What Happened to Clinton Portis?
January 15, 2020
by Steve Thomas
Former Redskins star running back Clinton Portis and a number of other NFL players were recently charged in federal court with wire fraud, health care fraud, and conspiracy to commit wire fraud and health care fraud. Ex-Redskins Robert McCune and John Eubanks, along with Tamarick Vanover, Ceandris Brown, James Butler, Fred Butler, and Etric Pruitt, were also indicted. Ex-Redskin Carlos Rogers and Correll Buckhalter were separately charged with the same charges under a separate indictment.
The Scheme
The NFL’s 2006 Collective Bargaining Agreement established the Gene Upshaw NFL Player Reimbursement Account Plan, wherein the 32 NFL teams each put a certain amount of money annually into this plan for players who have the requisite number of vested years towards retirement. The point of this fund is to provide retired players with access to money necessary to finance certain medical care expenses, to include direct expenses that aren’t covered or aren’t fully covered by insurance, such as equipment, premiums, and co-pays. In the case of medical equipment, vested players can access these funds after retirement by obtaining a prescription from a doctor for the needed equipment, purchasing the item, and presenting the invoice to the plan administrator, CIGNA Healthcare, for reimbursement. This plan is limited by federal law to reimbursements for medical expenses by virtue of its tax-exempt status, which could be revoked if it ever reimbursed non-medical expenses.
According to the Portis indictment, between June 2017 and December 2018, Portis and the other conspirators allegedly prepared letters and prescriptions from non-existent doctors and invoices in their own names and in the names of other plan participants for medical equipment that was never actually purchased. The conspirators then allegedly submitted those materials to CIGNA and waited for reimbursement. When received, the reimbursed funds were allegedly then split up and paid via a series of bribes and kickbacks.
Allegedly, CIGNA eventually caught on to the scheme because some of the pieces of equipment for which reimbursement was requested were extremely expensive and made little sense in the context of the needs of the NFL players submitting the requests. They allegedly included such items as machines used for women’s health and equipment used on horses.
Carlos Rogers and Correll Buckhalter allegedly conducted essentially the same scheme, albeit separately from the McCune-Portis group.
What is most interesting in these indictments is the amount of money allegedly reimbursed. The Portis indictment claims that a total of $2.5M was paid by CIGNA, but the specific charges listed only add up to $406K. The Rogers – Buckhalter indictment claims that $1.4M was paid by CIGNA, but the charges only add up to $103K. Therefore, it seems likely more charges could follow in both cases.
The Charges
The Portis group indictment alleged 9 separate incidents, of which Portis was only charged with being involved in one. Portis was indicted for 1 count of wire fraud, 1 count of health care fraud and 1 count of conspiracy to commit wire fraud and insurance fraud. The ringleader of the Portis group’s scheme appears to be Robert McCune, who was named in all 9 incidents and charged with 9 counts of wire fraud, 9 counts of health care fraud, and 1 count of conspiracy to commit wire fraud and insurance fraud. In terms of potential sentences, the wire fraud and the health care fraud charges each carry a maximum 20 year sentence, and the conspiracy charge is subject to a maximum sentence of 10 years. Hypothetically, at least, this subjects Portis to 50 years in prison if, upon conviction, the court chose to assess the maximum sentence for each charge and then stack the sentences consecutively; however, in this case, there is no basis under the federal sentencing guidelines for either maximum or consecutive sentences. By stacking hypothetical maximum sentences for McCune’s charges in this same manner, he could hypothetically face 370 years in prison, although clearly there’s no basis for such a sentence.
For his part, Rogers was charged with 2 courts of both wire fraud and health care fraud, and 1 count of conspiracy to commit wire fraud and insurance fraud. This subjects Rogers to a hypothetical maximum of 90 years in prison, but like Portis and McCune, there’s no legal basis for such a sentence.
It is impossible at this point to assess the strength of the government’s case against any of these defendants, because the indictments are all that have been made public, and an indictment is just an allegation, not a recitation of facts and evidence. The public is not privy to any evidence yet. Portis, McCune, Rogers, et al, may be completely innocent of these allegations. That having been said, federal prosecutors have an amazingly high conviction rate, primarily because federal prosecutors (a) are very picky about the criminal cases they accept, and (b) have essentially unlimited resources, including the top investigative agency in the world, the FBI. So, while Portis and company are innocent until proven guilty and deserve to be treated as such, if you’re going to place a bet on the outcome, the smart money is on the government. If they did it, Portis and company would be wise to agree to a plea bargain as soon as possible.
Possible sentences
Therefore, if Portis and company are found guilty, understanding that the hypothetical maximum discussed above isn’t going to happen, what’s a likely sentence in these cases? First of all, understand that a $2.5M fraud conspiracy isn’t very large by federal criminal standards. The federal sentencing guidelines are essentially a very complicated point system, so predicting sentences in these cases is very difficult. If convicted, though, these defendants all still face real jail time, in Portis’ case, probably as much as multiple years. There’s a difference between agreeing to a plea bargain that will contain favorable sentencing, and making the prosecutors and the court go all the way through a trial. The latter normally results in tougher sentences.
That having been said, I can give a few relevant sentencing examples. Bernie Madoff pled guilty to a number of charges in a massive $64.8B fraud case, which was the largest in U.S. history, and was sentenced to 150 years in prison. On the other end of the spectrum, actress Felicity Huffman, most known for her role in the show Desperate Housewives, recently pled guilty as a part of a very public fraud case in which she (among others) was charged with paying $15K help her daughter be admitted to college. Huffman’s guilty plea came only a few weeks after her indictment, and she was sentenced to just 14 days in jail, which she’s already completed and moved on with her life. Another actress, Lori Laughlin of Full House fame, was charged in the same case with paying $500K to get her daughters into college. She and her husband did not accept a plea deal and have chosen to fight the case, and as a result the federal government heaped additional charges on them. Like Portis, Laughlin and her husband are now facing decades if convicted. Of those three examples, Laughlin’s case may be the most analogous due to the amount of money involved.
Make no mistake, though, federal prosecutors don’t file indictments like this against public figures, and then hold press conferences about it the day of filing (that happened), only to let the defendants walk with no jail time.
I’ll keep you updated as the case develops.