305 371-8101

Doctor Convicted of Attempting to Evade Taxes Claimed Affidavit to Get Search Warrant Omitted Important Information

U.S. v. SRIVASTAVA, 2011 U.S. App. LEXIS 3309 (4TH Cir. 2011)

        Defendant, a doctor, who was convicted of attempting to evade taxes and making false statements on a tax return, sought review of a decision of the U.S. District Court for the District of Maryland, which denied his motion for a Franks hearing based on his contention that a government agent knowingly and intentionally omitted material information from his affidavit seeking a search warrant of defendant's offices.
     In finding that the agent's warrant affidavit did not contain knowing and intentional material omissions, the court found that the affidavit summarized the evidence concerning allegations that defendant's medical practice submitted false claims to health care benefit programs. In particular, the agent's affidavit established probable cause for issuance of the warrant by showing evidence of (1) billing for services not rendered; (2) billing for duplicative services through two different insurance plans; (3) listing inappropriate diagnosis codes on claims;  (4) billing for incidental services, which was charging for services that were already included in the primary diagnostic or treatment procedure billed; and (5) altering medical records.

        The court held that the record before the district court was not sufficient to establish the precise nature and timing of any tax advice the attorney gave defendants, and the district court was not obliged to conduct an evidentiary hearing to develop the record on that point. Such evidence would have been material as to whether the attorney rendered ineffective assistance of counsel and not as to whether defendants were guilty of willfully conspiring to defraud the government.

      A collateral attack pursuant to 28 U.S.C. § 2255 represented an appropriate procedural device to challenge the effectiveness of the attorney's representation and also provided an adequate remedy for defendants' conflict of interest claim.  The convictions were affirmed.

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