February 2011 Archives

February 24, 2011

South Florida Doctors Arrested for Trafficking Oxycodone

Federal agents arrested several doctors from multiple clinics in South Florida. Doctors working out of such counties as Palm Beach, Broward and Miami-Dade County were arrested for oxycodone trafficking. The feds raided 15 clinics or "pill mills" which resulted in the arrests of five doctors, along with a few street drug dealers and employees of the clinics. The media has consistently reported the recurring problem which has caused certain activists and politicians to request that a database be put in place to end the illegal distribution of pain killers from the mills. Governor Scott has ben an opponent of the database for ideological reasons such as the right to privacy. All of the individuals arrested yesterday will appear in federal court today at their initial appearance. At the first appearance, bond will be set and each defendant and will either be represented by a private criminal defense lawyer or a criminal attorney from the public defender's office. Individuals that cannot afford to hire a lawyer will be represented by a public defender or a court appointed lawyer.

Oxycodone trafficking cases can be prosecuted both in state and federal court. The potential sentences vary depending on which jurisdiction the case is prosecuted. In state court, oxycodone trafficking minimum mandatory sentences attach to anyone convicted of this offense. Trafficking in 4 to 14 grams of oxycodone carries a 3 year minimum mandatory sentence, 14 to 28 grams carries a 15 year sentence and in excess of 28 grams carries a whopping 25 year sentence. In federal court, the sentencing guidelines apply and the weight of the oxycodone determines the offense level. To determine the potential sentences, a defendant must look at the drug equivalency table where 1 gram of oxycodone is treated like 6,700 grams of marijuana. When considering the weight of the oxycodone, the guidelines require that only the drug itself be weighed excluding the pill, capsule or casing. A 10 year minimum mandatory sentence may apply as well.

Investigators claim that the doctors were handing out prescriptions for fake injuries and false pain. The arrests came from undercover detectives acting as patients who received no medical evaluation from the prescribing doctor. One of the doctors allegedly ordered in excess of 280,000 pills for patients. Records indicate that the top 39 prescribers of the pills work out of South Florida. Residents from other states travel all the way to South Florida because of the easy access to prescription medications. The pill mills are very popular in South Florida because of the lack of regulation. Most other states use tracking systems to prevent this problem. Most advocate for a monitoring system that would prevent the clinics from obtaining and selling large quantities of oxycodone.

Anyone being investigating for oxycodone trafficking or any other form of drug trafficking should not speak with investigators prior to speaking with a criminal defense attorney. Any statements made to law enforcement can and will be used at trial and will certainly limit a defendant's ability to defend the charges, both in state and federal court. Anyone arrested for these types of charges should seek legal counsel as soon as possible to defend the case.

Pill-Mill Arrests Hit Right Target: Doctors Cranking Out Oxycodone Prescriptions, Miami Herald.com, February 23, 2011.

February 21, 2011

Homestead Man Pleads Guilty to DUI Manslaughter Charges

A local man entered a guilty plea in circuit court to three counts of DUI manslaughter. DUI manslaughter is a second degree felony punishable up to fifteen years in prison. He was also arrested and charged with one count of battery on a firefighter which is a third degree felony punishable up to five years in prison. Although the defendant entered a guilty plea last week, his sentencing hearing was put off until April 28, when Circuit Court Judge Rosa Rodriguez will determine his fate. The defendant appeared remorseful when he entered the guilty plea with the assistance of his Miami criminal defense lawyer.

On January 25, 2009, the defendant was barreling down US1 after a night of drinking and crashed into the rear of a Ford minivan killing three children ages, 10, 7 and 4. According to police reports, his blood alcohol level was more than 3 times the legal limit. To make matters worse, the defendant was charged with battery of a firefighter for fighting with a rescue worker who tried to extricate him from his vehicle. Although arrested at the same time for the DUIs, the defendant did not enter a plea into the felony battery charge as the charging documents were never consolidated. It is not clear why the charges were never consolidated since the offenses occurred at the same time. Depending on the sentence handed down by the judge, the state may dismiss the battery charge.

The case is unusual because the defendant entered a guilty plea with out the protection of an agreement with the state. In the large majority of cases in Miami-Dade County, defendants enter guilty pleas with set sentences agreed to by both the defendant and the prosecution. The defendant in this case pled up to the court which means the judge can sentence him anywhere within the sentencing guidelines or even below the guidelines if the defense attorneys convince the judge that a downward departure is appropriate. While it is rare to plead up to the court without a plea agreement, defendants are sometimes forced into this position when there is overwhelming evidence and the prosecution is unwilling to extend a plea offer.

As in many cases, prosecutors are unwilling to extend plea offers on sensitive cases that garner a lot of media attention. This case has been in the media for several reasons. Obviously, the death of three children caught the attention of the media. Moreover, the defendants driving record was horrible with 29 citations over the past 8 years. To make matters worse, the defendant had a prior DUI conviction. Many wondered after all of the citations, how could it be that the defendant still had a valid driver's license. Another issue in the case was a dispute between the lawyer representing the parents of the deceased children and the lawyer representing the defendant. The criminal lawyer accused the civil lawyer of attempting to get the defendant to lie about the whereabouts of his drinking. In the end, enough evidence could not be gathered and the lawyer was never charged. Unfortunately, the lack of defense and media sensitive nature of the case did not allow any options for the defendant.

Homestead Man Pleads Guilty in DUI Crash that Killed Three Children, Miami Herald.com, February 16, 2011.

February 15, 2011

Federal Authorities Make Numerous Medicare Fraud Arrests

The feds are at it again and made 16 arrests for individuals allegedly involved in Medicare fraud. The arrests come as part of what has been dubbed by the government as the largest fraud in Medicare's history, to the tune of about $200 million. Residents of Miami-Dade and Broward Counties were the subjects of the arrests. The case will be prosecuted locally which means that the majority of the defendants will be represented by Broward and Miami criminal defense lawyers. The defendants include doctors, health care administrators and other employees that worked for a company called American Therapeutic.

The defendants are going to appear today in federal court for there first appearance. Several things occur at the first appearance. The defendants have the right to have a private criminal attorney appear on their behalf or request a short continuance in order to retain counsel. If a defendant is comfortable with his or her counsel, the lawyer can file an appearance and address the matter of the bond. The judge or magistrate presiding over the case will determine the amount of the bond based on two simple factors which are the safety of the general public and a defendant's ties to the community which will assure the magistrate that the defendant will appear for all court hearings. In considering the safety of the general public, the magistrate will consider the type of crime for which a defendant was arrested and the defendant's prior criminal history.

In determining whether the defendant's ties to the community merit a particular bond, the magistrate will consider the citizenship of a defendant, property ownership, and the locale where his family, in particular where his or her spouse and children reside. As part of the bond, the defendant or his family may be required to sign as personal guarantors for the bond or be required to put up real estate as collateral for the bond. Typically, a defendant will be required to surrender his or her passport as a condition of the release. At the bond hearing or first appearance, counsel may seek a bond reduction on behalf of his or her client. Once the first appearance portion of the case is completed, the case will be set for an arraignment. At the arraignment, a defense attorney will file a permanent notice of appearance on behalf of the client and will also become aware of the charges the client is facing. At the arraignment, a trial date will be set for the case.

In federal court, trial dates are set quickly and judges do not like to grant continuances. Continuances are generally granted based on the complexity of the charges and the number of defendants listed in the indictment. Because the current Medicare fraud case referred to earlier involves such a substantial loss and thousands of documents will be used as evidence to prove the case, along with 16 co-defendants, the case may stay open for about a year. During that time, defendants will most likely enter pleas to reduce their exposure. Some of the defendants will even enter into agreements with federal prosecutors to testify against other co-defendants. The potential sentences in this case will be extremely high, mostly because the federal sentencing guidelines factor in the amount of loss to the victim which in this case is the federal government and the Medicare program. The only real way to escape the guidelines to cooperate with the government or obtain an acquittal at trial.

Feds Make More Arrests in Major Medicare Fraud Case, Miami Herald.com, February 15, 2011.

February 10, 2011

Man Arrested on Murder and Sexual Battery Charges

The police claim that they have solved a murder and sexual battery case that was committed in 2000. The cold case was solved through the use of DNA evidence. The defendant, a former Miami-Dade transit employee, was already in custody on two other cases involving sexual battery and attempted murder. The Miami criminal defense lawyer representing the defendant on the first two cases will apparently represent him on the newest charges. Detectives obtained the DNA as part of their investigation into the recent sexual battery case. Many other cold cases have been solved by the use of DNA. The law in the State of Florida changed a couple of years ago that requires defendants under certain circumstances to submit their DNA to a data base. This change in the law has allowed law enforcement to solve old previously unsolved cases.

The defendant has had relatively few contacts with the criminal justice system which is the reason his DNA was not found in the data base. He had previously been arrested for strong arm robbery which was eventually dismissed by the state and a domestic violence case in which he was charged with simple battery for allegedly beating his girlfriend and the mother of three of his children. The charges were dropped after he completed the pre-trial diversion (PTD) program after attending domestic violence classes.

Florida Statute 943.325 was passed by the legislature because DNA databases are important tools in criminal investigations, not only for apprehending people who commit crimes, but also to exclude people from being wrongfully charged with a crime. The statute mentions that it was created to assist law enforcement on the federal, state and local level in the identification and detection of criminals, as well as missing persons. The legislature also believed that it was in the best interests of the citizens of the State of Florida to establish a statewide data base which contains DNA samples of individuals convicted of or arrested for felony offenses and convicted of certain misdemeanor offenses.

The law that requires individuals to submit their DNA samples apples to qualified offenders. Qualified offenders are defined as persons: committed to a county jail, committed to the department of corrections, committed to the juvenile justice system, convicted of a felony offense, or convicted of certain misdemeanor offenses. Each qualified offender must submit a DNA sample at the time he or she is booked into a jail, correctional facility, juvenile facility or at the time the plea is taken. A statewide laboratory is responsible for maintaining a statewide automated personal identification system capable of classifying, storing, and matching DNA samples. All crime laboratories within the state have access to the data base.

Arrest Made in 2000 in 200 Murder and Rape of Miami Runaway Girl, Miami Herald.com, February 8, 2011.

February 9, 2011

Florida Governor Wants to Repeal Drug Trafficking Law

The governor of the State of Florida, Rick Scott, made public his desire to repeal the state law that was promulgated in an attempt to reduce the prescription drug trafficking problem facing the state, especially South Florida. Unlike marijuana and cocaine trafficking, trafficking in pills is a more recent phenomenon. South Florida and Miami criminal defense attorneys have seen an upswing in the number of prescription drug cases, such as Oxycodone trafficking, being prosecuted both in state and federal court. The state legislature recently enacted a law that was designed to reduce the prescription pill problem plaguing the state. Drug dealers and addicts from other state's flock to South Florida to obtain prescription pills because they are not regulated in Florida like other states.

The Florida legislature implemented an electronic monitoring program which would supposedly track prescription medications. Scott believes that the program will not be as effective as advocates proclaim and also is worried about the privacy rights of legitimate patients. Proponents of the new law claim that the program is the most effective method in curtailing the problem. They believe that Florida has the problem because they do not have a drug monitoring program or system like other states around the country. Despite the fact that there is enough funding for the program, many desire that the program never be implemented.

While possessing or dealing pills would seem to be less serious, the potential sentences under these cases are more severe than the penalties for marijuana or cocaine trafficking. Due to the addictive nature of pain killers such as oxycodone and hydrocodone (more common names are Oxycodone, Vicodin and Percocet), the penalties for trafficking in these pills is commensurate with penalties for opium and heroine trafficking. Anyone caught with more than 4 grams, but less than 14 grams of these types of pills faces a 3 year minimum mandatory sentence. Anyone caught with between 14 and 28 grams of the controlled substance faces a 15 year sentence. Anyone caught with more than 28 grams faces a 25 year prison sentence. Based on the penalties, it is apparent how serious the legislature considers the trafficking of these pills to be.

The majority of these drug trafficking cases that are prosecuted by the state arise from transactions between those arrested and confidential informants (CI's) or undercover narcotics detectives (UC's). The majority of the transactions are set-ups which are tape and video recorded by law enforcement officers. With that in mind, street dealers should always bear in the mind the large number of CI's working the streets of Miami and South Florida. The majority of the CI's are out there setting up deals in an effort to prevent their arrest and prosecution or are trying to reduce their exposure when they are sentenced in court.

Scott Proposing Repeal of Florida Drug Trafficking Law, Miami Herald.com, February 8, 2011.

February 4, 2011

Jury Recommends Death Sentence for Coconut Grove Man

After lengthy deliberation, 8 out of 10 jurors recommended that local man convicted of first degree murder and armed robbery receive the death penalty. Brandon Rolle and his Miami criminal attorney were present in court when the recommendation was handed down by the jury. The same jury convicted the defendant in October for killing and robbing a tourist visiting his son in Miami. While in town to celebrate his son's birthday, the victim apparently got lost in the Coconut Grove area and was shot and killed when he stopped to ask for directions. The murder/robbery occurred back in 2006.

The defendant was charged with first degree felony murder, as premeditation would have been difficult to prove as there were no eyewitnesses to the event. In general, all homicides that result for violent crimes are charged as felony murder as it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill. To prove first degree felony murder, the State has to prove that (1) the victim is dead, (2) the defendant was the person who actually killed the victim, and (3) the death occurred as a result of and while engaged in the commission of an enumerated offense. The enumerated offenses for first degree felony murder are: drug trafficking, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, carjacking, home-invasion robbery, aggravated stalking, and resisting an officer with violence. First degree felony is a capital crime punishable as set forth in Florida Statute 775.082.

A person who has been convicted of a capital crime can be sentenced to death of life in prison. That determination is made by a circuit court judge with recommendations provided by a jury. The procedure for sentencing in capital cases can be found in Florida Statute 921.141. A sentencing hearing will occur after a conviction with preferably the same jury who rendered the verdict. If convening the same jury is impractical, a judge may summon a special jury to determine the issue of the death penalty. At the sentencing hearing, the State will present aggravating factors while the defense lawyer will present mitigating factors to the jury. The jury has to decide whether there are sufficient aggravating factors which are set forth in the statute such as prior crimes and how the enumerated crime was committed. The jury then has to determine whether the mitigating circumstances outweigh the aggravating factors. Mitigating circumstances are also set forth in the statute and include lack of prior criminal history or the defendant's mental state at the time of the offense.

After hearing all of the evidence, the jury will deliberate and render an advisory sentence to the judge presiding over the hearing. The advisory sentence is no way binding on the judge, but judges give these type of recommendations alot of weight. If a judge imposes a death sentence, he must do so in writing and on the record. These written finding of fact must include the aggravating and mitigating factors discussed earlier. Any death sentence imposed will be reviewed as a matter of law by the Florida Supreme Court within two years after a notice of appeal is filed.

Jurors Recommend Death Penalty for Coconut Grove Man Convicted of Tourist Murder, Miami Herald.com, February 3, 2011.