Federal Anti-Kickback Statute
The federal Anti-Kickback Statute (Title 18, United States Code, Section 1320a-7b) is intended to prohibit financial incentives from affecting referral decisions. Still, there are many complexities and nuances that the government can overlook in the course of its investigations and cases. Many people think they understand the Anti-Kickback Statute, but the government’s view is far broader than what many people think. The AKS is not limited to doctors or medical professionals but can apply to businesspeople and marketers.
The AKS covers all forms of payment – not just envelopes full of cash but other financial incentives that can influence a referral decision. Whether the government is correct or not, a person should not be charged with or convicted of violating the Anti-Kickback Statute unless the government can prove beyond a reasonable doubt that the person understood that their conduct was illegal. This " willfulness " element can be a crucial part of a case involving Anti-Kickback Statute violations. Willfulness is defined slightly differently in the pattern of jury instructions used by some federal circuit courts. Still, the government has to prove beyond a reasonable doubt that the defendant knew what he or she was doing was illegal.
While the government does not have to prove that an individual knows the particular statutes that he or she violated, the government has to prove that the individual knew that their conduct violated some law. Prosecutors and defense attorneys sometimes overlook or underestimate the complexities of this element, mainly since one circuit defines 'willfully' in a legally incorrect way in its jury instructions.
Stephen carefully evaluated this issue as a prosecutor and declined to prosecute people who did not know that their conduct was illegal, even if they arguably could have known or should have known better. He even dismissed a charge brought by another prosecutor after he determined that the proof of willfulness was insufficient and relied too heavily on something out of My Cousin Vinny.
As a defense attorney, Stephen can help defend people facing investigations for conduct they did not know was illegal at the time. This involves more than simply cross-examining government witnesses. This involves preparing a client for testifying and developing evidence to corroborate that testimony.
Contact Stephen Lee Law for Legal Guidance on the Federal Anti-Kickback Statute.
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