Mr. Kuninsky has defended numerous Medicare fraud cases. Medicare fraud by dollar value is the single largest fraud committed on the federal government. It may take many forms, but in the final analysis, it usually involves allegations that a doctor, clinic or medical equipment provider billed Medicare for services that were either never rendered or provided, or were rendered or provided but were unnecessary. The fraud usually operates by “marketers” obtaining the Medicare number and identifying information of a Medicare beneficiary. Sometimes the Medicare beneficiary is actually seen by a doctor or clinic, and sometimes just their Medicare number and identifying information is used to bill Medicare for services that were never performed. When the Medicare beneficiary is seen by a doctor, the examination is often short and perfunctory, and numerous expensive tests are ordered. These are then billed to Medicare at high rates. The government often alleges there was nothing wrong with the patient, and the tests were simply performed to bill Medicare. The government often presents testimony from the patient’s long time doctor, that the patient was in good health, and the tests were unnecessary.
This same “scheme” occurs with medical equipment providers, whether it is wheelchairs, orthotics, adult diapers or other medical products. Perhaps the largest by dollar volume is motorized wheelchairs. A doctor must certify that not only does a patient need a wheelchair, but also that they lack the ability to use a manual wheelchair. As a result, the government is billed for a very expensive motorized wheelchair. The durable medical equipment supplier then provides the beneficiary with an inexpensive “scooter”.
The defense in a Medicare fraud case usually involves finger-pointing among the Defendants. The doctors contend they were simply employees of a clinic, and had nothing to do with billing. The clinic owners contend they relied on the expertise of the doctor employees, and billed correctly for the services provided. And finally, the marketers contend they were simply “marketing” the services provided by the doctors/clinics, and were not part of any fraud.
Mr. Kuniansky has defended numerous child pornography cases in both federal and state court. With the advent of the internet and peer to peer file sharing programs (such as Limewire and Frostwire), child pornography is readily available and shared among those with a interest in viewing and/or collecting child pornography.
The government is unable to catch those creating child pornography, so they go after those collecting child pornography. The government has become very sophisticated in their methods of catching those involved in collecting. Photographs on a computer are similar to fingerprints. Law enforcement has “fingerprints” of known child pornography photographs that are distributed over the internet. These known photographs contain images of minors that have been identified by name and age. The government is able to use special software to scour the
internet for computers with peer to peer programs that contain these known images. The government is then able to determine the IP address for the computer and subpoena the internet service provider to identify the name and address of the account holder. The government then obtains a search warrant to search the residence (or office) and seize computers and hard drives. As a result, the government is able to know what child pornography images are on the computer before they even execute the search warrant.
When the government executes the search warrant, they question those present to determine who is the person using the offending computer. They then question that person and say, “We already know what is on the computer, and that you are the one using the computer. It will go easier on you if you just tell us why you are collecting those images.” In many cases, they obtain a confession.
If no confession is obtained, the primary defense utilized is that the Defendant was unaware of the images on the computer, which must have been downloaded by someone else that had access to the computer. A secondary defense is that the Defendant is not guilty of distribution (which carries much harsher penalties than possession), because he was unaware the default setting of the peer to peer program allowed for the images to be distributed.
The penalties for those found guilty of possessing and/or distributing child pornography are extremely serious. Often, much can be done to reduce the sentence through a sentencing memorandum setting forth reasons why the Court should give a lesser sentence than the harsh guideline range recommended by the Federal Sentencing Guidelines.
Mail Fraud/Wire Fraud
Mr. Kuniansky has prosecuted and defended over 100 mail and wire fraud cases. Mail and wire fraud encompass almost every type of fraud imaginable. The mail and wire fraud statutes are intentionally broad and define the offenses as “any scheme to defraud one of money or property by false representations”. Mail (including private delivery services) and wire (most often communications via computer) are only necessary to confer Federal jurisdiction. Thus, the mail and wire fraud statutes cover theft, embezzlement, “con man” schemes, investment schemes, Ponzi schemes, and every other type of fraud the human mind can conceive. One of the essential elements of the offense is that one had the specific intent to defraud. That is, they specifically intended to defraud somebody. In most of these cases the defense is, “I did many of the things the government says I did; however, I was acting in ‘good faith’ and never had the ‘specific intent to defraud’.”
Mr. Kuniansky first began handling criminal tax cases as an Assistant United States Attorney in Atlanta, GA in 1980. From 1980-1987, he prosecuted a variety of criminal tax cases including tax evasion, failure to file, tax protesters and the largest bribery case in the history of the IRS. From 1987-1992, Mr. Kuniansky worked at a premier large downtown Houston law firm defending clients charged with tax evasion and failure to file tax returns. In 1992, Mr.
Kuniansky started his own law firm, and from 1992 to present has defended virtually every type of criminal tax case imaginable.
Mr. Kuniansky has prosecuted and defended numerous drug cases. In fact, he was a Special Assistant United States Attorney assigned to the Presidential Drug Task Force in Miami, Florida during the “Miami Vice” days. As a result, he prosecuted some of the largest drug cases in the country at the time. For the past 28 years, Mr. Kuniansky has defended drug cases is federal and state court. Those facing federal drug charges are often shocked when they learn the penalties they are facing. Most drug cases in federal court carry a mandatory minimum of 10 years imprisonment to life imprisonment without parole. Obviously, very few are sentenced to life, however, many first time offenders do find themselves subject to a mandatory 10 year term of imprisonment (without parole, which has been abolished in the federal system). There are only 3 ways to avoid to avoid the mandatory minimum sentence where it applies (based on the type and quantity of drugs). The first, and obviously best, way is to obtain a not guilty verdict in a jury trial. The second way is to cooperate with the government and provide “substantial assistance” to the investigation or prosecution of others. The third way is only available to a limited number of Defendants. It is called the “safety valve” and requires the Defendant to meet five conditions: (1) the Defendant does not have more than 1 criminal history point; (2) the Defendant did not use violence or possess a weapon; (3) the offense did not result in death or serious injury; (4) the Defendant was not an organizer, leader, manager or supervisor of others; and (5) the Defendant has provided truthful information about the offense to the government (which does not require “cooperation”).
Bank and Mortgage Fraud
Mr. Kuniansky has defended numerous bank fraud and mortgage fraud cases. Bank fraud can encompass virtually any scheme to defraud a bank through false representations. It often involves making false statements to secure a loan. It is a federal crime if the bank is a federal bank or insured by the FDIC.
Mortgage fraud usually involves false representations made to a lender to obtain a mortgage. One of the more common schemes is for an individual to approach people with good credit (“straw buyers”) and pay them $5,000 or $10,000 to become an “investor” in a property. The straw buyer is led to believe that he is purchasing a property, but has no risk, because the individual will secure a tenant, and the rent will cover the mortgage payments. Usually, no tenant is obtained, or if obtained, the rent is insufficient to cover the mortgage. The property goes into default within a few months, and the straw buyer is left holding the bag. Often, these “schemes” also involve an appraiser who artificially inflates the value of the property, so that a mortgage is obtained for more than the property is worth. The perpetrator of the scheme often walks away from closing with a great deal of money, and then leaves the straw buyer holding the proverbial bag. These schemes are usually quickly uncovered because when the loan immediately goes into default, the lender reviews the loan to discover what went wrong. It doesn’t take long before the FBI is involved. These cases are prosecuted federally either because the lender is federally insured, or as wire fraud or mail fraud.
Mr. Kuniansky has handled dozens of appeals before the Fifth Circuit Court of Appeals, Eleventh Circuit Court of Appeals, Texas Court of Appeals and Georgia Court of Appeals. It is important to understand what an appeal is, and what an appeal is not. An appeal is not a higher court deciding guilt or innocence all over again. In fact, an appeals court hears no evidence. Rather, an appeals court determines whether the trial court judge made a serious error in a ruling that resulted in the Defendant receiving an unfair trial.
What does an appellate lawyer do? The first and most important step is to file a Notice of Appeal (and pay the filing fee) to perfect the appeal. Importantly, in the federal system, this Notice of Appeal must be filed within 14 days of the judgment (which is usually the sentencing date, or a day or two later when the judgment is actually filed with the clerk of court). The appellate lawyer then must order and make financial arrangements for the preparation of the court reporter’s transcript of the trial. A rule of thumb is that this transcript will cost approximately $1,000 per day of full trial testimony. After the transcript is completed, it is transmitted by the District Court Clerk along with the record of all pleadings filed and orders entered in the case to the Court of Appeals, and the attorney is sent an electronic copy of the transcript and the record on CD. This begins the running of the clock for the preparation of the Defendant’s brief (called the Appellant’s Brief). The attorney must carefully scour all of the pleadings, court orders and transcripts for any error that may have occurred during the case. The appellate lawyer then prepares a brief setting forth these errors, and arguing why the conviction and/or sentence should be reversed. This brief must be supported by carefully researched legal authority (“precedent”).
Reviewing a complex court record for errors, carefully researching the law and putting forth the arguments in a persuasive brief requires a great deal of experience and skill. In fact, it is an art form. Mr. Kuniansky has been doing this for 37 years.
State Criminal Cases
Over the past 23 years, Mr. Kuniansky has defended numerous Texas state criminal cases, including murder, assault, sexual assault, intoxication manslaughter, child pornography, theft, counterfeit goods, credit card fraud and identity theft, environmental crimes, prostitution, sexually oriented business offenses, obscenity, unlawful access to stored information (computer hacking), forgery, money laundering, insurance fraud, engaging in organized criminal activity and DWI.