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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16335
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hello. Today I went in to re-apply for foods stamps and I was

Customer Question

Hello. Today I went in to re-apply for foods stamps and I was informed that I was supposed to report my unemployment compensation as part of the household income. We have only been receiving food stamps for 5 months now, and the case worker informed me that someone from the OIG will be contacting me and that this is considered food stamp fraud. She said I would have to pay it all back and that this is considered a felony. I wasn't aware that my UI counted. I mentioned I would be able to pay it back without a problem. What type of trouble am I in, and if I immediately pay back the food stamps that our family has received, what could happen to me? I have never been in trouble before and I think at worst, I have a traffic ticket on my record. Thanks
Submitted: 3 years ago.
Category: Criminal Law
Expert:  DCrane Law replied 3 years ago.
Thank you for the post, if you immediately pay back the sum distributed to your, via your inadvertent error, it is unlikely any charges would be brought. From your description, it was an honest mistake as opposed to an intentionally omission with the desired effect of defrauding the government.
Customer: replied 3 years ago.
Even though you mention that it was an honest mistake, the case worker mentioned that the application clearly states that Unemployment is considered a source on income and must be reported. Can that be held against me? Should I go ahead and contact the OIG here in Dallas,tx, or should I wait for someone to contact me? I am terrified and am not sure what else to do since I an not afford an attorney. Thanks
Expert:  DCrane Law replied 3 years ago.
Hello, while it technically can be held against you. I am suggesting that it is unlikely in this case. You should make arrangement to repay the money before being contacted by OIG.
Customer: replied 3 years ago.
Relist: Answer quality.
Expert:  DCrane Law replied 3 years ago.
Hello, your situation is what the OIG considers a "client misunderstanding overpayment" (see http://oig.hhsc.state.tx.us/enforcement/gis.aspx) and is not considered "Intentional Program Violation Overpayment." This is why I was suggesting you would not likely face penalty. Feel free to contact OIG at (NNN) NNN-NNNNto confirm.
Customer: replied 3 years ago.
Relist: Answer quality.
Expert:  DCrane Law replied 3 years ago.
Hello, I want you to be completely satisfied. In order to arrive that that, I need to know what answers you seek that you did not receive. Can you give me an idea of how the quality of the answer is unsatisfactory? I am happy to expound but need to know what you would like to know.
Customer: replied 3 years ago.
Well, besides mentioning that the situation is what the OIG considers a "client misunderstanding overpayment", wouldn't I still end up facing a state jail felony charge? By what I have been reading on the OIG website, even If I pay restitution, I could still face charges. I really just want to know what would happen, or what type of penalties I could potentially receive, given the fact that I will pay them back. Does offering to pay them back admit my guilt regardless of whether I knew to report the income or not?
Expert:  DCrane Law replied 3 years ago.
No, you would not. The OIG would be the body to initiate that and the OIG would not likely find cause to do so here. Offering to pay the money back is not admission of guilt in the criminal sense, it is an attempt to rectify an unintentional error. Intent is the crux of the issue. If you intended to defraud them, then the criminal penalties would likely apply, but you did not intend any fraud and are voluntarily contacting them to rectify the matter.
Customer: replied 3 years ago.
The only thing about that is that the OIG is stating otherwise. I spoke with someone who said that even though I am offering to pay them back, the fact that I was supposed to report my unemployment was my responsibility and considered fraud, and that they would gather the evidence needed and refer the case over to the DA.
Expert:  DCrane Law replied 3 years ago.
Hello, fraud technically requires the intent to deceive another and become unjustly enriched as a result. While I of course cannot guarantee any outcome, it is unlikely the DA would take the time to prosecute this.
Customer: replied 3 years ago.
Relist: Answer quality.
Expert:  Zoey_ JD replied 3 years ago.
Jacustomer,

Yes you can be prosecuted for fraud, even if you make arrangements to repay the money. That's because paying back the money doesn't make the illegal act go away and it's always in the government's interest to discourage benefits fraud. The matter will almost certainly be turned over to the DAs Office, and it would be up to them to determine whether or not to prosecute you.

The standard for an arrest and a prosecution only requires probable cause -- a reasonable belief that a crime may have been committed and that a particular person might have committed it. A conviction is something else again, as a conviction requires proof of guilt beyond a reasonable doubt, but what you did would be enough to make out probable cause. If it's specifically noted on the application that you must declare unemployment insurance payments as income and you did not do that and thus received benefits that you would not be entitled to if you'd filled out the application correctly, this could reasonably make someone think that the mistake was deliberate dishonesty. That's probable cause in a nutshell.

That's the bad news. The good news is that this would be a state jail felony in Texas and would be one for which probation would be available. In my experience while the state does want a defendant to be sanctioned for what they've done, what they want most is their money back, and what they'd want least, is to have to lose more money paying for this person to stay in jail. So the standard offer on a benefits fraud case, assuming you have no prior felony convictions, is almost always no worse than a probation offer, with restitution (the paying back of the money). These days, it's even possible (though I can't say how likely) for a defendant to also get a deferred adjudication with probation. That would allow you, if you completed your probation successfully, to apply for non disclosure and thus not to have to carry the stigma of a felony conviction around with you.

Wait for the call to come. Don't be proactive by calling them before you have to because it won't change a thing. Meanwhile take the time to find yourself a local criminal lawyer. You don't have to retain him yet, but you might want to sit down and consult with one, because the second you are contacted about this, you are going to have important decisions to make about hearings and waivers, and paybacks and the like. You don't want to make any appointments or admissions without first letting a lawyer know exactly what you were told by the state and having him explain exactly what all of your rights are. You are going to have to pay this money back one way or the other, and a defense of mistake to the criminal charge is probably not going to be a winner if it's stipulated on the application that you must declare unemployment as income. But that doesn't mean you want to make a bigger mess for yourself than you need to. So having a lawyer lined up is a good thing. You can get a low priced ($50 or less) referral for a half hour consultation with a member of the Texas criminal bar in good standing by contacting the Texas bar association's Lawyer Referral Service. You would not have to retain the lawyer until you needed him, and then, only if you wanted to, but you'd at least know youd have someone at hand familiar with your case that you could reach out to quickly.

Good luck.

Edited by FranL on 9/4/2010 at 2:54 AM EST
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16335
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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