ruling, 7 days later.  They agreed with us that the 35-year unbroken line of “one purpose” rulings is not supported by the statute.  Looks like we won, right?  Not so fast! After saying that the government was wrong when using its 35-year strategy of getting convictions under the “one purpose” rule, the Panel then said that the one-purpose rule actually made it harder for the prosecution to win a conviction.  As a result, the Panel claimed that my client was not “harmed”, so his conviction should stand.  The opinion is here.

I am grateful that the Court saw the main legal issue our way.  However, I am highly disappointed about the application of the “harmful error” standard, and plan to ask the entire 11th Circuit to rehear the case.  I simply fail to understand how one side can ask for a rule for 35 years yet when the error of that rule is pointed out the party that wanted the erroneous rule was supposedly harmed.  The panel opinion basically says the government was fighting against itself for the past 35 years.  I don’t know about others, but I rarely see the U.S. government taking positions in court just so they can make their job more difficult.  Stay tuned, we are not finished just yet!

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