Plea for Leniency

Plea for Leniency

By David R. Corder

Associate Editor

A jury had just convicted Tampa personal injury lawyer Kenneth W. Mastrilli of charges he helped a part-time employee defraud the Social Security Administration of almost $55,000. Then the 12-member jury made an unusual request.

In a handwritten, signed note, the jurors asked U.S. District Judge Steven D. Merryday to show leniency on Mastrilli, 48, who will be sentenced next month. Not one juror thought Mastrilli conspired with former employee Deborah San Martin, 56, for his personal gain. They cited testimony that painted Mastrilli as a generous boss.

iHe appeared to be trying to assist Deborah San Martin to meet living expenses, which were difficult for her to do with her disability income,i the jurorsi note states. iHe made a grievous error in judgment but he did this to assist her, and this should be taken into account in terms of sentencing.i

Todd Foster, the lawyeris attorney, asked for a new trial. Mastrilli had testified he felt compassion for San Martin because of her health problems. He claims he gave San Martin petty cash as gifts, just as he has done for other employees in need of help.

Foster, a former federal prosecutor, contends the note proves the jury didnit think Mastrilli acted willfully, a critical point for a finding of guilt on the conspiracy charge. He calls the juryis action iunprecedented.i

iIt is obvious that the jury did not believe that the defendant possessed the requisite criminal intent to violate the law,i Foster states in court record. iThey specifically and unanimously found, as evidenced by their note, that the defendant emade a grievous error in judgment but did this to assist her.i i

But the plea didnit impress Merryday. He denied the motion.

Now Mastrilli faces up to five yearsi imprisonment each on one count of conspiring to defraud the United States and two counts of making false statements to the Social Security Administration, up to $250,000 in fines on each of the charges and three years of probation.

No matter how Merryday rules, however, the sentencing hearing tentatively scheduled for Jan. 12 is a bitter byproduct of a Justice Department investigation that first subpoenaed Mastrilli in April 1996 to a grand jury hearing. Even if Merryday goes easy on Mastrilli, the Florida Bar will ask the state Supreme Court for no less than a three-year suspension of his law license. In all likelihood, he will be disbarred.

Suggestion of revenge

The chain of events that snared Mastrilli apparently began about 10 years ago. Thatis around the time he and former law partner Carl C. Hinson separated over a business dispute at the Personal Injury Law Center PA.

Despite five volumes of court records, much of the details about the origins of this investigation are unclear. Hinson refused to comment about his involvement, and Mastrilli did not respond to a request for comment.

Sometime after Hinson left the law firm in October 1994, FBI agents interviewed him. In response to the interview, Moore ultimately granted Hinson immunity in exchange for his testimony against Mastrilli.

iCarl Hinson left the Personal Injury Law Center after Kenneth Mastrilli required Hinson to share with him the proceeds of three large settlements, which resulted from some of Hinsonis clients,i Moore wrote in a March 2 letter to Foster. iAs a result, Hinson hates Mastrilli.i

At trial, Mastrilli testified about an attorneyis lien he filed against Hinson and Tampa attorney R. Patrick Mirk. Following an appeal of a trial court ruling, Mastrilli settled with Hinson and Mirk for about $120,000 in fees that they claimed belonged to them. i(Hinson) said he was going to get me back someday,i Mastrilli testified.

Thomas A. Harris also provided FBI agents and federal prosecutors information about Mastrilli. Harris is the former owner and manager of Physicians Care Clinic Inc., a chiropractic office. Court records contain allegations that Harris paid patient referral fees to attorneys.

iOn March 29, 1999, Tom Harris stated to FBI Special Agent Barbara Madden and Clearwater Police Department Detective Simon Reina that he (Harris) paid all of Mastrilliis employees at one time or another for referring patients,i Mooreis letter states.

Federal authorities discovered that Harris, too, had fraudulently obtained Social Security disability benefits.

Prosecutors indicted Harris in May 1999, and he immediately negotiated a plea agreement. Instead of a possible five-year prison sentence, he was sentenced to three yearsi probation and ordered to pay almost $30,000 in restitution.

iDefendant Harris has provided substantial assistance to the United States by cooperating truthfully with the United States in its investigation of health care fraud in the Middle District of Florida,i Moore stated.

For almost four years, Moore shielded Harris from public examination. The court sealed Harrisi criminal file upon his indictment. In June last year, the court unsealed it at Fosteris request.

Foster suspected Moore planned to use information from Harris on cross-examination of Mastrilli as means to impeach his testimony.

But Moore didnit call Harris after Foster raised questions about Harrisi credibility.

Foster referred in motions to a July 27, 1995 psychological report on Harrisi mental condition

iPsychological testing indicated that Mr. Harris would be diagnosed with long-standing (character) problems related to a histrionic personality disorder,i the motion quotes from the report. iSuch people are dramatic and manage conflict through denial and repression and control relationships through multiple symptom complaints.i

In May last year, Mastrilliis defense team interviewed Harris.

iHarris was asked if the government had asked him about Ken Mastrilli and Debbie San Martin,i Foster states in a motion. iHe said no. He said, eIim in bed all the time. Iim very sick. Iim on Xanax and Zoloft. Iid rather have Saddam on my ass than the FBI.i He said, eIim crazy.i i

It appears that even Harrisi son, Thomas W. Harris, questioned his fatheris credibility. In an affidavit filed in April this year, the younger Harris disclosed he took control of the chiropractic clinic in January 1995.

Loyalty, to a point

While Harris did not testify, San Martin did. In March this year, she pleaded guilty, without a signed plea agreement, to the same charges as Mastrilli. In fact, San Martinis attorney filed a notice in April this year that her client would assert her right to remain silent under the Fifth Amendmen.

The day the trial started on May 3, San Martin reached an agreement with Moore. If she testified, he promised, no testimony she gave at trial would be used against her, except for perjury or false statements.

About a month later, Merryday sentenced San Martin to 36 monthsi probation and ordered her to pay almost $55,000 in restitution to the government.

At trial, Mastrilli recalled how he rose from modest means and worked his way through Washington and Lee University. In 1982, he earned a law degree from the Cumberland School of Law.

Mastrilli testified that he frequently provided aid to his sister and grandmother, who raised him and his sister. He talked about how he helped his employees when they ran low on cash. Sometimes he loaned employees money to fix cars, buy furniture and pay for other needs. Thatis why he didnit think anything about helping San Martin, who struggled to raise two children while her husband served a prison sentence.

Mastrilli testified he never signed a Social Security form that claimed he paid her from $440 to $460 a month in compensation for her work as a part-time bookkeeper. Social Security allows disability beneficiaries to earn no more than $500 a month.

iI was extremely busy helping clients,i Mastrilli testified. iThatis what Iim in practice to do. O I thought I could trust her.i

On cross-examination, it was shown that Mastrilli introduced San Martin to his stockbroker so she could invest about $25,000 in settlement proceeds from an automobile accident. Mastrilli, who represented her, received 18% in fees.

iDid it cause you any question that while you were helping Ms. San Martin pay her medical bills she had an account with the same stockbroker you had?i Moore asked Mastrilli.

Mastrilli replied: iI didnit know she had one or the amount in it. And, no, it didnit affect my decision to help her.i