December 2011 Archives

December 28, 2011

Pharmacies Targeted for Oxycodone Trafficking

Over the past several months clinics owners and operators, as well as doctors have been arrested and charged with operating "pill mills", a crime otherwise known as trafficking in oxycodone or other well-known pain killers. Now local and federal agents are after "mom and pop" type pharmacies located in the Miami and South Florida area. According to law enforcement, investigations are underway into what is being called a wave of rogue pharmacies that are now becoming the primary focus for the illegal distribution of prescription drugs. Anyone being investigated for or having been arrested for the illegal distribution of oxycodone or other prescription painkillers should retain a Miami criminal lawyer to represent them during any investigation in which they became involved or to defend any charges that have been filed in state or federal court.

Pharmacy owners caught up in the illegal distribution of prescription medications have had their permits suspended by the State of Florida. Curiously, the pharmacies have been allowed to remain open for business, but can no longer fill prescriptions. The U.S. Attorney for the Southern District of Florida claimed, "This is an epidemic, a public health crisis that has killed thousands in Florida. Our strategy is to attack the problem from all angles, from all the sources of oxycodone." The investigations are focusing on doctors, clinics and pharmacies that all work together to make the businesses look legitimate. In any event, both local and state prosecutors are focusing on all "pill mills" and their co-conspirators and charging all those involved with drug trafficking or conspiracy to commit drug trafficking.

Local and state law enforcement are cracking down on all methods of the illegal distribution of prescription medications. They are hoping that the recently broadened strategy to focus now on pharmacies will slow the epidemic that has plagued South Florida. They believe the increased focus on pharmacies along with the new anti-pill mill legislation that became law in July will have a positive impact in reducing the popular drug crime. The new law requires the state Department of Health to monitor the number of pain killers pharmacies distribute and determine the amount that can be distributed every month. The new law also makes it more difficult to open a new clinic in the State of Florida with increased scrutiny of permit requests.

Over the past several years, Florida has become know as the pain killer capital of the United States. At one point, 150 clinics operated in Broward County illegal distributing painkillers. It became so bad that people would travel from states such as Kentucky and Tennessee to illegally obtain prescription drugs. People from other countries such as Turkey and Mexico would travel to South Florida for the same purpose. Since June, federal criminal investigations have discovered multiple drug trafficking rings involving the illegal distribution of oxycodone operating out of at least seven pharmacies. One of the pharmacies operating out of Plantation is accused of filling 72 prescriptions on a daily basis. The feds increased focus on pharmacies and continued focus on "pill-mills" in general will lead to more arrests over the coming months.

Painkiller Peddlers: Pharmacies Targeted in Pill-Mill Crackdown, Miami Herald.com, December 24, 2011.

December 23, 2011

Healthcare Operators Plead Guilty to $60 Million Healthcare Fraud

The Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS) announced that three operators of a local healthcare agency have entered guilty pleas for their involvement in a $60 billion home healthcare Medicare fraud scheme. The three defendants with the assistance of their Miami criminal lawyers entered guilty pleas before a United States district judge to one count of conspiracy to commit Medicare fraud. According to court documents, the defendants were family members that fraudulently billed Medicare for home healthcare and therapy services that were never provided. The defendants used recruiters to locate patients in and around Miami who would in turn provide their Medicare numbers to the illegal enterprise. The company would bill the federal healthcare agency and pay kickbacks to the recruiters.

The federal government continues to crackdown on Medicare fraud. The cases being prosecuted generally occurred prior to the new changes in the billing requirements and polices related to healthcare claims. The reason for the delay in the prosecutions in these types of cases is caused by the extensive investigations and the numbers of defendants surrounding these types of organizations. Generally, the criminal investigations last between two and three years culminating in the arrests of several defendants. Once the defendants are charged in criminal court, many of them, due to the overwhelming evidence in the case decide to cooperate with federal prosecutors to avert long prison sentences. As part of the cooperation, defendants are required to disclose other individuals who were involved in the fraud. For example, clinic owners or home healthcare providers are required to give up doctors, therapists and recruiters who were also involved in the fraud.

Prior to cooperating with the federal government, defendants should seek advice from an attorney with experience in defending Medicare fraud cases in federal court. All of the documents, audio and video recordings and other evidence obtained in the case must be thoroughly reviewed before making the decision whether to cooperate or not. Entering into a cooperation agreement with the government should happen quickly if that is the decision made into how to handle the case. The more fresh information provided to investigators will increase the likelihood of a significantly reduced sentence. Delaying cooperation will allow for other defendants to come forward and provide the information. Providing information that has already been provided to the government is not as helpful when seeking a sentence reduction. In large part, the prosecution will determine the value of the information which in turn will be used to decide the amount of the reduction in the form of a 5K or a Rule 35.

Prior to the reduction, the defendant will be scored according to the United States Sentencing Commission Guidelines. Defendants will score differently depending on a couple of factors. First the amount of the loss to Medicare will significantly impact the guideline range. Other factors that will also impact the guideline range include whether the defendant was an owner or operator of the company, whether a defendant was a planner or supervisor, or whether the defendant played a minor role in the criminal offense. A defendant's level of involvement in the fraud will play a large role in determining whether levels are increased or decreased in calculating a guideline range. The key is to reduce the guideline range as much as possible before the sentence in finally reduced for cooperating with the government.

Three Guilty Pleas in $60 Million Medicare Fraud, South Florida Business Journal.com, December 20, 2011.

December 13, 2011

Supreme Court May Hear Florida Dog Sniffing Case

Florida has asked the United States Supreme Court to decide whether police officers can legally use a trained narcotics dog to sniff a front door of a residence without probable cause to believe that a crime has been committed inside the residence. Miami narcotics detectives received an anonymous tip that a particular residence was being used as a marijuana "grow house". Despite a lengthy period of surveillance on the house, the detectives were unable to gather any evidence sufficient enough to allow them to seek obtaining a search warrant. When the surveillance failed, the detectives approached the residence with a trained narcotics dog that alerted upon sniffing the front door. After the dog alerted, another detective approached the front door and then magically smelled the strong odor of marijuana emanating from the residence. The detectives drafted an affidavit in support of a search warrant which was then signed off on by a judge. The detectives returned to residence, busted down the door with the warrant in hand and discovered a large hydroponic marijuana grow house.

A Miami criminal lawyer filed a motion to suppress which was heard before a Miami-Dade County circuit court judge. Following the law issued by a federal appellate court, the trial court judge found that the dog's sniff was a search under the constitution and was improper without probable cause and a warrant. The federal court ruling in 2004 held that when searching a private home, "a firm line remains at the entrance, blocking the noses of dogs from the intimate details of an individual's life." The 3rd District Court of Appeal disagreed with the trial court, reversing the ruling by holding that a dog sniff does not equal a search and therefore a warrant is not required to put a dog up on the porch to sniff around the door of the residence. The Court of Appeal relied on another federal case which found that a dog sniff of contraband is not a search as no privacy interest exists in illegal contraband.

The Florida Supreme Court reversed the decision of the 3rd DCA and noted that a person's home is afforded a special status and that a dog sniff at the front door was an unreasonable intrusion into the sanctity of a home. The Court went further to say that a dog sniff is "a substantial intrusion" and constitutes a search within the 4th Amendment to the Constitution of the United States. Despite the ruling, the opinions of the justices were not unanimous with two of the judges dissenting. The state has taken the appeal up to the Supreme Court on the basis that the ruling in Florida is in direct contravention of the case it relied up at the 3rd District Court of Appeal. The state also noted in the appeal that the Florida Supreme Court's decision will hamper drug enforcement across the state if probable cause is needed before deploying a drug dog.

At this point, it is not clear whether the Supreme Court will hear the matter. Miami criminal defense lawyers would clearly be elated if the Court refuses to hear the issue in that drug sniffing dogs could only be used if probable cause for the sniff exists. In the event the Supreme Court believes that Florida is handing down rulings in direct contravention of the earlier laws, they will probably step in and intercede, finding that Florida has erred and overstepped its bounds. In either event, the law as it stands enures to the benefit of home owners. Anyone arrested for illegal contraband in the home, especially narcotics, that were discovered as the result of a sniff, should files a motion to suppress in their case.

Front Door Sniff By A drug Dog Require Probable Cause, Sunshine Slate.com, November 21, 2011.

December 6, 2011

Ex-Dolphin Arrested for Marijuana Possession

The Broward County Sheriff's Office with the assistance of federal, state and local authorities conducts a large scale crackdowns every few months in an effort to get drugs and guns off the street. The latest operation dubbed "Operation Cold Turkey" netted 280 arrests over a two day period. One of the big scores came when the investigation led to a marijuana grow house which contained large amounts of cannabis, guns and other illegal drugs. Other items seized during the operation included 2,000 oxycodone pills and illegal firearms. In a separate incident, a former Miami Dolphin player was among those arrested. He was charged with one count of possession of marijuana, less than twenty grams. Igor Olshansky was taken to the Broward County Jail where he was released on a $100.00 bond. It is not clear whether, the former defensive tackle will hire a Broward or Miami criminal lawyer to defend the charge.

Possession of marijuana is a first degree misdemeanor punishable up to 364 days in the county jail. While the potential punishment seems harsh, people arrested having a small amount of marijuana never go to jail. In fact, many of the cases are dismissed in Miami-Dade County because the officers fail to appear in court; and if they appear, usually forget to bring the marijuana with them to court. Either event will result in the dismissal of the charges. Prosecutors will offer first time offenders a pretrial diversion program which will result in a nolle pros or dismissal of the charges if a defendant completes a couple hours of drug classes and pays the enrollment fee. People who have prior criminal records will most likely not be eligible for the program and will be offered time served and court costs. If a person is not eligible for the program, experienced defense attorneys will set the case for trial as the plea offer will always be the same.

Marijuana possession charges can come in many forms depending on the amount involved in the case. Possession of less than 20 grams is a misdemeanor as previously discussed. Possession in excess of twenty grams of marijuana is a third degree felony punishable up to 5 years in prison. Sentences of this kind are very rare and usually require a defendant to have an extensive criminal record and would also require a conviction after a jury trial. The most serious of the marijuana cases is trafficking. To be charged with trafficking in marijuana, a defendant must be in actual or constructive possession in excess of 25 pounds. There are different levels of trafficking depending on the weight of the illegal substance. Cases involving between 25 and 2,000 pounds of marijuana carry a 3 year minimum mandatory sentence; between 2,000 and 10,000 pounds a 7 year minimum mandatory sentence; and in excess of 10,000 pounds a 15 year minimum mandatory sentence apples.

The majority of marijuana trafficking cases that come out of Miami-Dade and Broward County stem from "grow house" operations. Despite the harsh potential sentences a defendant faces if caught running a grow house, several defenses exist to fight these cases. More likely than not, narcotics detectives gained access to the residence containing the marijuana without the use of a warrant and generally rely on obtaining consent from the residents. Often times, the detectives threaten to arrest everyone present, unless consent is granted. If this issue arises, a motion to suppress the search should be filed as the consent was not truly voluntary. If the detectives obtain a search warrant, grow house cases are more difficult to defend unless counsel can convince a judge at a motion to suppress that the facts that established probable cause in the warrant were illegally obtained or untrue.

Former Dolphin Igor Olshansky Arrested on Marijuana Charge, Sun Herald.com, December 2, 2011.