Attorney Brandon N. McCarthy said he was perplexed when his client, retired Dr. David Wolf of Houston, was indicted on an alleged kickback scheme that was ultimately dismissed against 10 doctors.
“This was perplexing as my client was 81 years old and had retired from medicine over half a decade ago,” McCarthy said. “He had a 50-year career as a doctor with a perfect record. No medical board issues. No criminal record.”
“My first thought was, ‘What in the world are they doing?’” he said. “Mind you, I had been a federal prosecutor in this very office, working fraud cases in this exact same department from 2007 to 2015.”
McCarthy, with Katten Muchin Rosenman, told The Texas Lawbook that he, along with attorney Rachel Riley, spoke with prosecutors.
“So, I went and met with the prosecutors, thinking that might help. It did not.”
“We argued first that he was innocent,” McCarthy said. “We also argued that the statute of limitations had run, even if he were not. I also sprinkled some policy arguments there about what possible good it does for society to lock up an 81-year-old doctor for the rest of his life. Die in prison over this? Are you kidding?
He said their response was that Wolf had purchased $10,000 worth of stock, a one percent share in a company that “he did not run and had never been to.”
“Yes, seriously. I started to wonder if all my stock purchases on NASDAQ would suddenly land me in prison for companies I know nothing about. Would my Tesla stock suddenly land me in the slammer for a life sentence like Dr. Wolf? Yikes.”
McCarthy said the indictment was troubling because the star witness, a long-time friend of Wolf, made 90 percent of the money.
“There was no evidence my doctor had any idea what his ‘friend’ was doing, but he got charged nonetheless,” McCarthy said. “Why, you may ask? Guess who cut a deal with the government and was serving all these unsuspecting doctors up as indictment fodder — the charlatan was the government’s star witness.”
McCarthy said he spent time with his client, studying his character.
“Then I traveled to Houston to step into the shoes of my client,” he said. “I walked the streets of Houston and went in and out of the homeless medical clinics for hours on end. I dodged as my old doctor bent down to treat nasty wounds and feet. He handed out free tennis shoes to the homeless who came to all the clinics.”
“We would drive from one homeless clinic to another. To my surprise, he had a clip of one-dollar bills attached to his visor. And every time he would see a homeless person, he would hand them money.”
“I ate with his wife and kids. I met his staff. I met his disadvantaged patients. At the end, I was ready. No way was I letting DOJ convict this man. In my 26 years in criminal law, I have seen a lot of guilty people. But standing before me was the most innocent man I had ever encountered.
McCarthy said he “dug in.”
“I took the case to the Gerry Spence Trial Academy in Wyoming. And for three weeks, 12 hours a day, six days a week, I lived on the ranch with 60 other lawyers. I worked on this case day and night. I had multiple mock juries made up of other lawyers. We tweaked it. Attacked it from every angle. Worked every conceivable argument we could think of.”
McCarthy said he and his colleagues representing various doctors “plowed forward.”
“Some [doctors] pled guilty just because they were terrified or could not afford to defend themselves, but we were not. That was not an option for us. Little did the government know that every mock jury in my last week had walked my client.”
Despite the “odds” of being successful in a federal case, McCarthy said he and his client were determined to move ahead to trial.
He said prosecutors may have overlooked that Wolf had formally withdrawn and sold his 1 percent share of the company, nor received any money for over five years before the original indictment.
“But given their inability to hear reason, I was going to save that little nugget for them on the last day of the trial.”
“So we fought.”
Their group of attorneys lobbied for a dismissal — though rarely granted, he said.
U.S. District Judge Karen Gren Scholer took note of the arguments.
“Defense attorneys typically just get ignored. She gave us a hearing. She was tough and fair. And she even chastised the government a bit for their sloppy job on the indictment.”
“She also asked them to take measures to fix mistakes by the previous prosecutors,” he said. “When they finally did, she set the case for another hearing. And we all prepped for that and for the jury trial — because motions to dismiss rarely get granted.”
He said he received a surprise from the DOJ the day before Valentine’s Day.
“This was surprising, as all they typically do is send me and my clients indictments, search warrants and armed men in slick jackets adorned with letters from the alphabet on them. But not this time.”
Case dismissed.
He said he immediately called Wolf, who, “despite facing life in prison for a crime he had no idea he had committed, was at the homeless clinic caring for a patient.”
McCarthy said he learned something that day.
“Even when you are faced with all the resources of the federal government, the might of the FBI, the brawn of the U.S. attorney’s office and the threat of life in prison pressuring you to ‘just plead,’ sometimes you simply must stand your ground. Even if you are a frail 81-year-old man.”
“The guy that made all the money and conned everyone was the star witness,” McCarthy said. “You can’t accidentally commit a felony. A lot of them got conned into entering this business.”
McCarthy said the doctors were talked into the partnership by the marketers.
“My doctor never set foot into Next Health or Altus. He had no idea how they ran the business. He was just a passive investor. The marketers were making 90 percent of the money.”
“It is terrible you can be indicted for felony for owning 1 percent of a company that you know nothing about,” McCarthy said.
He said he was especially perplexed, knowing his client was an 81-year-old retired doctor with a prior 50-year unblemished criminal and medical board record.
“It didn’t make any sense. It was a life sentence for him. It was horribly unsettling. Yet they would not offer anything other than prison time.”
McCarthy said there was nothing in the indictment alleging patient harm or unnecessary medical care. Also, his doctor’s prescribing habits did not change upon joining the partnership – something that might have changed if trying to bilk the system.