The FBI is a primary agency for investigating healthcare fraud and other federal crimes. It investigates potential fraud of both federal and private insurance programs. The FBI works under the supervision of the Department of Justice (DOJ) and often works in cooperation with the Health and Human Services-Office of Inspector General (HHS-OIG). While the FBI has historically had a greater focus on fraud related to government programs, it is now more actively involved in the Healthcare Fraud Prevention Partnership where it exchanges information with private payors. As a result, more and more FBI investigations result from private payor audits.
Discovering an FBI Investigation
Regardless of whether an FBI investigation is referred by the HHS-OIG or is provoked by a private payor, the investigation will usually progress for quite some time before the company or individuals under investigation become aware of it. Ultimately, you may receive a target letter sent by the DOJ informing you of the investigation. But more likely, you will be approached by FBI agents yourself or you will hear from business partners, employees (former or current), or friends that they have been approached by FBI agents. Agents may come to your home or place of business with a search warrant. You may also receive a grand jury subpoena which strongly suggests that you are being targeted by a federal investigation.
Initial Contact with FBI Agents
If you are approached by FBI agents, you must assume that you are the target of their investigation. Investigators may state or imply that you are just a witness or that they are primarily interested in someone else. This may or may not be true, but it is often used as a tactic to get incriminating statements and information from a target. You are not obligated to agree to be interviewed. And generally it is not in your best interest to do so. You may be concerned, and FBI agents may even suggest that it “looks bad” if you do not immediately agree to be interviewed. But you have a right to an attorney, and FBI agents generally already have strong opinions about whether you are a witness, subject, or target that do not depend on whether you agree to be interviewed. If you go into an interview unprepared, without knowing the subject of the interview, and without taking the time to review the relevant documents and remember the circumstances surrounding the conduct at issue, you may make statements are incriminating or inaccurate. Your attorneys may decide that a proffer is in your best interest, but they will weigh all the relevant factors before they do so. Your attorney can generally undo any harm caused by initial reluctance to speak with FBI agents, but it much more difficult to repair the damage caused by unrepresented communication with agents.
Take Action Now if You Are Under FBI Investigation
If you are under investigation by the FBI, that investigation is likely criminal in nature. Thus, you are at risk of receiving criminal charges, prison time, probation, or criminal fines. In many cases, the way a target acts during the course of an FBI investigation determines whether that person is charged at all. Therefore, the steps you take while the investigation is pending are often more important than the defense you put on at trial.
The FBI has a big advantage when you first learn of the investigation. They have likely been investigating you for months if not years. They may have access to your bank accounts or phone records. Your attorney will need to catch up in terms of understanding the historical and current facts. You should give your attorney as much time to do that as possible.
Protecting Yourself During an FBI Investigation
1. Do Not Talk about Your Case
You do not know who is cooperating with the government. Conversations may be recorded and even if they are not. Anyone you speak with (other than your attorney) may be called to testify against you. In addition, saying the wrong thing could lead to obstruction of justice charges that may carry penalties as severe as the underlying charges being investigated.
2. Avoid Social Media
The FBI may already have access to your social media accounts just like your communication records. You should not discuss the details of your case on social media, no matter how strict you set your privacy settings. Anything you post can be used against you. Posts of money or expensive luxury items are often particularly problematic.
3. Do Not Destroy Evidence
It usually does not work as the FBI often either already had access to the information destroyed or is able to reconstruct the information. More importantly, destruction of evidence can lead to new criminal charges and can support strong inferences about the content of the destroyed evidence. In fact, once you become aware of the investigation, you should terminate automated deletion processes to avoid the unintentional destruction of relevant evidence.
Hire an Experienced Federal Defense Attorney
Do not wait until criminal charges are filed to hire defense counsel. A defense attorney can assist you through the investigation and limit your exposure to criminal charges. The sooner you hire an attorney, the more likely you will be to avoid criminal charges. In addition, an attorney can help you avoid common mistakes that many targets make like lying to a federal officer or obstructing justice. Your attorney will take care of all communications with federal agents including responding to subpoena requests and will tell you if and when it is in your best interest to grant an interview with investigators.
If the FBI is investigating you, a federal law is at issue and any eventual charges against you will be brought in federal court. Federal court is very different from state court and you will need an attorney that is well versed in federal laws and federal procedures who has appeared in federal court. The right defense attorney will also explain to you how the investigative process works and what to expect. You want a lawyer who answers your questions about your case and one who listens and responds to your concerns. This means hiring a law firm that will not wall you off from attorneys with secretaries and whose attorneys are available to speak with you whenever you need them.
FBI Defense Attorneys Serving Your Area
- Nick Oberheiden has years of healthcare fraud defense experience, and has successfully defended doctors, pharmacies, laboratories, and healthcare business owners and executives against allegations of fraud, false claims, kickbacks, and prescription fraud, brought by the DOJ, OIG, CMS, IRS, FBI, DEA, DOD (Department of Defense), and other federal agencies. Dr. Oberheiden is trained in negotiations by Harvard Law School, and he received his Juris Doctor from UCLA School of Law as well as a PhD in law.
- Attorney Lynette S. Byrd focuses her practice on civil and criminal litigation, Medicare and insurance audits, and general advice and counseling in health care law. She is a former Assistant United States Attorney with years of substantial trial experience under her belt who merges excellent litigation skills with profound understanding of the law.
Schedule a Free Consultation with Oberheiden & McMurrey, LLP Today
If you are under investigation by the FBI, you can contact Oberheiden & McMurrey, LLP for a free and confidential consultation. Our attorneys are available seven days a week, even on weekends, to speak with you about how we may be able to help you with your case. Oberheiden & McMurrey, LLP represents clients across the country facing FBI investigations.