October 2010 Archives

October 27, 2010

Prosecution Gets Manslaughter Conviction

Jurors returned a guilty verdict on manslaughter charges against a man who allegedly fired shots into a sofa on New Year's Eve that resulted in the death of a 11 year-old boy. Prosecutors alleged that the defendant fired shots into an abandoned sofa, not knowing that the victim was hiding behind it at the time the shots were fired. The defendant fired at least 14 shots with 5 of them striking the victim. One of the bullets pierced the victim's aorta causing him to bleed to death. The jury was out for about one hour before they returned the guilty verdict. The Miami criminal lawyers representing Zenon Fernandez expressed disappointment with the jury's conclusion.

To prove the allegation of manslaughter, the prosecution must prove beyond a reasonable doubt that a defendant caused the death of another through culpable negligence. Manslaughter and pre-meditated 1st degree murder or second degree murder vary in one important way. In the latter two offenses, the prosecution must prove that the killing was intentional rather than by negligence. Culpable negligence is defined as more than a failure to use ordinary care, but rather the negligence must be gross and flagrant. The course of conduct must demonstrate a wanton and reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or for the safety and welfare of the general public.

The basic manslaughter charge is a second degree felony punishable up to fifteen years in prison. However, the Florida Statutes provide for the charge of aggravated manslaughter. Aggravated manslaughter is a first degree felony punishable up to 30 years in prison. Manslaughter becomes aggravated manslaughter when a certain type of victim lost his or her life. Victims that will lead to an enhancement include the elderly, disabled adults, persons under the age of 18, or police officers, firefighters, medical technicians or paramedics acting in the course of their duties. The defendant in this case is facing aggravated manslaughter because the victim was 14 years of age.

The sentencing hearing for the defendant will occur in about two months once the department of probation conducts a pre-sentence investigation. The court, the prosecutors and defense counsel will use the pre-sentence investigation report as a tool at the hearing. The court will consider the defendant's prior record before imposing sentence. Conservatively, the judge will sentence the defendant somewhere in the 7 year range. However, the sentence will largely be dictated by the decedent's families input at the defendant's hearing. In cases where death resulted, the victim's family has a lot of influence in determining a sentence either by way of plea or at sentencing.

Man Guilty in Death of Boy Playing Game, Miami Herald.com, October 22, 2010.

October 25, 2010

Another Day, Another Medicare Fraud Bust

Federal law enforcement has charged four South Florida residents for their involvement in a multi-million dollar Medicare fraud scheme. According to the indictment, four healthcare operators attempted to bilk the federal healthcare program out of $200 million for medical services they did not perform. The indictment accuses four Miami-Dade County residents of being linked to American Therapeutic Corporation. The companies owner, chief executive officer and two other employees were taken into custody last week. American Therapeutic is the largest chain of clinics supported by the federal healthcare system. The defendants will make their initial appearance with their privately retained Miami criminal defense lawyers or attorneys from the federal public defender's office.

The indictment alleges that the company and the defendants charged Medicare on behalf of Alzheimer's patients for treatments that were not necessary or in most circumstances for treatments that were not even provided. Most of the purported healthcare recipients were referred to American Therapeutic by assisted living facilities (ALFs) in exchange for monetary kickbacks, The Medicare fraud case cost losses in excess of $163 million to the federal healthcare system and is one of the largest fraud cases on record. Like the other large fraud cases in recent history, The Medicare Frauds Strike Force was at the heart of the investigation.

Despite the media attention that the offenses of Medicare fraud and healthcare fraud, in general, have gathered due the long list of arrests and convictions have not dissuaded individuals from continuing a criminal course of conduct. The Justice Department holds press conferences after every major bust, but despite the dissemination of the information, Medicare fraud continues to exist. According the newest press release, the federal government will continue to fight the ongoing fraud at all costs. Last month, President Obama signed a new law requiring Medicare requiring the use new technology to flag suspicious activity rather than just paying out the billing requests. Until the recent law was passed, Medicare paid out bills without verifying whether or not the bills were fraudulent or not.

The federal healthcare system has been required to place a watch on many Miami-Dade clinics, as well as, clinics located in New York and Los Angeles where the majority of the fraud cases originate. Why is Miami a target of healthcare fraud? Last year alone, more than 100 clinics, the majority of which are located in Miami-Dade County submitted in excess of $425 million dollars in bills to Medicare. Fifty-six percent of all payments from Medicare were made to South Florida clinics, with the majority being in Miami, Broward and Palm Beach Counties. Anyone being investigated for or that has been arrested for Medicare fraud, should immediately retain a Miami criminal defense law firm specializing in defending healthcare fraud cases in federal court.

Federal Agents Round Up Ring of Mental Health Operators in Alleged $200 Million Medicare Fraud Case, The Miami Herald.com, October 21, 2010.

October 22, 2010

Local Resident Arrested for Lewd and Lascivious Molestation

The Hialeah Police Department arrested a middle aged man for committing a sex crime against a minor. The police report indicated that the assault occurred a public park and was committed against a 14 year-old boy. The defendant appeared with his Miami criminal lawyer from the public defender's office at his initial bond hearing. The judge presiding over the bond hearing set bail at $10,000.00. The bail amount is the standard bond for a second degree felony. The prosecution did not seek to have the bond increased as the defendant has no prior record for having committed a sexual offense.

The defendant was arrested for the charge of lewd and lascivious molestation and lewd and lascivious conduct which are second degree felony punishable up to 15 years in prison. Under the State of Florida Sentencing Guidelines, the charges are both level 7 offenses which carry a 21 month sentence at the bottom of the guidelines. The defendant is accused of forcing himself on the boy by kissing him and forcing him to fondle him. There is no indication that there were any other eyewitnesses to the incident. The boy and his father flagged down a Miami-Dade school police officer who eventually stopped and arrested the suspect.

To prove the charge of lewd and lascivious molestation, the prosecution has to prove that the defendant intentionally touched the victim in a lewd and lascivious manner, the breast, genitals, etc., or the clothes covering them. The victim also has to be under the age of sixteen for the offense to have been committed. Similarly, the offense of lewd and lascivious conduct requires to the prosecution to prove beyond a reasonable doubt that the defendant committed an intentional touching in a lewd or lascivious manner and the victim is under the age of 16.

The resolution of this case will be determined by two factors. The first will depend on the strength of the victim's testimony. Second, the parents of the victim will have to decide whether to have their child testify or work out a plea to avoid additional emotional harm to the child. Even if the defense attorney representing the defendant can obtain a probationary plea, the defendant will be deemed a sexual offender by the Florida Department of Law Enforcement. Being designated a sexual offender is problematic for a variety of reasons. The consequences that will result include restrictions on where a sexual offender can live and the quarterly reporting requirements. If the case is weak enough the attorney should attempt to charge bargain the case in an effort to prevent the defendant from being categorized as a sexual offender.

Man Accused of Molesting Boy at Hialeah Park, CBS4.com, October 21, 2010.

October 20, 2010

Ten South Florida Residents Arrested for Marijuana Trafficking

Multiple marijuana trafficking arrests were made by ICE (Immigration and Customs Enforcement) agents as part of an on going criminal investigation called "Operation Green Venom". The federal investigation has been ongoing since 2008 in an effort to curb the drug trafficking problem that has persisted from Miami up the eastern coast of the United States. The investigation is ongoing and to date has netted multiple arrests, $1.85 million and 225 pounds of marijuana. In total, 12 defendants were arrested, 10 from South Florida and two from New York. The 10 men arrested in South Florida are being held at the Miami Federal Detention Center. The defendants are facing extradition to New York to face charges of marijuana trafficking and money laundering.

It is unclear at this point whether the defendants will have their initial appearance in a Florida or New York federal court. In either case, the defendants will appear with their criminal defense attorneys who will attempt to secure bail or a bond for their clients. In federal court, in most instances, the initial appearance before a federal magistrate acts also as a bond hearing. The magistrate will decide on whether or not a bond should be set and the amount of the bail. The magistrate will make the determination by considering whether a defendant is a danger to the community or a flight risk. The defendants least involved in the in the marijuana trafficking operation will likely receive a better result at the bond hearing.

Federal, state and local officials have been cracking down on marijuana trafficking and grow house operation over the past three or four years. The down turn in the economy and the lucrative business of cultivating marijuana has led to a boom in the industry. As a result, Miami-Dade has created several narcotics teams that focus solely on investigating marijuana trafficking rings and grow house operation. The Miami-Dade County State Attorney's Office has also taken a dim view on defendants charged with being involved in marijuana grow house operations. The office has created a special narcotics division that has created a policy that all plea offers on marijuana trafficking cases must go through their unit to get waivers of the minimum mandatory penalties which can sometimes be a difficult task..

The penalties for marijuana trafficking vary between state and federal court. Defendants face minimum mandatory penalties under the federal sentencing guidelines and the state statutes provide for three, 7 and 15 year minimum mandatory sentences depending on the amount of marijuana seized as part of the criminal investigation. The federal sentencing guidelines provide for increased sentences as the amount of marijuana seized goes up. The defendants in this case are charged with trafficking in excess of 1,000 pounds of marijuana and face up to live in prison with a 10 year minimum mandatory sentence. In either jurisdiction, the penalties for marijuana trafficking are severe. Any one being investigated for or having been arrested on drug trafficking charges should retain a criminal defense law firm experienced in defending these types of cases to defend the charges as the consequences of long term imprisonment and deportation are a distinct possibility.

10 From South Florida Arrested in Federal Pot Trafficking Probe, Sun-Sentinal.com, October 18, 2010.

October 18, 2010

Lawyer's Assistant Sentenced in Federal Court on Fraud Charges

The former assistant to a currently jailed attorney was sentenced in a Broward County federal courtroom for her involvement in one of the largest Ponzi schemes ever unraveled in South Florida. Debra Villegas appeared with her criminal defense lawyer to be sentenced on racketeering charges for which she pled guilty earlier in the year. The federal judge presiding over the case sentenced her to 10 years in prison for her alleged involvement in the massive scheme to defraud. According to the indictment and accompanying court documents, Villegas was Scott Rothstein's right hand in the investment scheme. Along with a 10 year prison sentence, the judge ordered the defendant to pay restitution in the amount of $363 million to the 300 plus victims of the Ponzi scheme.

The defense attorney representing Villegas put on testimony at the sentencing hearing in an effort to persuade the judge to reduce her sentence and in fact requested that her sentence be served as home confinement so she could care for her children. Her estranged ex-husband is facing murder charges for which her children will be called as witnesses. The judge was unmoved by the argument and sentenced her to the maximum sentence allowed under the law. While as dire as the situation may seem, the judge allowed the defendant to surrender to serve her sentence beginning June 2011. According to reports, Villegas has cooperated with the federal law enforcement and prosecutors to assist in nabbing the rest of those allegedly involved in the fraud. The imposition of the sentence was probably delayed at the request of the prosecution and the defense for several reasons.

While the defendant apparently did not receive a break for her cooperation at the sentencing hearing, federal law allows for a sentencing departure at any time after the sentence is imposed under a Rule 35. Sentence reductions for cooperation with the authorities can occur at the sentencing hearing under what in common parlance is called a 5K. A 5K will be offered by the government if a defendant provides substantial assistance in the investigation or prosecution of another person who has committed a criminal offense. Of course, any agreement of this nature between the government and the defense, will require the court to make a final determination of percentage decrease in the sentence. The court will evaluate the significance and usefulness of the assistance provided; the truthfulness, completeness and reliability of the information provided by the defendant; the nature and the extent of the defendant's assistance; and the timeliness of the defendant's assistance.

A Rule 35 will probably be more beneficial to the defendant in this particular case than a 5k because she will be able to continue cooperating prior to the date she must surrender. In some cases, a defendant can receive a 5k and a Rule 35 as part of a sentencing reduction. A reason to rest her departure on a Rule 35 and not 5 K is to let time pass where the case will not be so fresh and the pubic's and the court's mind. Despite the defendant's cooperation with the FBI and IRS, the judge rejected her defense attorneys request for 7 years of house arrest. Maybe after further cooperation with the government, the defendant's sentence may reduced by the court.

Rothstein's Right-Hand Man, Debra Villegas, Sent to Prison, Miami Herald.com, October 8, 2010.

October 11, 2010

Tampa Takes Lead as Staged Accident Insurance Fraud Capital

Police out of Tampa arrested eight people for being involved in an insurance fraud scheme involving staged accidents. Tampa has taken over the top spot from Miami regarding these types of offenses. Hillsborough County has become acutely aware of the problem it faces regarding insurance fraud of this kind and intends to use significant assets to quash it. From 2008 to 2009, Hillsborough County experienced a 290% increase in staged accident claims rising from 232 to 487. Included in the in the figures are Tampa, St. Petersburg and Clearwater. The Hillsborough police says they uncovered a new type of scam where U-Haul trucks are used in the accidents because renters can secure a $1 million dollar policy for $100.00. As a Miami criminal attorney, I can tell you that the use of rental trucks due to high insurance coverage have been used in dozens of cases in South Florida.

For years, Miami had been considered the staged accident capital of Florida, but stricter laws and specialized insurance fraud units made life increasing difficult for those who were involved in staged accidents for the purpose of attending sham clinics and billing insurance companies for non-existent injuries. Miami was able to curb the problem form the bottom up Drivers and passengers of vehicles involved in staged accidents were arrested and facing significant jail time as a result of changes in the legislature. The law changed to read that any person that organizes, plans or participates in an intentional motor vehicle accident with the intent of filing personal injury claims is guilty of committing a second degree felony. More importantly, the offense carries a two year minimum prison sentence.

Because drivers and passengers were facing such dire consequences and most of the defendants were first-time offenders, they were offered the opportunity not to be arrested or receive significantly reduced sentences for their cooperation in prosecuting the accident planners, clinic owners and doctors involved in the elaborate schemes. Eventually, the majority of the drivers and passengers had provided enough information where the individuals responsible for the majority of the losses to the insurance companies were taken out of circulation. Dozens of clinic owners, doctors and others involved in the day to day operations of the clinic were arrested and the clinics closed. Over the past year, the number of arrests in Miami for staged accident insurance fraud cases have been significantly reduced, although the state court criminal docket remains replete with these types of cases. The cases stay open do to the swelling number of cases in the Miami-Dade County criminal justice system.

The overloaded docket and the overwhelmed prosecutors at the state attorney's office often provide the best defense to a stage accident insurance fraud case. An defense attorney will tell you that the longer a cases remains open the better the result will likely be for the defendant. The strength of these insurance fraud cases lies with flip witnesses or in other words with co-defendants who have been promised deals to testify against the ringleaders of the operations. Seldom is there any physical evidence and the prosecution relies solely on testimonial evidence. As long as a defendant did not make an incriminating statement to law enforcement, a solid cross-examination of the state witnesses will more often than not lead to an acquittal on the charges. Even if a case is weak, insurance fraud investigators leave little discretion to plead case out with the prosecutors. That being the case, anyone arrested for staged accident insurance fraud should prepare themselves for trial, at least in Miami-Dade County.

Hillsborough Deputies Arrest Suspects in Staged Car Crashes, TampaBay.com, October 9, 2010.

October 8, 2010

Man Sentenced to 22 Years for Medicare Fraud

A South Florida man was sentenced to 22 years in prison in federal court for his involvement in a multi-million Medicare fraud scheme. The defendant appeared with his Miami criminal attorney at his sentencing hearing. Defense counsel portrayed the defendant as a compassionate person while government prosecutors portrayed Ihosvany Marquez as a greedy scam artist living the high life with stolen taxpayer money used to fund the federal healthcare program known as Medicare. In total, the indictment alleged that Marquez and his partner Michel De Jesus Huarte along with their co-conspirators bilked the federal healthcare system out of $22 million.

Marquez earlier in the year entered guilty pleas to the charges of healthcare fraud, identity theft and money laundering. Huarte also entered guilty pleas to the same charges and received an identical sentence. Federal judges will generally impose the same sentence for defendants who are engaged in similar conduct. The only way the defendants could have sought a significant sentence reduction would have been to enter into a cooperation agreement with the federal government. Huarte and Marquez were the alleged ringleaders of the Medicare fraud and the government usually likes to work from the bottom to the top. That being the case, the government did not need these defendants cooperation to assist in the prosecution.

Government prosecutors painfully laid out for the federal judge presiding over the case the lavish lifestyle that Marquez lived as a result of the purported fraud he committed. They argued to the judge that the proceeds of the massive healthcare fraud were used to purchase expensive homes, automobiles, jewelry and race horses. The prosecution also admitted a dinner bill in the amount of $60,000 from the Forge Restaurant in Miami Beach. The defendant allegedly took family and friends to the expensive restaurant with taxpayer money. The judge displayed no sympathy for Marquez after she heard how he spent the illegally obtained money.

While the number of Medicare fraud cases being prosecuted in the Southern District of Florida have appeared to slow down, the reason may that the emergence of the Medicare fraud strike forces are acting as a deterrent. The other reason for the slowdown may be the systems of checks and balances recently imported into the healthcare system to detect fraud. Members of Congress and the President himself have had an ongoing concern about the amount of healthcare fraud being committed, especially in light of the recently passed healthcare reform laws. Anyone being investigated for or having been arrested on healthcare fraud allegations should immediately speak with a criminal defense law firm that has experience in defending these types of cases in federal court. The consequences of being prosecuted for this offense is apparent based on the sentences received by defendants mentioned earlier.

Convicted Miami-Dade Medicare Scammer Blow $60,000 at The Forge, The Miami Herald.com, October 8, 2010.

October 6, 2010

Tainted Confessions End Up in Long Prison Sentences

Many defendants that have been sentenced to long prison sentences on sexual battery and rape charges based on alleged confessions made to law enforcement officers. The advent of DNA evidence in recent years has revealed that defendants have been sentenced to lengthy prison sentences based on the strength of tainted confessions in many cases. While any Miami criminal attorney will tell you never to make nay statements to law enforcement, some individuals either do not follow the simple instruction of do not have the mental capacity to withstand questioning by the police.

A recent study out of the University of Virginia revealed that in 250 rape and murder cases where the defendants were eventually exonerated as a result of DNA testing, 40 individuals had confessed to a crime or crimes they did not commit. Three examples of recently exonerated, wrongfully accused defendants convicted of violent crimes come out of Broward County. Don't kid yourself, defendants charged in Miami-Dade County and across the State of Florida are doing hard time for crimes they did not commit. The lucky defendants are the ones that are released because DNA existed to prove their innocence. Crime scene technicians try to collect DNA from crimes scenes that involve homicides and sexually motivated offenses. However, crime scene technicians are rarely called out to burglary of auto theft scenes. While these crimes are not a serious per se as murder and rape charges, convictions for these types of charges can land certain types of offenders in prison for up to forty years.

Many career criminal statutes have been passed over the last couple of decades to put away defendants with extensive criminal records. Enhanced sentences can and will be handed down by state criminal judges for defendants that are classified as habitual offenders, violent habitual offenders, violent career criminals and prisoner releasee re-offenders. These enhancement are used to double prison sentences and even carry minimum mandatory sentences. For example a defendant convicted of a dwelling burglary that is classified as a violent career criminal can be sentenced to 40 years in prison with a 30 year minimum mandatory. A first time offender is likely to receive probation for the same type of offense. The problem is that defendants sentenced to lengthy sentences for lesser felonies do not have DNA to exonerate them.

Many burglary cases are made on the strength of a confession provided by defendant. No DNA evidence, eyewitnesses, or physical evidence of any kind are required to prove the case. The prosecution can prove a burglary case with an admission and the fact that a burglary was committed. That is certainly not much evidence to put a person behind bars for forty years. A skilled Miami criminal lawyer must be able to convince a jury that many confessions and admissions are obtained through coercion, threats or force. Cases with oral confessions are certainly easier to defend that cases where taped confession have been taken by the police. Again, the best advice to any arrested for any crimes is to invoke one's right to remain silent and the right to have any attorney present for questioning. Take advantage of your rights and do not make the case against you any stronger than it already is.

Report: Broward County Not Alone in Coaxing Confessions, The Miami Herald.com, Septepber 19, 2010.

October 4, 2010

Local Police Officer Arrested for Violating Domestic Violence Injunction

With the rash of domestic violence cases hitting the news wires, especially recent cases involving numerous homicides, a case involving a police officer would make for interesting reading. A Miami-Dade police officer was arrested last week for violating a domestic violence injunction. The officer has been relieved of duty and is facing a misdemeanor in domestic violence court. The officer can either choose to represent himself at his arraignment of he can hire a Miami criminal attorney to represent him, at which point he will not have to appear in court for his initial appearance.

In all cases, as long as a victim appears in the domestic violence courthouse and fills out an affidavit in support of an injunction against domestic violence, a judge will sign a temporary injunction and the set the case for hearing at a future date. The temporary injunction will remain in place until the hearing is held. At the end of the hearing a judge will determine whether an injunction will be extended, put in place permanently or dismissed. Anyone served with notice to be at a hearing on an injunction has the right to retain criminal defense lawyer to represent his or her interests at the hearing. A petitioner, as well as a respondent has the right to present witnesses to testify at the hearing can also testify on his or her behalf.

A judge will extend or grant a permanent injunction if the petitioner can demonstrate that he or she has been the victim of two incidents of violence or stalking, one of the incidents having occurred within the last six months. Crimes of violence include assault, aggravated assault, battery, aggravated battery, stalking, aggravated stalking, kidnapping or false imprisonment. Stalking is defined as anyone who engages engages in a course of conduct directed at a specific person that causes substantial emotional distress. Stalking also requires a course of conduct composed of series of acts over a period of time. Stalking is a first degree misdemeanor, unless the respondent intentionally places the petitioner in reasonable fear of death or bodily injury, then the offense can be charged as a third degree felony. A person who commits a stalking after an injunction is in place can also be charged with a third degree felony.

Violations of injunctions, whether charged as a misdemeanor or a felony, are taken seriously by judge and prosecutors alike. Because this is the case, anyone served with a petition for an injunction against domestic violence for repeat violence, should seek to hire a Miami criminal defense law firm in defending these types of cases. If a permanent injunction is entered by the court, it becomes the permanent part of a person's criminal record and can never be sealed or expunged. If an injunction is entered by the court, the respondent will also be required to enroll and successfully complete a domestic violence intervention program lasting approximately 26 weeks. Another reason to contest the injunction is because any future violation of the injunction can subject a person to criminal prosecution under the laws of the State of Florida.

Miami-Dade Cop in Love Triangle Arrested in Miami Beach, The Miami Herald.com, September 30, 2010.

October 1, 2010

Insurance Adjusters Arrested on Racketeering Charges

Five local auto insurance adjusters were arrested by the Hialeah Police Department for their involvement in a scheme to defraud the same insurance companies that employed them. The adjusters are accused of inflating estimates in exchange for monetary kickbacks. The adjusters will be arraigned in 21 days, unless prosecutors need more time to investigate the case before deciding which charges they will file. It is unknown whether the defendants will hire a privately retained Miami criminal defense lawyer or whether they will use counsel from the public defender's office.

The police were aided in their investigation by an auto shop owner that was arrested for billing false claims for deployed air bags. Rather than facing jail or prison time, the body shop owner agreed to cooperate with the authorities by setting up the adjusters. According to the police reports, the illegal dealings were captured on videotape. The accused adjusters worked for both Allstate and State Farm. In one of the cases, an adjuster inflated the estimate from $3,201 to $22,149 in exchange for a $2,000 payoff. According to the Miami-Dade County State Attorney, "These adjusters got the cold cash from this crime while everyone else paid he bill." The defendants were arrested on charges of racketeering, grand theft and petit theft.

The case will most likely be prosecuted by the insurance fraud unit at the state attorney's office. While this is not a typical insurance fraud case, e.g. staged accidents, the division appears to be suited to handle the matter. Until the charges are filed and the amount of loss tallied, it is difficult to determine what type of penalties the prosecutors will seek in these cases. It should be noted that racketeering a level 7 offense under the Florida Sentencing Guidelines which dictates a minimum of 21 months in prison. Because the adjusters have no prior record they may be offered pre-trial intervention for first time offenders or probation as long as they make restitution to the insurance companies they allegedly defrauded. On the other hand, the state attorney's office may seek to make an example of these defendants in order to send a message to community which is riddled with fraud.

Prior to plea negotiations, the defense counsel representing the defendants must first review the discovery to determine if a defense exists to the charges. The police reports indicate that some of the transactions were video and audio recorded. It is not clear if all of the defendants were caught on tape. The prosecution will have difficult burden in proving their cases if the sole evidence against a defendant is based on a cooperating defendant. Any competent prosecutor knows that a case can not be successfully prosecuted unless they have evidence corroborating the cooperating witness's testimony.

Five Auto Insurance Appraisers, Adjusters Charged,, The Miami Herald.com, October 1, 2010.