July 2011 Archives

July 27, 2011

Former Trafficker Charged with Medicare Fraud

A South Florida man previously convicted of cocaine trafficking and money laundering has been charged with committing Medicare fraud. The indictment alleges that Luis Alejandro Sanz, who had previously served a five year prison sentence, opened a healthcare clinic to purportedly treat diabetes patients. Court documents allege that he billed the federal healthcare provider $11 million of which he actually received $7 million. Because of his past criminal record, Sanz enrolled his wife as the sole proprietor of the clinic to avoid detection. Both defendants are scheduled to appear in court with their Miami criminal attorneys this week for their arraignment.

Earlier in the week Sanz and his wife were indicted on charges of healthcare fraud, money laundering and for paying kickbacks. The clinic operated from 2006 to 2009 obtaining clients through the use of patient recruiters. This is not the first instance where previously convicted felons have turned to healthcare fraud. Despite the law that precludes individuals with prior felony convictions from being Medicare providers, several have slipped through the cracks. While it is almost impossible for the federal healthcare agency to detect who put the money up to start and run the clinic, the Medicare program has dumped millions of dollars into its security system in an effort to prevent millions of dollars of fraud from occurring.

Congress awarded Medicare $350 million in the Affordable Care Act to develop software which allows for stricter screening of Medicare claims. Previously, Medicare used the "pay and chase" method for combating fraud. While many prosecutions and convictions resulted from this approach, the federal government could not recoup the money after the scams had already been completed. The new software being used by the healthcare program along with stricter screening for healthcare providers is intended to prevent the fraud and save the taxpayers millions of dollars. Time will tell if the new initiative will be more effective in combating fraud than its predecessor.
The upgrades in fraud prevention come as a result of millions of dollars in losses to the federal government. It is well documented that the majority of fraud is an was committed in Miami and throughout the South Florida area. Along with the fraud detection upgrades, the Medicare fraud task forces across the country are working in concert and sharing information.

While Medicare fraud itself is not a serious offense as far as punishment is concerned under the federal sentencing guidelines, the risk lies in the multi-level increases that are directly correlated to the amount of the loss suffered by Medicare. In South Florida, Defendants charged with Medicare fraud are facing 24 to 48 months if they enter guilty pleas and cooperate with government prosecutors and investigators. Defendant who go to trial and are convicted by a jury are looking anywhere form 10 to 20 years depending on their involvement in the fraud. At the present time, individuals charged with Medicare fraud are in the cross hairs of the United States Attorneys Office. Any charged with or being investigated for healthcare fraud, should retain a criminal lawyer with experience in defending these types of cases in federal court.

Former Miami Drug Trafficker Now an Accused Medicare Scammer, Miami Herald.com, July 27, 2011.

July 22, 2011

Murder Trial Begins for Coral Gables Student

A former Coral Gables student is standing trial for his alleged role in the stabbing death of a fellow student. The murder trial stems from an incident that occurred at Coral Gables High School. In opening statements, the prosecution portrayed the defendant as a jealous and angry young man, while the Miami criminal defense lawyer representing the defendant portrayed his client as a young man acting in self-defense and was simply protecting himself. On September 15, 2009, the defendant purportedly stabbed the victim during a fight over a girl. Although the confrontation lasted only a minute, the defendant stabbed the victim five times, one of thrusts struck the heart and killed the victim.

The defendant is charged with second degree murder with a deadly weapon and could face life in prison if convicted by the jury. Based on the opening statements, the defense seems to intend to rely on self-defense in the case. The defense claims that defendant was on the ground being choked by the victim when the defendant struck back with the knife. The defense went further to say that the choking was so violent that the defendant could not breathe and lashed out to save himself. Apparently, the defendant had marks on his neck, thereby corroborating the defense's theory of the case. The defense lawyers should introduce photos of the injuries during the case to solidify their case.

At the close of the evidence and after each side has completed their closing statements, the jurors will deliberate and have to decide whether the defendants was justified in using deadly force. There is a standard jury instruction that the judge will read to the jurors regarding this defense. The law allows for a defendant to use deadly force if a defendant reasonable believes that the force is necessary to prevent death or great bodily harm. The jurors will have to determine whether the circumstances in which the defendant found himself surrounded by justified the use of deadly force. The appearance of danger must have been so real that any reasonably cautious and prudent person under the same circumstances would have believed deadly force was necessary to avoid the danger.

The jurors will have to consider all of the evidence provided at trial to determine if the defendant's claim of self-defense will entitle him to a not guilty verdict. The jurors must consider physical, as well as testimonial evidence prior to coming to their decision. The testimonial evidence will come from people who were around when the incident occurred. The physical evidence that will be compelling in the case will be the video recording from the school surveillance system. The strength of video either for the defense or the prosecution will depend on the clarity of video and what it depicts. The jurors will review the video several times and then discuss what each one thinks about its contents before determining the guilt or innocence of the defendant. If the jurors cannot come to a unanimous decision, it could result in a hung jury, eventually requiring a new trial down the road. The trial is supposed to last approximately two weeks.

Prosecutor: Coral Gables High Teen Let Jealousy, Anger Lead to Murder, Orlando Sentinal.com, July 22, 2011.

July 14, 2011

Marijuana Possession Legal on South Beach?

Not yet, but advocates are pushing to decriminalize marijuana possession on the beach. More than a dozen people pushing for the new law arrived at city hall on Miami Beach with a petition that contained more than 9,000 signatures supporting the change. The new law would decriminalize marijuana possession of less than 20 grams and merely make it a civil fine. As it stands, people arrested for marijuana possession face a first degree misdemeanor charge punishable up to a year in jail. While it is not the most serious offense on the books, people arrested for this crime generally hire a Miami criminal defense lawyer to defend the charge. Typically in Miami, prosecutors offer pre-trial diversion of a withhold of adjudication and court costs.

If a defendant charged with marijuana possession has no criminal record, prosecutors will likely offer pre-trial diversion. A defendant will be required to pay a $250 fee to enroll in the program and then be required to complete a drug course. While the conditions are not onerous, defendants are only afforded to enter the program once. That is why it is recommended to fight the case and seek an outright nolle pros or dismissal of the charges. Although not recommended, the easiest way to dispose of the charge is to take a plea to a withhold and court costs, but that will leave someone with a criminal record and possible immigration consequences. If 4,300 signatures are verified and the city attorney and city commission find that the new ordinance is constitutional, the police will only be permitted to issue $100 fines and no longer be permitted to make arrests.

The new law does not appear imminent and there are many hurdles before it is passed. For now, the Miami Beach city attorney is of the opinion that the ordinance is probably not constitutional. In the event the ordinance is declared constitutional, the bill still has to be placed on a ballot and voted into law. In the event that occurs, Miami Beach would be the first city in the State of Florida to decriminalize marijuana possession. The move to change the law is being driven by the Committee for Sensible Marijuana Policy. The group has been pushing for the change since 2010. Proponents of the change claim that the new law would save millions for the city. They claim that Philadelphia passed a similar ordinance and saved $2 million the first year the change was in effect.

In the event the law is passed, all other laws involving marijuana will remain on the books. Felony marijuana possession more than 20 grams or marijuana trafficking offenses will continue to be charged and prosecuted. While felony possession cases are easily defended, trafficking cases are more difficult as a three year minimum mandatory sentence attaches. In either case, anyone arrested for any marijuana charge should seek out a qualified defense firm to defend the case. Even if time served or probation is offered, defendants must be aware that accepting pleas of this nature will subject one to deportation in the event they are not a U.S. citizens. Residents could also lose their green cards by accepting pleas for these charges.

Pot-Referendum Bid Put Off, Miami Herald July 7, 2011.

July 11, 2011

Feds Launch Medicare Anti-Fraud System

Federal officials finally launched the long awaited computer system to combat Medicare fraud. South Florida has been declared "ground zero" for Medicare fraud. A federal task force operating out of Miramar, Florida was the first to use the new program. For the last couple of years, the federal government has spent large sums of money and man hours to combat the crime. Numerous defendants have been sentenced to multi-year prison terms despite the efforts of the Miami criminal defense lawyers representing them. While in the past, the system used to detect and prosecute Medicare fraud has been mainly reactive, the new computer system definitely reflects a more pro-active approach to fighting the offense. While the use of the program began in South Florida, the system is being used nationwide to prevent the theft of millions of dollars from the federal healthcare program.

The new federal system is called "predictive modeling" and is designed to examine millions of Medicare claims filed on a daily basis. The program looks for suspicious claims to prevent fraudsters from using recruited patients or in the alternative using stolen Medicare identification numbers. According to Peter Budetti, the man leading the initiative, the new system will help identify similar scams occurring across the country. The new anti-fraud system is being used by all Medicare fraud task forces, some of which are set up in Miami, Detroit, Houston and Los Angeles. With all that being said, the federal government will continue to apply pressure to all those involved in healthcare schemes to defraud.

Federal investigators, last month, charged 21 defendants accused of stealing $21 million from the federal government. Six of the defendants are from the Miami area while the remainder were operating out of Michigan. Over the past year, South Florida prosecutors have charged in excess of 102 defendants with billing the federal government $441 million in fraudulent claims. Since 2007, the Medicare strike forces have been involved in the arrest in excess of 1,000 individuals responsible for filing $2.3 billion in fraudulent claims. South Florida led the way with $1.85 billion in fake claims. While it is not clear how much has been lost to fraud, estimates have reached as high as $60 billion. The new system of detection is designed to prevent the fraud from occurring while the old system was used to detect it after the fraud had already been committed.

Being investigated for or charged with Medicare fraud is a serious matter. The federal sentencing guidelines take into consideration the amount of loss in determining a potential sentence. The offense of fraud itself is only a level 6 offense. The problems lie with the multi-level increases that occur when substantial losses to federal healthcare system occurred. The cases prosecuted by the federal government are complex and indictments usually contain dozens of defendants. The defense of these types of cases should not be taken lightly and only qualified defense attorneys with experience in the arena should be retained to represent clients charged with this offense.

Medicare Anti-Fraud System Launched, Orlando Sentinal.com, July 11, 2011.

July 5, 2011

Bail Skippers Not Pursued

The majority of defendants arrested are entitled to post a bond to secure their release from custody. The procedure for posting bonds in the state court system can be accomplished in two ways. First, a defendant can pay the entire amount of the bond to the clerk of courts and then be released from custody. The most common approach to posting bail is by hiring a bondsman. A defendant will be required to provide the bondsman with 10% of the value of the bond and in many instances provide collateral for the difference. If money is not an issue, Miami criminal defense lawyers suggest posting the entire amount of the bond. Upon the conclusion of the case, the defendant is entitled to the return of the full amount of the bond. When using a bondsman, the 10% premium will not be returned.

While the majority of defendant charged with a crime appear in court to face the charges, a minority of defendants flee the jurisdiction with the hope that they can avoid prosecution. A defendant is who posts a cash bond and flees the jurisdiction is relatively safe from prosecution. Upon failing to appear for court, a judge will issue an alias capias or arrest warrant for the defendant. Unless the case is high-profile, there is little chance that the authorities will seek out the absentee defendant. In most instances, the case and the warrant will remain open unless a defendant tries to re-enter the country and is picked up by the customs authorities. In other instances, defendants are picked up on other cases in other jurisdictions for cases as minor as speeding tickets. In this cases, defendants will be arrested and returned to face criminal charges. Defendants who absent themselves from the court proceedings have a more tenuous situation when a bondsman is involved in the bail process.

In cases where a bondsman is used to post bail, and a defendant fails to appear in court, the bondsman is left in a precarious situation. Although he bondsman has received the 10% premium, he or she is on the hook for the difference in the bond. In simple terms, a bondsman will actively seek out a defendant who misses court as there is significant money to be lost if the defendant is not returned to face charges. Bondsman are more successful if a defendant remains local, but have a difficult time if a defendant leaves the country. To return a defendant to the United States to face charges, an extradition process mut followed. To the dismay of bondsman, counties are not willing to spend the time or money to extradite defendants back to court of original jurisdiction. Even though bondsman are able to track down defendants outside of the United States, the local prosecutors' offices are not willing to expend the time, energy or expense to get the defendants back to face charges.

While in most instances it is better to face charges with assistance of a good criminal attorney, a defendant who flees the country can be relatively at ease that they will not be extradicted back to the country to face charges. Prosecutors claim on the record that they avail themselves of the extradition process. However, they are aware of the difficulties in retrieving defendants to face charges. Prosecutors from all over the state will admit, that even though the proper extradition paperwork is filed, they have little power to make the process work. While it is never recommended to abscond from criminal charges, the safest way to avoid prosecution is to leave the country. Remember, once that decision has been made, any return to the United States will likely result in being arrested by customs authorities at airports or ports.

Pursuit Rare for Bail Fugitives Who Skip the Country, Florida Center for Investigative Reporting, July 5, 2011.