A former federal prosecutor and a Dallas-based criminal defense attorney received misdemeanor probation after pleading guilty to a scheme involving deleting text messages they were ordered to produce to the court.
When the scheme was uncovered, federal authorities dropped charges against three men accused of conspiring to defraud the government of over $107 million after allegedly submitting fraudulent genetic testing claims to Medicare. The case was dismissed with prejudice, meaning the charges cannot be refiled or re-prosecuted.
Carlos A. Lopez, 48, who was the lead prosecutor in the Medicare fraud case, was sentenced to one year of unsupervised probation and a $5,000 fine for the unauthorized disposal of government records.
Barrett Howell, 50, was sentenced to six months of unsupervised probation and a $2,500 fine for aiding and abetting the unauthorized disposal of government records. While representing his client, Howell was accused by two defendants of violating a joint defense agreement by providing privileged joint defense information to Lopez.
The U.S. district court granted the discovery request to produce all communications, including text messages, between Howell and Lopez. After the order, Lopez deleted the text messages between himself and Howell from his government-issued cell phone.
Contacted by Lopez, Howell wiped the messages on his own phone but later recovered them from his cloud and produced them to the court.
U.S. Magistrate Judge Jeffrey Cureton, who sentenced Lopez and Howell, said the misdemeanor punishment was adequate for the crime and not a “slap on the wrist” with both already having had their bar licenses suspended.
“I hate to see you here,” Cureton said. “… I don’t think this defines you, and I don’t think this will define you.”
Both Lopez and Howell apologized to Judge Cureton, colleagues and families in attendance for their actions.
“I accept full responsibility for my actions,” Lopez told the court. “As an attorney and federal prosecutor and human being, I should have been better.”
Lopez, who resigned as a prosecutor, told the court he had been dealing with “stress and mental health issues” and on medication for depression and insomnia, though he wished to be held accountable for his actions.
He said he “undermined and broke the trust” of his colleagues and “wasted the time of the court as well as agencies” who had worked up the federal Medicare fraud case.
“I’m sorry,” he said. “I apologize to my parents, brother and sister. As the oldest, I was to set an example to them. I’m sorry.” Lopez also apologized to his wife, daughter and son. “I put their financial future in jeopardy.”
“When you break a rule and do wrong,” he said, “you have to redeem yourself. I know that I continue to believe in the rule of law and this country. God bless America.”
Howell told the court that he “would do anything to rewind the tape” and that his actions have had “huge consequences.”
“I’m sorry and ashamed to be here,” he said. “… I know what I did was a horrible mistake and a lax of judgment.”
“I have damaged my legal reputation,” he said. “ … There will be a stigma, an albatross around my neck, and I will spend the rest of my life rebuilding my reputation.”
His attorney, David Gerger, said Howell has been performing community service by sorting food at the North Texas Food Bank — though Judge Cureton said it is no longer required under the terms of unsupervised probation.
Gerger said Howell’s parents, brother and fiancée were in attendance. Due to his suspended license and lack of income, Gerger asked the judge to be lenient on any fine.
“We are grateful that a fair and independent judge looked at all the facts and circumstances — and we are relieved for our client,” Gerger said.
Asst. U.S. Attorney Matthew R. Payne said he doubted either defendant would commit other crimes. However, he said the convictions will put both of their law careers in jeopardy.
Payne said Lopez’s actions, specifically, “eroded the trust” of the Department of Justice.
Charged with misdemeanors, both Lopez and Howell faced a maximum term of imprisonment of one year, a fine not to exceed $100,000 and up to three years of supervised release.
Judge Cureton, the prosecutor, and defense attorneys called the sentences satisfactory. Others, however, disagreed.
“I’ve never seen a sentence like this in 44 years of practicing law,” said Dallas attorney Dan Hagood, who represented one of the three defendants charged in the alleged Medicare fraud case that was dismissed.
Hagood called the misdemeanor sentences “a slap on the wrist” to “officers of the court who impeded an investigation.”
“I respect the judge, and I respect his sentence,” Hagood said. “But if you look at other DOJ sentences, no one else got this.”
Instead, he said the two defendants, in particular, Lopez, should have faced a felony charge. “An officer of the court needs to be held to a higher standard,” he said.
Hagood said a comparison of at least eight other federal cases involving “nearly identical offense conduct” revealed “an undeniably disparate treatment.”
Lopez and Howell were charged with misdemeanors, rather than felony offenses of destruction of records, obstruction of justice and conspiracy charges, which carry more severe penalties, including incarceration.
He said the record shows that Lopez made “a repeated effort to hide” the deleted text messages, which compounded the severity of the crime.
Hagood also referenced remarks by former Chief District Judge Barbara Lynn when she first found out about the deleted texts in 2023 after she ordered them to be produced.
“Suffice to say, what I am hearing is, on the 1-to-10 scale of outrageousness, probably an 11,” Lynn had said.
In a joint victim impact statement filed by Hagood’s client, John Grisham, and another clinic partner, Rob Wilburn, recommended that more severe penalties be imposed: up to a one-year prison sentence, a $100,000 fine and supervised release. The statement said a prison sentence was “particularly vital” for Lopez.
The joint victim statement by Grisham and Wilburn said that “the deleted records case presents a prime example of precisely the sort of ‘difficult to detect’ offense, which must be met with a truly meaningful sentence whenever prosecuted.”
Although Hagood said he and his client, Grisham, have not seen the deleted texts, the impact statement claimed the recovered text messages may contain something revealing.
“It is simply inconceivable that the Defendants would have gone to such desperate lengths to prevent disclosure of their text messages if they really don’t have anything to hide,” the statement said. “Obviously, there is something lurking behind those text messages which the Defendants must have determined poses an even greater risk to them than the potential criminal consequences of deleting the text messages.”
“Why the Government seems to have chosen not to make any effort to determine what exactly it is that the Defendants were so desperate to hide is puzzling,” the statement said.
Mike Uhl, Lopez’s attorney, said the text messages that he’d seen produced had nothing revealing.
“Carlos made a terrible mistake,” Uhl said. “He’ll pay for it the rest of his life. We think the sentence was appropriate because none of the deleted text messages were a “smoking gun” about the underlying health care fraud case. The majority of the text messages were simple chit-chat between two friends, talking about getting a drink, having dinner, asking about kids, etc., just like friends do all the time.”
Asked why Lopez deleted the messages if unimportant or did not contain a “smoking gun.”
“Great question, and there is not a good answer,” he said. “It defies logic. People do stupid things all the time.”
Uhl also disputed Hagood’s claims that the sentence was out of line with other cases nationally. He said his review of federal cases involving prosecutors with similar crimes like Lopez showed many weren’t even prosecuted.
“You will see that the majority of cases were not prosecuted,” he said. “The former employees were allowed or forced to resign, and their conduct was reported to their respective bar organizations.
“The three that were prosecuted involved cases where the former employees financially gained or profited from their crime. So their prosecutions were consistent with DOJ general policy to prosecute cases where the defendant’s gained from their crime.
“Carlos’s case is the first, to my knowledge that a former prosecutor was prosecuted who did not gain from their crime,” he said.
Hagood, however, said he found it troubling that federal prosecutors would gain leniency when “average Joes” seldom receive it.
“When the shoe is on the other foot, federal prosecutors rarely or, at best, infrequently recommend probation,” he said.
Grisham, Wilburn, and Richard Speights Jr. had their charges dismissed after it was discovered that the text messages had been deleted. The three men allegedly owned and operated Trinity Clinical Laboratories, a genetic testing laboratory in Lewisville, Texas, from January 2018 to October 2019.
Since their fraud case was dismissed, Grisham and Wilburn have sued Howell, a coworker, and the law firm Katten Muchin Rosenman for undermining the joint defense agreement. The lawsuit was filed in the Dallas County District Court.