October 2011 Archives

October 27, 2011

Five Arrests Made for Insurance Fraud

Five local residents were arrested for their involvement in a staged car accident scheme to defraud. The defendants were arrested in this county and will mostly likely be charged with insurance fraud, grand theft and staging an automobile accident. It is not known how many counts will be filed by the state attorney's office against the defendants. Anyone charged with these types of crimes should seek out experienced Miami criminal defense lawyers that have defended staged accident cases. The investigation in this case was led by the Florida Department of Financial Services Division of Insurance Fraud. This agency typically investigates insurance fraud throughout the state of Florida. The defendants purportedly contrived the fake accident and and put their plan into motion. The participants in the accident sought treatment at Doral Center Rehab and Justin Medical Services. The clinics allegedly billed $83,000 to several insurance companies for services that were not necessary or never performed.

For years, Florida has been battling insurance fraud and staged accident cases. The problem got so bad the Florida Legislature modified the laws involving staged accident cases. The Financial Services Division of Insurance Fraud is going after everyone involved in staged accident. Their main goal is to shut down clinics involved in fraud and to put the clinic owners in prison or jail. Doctors are also being prosecuted and typically required to forfeit their medical licenses in exchange for staying out of jail and rather receiving a probation plea. Prosecutors handling these cases in Miami are assigned to a specialized unit with sole purpose of prosecuting insurance fraud.
These prosecutors typically work from the bottom up pleading out the secretaries and receptionists in an effort to go after the people who reaped the most benefit from the fraud.

Insurance fraud is committed when a person presents, prepares written or oral statements in support of an insurance claim knowing that the statement contains false, incomplete or misleading information concerning any fact or thing medical to a claim. It is also unlawful for anyone to solicit others to become involved in a staged accidents with the intent and purpose of filing false motor vehicle tort claims. Anyone who plans and solicits others to participate in a staged accident with the intent to commit insurance fraud can be charged with a second degree felony and is also facing a two year minimum mandatory prison sentence. Anyone being investigated for insurance fraud for participating in staged accident schemes should speak with a qualified defense attorney as soon as possible.

There are a few things to remember when an individual is charged with insurance fraud. Obtain criminal representation as soon as possible. Never speak to criminal investigators. Under the constitution, everyone has the right to remain silent. Any statements can and will be used to prosecute someone. Never speak to your co-defendants, as they may agree to cooperate with the prosecution and those statements can be used in court as well. In general, staged accident and insurance fraud cases are created after lengthy investigation. Hundreds of documents and CD's will be provided to the defense at the beginning of the case. All of this information needs to be reviewed to determine the strength of the state's case. Only after a complete and thorough investigation of the case and the corresponding discovery can an informed opinion be made on how to defend the case.

Five PIP Fraud Arrests Made in Miami, PropertyCasualty360.com, October 26, 2011.

October 20, 2011

Feds Charge 20 South Florida Residents With Mortgage Fraud

Federal authorities charged 20 individuals with mortgage fraud with losses alleged at $20 million. Of those indicted, many are professionals in the real estate industry. According to the indictment, the alleged fraud occurred between March 2006 and June 2008 when the defendants filed false loan applications and other documents to multiple banks to obtain $40 million in bank loans and lines of credit. The banks and lending institutions lost approximately $20 million as a result of the fraud. While the problem of mortgage fraud has been largely curtailed due to stricter banking policies, Miami criminal defense lawyers are still seeing indictments coming down the pike. Mortgage fraud investigations take months if not years, as well as, the subsequent arrests. Trhis leads us to believe that more indictments will follow.

The 25 count indictment includes real estate professional such as mortgage brokers, title agents, realtors, and real estate property appraisers. The defendants are charged with federal crimes such as bank fraud, receiving gifts for procuring loans and providing gifts for procuring loans. The indictment also seeks the forfeiture of money and property derived from the transactions. The U.S. Attorney for the Southern District of Florida issued a statement saying that he had never seen an indictment involving so many real estate professionals. He claimed that his office will continue to vigorously stamp out mortgage fraud and prosecute straw buyers, sellers, corrupt mortgage brokers and bank officials. If the defendants are convicted they face up to 30 years in prison on each count and substantial monetary fines.

As in most mortgage fraud cases, some of the defendants submitted false mortgage and line of equity applications on behalf of unqualified real estate buyers and borrowers. Bank employees assisted in getting the fraudulent loans approved. To cover up the scheme, other defendants failed to record or falsely recorded mortgage deeds and documentation. To secure the loans many of the straw buyers claimed to be doctors, dentists, engineers or other high paid professionals. The investigation into this large scale mortgage fraud scheme was conducted by the Financial Fraud Enforcement Task Force. The task force was solely created to investigate and prosecute large scale organized scheme to defraud.

Mortgage fraud, although considered to be under control by the federal government, still subjects defendants charged with crime to serious terms of incarceration. The crime of bank fraud itself does not subject defendants to lengthy prison sentences, but the large amounts of losses suffered by the lending institution is what puts defendant behind bars for several years. In cases with numerous defendants, it is inevitable that some of the defendants will testify against others listed in the indictment. Cooperation with the federal government can allow for defendants facing lengthy periods of incarceration with significantly less time. The amount of the departure from the sentencing guidelines will depend on the quality and quantity of cooperation provided by the defendant turned government witness.

20 South Florida Residents Charged in $40 Million Mortgage Fraud Crime, LoanSafe.org, September 30, 2011.

October 18, 2011

Another Judge Finds Florida Drug Laws Unconstitutional

While a Miami circuit court judge first ruled that the Florida drug laws unconstitutional, a second judge from Manatee County has followed suit and dismissed felony drug charges levied against 42 defendants. Miami criminal lawyers and defense attorneys across the state have been filing motions to dismiss on behalf of their clients charged with drug offenses. Although hundreds of the motions have been filed, very few have been granted. Many circuit judges have motions pending in their courts, but have declined to rule on them at this point. While numerous circuit court judges have handed down rulings, the final decision as to the constitutionality of the state will be determined by the Florida District Courts of Appeal and will ultimately be determined by the Florida Supreme Court as a matter of great public importance.

The turmoil regarding the Florida drug laws was initially caused by a Middle District of Florida judge. The Middle District is a federal court, which begs the question, why are some state court judges following the precedent set forth by a court with no jurisdiction. Typically, federal courts have no jurisdiction of over state court judges, but rulings can be used as guidance by state court judges regarding their cases. The federal court judge decided back on July 27, 2001, that the Florida drug laws violated the Due Process Clause of the United States Constitution. The basis for the ruling was that the Florida Statutes regarding drug offenses do not have a knowledge requirement. Generally, all crimes in Florida and across the United States require criminal intent. Florida is the only state where criminal intent is not a prerequisite to being charged with certain drug offenses.

The problem with the current state of the drug laws is that an individual can be charged and convicted of a drug offense despite the fact that the prosecution cannot prove that the defendant had the intent to possess or sell an illegal substance. The Florida Statutes specifically do not require that the prosecution prove knowledge that the presence of the illegal substance. Without the element of intent, a person can be charged even if he or she innocently, accidently, unintentionally or mistakenly possessed an illegal substance. The burden is placed on the defendant that he or she did not have knowledge of the presence of the substance. Shifting the burden to the defense goes against the general principles of the constitution which squarely places the burden of proof on the prosecution to prove its case.

The penalties for violating Florida's drug laws are very serious. Simple drug possession such as cocaine or ecstasy possession are third degree felonies punishable up to 5 years in prison. Sale or possession with intent to sell an illegal substance is a second degree felony punishable up to 15 years in prison. Drug trafficking is a first degree felony punishable up to 30 years in prison and can be a life felony if a firearm was used in the commission of the offense. There are other serious ramifications for being convicted of a drug offense such as a permanent criminal record or even a driver's license suspension. Only until the appellate courts rule on this issue will we know whether or not the laws will be upheld. As a side note, over 100,000 individuals have been convicted of what could be determined to be an unconstitutional law.

Tampa Bay Alleged Drug Offenders Challenging Florida Drug Sentences After Federal Judge Ruling, PRWeb.com, October 18, 2011.

October 6, 2011

Parents Can Be Convicted of Kidnapping

The Florida Supreme Court affirmed a conviction and held that parents can be charged and convicted of kidnapping their own children. A Miami-Dade County jury convicted Ricardo Davilla of kidnapping his 11 year-old son in Sweetwater at the family's home soon after arriving from Nicaragua. At trial, testimony came out that the defendant tied up the child, locked him up for weeks at time in closets and bathrooms and repeatedly beat him with a broomstick. Other allegations include that the child was sometimes blindfolded and gagged with a handkerchief. The defendant claimed that the child was being punished for lying and failing to wash dishes. Miami criminal lawyers often defend kidnapping charges, however, defending parents charged with crimes is highly atypical.

Kidnapping is a first degree felony punishable by up to life in prison. The charge often accompanies other charges like carjacking, home invasion robbery and armed robbery. Kidnapping can occur in a variety of ways. First, kidnapping is defined as forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his or her will. It is also the same definition attributed to false imprisonment. For kidnapping to occur, the defendant must also (1) hold a victim for ransom or reward, or (2) wrongfully imprison someone during the commission of a felony, or (3) inflict bodily harm upon someone or terrorize the victim, or (4) interfere with the performance of any governmental or political function. The defendant was charged and convicted of kidnapping based on the bodily harm and terror inflicted upon the child.

The child's mother was also charged with multiple counts of aggravated child abuse, child neglect and false imprisonment. After the jury convicted the mother, the judge sentenced her to 30 years in prison. The Supreme Court upheld the father's conviction by a 6 to 1 vote. The chief justice dissented by saying, "It is by no means obvious that the kidnapping statute is aimed at protecting young children from their own custodial parents." While the law certainly allows for parents to discipline their children, there are limits. Cases have been handed down which delineate the difference between acceptable punishment and child abuse.

Corporal punishment of children has also been permitted with limits. The law generally frowns on parents using objects as belts and paddles, with criminal charges generally being filed for parents who use extension cords and coat hangers. Prosecutors take cases where marks or welts are left on children after the physical punishment has been delivered. Parents who go overboard with physical punishment can and will charged with aggravated child abuse which under Florida law is a second degree felony punishable up to 15 years in prison. While criminal attorneys are retained to defend these types of charges, the best advise is to use restraint when punishing your children.

Florida Parental Kidnapping Conviction Affirmed, Miami Herald.com, October 6, 2011.