June 2011 Archives

June 28, 2011

Local Doctor Sentenced to 20 Years for Medicare Fraud

A federal judge sentenced a doctor to 20 years in prison for his involvement in a Medicare fraud scheme that cost the federal healthcare system millions of dollars. The defendant appeared with his Miami criminal attorney and attempted to avert a lengthy prison term by arguing that his client should not die in prison and that he suffers from a heart condition and diabetes. The federal court judge presiding over the sentencing hearing felt little sympathy for the defendant. On the record, the judge chastised him for violating his medical oath, billing the Medicare system and disgracing himself, his family and the community. The defendant was found guilty of charges involving his receipt in excess of a million dollars for writing fake prescriptions with the intent to defraud Medicare. The jury found that the doctor was involved in billing Medicare for HIV treatments that were unnecessary or never provided to patients.

The sentence handed down was the second harshest ever involving a medical doctor convicted of being involved in healthcare fraud. A Miami-Dade physician was charged with a similar Medicare fraud in 2008 and was sentenced to 30 years in prison. That sentence was upheld last year in appellate court with a former United States Supreme Court Justice sitting as a guest judge. She declared, "a doctor should be treated more severely than other participants because the doctor is breaching a position of trust and an ethical obligation to put the patient's interests first." The judge hearing the case yesterday repeated ths same sentiments. The defendant helped operate the scheme using two clinics to bill Medicare. The owner of one of the clinics suffered a far less fate as she cooperated with the government to prosecute other perpetrators.

In federal court, defendants that cooperate with government receive significantly reduced prison sentences than those who go to trial and are convicted by a jury. While cooperating with the government against people you know and used to work with is definitely a difficult situation, it is far better than receiving a double digit prison sentence. Every defendant in federal court should seek qualified representation before deciding to accept or reject a plea. While this decision is always difficult, the case and the evidence supporting it must be critically analyzed to support this decision. The benefit of accepting a plea results in significant level reductions under the sentencing guidelines and of course the benefit of a large sentence reduction that comes with a 5K supported by federal prosecutors.

Federal prosecutors continue to focus on Medicare fraud cases involving HIV treatments, as clinics, mostly in the Miami-Dade area, have billed in excess of $2.2 billion worth of infusion bills. Clinics in the South Florida are have billed for 72% of all HIV Medicare claims despite the fact that only 8% of the population with HIV reside in the same area. While the defense lawyer representing the doctor attempted to appeal to the softer side of the judge, government prosecutors convinced her that the defendant deserved no sympathy and should be sentenced to 30 years in prison. Both the government and the judge focused on the fact that the defendant was a doctor and should be sentenced accordingly for this breach of trust.

Medicare Fraud Nets 20-Year Prison Sentence for Miami Physician, Miami Herald.com, June 27, 2011.

June 23, 2011

Congressman Seeks to Pass New Immigration Law

In 2005, the United States Congress passed a new law which forbid federal immigration authorities for indefinitely detaining illegal immigrants with prior criminal histories. Our community has always been the home to people living illegally in the United States. This reality has always been a cause for concern for Miami criminal defense lawyers because a criminal conviction or any type of criminal record for that matter is sometimes more devastating than a similar result obtained on behalf of a U.S. citizen. While the majority of illegal immigrants are deported for various criminal offenses on a daily basis, illegal Cuban immigrants can not be deported to their home country. Federal law prevents Cuban immigrants from being deported. The current state of law prevents illegal immigrants from being held in detention in excess of six months. The majority of non-Cuban illegal immigrants are deported to their country of origin within weeks or even days. Illegal Cuban immigrants are eventually released to resume their lives within the United States.

Congressman Lamar Smith of Texas has proposed a bill that will allow immigration authorities to indefinitely detain illegal immigrants with criminal records for violent crimes, such as murder and sexual battery, and for drug offenses, such as cocaine possession or marijuana trafficking. While deportation is an unpleasant thought for anyone to say the least, this proposed change in the law would affect illegal Cuban immigrants the most, as they would be incarcerated indefinitely, or at least until the U.S. policy towards Cuba is amended. While the proposed bill is not imminently going to become law, the change has garnered a lot of attention from both proponents and opponents. While the bill does not specifically refers to Cubans, everyone knows that it applies to them as they are the largest body of people residing in the United States that are not subject to deportation.

Proponents of the bill claim that the bill does not target Cubans, but all dangerous non-deportable individuals with criminal records for violent offenses, certain drug offenses and for certain crimes of moral turpitude. Immigration laws allow for the deportation of persons with records for aggravated felonies which are outlined in the federal statutes. The bill is not supposed to be retroactive if passed into law, but opponents of the bill claim that language within the proposed law will allow for detention for crimes committed prior to and deportation orders signed prior to the enactment of the legislation. Opponents also claim that the passage of the bill will result in thousands of illegal immigrants being jailed for years.

While the passage of the law is not imminent, all illegal immigrants and defense attorneys alike must be keenly aware of the harsh consequences of accepting pleas. Lawyers must know what criminal offenses allow for deportation and advise their clients accordingly. With individuals with prior records, the best option to prevent deportation is to file a motion for post-conviction relief with the hope of vacating a prior judgement and sentence and having the charge dismissed. Current changes in the law have made it increasingly difficult to obtain this result. Cut off periods have been instituted by the courts which limits the time for individuals to file motions that did not receive the legally required immigration warnings from the court or for individuals who received affirmative mis-advice from their lawyers regarding the possible deportation as a result of entering a plea. Anyone being held in immigration custody or facing deportation should seek out an experienced lawyer in handling these matters to determine the best course of action to prevent deportation.

Cubans Who Can't Be Deported Could End Up Detained in U.S., Miami Herald.com, June 21, 2011.

June 22, 2011

Life Sentence, No Death Penalty for Defendant

On September 30, 2010, a jury returned a guilty verdict in the trial of Coconut Grove resident Brandon Antron Rolle for the July 2006 first degree murder and robbery with a firearm of a lost Illinois tourist. The defendant remained in custody since he turned himself in on August 4, 2006. The Miami criminal defense lawyers representing the defendant were unable to secure an acquittal for the client. The sentencing phase was a little more successful, but in the end, the same jury voted 8 - 4 in a non-binding recommendation that the defendant be executed for his crimes. In accordance with state law, however, the task of making the final determination fell to Miami-Dade Circuit Judge Dennis Murphy. Generally, judges follow the penalty recommendation of the jury, and, at least according to local press reports, it was widely expected that this judge would decide in favor of the death penalty for Rolle. Unlike other felony cases, capital murder cases have two phases. The first phase determines the guilt or innocence of a defendant while the second phase will determine the punishment.

To the surprise of many, the judge's decision, issued on June 15, rejected the jury's death penalty recommendation and instead sentenced the defendant to life in prison for his role in Gentile's murder. The judge stated that this murder, while clearly a tragedy, fell short of being so heinous as to merit capital punishment, "only the worst of the worst are to be sentenced to death." The victim, a furniture salesman from Homewood, Illinois, had been visiting the Miami area to celebrate his son's 17th birthday. He had dropped off his son at the teen's place of employment at a local mall, and had planned to join him for a movie later that day. Driving a rental car in the unfamiliar city, Gentile got lost in Coconut Grove. The 54-year-old tourist stopped to ask 26-year-old Rolle for directions. Rolle, who had been out of prison only 17 days for another crime, shot and killed the tourist, and stole Gentile's wallet, a diamond ring, a gold bracelet, and a necklace in what Miami defense attorneys later characterized as a robbery gone terribly wrong. Gentile managed to exit the car and walk a shot distance before he collapsed. He was pronounced dead en route to Jackson Memorial Hospital.

Police investigators found Rolle's fingerprint on the rented Chevrolet Cobalt's driver-side door, and an eyewitness, a Liberty City convenience store clerk, testified that Rolle attempted to sell him some of Gentile's property. Rolle's then girlfriend also testified that Rolle used Gentile's mobile phone, and had her pawn some items of jewelry he had taken from Gentile. The girlfriend also provided police a picture Rollo took of himself in a nightclub with his finger making a gun-like gesture while he wore a bracelet later identified as having belonged to Gentile. Prosecutors argued to the court that Rolle deserved the maximum sentence. Rolle already had been in prison on three separate occasions and had squandered the opportunities given him to straighten out his life and amend his criminal behavior.

As noted above, Rolle's defense team rejected the prosecutor's argument, and the jury's recommendation for the death penalty, stating that execution was too severe a punishment for what amounted to a robbery that went fatally sour. The judge sided with the defense. After the judge issued his decision to impose a life sentence rather than the death penalty, Miami-Dade State Attorney Katherine Fernandez Rundle told the press that, "We respect the role of the court, which has the ability to override the jury recommendation. We did our job. He did his."

Miami Man Gets Life, Instead of Death Penalty, for Grove Tourist Murder, Miami Herald.com, June 15, 2011.

June 15, 2011

Beach Cops and Cameras Don't Mix

Memorial Day weekend on the beach again resulted in violence and arrests. With the evolution of cell phones has come the ability of civilians to video police actions. Several incidents of police officers seizing or destroying cell phone were reported during the long weekend. The police chief of Miami Beach claimed in a statement that cell phones are taken to preserve evidence and not to cover up police misconduct. Miami criminal defense lawyers who have represented clients arrested on the beach will testify that many arrests occur as a result of innocent civilians video recording police misconduct. According to public records, there have been 11 incidents where police have either arrested individuals for filming police actions or instances when cameras have been confiscated by law enforcement. Records of police abuse regarding videos date back to 2008. Some examples of these conflicts are:

In January 2008, two individuals filmed an ordinary traffic stop. They were forcibly removed from the vehicle, beaten and charged with disorderly conduct. After a thorough investigation, the Miami-Dade County State Attorneys Office dropped the charges. Later in 2008, a woman filmed a police officer beating a man outside a Miami Beach bar. The police that took her camera were exonerated of theft and battery after an internal affairs investigation was conducted. In 2009, a photo journalist was arrested for taking a picture of an arrest. The police took him into custody and charged him with drunk and disorderly conduct. Yet again, the charges were eventually dismissed. During Memorial Day weekend in 2009, a husband and wife were arrested for disorderly conduct and had their cell phone confiscated because they filmed officers beating a man who had used profanity toward the officers. Charges were again dropped by the state. You can see the ongoing pattern.

The problem got so bad that several people formed a group calling itself Channel 62. One of its members became engaged in a verbal confrontation with Miami Beach offices and was subsequently arrested for driving under the influence "DUI". Another member of the group attempted the video the event, until the camera was seized. The police in turn issued a warning to its officers to use extreme caution when dealing with the group as they were armed with cameras. The department has since implemented a training program which instructs cops when and how they can confiscate cameras. Bear in mind that Miami Beach is not the only jurisdiction that has had issues with cell phone cameras. A Broward County officer was suspended with pay for snatching a woman's cell phone and destroying it during an arrest.

While using a camera is well within one's constitutional rights, a bystander who wants to become involved by filming must be prepared to be arrested. Regardless of the outcome of the case, a trip to jail and attending a bond hearing could certainly be in the cards. If anyone is arrested and falsely accused for simply filming the police, it is imperative to hire a criminal defense law firm quickly so that inquires of the police can be made. In certain instances, internal affairs complaints must filed immediately. The longer the delay in filing the complaint, the less credence it may be given. The state attorneys office must be contacted immediately with the hope that the criminal prosecution can be headed off quickly with a dismissal of the charges. While filming police action is certainly legal, it can be a costly endeavor.

A History of Cops vs. Cameras in Miami Beach, Miami Herald.com, June 14, 2011.

June 7, 2011

Local Cop Facing Federal Drug Charges

A local city police officer was arrested last week and charged in federal court with possession of cocaine with intent to distribute and possession of marijuana with intent to distribute. Court records indicate that the former Miami police officer is accused of taking drugs from dope dealers and selling them on his own. Roberto Asanza was six year veteran of the City of Miami Police Departments crime suppression unit. The unit has operated in the streets for years playing a major role in taking drugs off of the streets. Many believe that all police officers are to be trusted. While the arrest of an officer may seem unfortunate to some, Miami criminal defense attorneys know that criminal cases fall apart when officers listed as witnesses in their client's case are arrested or indicted. Prosecutors can not proceed with criminal charges against a defendant if police officer involved in the case are charged with criminal conduct.

In Miami, we are constantly reminded that law enforcement officials are just a capable of committing crimes as anyone else in the community. U.S Attorney Wilfredo Ferrer, along with the FBI agents and City of Miami Police Chief Miguel Exposito, publically announced the arrest of the Miami police officer. The FBI claims that the defendant along with other crime suppression officers arrested a man for drug possession and seized multiple bags of cocaine and marijuana. A few weeks after the seizure, FBI agents stopped Asanza and allegedly found ten bags of cocaine and two bags of marijuana in his vehicle that were purportedly seized in the earlier bust. The defendant allegedly consented to the search allowed the agents to find ten bags of cocaine and two bags of marijuana. The FBI subsequently determined that these drugs formed part of the cache taken in the Allapattah dope arrest.

The FBI investigation with the assistance of the City of Miami Police Department, now also involves Asanza's supervisor. According, to the FBI affidavit, in January 2010, Asanza and a fellow Miami police officer, identified as "R.I.," recruited a confidential informant (CI) to work with the undercover squad. "R.I.", according to the press, is Raul Iglesias, 38, a Miami police sergeant, and a 16-year veteran of the force. Iglesias apparently was formerly in charge of the Central District's suppression unit. He was suspended, with pay, from that position after the FBI's stop of Asanza's vehicle. Iglesias, who has not been charged, remains under investigation by both the FBI and the City of Miami police. Federal prosecutors will undoubtedly seek assistance from Asanza to prosecute Iglesias. The defense attorney representing Asanza will have to determine the strength of the government's case before advising his client to provide information against a fellow officer.

In October of last year, Asanza reportedly admitted to the FBI that he and Iglesias took drugs and money from the Allapattah drug dealer, following a tip they received from their CI. Asanza, according to the FBI, also acknowledged that he and Iglesias paid the CI with drugs and money, this apparently in an effort, per Asanza's reported statement to the FBI, to build a relationship with the CI that could prove useful in the future. The CI allegedly received about $120, including $80 taken from the drug dealer, and two bags of cocaine from Asanza and Iglesias. If convicted, Asanza could be receive a maximum sentence of 20 years in prison.

FBI Bust Miami Cop on Drug Charge, The Miami Herald.com, June 2, 2011.

June 2, 2011

Photo Line-ups are Flawed

The credibility of photo lineups in Florida criminal proceedings has come under recent attack both from the legislature and the Innocence Project of Florida, a non-profit organization, that works to overturn wrongful criminal convictions. The organization sometimes solicits the assistance of Miami criminal defense lawyers. According to the Innocence Project, eyewitness misidentification accounts for over 75% of all wrongful criminal convictions nationwide. The issue gained particular prominence in Florida after the release of Derrick Williams on April 4 of this year. Imprisoned for sexual battery since 1992, Williams was convicted following an eyewitness identification. He was released from prison when DNA testing conclusively eliminated him as the assailant.

A large number of variables can affect the reliability of witness identification during a photo lineup, such as, how much the witness learns about a particular suspect in custody; the actions and attitudes of the police officers administering the lineup that might cause a witness to feel pressure to make an identification; and, of course, the quality and the nature of the pictures themselves. Flawed line-ups have sent defendants to prison on very serious charges such as armed robbery and various sex crimes. In February of this year, Republican Senator Joe Negron of Palm City and Democratic Representative Perry Thurston of Ft. Lauderdale, submitted separate bills calling for a massive overhaul of witness identification procedures in the State of Florida. The bills received the support of criminal attorney from state's public defender offices, the American Civil Liberties Union and the Innocence Project of Florida.

Among other proposed changes these bills called for witnesses to be issued a disclaimer that would, inter alia, warn the eyewitness that the suspect might not be in the photo array; make clear that the witness does not have to identify someone; and, that the investigation of the crime will continue with or without a photo lineup identification of a suspect. If police do not follow this new protocol, a jury or judge could take that into consideration when determining the reliability of an eyewitness identification.

Though both bills have failed to prosper, their basic proposed provisions have become the foundation for changes advocated by the Florida Innocence Commission, a statewide panel chaired by Chief Judge Belvin Perry Jr. Two weeks ago on May 16, the commission met at the Rosen Plaza Hotel in Orlando. Among their recommended changes were,

1) Reducing the suggestiveness of photo lineups by insuring no suspect in the pictures has overtly distinguishing characteristics, e.g., if the alleged perpetrator is of a certain race or color, that there not be just one or two photos of suspects of that race or color;
2) Procedures be administered in a "double blind" fashion, to wit, neither the witness nor the administering officer will know if the suspect, in fact, is in the photo lineup; and,
3) Pictures be shown one-by-one.

The commission has no official law-making powers. Absent, therefore, action by the legislature, the burden falls entirely on state and local law-enforcement agencies to implement the proposed changes. As expected, law enforcement officials are hesitant to embrace the reforms. Charlotte County Sherriff, Bill Cameron, acting as a representative of the Florida Sheriff's Association, charges that these changes send the wrong message to the community, specifically, that law enforcement "should not be trusted." Photo lineups have long been a hallmark of criminal convictions. Challenging their reliability could have a profound effect not only on how criminals are prosecuted, it could complicate convictions of persons already imprisoned by opening the door to appeals. Law enforcement agencies have said that such bills or changes are unnecessary and even redundant as these agencies already have underway new guidelines that would require similar protocols.

Florida Legislature Looks at Better Criminal Identification Procedures, Digital Journal.com, May 8, 2011.