The BLT: The Blog of Legal Times

D.C. Doctor's Prison Sentence Reduced After Appeals Court Victory

A doctor who was tried and convicted on charges on fraud charges in a health care prosecution will serve less time in prison than he initially thought.

The doctor, Ehigiator Akhigbe, charged in Washington federal district court, will serve 33 months behind bars, not 53 months, which was the original sentenced imposed in the case.

Over the summer, the U.S. Court of Appeals for the D.C. Circuit vacated the 53-month sentence, saying the trial judge, Sterling Johnson Jr., visiting from Brooklyn federal district court, did not satisfactorily explain why he tacked on a year above the top of the advisory guideline range.

The range was 33 months to 41 months. In his ruling, Johnson said a sentence above the guidelines will promote respect for the law. The appeals court said Johnson’s oral and written justification was “clearly insufficient.”

Akhigbe’s lawyers, including Veronica Jennings of Washington’s Schertler & Onorato, had asked Johnson to impose a 33-month sentence. Akhigbe, 58, has already spent more than a year in federal prison.

Jennings told Johnson that 33 months is sufficient punishment and that Akhigbe has already demonstrated a commitment to rehabilitation.

“We are extremely gratified that Judge Johnson granted our client a 20 month reduction in his sentence,” Jennings said in an e-mail. “We believe the court's decision appropriately considered a number of mitigating factors that supported such a substantial reduction.”

Akhigbe submitted false claims to Amerigroup Corp., which had a contract with the D.C. Medicaid program to provide health services to low-income residents here.

An assistant U.S. attorney, Lionel Andre, wanted Akhigbe sentenced at the high end of the advisory guidelines.

Akhigbe’s conduct, Andre said in court papers, “involved continued and deliberate abuse of the public trust by repeatedly gaming the D.C. Medicaid system to personally enrich himself.”

Andre said Akhigbe “personally prepared and submitted hundreds of false Medicaid claims over a number of years for medical services that he never performed” on patients. The prosecutor said Akhigbe was more concerned about profit than taking care of the needs of his patients.

At the time of the original sentencing, U.S. Attorney Ronald Machen Jr. heralded the 53-month sentence, saying "it sends a clear message to those who abuse the health care system that the price they pay for their fraudulent conduct may be the loss of their liberty for an extended period of time."

Former Hatch Staffer to Lobby for International AIDS Vaccine Initiative

Updated at 4:51 p.m.

A Washington lawyer who worked for Sen. Orrin Hatch (R-Utah) notified Congress on Friday that he is lobbying for a New York-based nonprofit organization that develops preventative HIV vaccines.

Kevin McGuiness, who is a former chief of staff to the senator, is advocating for the International AIDS Vaccine Initiative. He is looking to obtain federal funding for vaccine research, according to a lobbying registration filing.

McGuiness, principal of Kevin McGuiness PLLC, said he is happy to have the opportunity to lobby for the organization.

"It's very exciting," he said.

An Initiative spokeswoman didn't immediately respond to a request for comment.

The organization paid public affairs consultant Meredith McGehee $50,000 for lobbying she did for it during the first eight months of this year, according to congressional records. McGehee was the only lobbyist registered with Congress this year to advocate for the group before she stopped lobbying for the organization in August.

McGuiness is the second lobbying hire the organization made this year. Palmetto Group also submitted paperwork this month to Congress to lobby for the group.

The Initiative, which was founded in 1996, collaborates with more than 50 institutions to create and evaluate potential HIV vaccines, according to the group’s Web site. The organization and its partners have made 21 potential HIV vaccines. Of those candidates, a dozen are undergoing early-stage human trials.

Court Upholds Disgorgement Order In SEC Enforcement Action

A federal appeals court in Washington has upheld as lawful a judge's ruling that a Houston businessman must pay about $1 million for his role in a national stock price manipulation scheme.

Federal securities regulators alleged the businessman, Peter Cahill, participated in a "pump-and-dump" scheme in which shares of a Texas-based oil and gas exploration and production company were artificially inflated through thousands of false and misleading phone calls.

The U.S. Securities and Exchange Commission filed civil charges against Cahill and others in 2005 in Washington federal district court. U.S. District Judge Rosemary Collyer last year ordered Cahill, who controlled Clearlake Venture Group, to disgorge the money he made in selling the shares.

Cahill’s lawyer, King & Spalding partner Russell Ryan in Washington, said the case presented a chance for the D.C. Circuit to clarify the limits on disgorgement in civil enforcement actions. Cahill consented to judgment against him in the SEC enforcement action. He did not admit or deny the allegations in the complaint.

The disgorgement order, Ryan said, was unfairly punitive because it held Cahill accountable for money he transferred to co-defendants. Ryan also argued the trial judge did not account for the pre-fraud value of the stock.

But the appeals court, in its unanimous ruling, said there was no reliable pre-fraud value of the shares. Chief Judge David Sentelle heard the case with judges Judith Rogers and Janice Rogers Brown. Rogers wrote the opinion for the court.

In the court’s ruling, Rogers noted that Cahill, citing his right against self-incrimination, did not offer evidence to rebut the SEC’s presentation of the value of the shares at issue.

The SEC’s Nicholas Bronni, who argued the case for the government, said Cahill had the burden to show the gross proceeds from the sale of the shares. It remains unknown, the SEC argued, what happened to the money after Cahill transferred it into a lawyer’s trust account.

Ryan, who practices in special matters and government investigations, was not immediately reached for comment this afternoon.

In the appeals court, Ryan argued that joint and several liability was inappropriate. He said Cahill did not have both a close relationship to other alleged conspirators and did not collaborate in the misconduct. Ryan said that, at the very least, a close relationship among participants is needed to impose joint and several liability.

Pointing to other circuits, the D.C. Circuit, which grappled with the issue for the first time, said when it comes to disgorgement, either a close relationship or collaboration is required. Not both.

“His approach would allow strangers who collaboratively engage in a fraudulent scheme in violation of the securities laws to escape joint and several liability merely because they were unrelated by blood or marriage or did not have the same employer,” Rogers said in the appellate ruling.

Cahill, the appeals court said, had the burden to establish why the disgorgement order should be spread out among alleged participants in the stock price scheme.

Off-Duty Cop Can't Claim Immunity in Death of 14-Year-Old

An off-duty Metropolitan Police Department officer who shot and killed a 14-year-old boy in 2007 can't claim the immunity afforded to government employees acting in the course of their official duties, a Washington federal judge ruled (PDF) on Friday.

Charles Rawlings, the father of DeOnte Rawlings, sued (PDF) Officer James Haskel, a second officer and the District of Columbia in October 2007 in U.S. District Court for the District of Columbia. Haskel fatally shot DeOnte Rawlings in September 2007 while trying to recover his stolen minibike, and claimed that Rawlings fired first.

U.S. District Judge Paul Friedman granted the defendants partial summary judgment, dismissing claims of negligence and negligent training. He also dismissed a claim of assault and battery against Anthony Clay, the other off-duty officer who was with Haskel at the time.

Friedman denied summary judgment to Haskel and Clay on the charge of conspiracy to commit assault and battery, however. In most civil claims against government agencies, employees acting within the scope of their duties are protected against being charged as individuals, but Friedman said Haskel and Clay couldn’t ask for that same protection, Friedman said.

Haskel and Clay weren’t on-duty, never identified themselves as police officers and didn’t notify any on-duty officers that they were going to look for the missing bike, Friedman wrote. Both men were armed when they set out, the judge noted, and Clay had “specifically returned to his home to retrieve his gun.”

“While these facts may not overwhelmingly imply the existence of a conspiracy to commit assault and battery, they are probative, and the jury should be given the opportunity to assess the evidence,” Friedman wrote.

Charles Rawlings disputes that his son was carrying a gun – no gun was recovered on the scene – so Friedman said it will be up to a jury to decide whether Haskel was the instigator or whether he was returning fire.

Rawlings’ attorney, Washington-based solo practitioner Gregory Lattimer, said in a phone interview Monday that he is disappointed he won’t be able to present the negligence claims to a jury, but is preparing for trial on the remaining charges.

“Qualified immunity does not protect an officer who clearly violates the law or is incompetent,” Lattimer said.

The city’s Office of the Attorney General, which is representing all of the defendants, did not immediately return a request for comment.

D.C. Judicial Nomination Commission Releases 40 Years of Data

The District of Columbia Judicial Nomination Commission announced this morning that it was releasing 40 years worth of information (PDF) on attorneys recommended to the White House as local judges.

The commission, which was set up by Congress in 1973, sends three names to the White House from among the attorneys who apply for vacancies on the District of Columbia Superior Court and District of Columbia Court of Appeals. The commission’s proceedings and records are confidential.

As in the federal courts, the president nominates an attorney for consideration by the Senate. Unlike the nominating process for federal judges, who testify before the Judiciary Committee, local selections go before the Senate Committee on Homeland Security and Governmental Affairs.

Besides the names of recommended attorneys, the report includes whose seat was filled, when the names were sent to the White House, which president made the selection and which attorney was ultimately confirmed to the position. It also lists chief judge designations for both courts over the years.

According to a press release, the commission now intends to issue an annual report on its recommendations.

The commission’s chairman, U.S. District Court Judge Emmet Sullivan, was not immediately available for comment. Sullivan and the other six sitting members have been credited with making the nominating process more transparent in recent years and, in addition to the names of recommended attorneys, began releasing the names of all applicants for each judicial vacancy in 2008.

This Week in The National Law Journal

The Minority 40 Under 40: These lawyers were all born in the 1970s, a decade when law schools and law firms were just beginning to welcome minorities in significant numbers. Their thriving careers — at law firms and in government, academia and public interest — attest to the greater opportunities available to them, as well as to their talents.

Hips Will Be Huge Next Year: Plaintiffs attorneys are predicting that lawsuits related to a recalled metal hip replacement device will increase in the coming year. More than 3,500 suits have been filed and there are an estimated 93,000 patients worldwide who have had the device implanted. Amanda Bronstad reports.

DOJ Suffers Defeat in Rails-to-Trails Cases: The U.S. Department of Justice has suffered a string of recent defeats over compensating landowners for the conversion of old railways into public trails, potentially exposing the government to millions of dollars in liability. Mike Scarcella reports.

The Influence 50: The National Law Journal's annual lobbying report about the 50 highest-grossing lobbying practices. Collectively, firms brought in $1.1 billion in 2010. Hat tip to Andrew Ramonas.

In D.C., Judges' Backgrounds are Changing: Zoe Tillman reports on the judges confirmed under President Barack Obama who have worked for nonprofit civil service or with public defenders offices.

The Morning Wrap

October Snow: The Northeast received an early taste of winter over the weekend, The New York Times reports. A fall snowstorm left more than three million people without electricity Sunday.

Pig Case: The U.S. Supreme Court this week will take up a case between the pork industry and California over what to do with pigs that cannot or refuse to walk when they come to a slaughterhouse, the Los Angeles Times reports.

Fast and Furious: U.S. Attorney General Eric Holder Jr. will appear before the House Judiciary Committee in December to testify about the botched gun operation called Fast and Furious, Politico reports. “I am looking forward to Eric Holder coming to testify in front of House Judiciary,” Committee member Rep. Steve King (R-Iowa) said. “I expect that the questions will come fast and furious."

Law Firm Allegations: Former Nixon Peabody partner David Tamman is alleging in a suit he filed last week that the firm made him a scapegoat in a Securities and Exchange Commission probe of a former client, The Am Law Daily reports. The firm said in a statement that it "has acted completely appropriately in cooperating with the SEC on this issue."

Population Milestone: A newborn in the Philippines is one the babies who symbolically brought the world population to 7 billion people, the Associated Press reports.

Former DOJ Lawyers Back Romney

Republican presidential hopeful Mitt Romney is adding to the list of former high-ranking government lawyers who support his campaign.

The campaign announced today the endorsements of former attorneys general William Barr and Michael Mukasey, former deputy attorneys general George Terwilliger III and Mark Filip and former DOJ Criminal Division chief Alice Fisher.

As The National Law Journal reported in July, Romney has put much more effort than his rivals into winning the support of lawyers who served in past Republican administrations. In August, his campaign named the members of a “Justice Advisory Committee” led by former solicitor general, judge and failed Supreme Court nominee Robert Bork.

The campaign released a statement attributed to the five additional lawyers: “Mitt Romney deeply understands the importance of maintaining the integrity of our laws and vigorously enforcing them. His record as Governor demonstrates his commitment to the security of the people he is charged to defend and to the rule of law as the basis of a free society. We look forward to advising Governor Romney and we are proud to support him.”

Four of the five lawyers are in private practice: Mukasey as a partner at Debevoise & Plimpton; Terwilliger as a partner at White & Case; Filip as a partner at Kirkland & Ellis; and Fisher as the D.C. managing partner at Latham & Watkins. Barr is formerly of counsel to Kirkland.

Remember That $16 DOJ Muffin? Not So Fast.

Back in September, the U.S. Justice Department took a lot of heat for reportedly spending $16 on muffins at a conference.

The department's internal watchdog, the Office of the Inspector General, noted the $16 muffin price in a lengthy report that scrutinized DOJ conference expenses, right down to the cost-per-ounce of coffee.

Critics assailed the department for wasteful spending. A Washington Post reporter went on a hunt for a $16 muffin.

After the publication of the report, the Justice Department said it received more information about the food and beverage costs for the conference in question, held by the Executive Office for Immigration Review at the Capital Hilton. Hotel representatives at the time publicly denied the muffins were $16 each.

Now, the OIG has issued a revised report, striking the $16 muffin. The OIG’s explanation:

“After further review of the newly provided documentation and information, and after discussions with the Capital Hilton and the Department, we determined that our initial conclusions concerning the itemized costs of refreshments at the EOIR conference were incorrect. We therefore deleted references to any incorrect costs and revised the report based on these additional documents and information.”

Representatives from the hotel, according to the revised OIG report, produced documents that showed individual refreshment items were not as expensive as DOJ initially reported. Apparently DOJ investigators did not have those documents at the time the first audit was published.

The Executive Office for Immigration Review confirmed with the inspector general's office that it had the same documents the hotel had provided. "The EOIR stated it inadvertently did not produce these documents to us during the audit," according to the report.

Cynthia Schnedar, the acting inspector general, said in the preface of the newly revised expense report that “we hope our correction of the record” for one of 10 conferences included in the report “does not detract from the more significant conclusion” that DOJ expenses must be more carefully managed.

Former D.C. Magistrate Arlene Robinson, 72, Was 'Tireless Advocate'

Former D.C. Superior Court Magistrate Judge Arlene Robinson, 72, died Oct. 26 at the Washington Hospice in the District.

Robinson was appointed to Superior Court in 1994 and chaired the court’s Mental Health Commission, which determines whether mentally ill people meet the criteria for commitment to the mental health system, according to a D.C. Superior Court press release.

“Arlene was a quiet, forceful and tireless advocate for children, families and vulnerable adults as an attorney, as a magistrate judge and as a long-time resident of Washington,” said D.C. Superior Court Chief Judge Lee F. Satterfield in the release. “Her work transformed the way that the most vulnerable in the District experience justice.”

Robinson retired in 2002. From 2006-2010, she served as acting chair to the District of Columbia Board of Social Work. She also served as an independent contractor for the Justice Department’s Public Safety Officers Benefits Program. She was diagnosed with gall bladder cancer in August 2010, according to the release.

Prior to her service as Superior Court magistrate, Robinson was in the Peace Corps, taught at the University of the District of Columbia, worked in the D.C. Office of Corporation Counsel and was a founding member of the District of Columbia’s Safe Shores Children’s Advocacy Center, according the release. She earned her J.D. from Howard University School of Law.

Robinson is survived by her husband of 44 years, William; her two daughters, Anne Elizabeth Robinson of New York, NY, and Cynthia Robinson-Rivers of Washington, DC, and her son, Reginald Robinson of Washington, DC; her four grandchildren; and two sisters and one brother.