August 2011 Archives

August 31, 2011

Multiple Doctors Arrested on Oxycodone Charges

Federal authorities arrested 13 doctors that were involved in the operation of illegal pill mills. After completing a three year investigation dubbed "Operation Oxy Alley", 32 people have been indicted for their involvement in oxycodone trafficking. The investigation targeted owners, operators and doctors from the four largest pain clinics in the country. All of the arrests occurred in Palm Beach and Broward Counties, however, some of the defendants will likely retain Miami criminal defense attorneys. The defendants ages range from 25 to 76 and were charged with crimes including racketeering, money laundering and possession with intent to distribute controlled substances.

The are first oxycodone cases prosecuted b y the federal government where the defendants are being charged with racketeering. The indictment includes allegations that the defendants were involved with pill mills that handed out over 20 million pills and in turn made $40 million from the illegal sales of controlled substances. According to the FBI special agent in charge of the investigation, "As a result of today's takedown, we have dismantled the nation's largest organization that was illegally distributing pain killers and steroids." The is the first federal case where doctors, health clinics and suppliers have been indicted. It definitely shows that the focus has shifted from individuals possessing oxycodone to the individuals and entities that are distributing the highly addictive narcotics.

In a side note, one of the doctors has been charged with first degree murder in Palm Beach County in a case where a West Palm Beach man dies within hours of receiving pain killers from a clinic. Federal authorities are making a committed to shutting down the clinics that illegally distribute oxycodone. They are calling the problem an epidemic after the Florida Medical examiner released a report indicating that 2,710 people dies in 2010 by taking illegally prescribed pain killers. That figure was up 8% from 2009. The report also indicated that Florida is responsible for the distribution of 85% of the oxycodone sold in the country.

South Florida has become the focus of the oxycodone problem as individuals from all over the country travel to obtain the illegal substance. Some people are addicts while other travel here to get the pills cheap and return to their states to sell the drugs for a large profit. Drug trafficking in oxycodone carries steep penalties in state and federal court. Anyone caught with in excess of 28 gram of the substance faces a 25 year minimum mandatory sentence. The current campaign against the offense is now focused in clinic owners and doctors. Anyone involved with these types of clinics must know that the focus is now against clinic owners and doctors from Palm beach County to Miami.

Investigators Charge 13 Doctors in Pill Mill Crimes - and One with Murder, Miami Herald.com, August 24, 2011.

August 22, 2011

Florida's Drug Laws at Risk

A long road lies ahead for defendants charged with drug crimes, as well as, for prosecutors who are trying to keep their cases from unraveling. Recent decisions from the federal and state benches have put all drug cases under the proverbial microscope. A federal judge out of Orlando was the first to declare that Florida's drug laws are unconstitutional as they violate the 14th Amendment of the Constitution. While courts across the state are still undecided how to handle the matter, one state court judge has followed suit. Two other state court judges and one federal court judge have declined to throw out or dismiss cases in their courtrooms. As a matter of course, all Miami criminal defense attorneys should file motions to dismiss or motion to vacate previously entered pleas to all drug cases from simple possession to drug trafficking.

While it is unknown how many judges will toss the drug cases in their courtroom, motions should be filed on behalf of clients charged with drug offenses. The problem with the current state of the law can be traced back to 2002 when the Florida legislature repealed the knowledge requirement in dealing with drug cases. Florida is the only state that has done away with the knowledge requirement for narcotics offenses. In criminal cases, the prosecution has the obligation to prove that a defendant acted with criminal intent. Defense lawyers are currently arguing that the current law which fails to provide that knowledge is a key element in any offense is a violation of an individual's due process rights. As such, the facts of any particular drug case are irrelevant as the current conflict strikes at the heart of law as it currently stands on the books.

In the upcoming weeks and months, motions to dismiss open cases or motions to vacate previously closed cases will be granted and denied. Some judges will grant motions, while others will deny them which pretty much leaves defendants with the luck of the draw. Eventually the issue will be heard in the appellate courts as prosecutors and defendants file appeals depending on which side was victorious in their endeavor. At this point it is unclear which appellate court will render the final verdict. Appeals will be taken the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals and even to the Supreme Court of the United States. It is important to remember that any current victories in drug cases could be overturned putting a defendant in the same position he or she was in prior to winning the dismissal.

Statistics kept by the Florida Department of Corrections show that 94,000 individuals are currently serving prison sentences for a variety of drug crimes. While recent rulings are not going to result in prisoners being released at this time, the recent rulings are definitely a concern for prosecutors across the state. As judges come forward and begin dismissing cases, state attorneys' offices across the state will file their appeals. It is not clear whether judges will hold their orders in abeyance while waiting for higher court to rule. Because this is a matter of great importance, the appellate courts will probably rule sooner than later. In the meantime, courts will be flooded with motions further clogging the courts' dockets. Ultimately, if the laws are struck down, a little chaos will ensue as attorneys rush to file their motions.

Rulings Muddle Florida Drug Law, The Wall Street Journal, August 22, 2011.

August 15, 2011

Drug Crime Laws Declared Unconstitutional by Federal Judge

The South Florida criminal justice system is replete with defendants charged with narcotics crimes from simple drug possession to drug trafficking. Criminal attorneys across the state including Miami criminal defense lawyers are seeking to have drug possession and drug trafficking cases thrown out of court. In Miami, three judges have ruled on the matter with two disagreeing with the federal ruling, while a third is following suit. Florida, a state where drug-related crimes constitute nearly half of all criminal convictions, is likely to experience massive turmoil in its court system after a district court's ruling in Shelton v. Department of Corrections. After Judge Mary Scriven called Florida's drug statute "draconian," and declared some of the state drug laws unconstitutional, state courts have been buried with motions from lawyers looking to dismiss their client's drug related charges.

Under Florida law, prosecutors are not required to prove that a defendant has any knowledge of drugs on their person. In fact, Florida is the only state to do away with this aspect of a drug conviction. The knowledge requirement was removed nine years ago by the Florida Legislature, claiming that it was simply too burdensome on the prosecution to prove something as nebulous as "knowledge" of drugs. Judge Scriven notes that this reasoning makes an individual that unwittingly has cocaine hidden in their backpack just as guilty as a bona-fide drug trafficker. In her Shelton ruling, Judge Scriven argued that due to the heavy sanctions in place for drug traffickers (anywhere from 3-25 years in prison plus large fines), doing away with the knowledge requirement was a violation of a defendant's right to due process. For example cocaine trafficking can carry a 15 year prison sentence while trafficking in oxycodone can carry a 25 year prison sentence.

Despite her ruling, this legal drama is far from resolved. Palm Beach lawyer Nellie King, president of the Florida Association of Criminal Defense Lawyers points out that the "State Attorneys' Offices are going to argue that her decision is not binding, and they're correct. But her decision is right, so our job is going to be getting state courts to agree that Florida has been going about things the wrong way." Indeed, state court judges are not legally bound by the opinion of a district court judge. Two Circuit Judges in Miami-Dade have refused to acknowledge the ruling; one Pensacola judge refused to dismiss any of the 17 drug cases brought before him. Miami-Dade Judge Jorge Cueto contends that Scriven's legal analysis is "flawed." Miami-Dade prosecutor Christine Zahralban notes that there is no knowledge requirement for age in cases of statutory rape, a crime that also carries heavy sentences - why should drug cases be any different?

Despite many Florida judges not agreeing with Scriven, Miami criminal defense attorneys have had some luck. Judge Milton Hirsch believes that Scriven's ruling is "absolutely binding" and allowed for the release of many defendants with drug charges. Defendants that have posted bail on cases in his division were all released on their own recognizance, meaning they no longer have any commitment to the bondmen who posted their bail. With over 1000 pending drug cases currently in South Florida courts, Floridians can probably expect to see a large number of charges dropped. However, even if Florida were to change its drug laws to conform to Scriven's ruling, it is unclear whether any convicts already serving prison terms would be affected.

Legal Drama Flares in Florida Drug-Law Case, Miami Herald.com, August 13, 2011.

August 11, 2011

Area Teen Arrested on Murder and Carjacking Charges

Local police officials have announced that they apprehended one of the individuals involved in a carjacking that resulted in the death of a young couple. The double murder occurred in Miami Gardens outside of an establishment called "Mobile Mart". Eric Ellington, 16 years of age, was arrested at his Hollywood home and made his first appearance last week in juvenile court. He was represented by at the hearing by a Miami criminal defense lawyer from the public defender's office, but has since retained private counsel. In non-violent cases, juvenile defendants are either released on their own recognizance or released to their parents. In violent cases, the juvenile justice system can hold a defendant for only 21 days.

The state attorney's office can circumvent the 21 day holding period by binding a defendant over to adult circuit court. In adult court, a defendant can be held indefinitely if he or she is charged with a life felony or a first degree felony punishable by life in prison. In this case, the defendant has been charged with attempted carjacking and second degree murder. The defendant will be held no bond on the murder charge unless the attorney representing the defendant is victorious at an Arthur hearing or can get the state to agree to some sort of bond. Based on the charge, the latter will most likely not occur.

Prevailing at an Arthur hearing will depend on the strength of the evidence. The state has the burden of proving "proof evident, presumption great". If the state meets that burden, they will then have to prove to the judge that the defendant is a flight risk or a danger to the community. Considering the nature of the allegations, the state should have no difficulty in demonstrating the latter. If the state cannot establish "proof evident, presumption great", the judge will set a monetary bond and most likely require the defendant to house arrest with a monitor during the pendency of the case.

According to police reports, the enter incident was captured on video surveillance at the gas station. The defendant allegedly jumped out of an SUV and approached the victims. He allegedly pulled the driver out of his car and shot him. Another passenger from the SUV pulled the passenger out of the vehicle and shot her. Police believe there were two other persons in the SUV at the time of the murders. Police reported that they have other suspects and are continuing the investigation, but have only made one arrest to date. If the surveillance video is clear and the defendant made admissions to the arresting officers, it may be time for him to consider providing information as to the other suspects involved in the crime and where they may be located. If the defendant is able to assist authorities in locating the other suspects, he may be able reduce the possible life sentence he is currently facing.

Teen Arrested in Couple's Carjacking Death, NBC Miami.com, August 3, 2011.

August 5, 2011

Child Pornography Charges Could Be Dismissed

A former local elementary school teacher is currently facing child pornography charges in circuit court. Possession of child pornography is normally a third degree felony punishable up to five years in prison. A defendant can be charged with one count of every image in his or her possession. This case is interesting in that the Miami criminal attorney representing the defendant has filed a motion to dismiss the charges. The basis of the motion is that the defendant never downloaded or printed any of the illegal images. Court documents indicate that the defendant is accused of viewing child pornography from a computer located at the University of Miami computer lab.

It is very difficult to charge someone for viewing child pornography on a computer. Even though law enforcement can seize a computer through the use of search warrant and search the hard drive or internet memory for illegal images, prosecutors still have to prove that the defendant had knowledge that the images were present and that the images were actually downloaded by the defendant. Generally, prosecutors need the defendant to provide a statement to the police admitting to the illegal conduct. Anyone investigated for possession of child pornography should seek out assistance from qualified criminal lawyer prior to having contact with law enforcement authorities. If an arrest occurs prior to hiring an attorney remember to invoke your right to remain silent as it is in your best interests.

The authorities in this case are not relying on a statement provided by the teacher, but rather the assistance provided by one of the lab technicians. After drawing suspicion, the lab technician used a computer program to view what the defendant was viewing. She observed the defendant conducting searches for underage topless girls and other lewd photographs. The technician notified her supervisor who in turn contacted the Coral Gables Police Department. The detectives then set up surveillance cameras which captured the defendant looking at the child porn websites. Detectives also followed the defendant to shopping centers and supermarkets on Key Biscayne where is was feared that he was looking for underage girls. That part of the investigation turned up nothing and he was never charged for anything other than the child pornography at the computer lab.

The defense lawyer representing the defendant has filed a motion to dismiss based on the rationale that merely viewing images at the time when the defendant was arrested was not a crime because he never printed or downloaded any images. The argument is based on the fact that the Florida legislature only this year made it illegal to merely view child porn. The prosecution claims that the behavior was in fact criminal because the defendant had control over the images. The motion is set to be heard later in the month. The defendant is currently charged with 8 counts of possession of child pornography. If the defendant's attorney is successful all the charges will be dismissed. If unsuccessful, the defendant is facing up to forty years and may have to consider a plea bargain to avoid any jail time.

Miami-Dade Man Challenges Child Porn Arrest on Passage of New Law, Miami Herald.com, July 31, 2011.