May 2012 Archives

May 29, 2012

South Florida Criminalizing Synthetic Marijuana

Synthetic marijuana is on the radar screen for numerous cities and counties located in the South Florida area. Marijuana grow houses have become big business in Miami and across South Florida. Local police departments and federal agencies have spent the last four or so years attempting to shut down grow house operations. The legislature created new laws regarding grow houses and added a three-year minimum mandatory sentence to the mix. The large number of grow house cases have kept criminal lawyers in Miami-Dade County busy defending their clients, but a new crime for the possession or manufacture of synthetic marijuana may soon be promulgated by the Florida legislature.

Law enforcement has seen an increase in the popularity of synthetic marijuana. Since there are no laws prohibited the new substance, local municipalities have begun to pass local ordinances banning it. Sweetwater in Miami-Dade County has already passed such an ordinance with the City of Sunrise located in Broward County soon to follow. Other jurisdictions drafting ordinances include Miami-Dade County, Broward County and the cities if Coral Springs, Deerfield Beach, Hallandale Beach, Pembroke Pines, Miami Gardens and Pompano Beach. The synthetic marijuana comes in candy-like packaging and is sold in gas stations and convenience stores. The fake marijuana is commonly referred to on the street as "Spice" or "K2" has been deemed to have serious side effects such as a rapid heart rate, anxiety, nausea, seizures, hallucinations, renal failure and in some cases death.

Recently, a West Palm Beach warehouse being used to manufacture the synthetic marijuana exploded causing damage to the warehouse and nearby businesses. Very few manufacturing facilities have been discovered, but the local governments are aware that they exist. Sunrise has not uncovered any such facilities, but the police have been proactive in informing local businesses of the ban. Many stores have begun to pull the items from the shelves. Many complaints have been filed with parents claiming their children are hooked on the new drug. According to the complaints, the synthetic drug has caused serious automobile accidents and violent episodes. The high associated with the fake pot is alleged to be similar to that of crack cocaine.

Those who manufacture the substance have avoided state and federal prosecution by constantly changing the chemical make-up and by labeling the packaged product as herbal incense that is not to be used for oral consumption. Nine states have attempted to ban the substance by outlawing the chemicals. Florida law currently outlaws herbal incense, but only if the label reads for human consumption. Lawmakers around the country are becoming aware of the problem and may be soon to act. Poison control centers have received thousands of calls since 2010 regarding problems after people ingested the substance. If the problem continues, look for the Florida legislation to act to ban these substances. The situation is somewhat similar to the problems that arose when MDMA or "ecstacy" was introduced in the early 1990's.

Synthetic Marijuana: South Florida Cities and Counties Cracking Down on Fake Pot, WPTV.com, May 28, 2012.

May 22, 2012

Woman Sentenced to Life Receives Reduced Sentence

A woman sentenced to life in prison for her purported involvement in a murder plot was re-sentenced last week which led to her release from a federal detention facility. Defenses lawyers from Miami, Florida were finally able to persuade the presiding judge that her life sentence was not warranted. Yuby Ramirez was set to spend the rest of her life in prison for her involvement in murder conspiracy case that was contrived to protect two men who were later convicted on cocaine trafficking charges. Although, Ramirez had appeared to have a somewhat minor role in the conspiracy, she was sentenced to life in prison. Under, federal and Florida state law, defendants sentenced to life in prison will never be released on parole unless an appeal of some other form of post-conviction relief is granted.

Ramirez allegedly had a supporting role in the murder plot to kill a government witness set to testify against two of Miami's most infamous "Cocaine Cowboys". The plot was against Bernardo Gonzalez in an effort to protect Willie Falcon and Sal Magluta, both dropouts from Miami Senior High School. Gonzalez was a former associate of the two defendants and agreed to cooperate with government prosecutors and investigators in exchange for a reduced sentence. Falcon later entered a plea deal for which he is serving 20 years. Magluta opted for trial and was sentenced to 195 years in prison. Gonzalez initially was in charge of the Miami-Bahamas cocaine operation. He murdered in his home in June 1993. Ramirez was accused of housing the hitmen assigned to kill Gonzalez along with the weapons used in he murder. Ramirez also provided the vehicle used in the hit.

The sentence reduction was based on a motion for post-conviction relief that accused the defense attorneys representing Ramirez of convincing her not to accept a relatively light sentence. According to Ramirez, who testified at the hearing, defense attorneys talked her out of accepting a 5 to 10 year prison sentence in exchange for a guilty plea. She also convinced the judge that the lawyers did not advise her that she could receive life in prison if she was found guilty at trial. Essentially, Ramirez and her defense team convinced the judge that she had received affirmative mis-advice amounting to ineffective assistance of counsel. The judge found that a "reasonable probability that, but for counsel's mis-advice, Ramirez would have accepted the government's offer and pled guilty." Ramirez agreed to re-enter a plea in exchange for a 12 year sentence which amounted to credit time served. She was released from prison, but immediately taken into immigration custody.

Motions to vacate for ineffective of counsel can also be filed under Florida Rule of Criminal Procedure 3.850. If a defendant entered a plea based on a material misrepresentation provided by counsel, that individual may be entitled to post-conviction relief, if the misrepresentation was material. For example, the Supreme Court of the United States handed down a ruling which allows for a plea to be vacated if a defense lawyer provided material misinformation regarding the immigration consequences of entering a plea. The local appellate court has ruled that the new law is not retro-active and cannot be used for cases that pre-date 2010. The Supreme Court of Florida is currently waiting to decide whether the law should be applied retroactively. The decision and opinion should be handed down in the next couple of months.

Miami Woman Freed from Life Sentence in "Willie and Sal" Drug-Murder Hit, Miami Herald.com, May 15, 2012.

May 7, 2012

Multiple Medicare Fraud Busts Across the Country

Doctors, nurses and social workers were all arrested by federal authorities in seven cities around the country for their alleged involvement in unrelated Medicare fraud schemes. The Medicare fraud amounted to billing in excess of $452 million. It is the single largest Medicare fraud bust orchestrated by the federal authorities to date. Federal investigators and prosecutors are still trying to curb a problem that costs taxpayers an estimated $60 billion to $90 billion per year. Since 2009, Health and Human Services has thrown a countless a mount of money and man hours to fighting what they believe is a systemic problem. Just when it appears the number of prosecutions on Medicare fraud cases may be subsiding, the feds make a nationwide bust. Criminal lawyers either privately retained or supplied by the federal public defenders' offices will represent the 107 defendants arrested in seven cities around the country.

It is no surprise that the arrests came out of Miami, Los Angeles, Houston, Detroit, Chicago, Tampa, Baton Rouge. These cities have long been considered the hotbeds for Medicare fraud. Two individuals arrested out of Baton Rouge operated community mental health centers. The centers would recruit elderly people and those with mental health and drug addiction issues. The clinics billed $225 million for treatments that were unnecessary or never provided. The indictment not only addresses the massive fraud, but also efforts of the owners of the centers to destroy incriminating documents. Once their operations were shut down, it is alleged that they tried to sell their patients to other clinics and medical centers. Five other people from Baton Rouge were also arrested for their involvement. The arrests came after a six year investigation conducted by federal authorities.

Miami is home to more than 50 defendants that were also arrested for fraud. The grand total of the fraud was alleged to have exceeded $136 million. The defendants arrested were not all part of the same scheme to defraud, but were all alleged to have been involved in community healthcare centers and home health care operations. According to investigators, the latest trend in Medicare fraud involves community mental healthcare centers. The centers have become popular schemes as individuals involved in Medicare fraud move away from the more common HIV treatments, medical equipment businesses and home healthcare. Federal investigators have been trying to keep up with the evolution of the federal healthcare fraud.

Individuals charged with healthcare fraud are facing serious consequences, months or even years in prison. While the offense of fraud is serious, the poignant problem is the sharp escalation under the federal sentencing guidelines that results from the large amounts of losses suffered by the federal government as a result of the fraud. Losses in excess of a million dollars can certainly land someone in the federal prison from 8 to 10 years. Any reductions in sentencing will only be afforded those who agree to cooperate with the government. Cooperating with the government includes providing information against others committing fraud and possibility of testifying against co-defendants at trial.

107 Charged in Medicare Fraud Busts in 7 Cities, CBSNews.com, May 7, 2012.

May 1, 2012

Meetings Begin in Tallahassee to Discuss "Stand Your Ground"

The task force created to look at the current state of the law regarding self-defense embarks on its review Florida's Stand Your Ground Law. Every Miami criminal defense lawyer is anxiously awaiting the outcome to see if any change in the law will affect present and future clients. In addition to the task created by the governor, and independent task force created by a state senator will also look at the law to determine if it should be changed to minimize the use of the law in future cases. Senator Chris Smith claims that the law should be changed to allow law enforcement officers more of an opportunity to investigate crimes committed against unarmed victims, thus reducing the ability of criminals to use the law as a way to avoid prosecution. Smith intends for his task force to compile a report which would provide the governor and the legislature guidance in how to modify the current state of the law.

Under the current state of the law, a stand your ground defense will initially be heard by a judge in response to a motion to dismiss filed by a defense attorney. After taking testimony and reviewing physical evidence, the judge has the power to dismiss a case, or in the alternative, deny the motion and set the case for trial. Smith proposes that a stand your ground defense would be better off heard by a grand jury who would determine whether or not a defendant should stand trial. Smith's group is also advocating for changes in the self-defense law which include re-writing the law, thus limiting its application, and a tracking system for cases in which the defense is based on stand your ground. The committee has declined to advocate for an outright repeal of the law.

The task force created by the governor is meeting today simply to establish its goals and plan future meetings to discuss the law. After several meetings, it is anticipated that the panel will submit suggestions to the governor and the legislature about how to improve the stand your ground law. The good news is that changes are not imminent and that defendants currently charged with violent crimes such as murder, manslaughter, aggravated battery and aggravated assault have time to submit motions to dismiss under the current change of law. With that being said, it seems unavoidable that the law will eventually be pared back by the legislature, allowing for fewer defendants to seek asylum under the law. Defense attorneys and representatives from state attorneys offices are concerned with the potential outcome of the meetings and will appear at various times in Tallahassee to express their views.

Defense attorneys believe that there are very valuable points to the law as it currently exists, while prosecutors believe that the law also has positive aspects, but is often applied inconsistently due to its broad language. While the law should be limited to strictly to self-defense cases, it has no place in domestic violence cases or in cases where there are unintended deaths that occur as a result of shootouts resulting from street level narcotics dealings. The major concern among prosecutors and legislators is that the law is being used as a shield by defendants who really should not have a right to avail themselves of the stand your ground law.

Florida Task Force Seeks Major Overhaul to Stand Your Ground Law, Miami Herald.com, May 1, 2012.