September 2011 Archives

September 30, 2011

Immigration Authorities Make 3,000 Arrests

The U.S. Immigration and Customs Enforcement (ICE) is at it again. The department responsible for deporting immigrants back to their native countries made another widespread sweep netting 3,000 individuals with prior criminal convictions. This operation was the country's largest since 2003. Immigration and criminal defense lawyers around the country will have their hands full in attempting to have family members released from immigration custody. The recent operation involved 2,901 arrests during an operation that lasted seven days and was spread across all 50 states, Puerto Rico and the U.S. Virgin Islands. In Florida alone, 272 arrests were made with 56 coming in Miami-Dade County and 41 in Broward County.

The unusual thing about the latest ICE operation is that all of the individuals detained had prior criminal convictions. According to experts, immigration is changing its policy in that the department is seeking to detain and deport immigrants with criminal records and not undocumented immigrants lacking criminal records. Immigrants lacking criminal records are to be considered low priority cases, not necessarily subject to deportation. There are three categories of immigrants that now have high-priority for deportation: those with criminal records, those that are arrested crossing the border, and those have been previously deported and have returned.

This ICE operation specifically targeted individuals with prior criminal records. Of the 2,901 immigrants detained, more than 1,000 are considered to be highly dangerous criminals, while 42 were documented gang members and 151 are sexual offenders. Many of those detained had criminal convictions for murder, attempted murder, kidnapping, armed burglary, drug trafficking, aggravated child abuse, sexual offenses, aggravated assault and aggravated battery. Beside being detained for criminal records, some of the immigrants were arrested on additional charges for failing to abide by deportation orders or returning to the country after having been previously deported.

Loved ones who have family members in custody typically seek out immigration attorneys to assist in these legal proceedings. Often times, immigration lawyers have their hands tied in attempting to free someone from immigration custody. In most circumstances, the only way to circumvent deportation is by returning to criminal court and filing a motion for post-conviction relief. While the United States Supreme Court has recently handed down precedent allowing for relief when a defendant received affirmative mis-advice regarding the immigration consequences of taking a plea to particular charges. Even simple offense such as cocaine possession or possession of marijuana can allow for deportation. While the case handed down by the Supreme Court is helpful, Florida District Courts of Appeal have severely limited the circumstances when someone is entitled to vacate a plea. Unless the Florida Supreme Court reigns in the appellate courts, winning motions to vacate will be an uphill battle. Despite the current state of the law, experienced criminal defense lawyers can still win motions to vacate sentences. Most of the success will be garnered by unconventional means. In the end it does not matter how a criminal record is vacated, but that is in fact vacated.

ICE Detains Nearly 3,000 with Criminal Records, Miami Herald.com, September 28, 2011.

September 22, 2011

Florida Legislature Reacts To Anthony Trial

As usual, the Florida legislature always reacts to high-profile criminal law cases. After a jury acquitted Casey Anthony, the public became outraged that such a villainous defendant could walk free. The result, state politicians have submitted multiple bills seeking to modify Florida's child neglect laws already on the books trying to fill the gaps in the state statutes. Miami criminal defense attorneys are familiar with the current child neglect and child abuse laws as they have not been significantly modified over te past decade. The legislature wants to specifically create a statute that makes it a crime for failing to report a child missing. While Anthony was acquitted, proponents of the legislature believe such a statute would have led to her conviction.

Opponents of the new legislature believe that the creation of news laws also create unintended affects. Florida along with the rest of the states do not have a statute which makes it illegal to fail to report a missing child. Eight bills have been filed in Florida and 25 other states are considering similar legislation. A Republican senator told the Select Committee on Protecting Florida's Children that the Florida laws on child neglect already cover such a scenario. Florida's current child neglect statute already provides for a crime where a defendant fails to care for a child's physical and mental health. Prosecutors did not charge Anthony with any form of child neglect for failing to report her child missing.

Florida has seen the unintended consequences of laws passed by the legislation as a result of high-profile cases. In 2005, following the murder of a 9 year-old girl named Jennifer Lunsford, legislators passed news laws in an effort to crack down on sex offenders convicted of crimes such as sexual battery and lewd and lascivious conduct. The initial laws were passed, but had to be changed as sexual offenders and sexual predators found their only refuge under the Julia Tuttle Causeway. After much media attention, the laws were modified and public housing was provided for sexual offenders who could not find places to live. No one knows what the unintended consequences would be if the child neglect laws are modified, but many legislators are convinced that Anthony would still be behind bars if a failure to report a missing child law was passed.

Child neglect and child abuse are currently felonies under Florida Law. To prove he offense of child neglect, the state has to prove that defendant wilfully or by culpable negligence failed or omitted to provide a child with care supervision and services necessary to maintain the child's physical or mental health. Failing to report a missing child certainly seems to fit within the statutes purview. While a parent failing to report a missing child is an uncommon event, the legislation should hold off on passing news and unnecessary legislature until a case can be prosecuted on the laws as they stand. Adding unneeded statutes to the books in response to a high-profile media case seems to be an overreaction, while it is quite apparent that legislators have bigger problems to correct to improve the State of Florida.

Passage of a "Caylee law" No Sure Thing in Florida Senate, Palm Beach Post.com, September 19, 2011.

September 15, 2011

Motions to Dismiss Drug Charges Denied Across the State

Criminal defense attorneys across the State of Florida have been peppering the courts with motions to dismiss drug cases from simple possession to drug trafficking. To date, only one judge out of Miami-Dade County has granted motions to dismiss drug cases based on an obscure ruling out of the federal court in the Middle District of Florida. While the Miami judge was one of the first to rule on the motion, other judges across the state have failed to follow suit. The latest order denying motions to dismiss based on the unconstitutionality of the state drug laws comes out of Panama City, Florida. Defendants charged with drug offenses have had their lawyers running to the court houses to file these motions. Again, the media twisted facts and led the general public to believe that drug cases throughout the state would be thrown out of court. This could not be further from the truth.

The story began with a federal judge in the Middle District of Florida that ruled that Florida's Drug Abuse Prevention and Control act was unconstitutional. Soon thereafter, a Miami judge handed down an order dismissing drug cases in his courtroom consistent with the federal court ruling. Since that time, every other judge in Miami, as well as, judges from Broward and Palm Beach Counties have routinely denied these motions to dismiss. Judges on the west coast of Florida up through panhandle have all denied these motions. On September 13, 2011, a circuit court judge from Panama City denied a motion to dismiss a drug trafficking case based on the same grounds. In a nutshell, the judge's ruling indicated that he was concerned about the state's drug laws, but his ruling fell back on an earlier decision issued by the First District Court of Appeal.

In 2002, the State of Florida re-wrote its drug laws and promulgated a new version of the Drug Abuse Prevention and Control Act in response a ruling issued by the Supreme Court of the State of Florida in a drug conviction was overturned. The new law allowed an individual to be charged and convicted of a drug offense even though a person did not intend to possess drugs or were not even aware of their presence. Florida is the only state where a conviction for a drug offense can be legally sustained without proof of one's intent to possess controlled substances. The current state of law allows for jurors to presume that a defendant was aware of the presence of illicit substance and shifted the burden of proof to the defendant to convince a jury that he or she was not aware of the illegality of the substance or its presence. That is the crux of the argument in all of the motions to dismiss. Defendants should not be compelled to testify or present evidence in a case with the sole burden resting on the prosecution.

The federal judge that found the state statute unconstitutional ruled that holding someone presumptively guilty violated the basic fundamentals of the Constitution. The circuit court in Miami followed suit and dismissed 39 cases. After that, every other judge has upheld the state statute, leaving the decision to the appellate courts, with the ultimate decision likely residing with the Supreme Court of Florida. The issue may find its way all the to the Supreme Court of the United States. With all that being said, anyone charged with a drug related offense should believe the media hype or veiled promises from some lawyers. The chances of having a motion to dismiss a drug offense based on the grounds is slim to none. However, experienced criminal defense lawyers should eventually file these motions in all cases to preserve a defendant's appellate rights.

Judge Denies Motion to Dismiss Drug Charges, The Walton Sun.com, September 14, 2011.

September 8, 2011

Dozens Arrested in Medicare Fraud Case

Federal law enforcement authorities arrested 42 people alleged to have committed Medicare fraud throughout three counties in the South Florida area. Among those arrested were the owners of the Biscayne Milieu Health Center, a psychiatrist from Broward County, along with patient recruiters and assisted living facility landlords. Other defendants arrested in the case and accused of the fraud include home healthcare operators, HIV clinics owners and operators and medical equipment suppliers. In total, the purported criminal enterprise billed Medicare in excess of $160 million for medical services that were not necessary or in some instances never even provided to patients. Medicare paid out approximately $90 million. Broward and Miami criminal defense lawyers, either appointed by the court or privately retained will represent the defendants in the case.

According to government officials, this alleged Medicare fraud scheme was a bit different from those seen in the past. It is alleged that recruiters lured out-of-state patients to the South Florida and Miami area with the promise of giving them housing and a fresh start. Instead, the patients brought their Medicare cards with them and were placed in substandard assisted living facilities. The patients were also directed to attend mental health programs and group therapy sessions which would also be billed to Medicare. If the patients refused treatment they were kicked out of the ALF's and forced to live on the street.

The federal government continues to vigorously investigate and prosecute Medicare fraud cases in cities such as Miami, Brooklyn, Detroit and Los Angeles. Forty million people a year claim benefits, but the program has suffered billions of dollars in losses as a result of fraud, waste and abuse. With politicians and the federal government under the gun for losses incurred in the federal healthcare system, a new computer software program was initiated with the hope that the losses could be curtailed. The new program is said to be a proactive approach to defeating fraud, however, investigators claim the program is inadequate and that the federal government will continue to combat fraud after it has been committed.

Anyone being investigated for or having been arrested on these types of fraud charges must seek out legal counsel as soon as possible. Defendants charged in healthcare schemes to defraud are facing significant terms of incarceration because of the amount of losses suffered by Medicare. While fraud is a relatively low offense under the federal sentencing guidelines, the offense becomes much more severe when the losses accrue in excess of a million dollars. Owners and operators of clinics involved in illegal billing are also subject to multi-level increases if it determined that they were the leaders of organizers of the fraud. In any event, the feds continue to investigate and hunt down all those alleged to be involved in these types of criminal enterprises.

Medicare Fraud Case Nets Dozens of Arrest, Miami Herald.com, September 7, 2011.