Miami Criminal Defense Lawyer Blog

A Florida International University baseball star and two friends were arrested and charged with rape, more commonly known in the State of Florida as sexual battery. The three men were staying at the Atlantis resort in the Bahamas when they allegedly met up with two 17 year-old women. The group of five people returned to a hotel room within the resort. The girls say they are the victims of rape, while the men have provided statements that they all engaged in consensual sex. The three men were arrested by Bahamian authorities and released upon posting a $10,000 bond. Evidence has already been collected including video surveillance and rape kits. As in the majority of sexual battery cases, the entire case will revolve upon the issue of consent. The issue of consent is no different whether the case is defended in the Bahamas or by a Miami criminal attorney in the State of Florida.

The age of the victims in the case is irrelevant under Bahamian law as the age of consent is sixteen. The laws of the State of Florida are slightly different as the age of consent is 18. However, for the charge of statutory rape ("Unlawful Sexual Acts with Minors") to apply, a defendant must be 24 years of age or older. As the alleged victims were over the age of 16 the defendants cannot be charged with statutory rape. Statutory rape is much easier to prove than sexual battery as consent is not an issue when dealing the former. Consent under Florida law is defined as intelligent, knowing and voluntary consent and does not include coerced submission. Consent does not mean the failure of the alleged victim to offer physical resistance to the offender.

Based on the information proved by the media, it appears as if the defendants have a very defensable case. The victims were caught on tape drinking at bar within the resort. Both girls were observed kissing at the bar. The video shows that the women gestured the men over to where they were sitting. The victims voluntarily went with the defendants to the hotel room. Blood taken from the victims revealed that they had alcohol in their system, but the actual blood alcohol level (BAC) has not been released. Most importantly the blood results did not show any form of date rape drug in either of the victim's systems. It is not clear whether or not a rape treatment exam was performed on the victims. If neither of the victims suffered any injuries inconsistent with consensual sex, that will be big plus for the defense. It is not clear whether the alleged victims resisted the defendants or were physically unable to resist due to alcohol consumption.

In sum, the case comes down testimonial, not physical evidence. The three young men involved will say that the alleged victims consented to the sex, while the victims will say that they are the victims of a sexual offense. All of the other facts mentioned earlier will certainly support the defendant's contention that the victim's regretted their actions after the fact. When dealing with testimonial evidence, the credibility of the defendants and victims in the case is crucial. The consistencies or lack of consistencies in the initial statements of the participants will also be critical. The backgrounds of the parties is also important, but due to the age of those involved, it probably will not have much bearing on the case. A preliminary hearing is set for April 18th and more information will be made public is the case develops.

No Date-Rape Drugs Found in Baseball Star Wittels Investigation, The Miami Herald.com, December 28, 2010.

Another South Florida resident received a significant prison sentence for his alleged involvement in a Medicare fraud scheme. The owner of clinic located in Miami, Florida, received a 60 month prison sentence for fraudulently billing Medicare for home health care services that were either unnecessary or in some instances never provided. After entering a guilty plea, the defendant appeared with his Miami criminal defense lawyer at his sentencing hearing where he was also ordered to perform two years of supervised release and pay $9.8 million in restitution to the federal government. Other defendants were also charged as co-conspirators in the Medicare fraud case.

The defendant purportedly admitted to the Medicare fraud by telling federal law enforcement authorities that he operated the clinic which provided home health care services and billed for unnecessary prescriptions, healthcare plans and medical certifications. The defendant's company submitted fraudulent medical records in order to submit bills to Medicare. The clinic was billing for insulin for patients who allegedly suffered from diabetes. Court records indicated that 344 prescriptions were billed to Medicare for unnecessary treatments or for treatments that were never provided to patients.

The clinic through the defendant billed Medicare for $16.8 million for home health care services. Medicare issued payments back to the clinic in the amount close to $10 million. A co-owner of the clinic had previously received the same sentence for his involvement in the case. Nurses who worked at the clinic also received prison sentences. Two of the nurses received 30 months in prison at their sentencing hearing, while a two other nurses received two and four month prison sentences. These nurses cooperated with federal law enforcement to received the reduced sentences. All of the nurses were ordered to serve probation after their release and make restitution payments. The nurses admitted that they falsified records provided to Medicare that patients were receiving treatment and insulin injunctions, both of which never occurred.

The Medicare Fraud Strike Force conducted the investigation, while the case was prosecuted the U.S. Attorney's Office for the Southern District of Florida. Since inception of the strike force, they have been responsible for 825 indictments of defendants charged with fraudulently billing Medicare in excess of $2 billion. In effort to cut down on the fraud, the Health and Human Services Office of the Inspector General, the Human Health Care Centers of Medicare Services and the FBI are also investigating fraud claims. Medicare fraud is being taken seriously as the fraud eats into the country's budget. Any one being investigated or arrested for fraud related charges should immediately seek out a criminal defense law firm with experience in handling and defending these types of cases as the punishments and fines are severe.

Florida Clinic Owner Sentenced for Role in Medicare Fraud Scheme, 7th Space.com, December 21, 2010.

Federal law enforcement agents closed down two marijuana trafficking rings. Seven individuals were arrested and in excess of 1,700 pounds of marijuana with a street value of approximately $2 million was seized. Some of the defendants will hire privately retained Miami criminal attorneys while others will be represented by counsel from the federal public defender's office. The first bust occurred along the Miami River when law enforcement intercepted two boats coming from Bimini. The authorities investigation began as the result of a tip. The bust occurred on a dock located behind a residence located on North River Drive. The floor compartments of the boats contained 90 bales of marijuana while the residence contained 15 plants and a fully functioning grow house. Three arrests were made and the defendants were charged with importing a controlled substance into the United States and possession and distribution of a controlled substance.

The second group of marijuana trafficking arrests occurred at sea when the United States Coast Guard stopped a vessel coming from the Bahamas. Forty-two (42) bales of marijuana were found floating near the vessel. Four individuals were removed from the boat and were taken to Guantanamo Bay, Cuba where they are being held. The head of Miami Immigration and Customs Enforcement (ICE) Investigations commented that marijuana smuggling into Florida has increased as a result of the strict enforcement underway at the United States-Mexico border. Both of these latest arrests were the result of joint operations conducted by Customs and Border Patrol, the Coast Guard and the Miami Police Department.

All of the defendants will be indicted in federal court. The possible sentences these defendants receive either by plea or by way of jury trial will depend on the amount of marijuana seized by the authorities. The federal sentencing guidelines in the "Drug Quantity Table" set forth the level offense for importation of marijuana cases. The levels range from a level 6 which requires that marijuana weigh less than 250 grams and a level 34 which requires more than 30,000 Kgs of marijuana. According to court documents, the amount of marijuana will be somewhere in the middle. A federal lab will be required to weigh the marijuana to obtain a fair weight. Of course, the defense will have the right to re-weigh the evidence if court allows it.

Other than the weight of marijuana, other factors will determine the potential sentences the defendants are facing. If a defendant only had a minor role in the offense, he or she will be entitled to a sentence reduction. If the government can prove that any of the defendants were the leaders or organizers of the ring, a sentence increase may be in the cards. Any of the defendants who decide to enter a plea deal early will receive a reduction for acceptance of responsibility. Any of the defendants who assist the prosecutors or law enforcement with their case or other cases can receive a 5K which allows for greatest sentencing departure. Ultimately, the final decision on a sentence is up to the judge, regardless of the opinions of the government or defense counsel.

Feds Arrest 7 Accused of Marijuana Smuggling, Miami Herald.com, December 18, 2010.

The Florida Supreme Court reviewed and overturned a first degree murder case based on an underlying cocaine trafficking charge. A jury convicted the defendant, Santo Hernandez, of first degree felony murder. The state alleged that the defendant was responsible for the shooting death of two individuals also involved with cocaine trafficking. Miami criminal lawyers argued on behalf of the state and on behalf of the defendant to the Supreme Court which ruled that the prosecution failed to prove that the defendant was guilty of cocaine trafficking, but was rather only guilty of cocaine possession with intent to sell. The ruling of the high court mandated that the lower tribunal could only sentence the defendant to 3rd degree felony murder as apposed to first degree felony murder. First degree felony murder is punishable by death or a life sentence while the maximum a defendant can be sentenced for third degree murder is 15 years.

To find someone guilty of first degree felony murder, the state must prove beyond a reasonable doubt that a person died as a consequence of and while the defendant was engaged in the commission of or attempting to commit an enumerated offense, or escaping from the scene where the offense was committed. The victim must have been an innocent bystander at the time of his or her death. If one of the co-defendants was killed during the commission of the enumerated offense, then the state will have to proceed on second degree felony murder charges. The enumerated offenses listed under the Florida Statutes include some of the following: drug trafficking, arson, sexual battery, robbery, kidnapping, escape, aggravated child abuse, carjacking, home invasion robbery, aggravated stalking and resisting an officer with violence.

When the Supreme Court held that the defendant was not properly convicted of drug trafficking, the first degree felony murder conviction was not legal and therefore the conviction was overturned. Cocaine trafficking requires the state to prove that a defendant knowingly sold, purchased, manufactured, delivered or possessed in excess of 28 grams of cocaine. The potential sentences for all drug trafficking cases increase the larger the amount of drugs seized by law enforcement authorities. A defendant convicted of possession of less than 28 grams of cocaine can only be charged with possession or possession with intent to sell the illegal substance. The charge will depend how the drug was packaged.

Because the Supreme Court held that the jury could not have properly convicted the defendant of drug trafficking, the state lost the enumerated underlying offense. Based on their finding that the state failed to adequately prove that the defendant was in possession of more than 28 grams of cocaine, the trafficking conviction was improper and ruled that the only correct verdict could have been on the charge of third degree murder. While appeals are not often granted, this appeal allowed for the defendant to someday leave prison. In the State of Florida, a person convicted of a life sentence will spend the rest of his or life in prison as parole no longer exists in this state.

Florida Supreme Court Reduces Conviction in Hialeah Double Murder, Miami Herald.com, December 10, 2010.

Immigration and Customs Enforcement (ICE) began another round of nabbing immigrants with criminal records with the intent to deport them to their home nations. The most recent operation netted 93 foreign nationals who were illegally living in the United States. The basis for the apprehensions were prior criminal convictions for a wide variety of crimes. ICE vowed to continue the operations to catch illegal immigrants with prior criminal records. Anyone who is not a citizen or a lawful permanent resident who has a prior criminal record should contact a Miami post-conviction relief attorney to file a motion to vacate and then seek a nolle pros or dismissal of the charges to prevent an inevitable deportation.

Examples of people caught up in the recent dragnet include the following: a 23 year-old citizen of Ecuador with a criminal conviction for felony battery, a 20 year-old citizen of Guatemala with convictions for driving while license suspended, and a 36 year-old from Guatemala convicted of burglary and attempted burglary. Immigration authorities reported the operations are conducted to catch illegal immigrants with criminal convictions for offenses like drug trafficking, sex offenses and violent crimes. The most recent operation resulted in the arrest of 84 men and 9 women from 22 countries. Arrests were made in Miami-Dade, Broward, Palm Beach, Hillsborough and Duval Counties. All of the individuals arrested are currently being held in federal custody awaiting deportation or removal proceedings.

While some illegal immigrants are arrested for relatively minor offenses such as marijuana possession and petit theft, others are arrested for more serious crimes such as armed robbery and burglary. Anyone facing deportation should speak with an immigration attorney to create a strategy to avoid removal. The federal courts may issue a waiver for certain criminal offenses. For example marijuana possession can be waived, but a second conviction for the same crime cannot be waived. In many cases, a marijuana possession conviction is accompanies by a conviction for possession of drug paraphernalia. In this instance, the marijuana charge can be waived, but the paraphernalia count cannot be waived and therefore a motion to vacate must be filed on the client's behalf.

If an offense cannot be waived, a motion for post-conviction relief must be filed with the court. Many of the motions are time barred after two years, so it is imperative to handle these matters as soon as possible. Although a case may be time barred, an effective criminal defense attorney on many occasions can still have a plea vacated and the charges dropped in exchange for a charitable contribution or can even have a client enrolled in the pre-trial diversion program. After the completion of the program the charges will be dismissed. In sum, all immigration cases are different and there are many approaches that can be taken to avoid removal or deportation. Anyone subject to removal or deportation should seek the advice of counsel as soon as possible as the problem will not go away by itself.

Criminal Immigrants Rounded Up Across Florida, News-Press.com, December 14, 2010.

South Florida is becoming one the leading regions of credit card fraud in the country. Arrests for credit card fraud are occurring on a daily basis from Miami-Dade to Hillsborough County. Last week, detectives in Lee County stopped a vehicle in Fort Myers, Florida for speeding and various other traffic infractions. Police reports indicate that both occupants of the vehicle appeared nervous. The driver allegedly consented to the search of the vehicle. The search uncovered 15 fraudulent credit cards and two fake driver's licenses that matched the names on the fake credit cards. Once the credit cards were discovered, the driver began to struggle with the investigating officer and was placed under arrest. The driver was arrested for charges including trafficking in fraudulent credit cards, possession of counterfeit credit cards, possession of a fraudulent diver's license, identity theft, and resisting an officer without violence.

Any Miami criminal defense attorney will tell you to never consent to the search of your vehicle. Just because a person is stopped for committing a traffic infraction, that does not mean that law enforcement has the right to search a vehicle. Every search and seizure requires a warrant with a few exceptions. Most notably are the consent to search and the automobile exception. For a consent to search to be valid, a person with standing must freely and voluntarily consent to a search. For the automobile exception to apply, the officer must have probable cause to believe that a vehicle contains unlawful contraband. In the event a person is stopped for a traffic infraction, police have two options when attempting to gain access to an automobile. In the event an officer cannot obtain consent, he or she can request a K-9 units to establish probable cause to search the vehicle. In drug possession cases, specially trained narcotics K-9 can be called to the scene of the stop. If the K-9 alerts to a vehicle, the officer will have the requisite PC to conduct a search. However, there is no way a K-9 can alert to fake or stolen credit cards, therefore, the only way an officer can obtain access to the vehicle is by consent. If the defendant in this case would have refused to consent to the search of the vehicle, the police would not have had a basis to conduct the search.

To prove the charge of fraudulent use of a credit card, the prosecutor must establish that a person with the intent to defraud an issuer possessed or retained a credit card with the knowledge that it is fraudulent. The charge itself is a third degree felony punishable up to five years in prison. A five year sentence will apply to each fraudulent card in a person's possession. Trafficking in fraudulent credit cards requires that a person knowingly possess 10 or more fraudulent credit cards. This offense is a second degree felony punishable up to 15 years in prison. Identity theft is the most serious offense that can be charged in cases dealing with fraudulent credit cards. Anyone who wilfully and without authorization fraudulently uses the personal identification of another person with out obtaining consent is guilty of a first degree felony punishable up to 30 years in prison. Anyone found guilty of identity theft involving more than 30 victims is facing a 10 year minimum mandatory prison sentence.

Prosecutors, both in the state in federal criminal justice systems take all forms of credit card fraud very seriously due to the victim impact. Anyone arrested for possession of fraudulent credit cards, trafficking in fraudulent credit cards, any fraudulent credit card offense or identity theft should immediately contact a criminal defense law firm to defend the charges as convictions for these types of offenses can end in long prison sentences and hefty fines.

Woman Arrested After Counterfeit Credit Cards Seized in I-75 Traffic Stop, News-Press.com, December 9, 2010.

Recent reports indicate that more and more college students are selling drugs to other students to make extra money. Five Columbia University students were arrested for selling LSD to other students on campus. Most of the drug sales occurred in fraternity houses. All of the students are represented by criminal lawyers who entered not guilty pleas on their client's behalf. Other universities have had their share of bad publicity regarding students engaging in the unlawful sale of drugs. The other institutions involved include the University of Miami, Georgetown University, the University of Illinois and San Diego State University.

A University of Miami student-athlete was recently arrested for selling marijuana to an undercover officer. The Miami criminal lawyer representing the student met with prosecutors and was able to convince them to allow the defendant to enroll in the drug court program. The drug court program is a year-long and very onerous means to successfully resolve a drug possession case. Defendants are required to participate in out-patient treatment, attend narcotics anonymous sessions, provide monthly urine samples and attend court once a month for a status hearing. While difficult, the program will enable the defendant to receive a nolle pros and dismissal of the charges by the state if the program is successfully completed. The University of Miami student was exceptionally lucky to be enrolled in the program as defendants generally must be charged with drug possession rather than drug sale to participate in drug court.

At Georgetown University, 3 students turned their dorm room into a methamphetamine lab. The students were arrested and charged, while 400 innocent student had to be evacuated as the lab was causing a significant health concern. Under the laws in the District of Columbia, the defendants are facing up to 20 years in prison and a $1 million fine. Under the laws of the State of Florida, these students would be facing significant prison time for trafficking in methamphetamines. Anyone in possession of 4 to 14 grams of the illegal substance is facing a 3 year prison sentence. Possession of 14 to 28 grams carries a seven year sentence and possession in excess of 28 grams carries a 15 year prison sentence. All drug trafficking crimes in Florida are first degree felonies punishable up to 30 years in prison.

At the University of Illinois, 21 students were arrested on charges of felony possession of marijuana and cocaine possession. At San Diego State University, 75 students were arrested with law enforcement recovering two kilos of cocaine, marijuana, ecstasy, prescription medications and mushrooms. College students that are arrested for drug possession, drug sale, or drug trafficking should hire a criminal defense law firm with experience in defending narcotics offenses to defend the charges. Convictions can result in lengthy term of prison and at a minimum can destroy the lives of students as a poor result can limit their ability to obtain an education and employment in the future.

Students Arrested for Selling Drugs at Columbia University, Associated Content.com December, 9, 2010.

A federal task force set up by Immigration and Customs Enforcement (ICE) is responsible for the latest arrests and indictments relating to drug trafficking activity at the local ports. The Miami Border Enforcement Security Task Force (BEST) is assigned to protecting the borders of the United States, protecting national security and performing drug interdiction. The mission statement of BEST includes identifying, disrupting and dismantling criminal operations that seek to undermine the integrity of the borders. BEST works in collaboration with other agencies investigation crimes at the Miami Seaport, the Miami River, Port Everglades and all illegal smuggling activities within the United States.

BEST was responsible for the arrests of six individuals at the Port of Miami allegedly involved in cocaine trafficking, marijuana trafficking and heroine trafficking. All six of the defendants were longshoreman employed at the Port of Miami. One of the defendants had an open case for ecstasy trafficking and firearm offenses. The arrests are the result of a three and a half year investigation called "Operation Gangplank". The agencies assigned to the investigation were Homeland Security, the Drug Enforcement Agency (DEA), Customs and Border Patrol (CBP) and detectives from the Miami-Dade County Police Department. The indictments allege that they seized narcotics with a street value in excess of $6 million during the investigation. In total, the feds seized 72 kilos of cocaine, 2 ½ kilos of heroine and in excess of 1,500 pounds of marijuana.

All of the defendants will appear before a federal magistrate to determine if and how much of a bond will be set. Typically, the bond hearing judge will grant a bond as long as a defendant has sufficient contacts with the community and the offenses for which he or she is charged is not egregious. Other defendants from Costa Rica, Panama, and Jamaica were also named in the indictment. The case is interesting because the illegal drug trafficking scheme involved both the importation and exportation of illegal substances. Due to the extensive amount of narcotics being imported into the United States, the defendants are each facing life in prison. However, the defendants will avoid such a harsh sentence if they cooperate with law enforcement, especially if the cooperation leads to other arrests.

"Operation Gangplank" is not the first operation conducted by BEST. Other arrests and seizures have netted 140 defendants, 11,000 pounds of cocaine, 8,000 pounds of marijuana, 3,000 ecstasy pills, numerous weapons and ammunition. Federal narcotics importation charges are very serious. Anyone being investigated for their involvement in these types offense should contact a Miami criminal lawyer as soon as possible to defend the case.

Border Enforcement Security Task Force Cracks Down on Crime at Miami Seaport, MMD Newswire.com, December 1, 2010.

A senior non-commissioned officer rolled the dice at a summary a court-martial and came away with not guilty verdicts on all charges and specifications. The defendant was charged with disrespect to a commissioned officer, indecent language, and three counts of violating the general article by using inappropriate language toward lower enlisted personnel. After a day long trial, the Miami criminal lawyers representing the accused secured an acquittal on all charges. Four witnesses appeared on behalf of the government. The Miami military lawyers relied on a lack of evidence and the outstanding service record of the defendant.

A summary court-martial is composed of one commissioned officer currently serving on active duty. This type of courts-martial is similar to a bench trial in the civilian world. More serious types of courts-martial are of the general and the special variety which allows for an actual jury or panel to determine the guilt or innocense of a military serviceman. The military rules of evidence apply in all courts-martial. The military rules of evidence are almost similar to the rules of evidence used in state and federal court trials. A service member has the right to refuse to be tried at a summary court-martial and demand that the case be heard in front of a panel.

The downside in declining a summary court-martial is that the potential penalties increase with the other forms of trial. The maximum punishment for a service member found guilty at a summary court-martial is as follows: if a soldier or sailor is an E-4 or below, the punishment can include confinement for 45 days, reduction in rank, restriction for two months and a forfeiture of pay. If the serviceman is an E-5 or above, the defendant cannot be sentenced to confinement, but can have his or her rank reduced, and is subject to restriction and loss of pay. More importantly, a conviction at a summary court-martial will allow the chain of command to administratively separate or kick out a military member.

A summary court-martial is not as complex as a general or special courts-martial and can usually be concluded within a day. Although not as complex, military law, such as motion practice will be applied in this setting. Summary courts-martial apply to all branches of the military service including the army, navy, air force, marines and coast guard. A defendant at a summary court-martial can choose to represent themself, but they have the right to hire private counsel to defend the case as long as it does not unreasonably delay the trial. Anyone facing any type of courts-martial should seek the advice a retain a private qualified military lawyer to defend the charges as a conviction can result in confinement and certainly a discharge from the military.