February 2013 Archives

February 26, 2013

US Supreme Court Rules Before Florida Supreme Court on Retro-Activity of Padilla

The United States Supreme Court has dashed the hopes of many illegal immigrants who are awaiting deportation or trying to obtain their residency. Miami criminal lawyers who represent clients in post-conviction relief matters have been anxiously awaiting the Florida Supreme Court to rule on the retroactivity of Padilla type cases, got their answer from the United States Supreme Court. The high court ruled 7-2 that immigrants cannot withdraw guilty or no lo contendere pleas in cases that were resolved prior to March 31, 2010. In 2010, the Supreme Court ruled that defense attorneys had an affirmative obligation to advise defendants of potential immigration consequences prior to entering a plea. If a defense lawyer failed to advise or provided affirmative mis-advice regarding the potential immigration consequences, such as deportation, a defendant was entitled to file a motion to vacate and re-open the case.

The Supreme Court in Chaidez ruled that the defendant, a lawful permanent resident since 1977, could not vacate her 2004 conviction for insurance fraud. The conviction will most likely lead to the denial of her continued residency and eventual deportation. Her motion to vacate was based on the fact that her defense lawyer at the time she took the plea did not advise her of the risks of deportation by entering the guilty plea. While the Supreme Court ruling in the Chaidez finally decided the retroactive question, that does not mean that a motion to vacate cannot be won in court. However, a successful motion to vacate will now largely be won based on negotiations and stipulations made with prosecutors, rather than based on the law.

The likelihood of a success ful motion to vacate no longer rests on the law, but must be argued on the equities. The success of a motion to vacate for immigrants being deported or unable to gain or maintain their residency and eventual citizenship will be determined by a number of factors. The first factor to consider is the jurisdiction where the plea was taken. In light the newest case, it is highly unlikely to find effective relief in federal court. Had Chaidez gone the other way in the Supreme Court, immigrants might have had a chance in district court. As far as state courts go, success will be determined by the policies of each particular state attorney's office in Florida. The Broward County State Attorney's Office has a firm policy against agreeing to vacate pleas. Miami-Dade County prosecutors seem to be much more flexible. Generally, an agreement to vacate a plea is left up to the division chief, or head prosecutor, in any particular courtroom. Some division chiefs are flexible, while others won't give you the time of day. In the end, an immigrants chances of obtaining his residency or averting deportation will in some aspects depend on the luck of the draw.

Now that the law has been handed down, what does it take to win motion to vacate? Assuming a particular division chief is willing to entertain a motion to vacate, an extensive mitigation packet will have to be compiled. Items that will be needed for the mitigation packet include tax returns, birth certificates, marriage certificates, and of course letters from various individuals explaining why a particular person should be permitted to remain in the United States. Anyone seeking to vacate a plea must retain a qualified criminal attorney experienced in handling these types matters. Any attorney who files a motion and expects to win before a judge has no clue what he or she is doing and will lose the motion. Hire a lawyer with a good track record when it comes to winning these types of cases.

Supreme Court Won't Extend 2010 Immigration Ruling, Reuters.com, February 26, 2013.

February 19, 2013

South Beach Bartender Charged with DUI Manslaughter

The stakes went up in the case involving the South Beach bartender who allegedly killed a chef on his way to work. Karlie Tomica was originally arrested for leaving the scene of an accident resulting in death. After the blood alcohol level purportedly revealed a result three times the legal limit, Tomica was hauled back into to court where prosecutors from the Miami-Dade-County State Attorney's Office amended the information charging her with DUI manslaughter. The defendant appeared with her Miami criminal attorney who again entered a not guilty plea to the amended charging document and requested any additional evidence that the prosecution intends to use to prove the additional charges.

Miami Beach police believe that Tomica left her bartending job at Nikki Beach under the influence of alcohol and crashed into a 49 year-old chef, Stefano Riccioletti while he walking to work on Collins Avenue. Riccioletti was married with three children at the time of his demise. According to police reports, the vehicle that Tomica was operating struck Riccioletti causing his body to be thrown 30 feet from the point of impact. A witness that observed the accident called 911 and followed the defendant's vehicle 40 blocks to her Miami Beach apartment. Police later arrested her at her apartment for leaving the scene of an accident. She was not arrested for DUI manslaughter on the night of the incident as the police and prosecutors did not have the result of her blood alcohol level.

The allegations made by the police and the state attorney's office appear to make an open and shut case. DUI manslaughter cases are not as simple to prove as the media reports would have you believe. To prove DUI manslaughter, the prosecution must prove that the defendant was in actual physical control of a motor vehicle. The only viable witness that can apparently put Tomica behind the wheel of the vehicle of the accident is the witness that called 911 and followed her to her home. The mere identification of the vehicle is not enough. The witness must be able to identify her as the person behind the wheel. The accident occurred at night which would make the identification of the defendant while driving very difficult. The witness may have observed the defendant exit her vehicle at her condo which would make for a much more plausible identification. The defendant may have admitted to driving the vehicle after she was arrested a provided Miranda warnings. Only through the discovery process will her defense attorney be able to determine how the prosecution intends to prove actual physical control.

The prosecution also has to prove that Tomica was under the influence of alcohol to the extent that her normal faculties were impaired. The state can prove this element in one of two ways. They can show that her normal faculties were impaired by the results of field sobriety exercises or even by a actions, reactions, physical appearance at the time of her arrest, even in the event field sobriety exercises were not requested or not performed. Police officers can also testify that she had the odor of alcohol on her breath or blood shot eyes to prove impairment. The state will try to rely on the results of the blood alcohol level which is a far more objective test. The defense will have to hire a toxicologist to re-test the blood and to ensure that the blood was draw legally with a proper chain of custody.

The last hurdle the prosecution will have to overcome is the element of causation. They will have to prove that Tomica was the cause of the accident and not Riccioletti. The defense will have to hire an accident reconstruction expert to determine where the collision occurred and if in fact that the victim's action played a contributing role in the accident. To successfully defend DUI manslaughter cases, experts must be hired to establish a viable defense to this very serious charge. Tomica is facing up to 30 years in prison with 4 year minimum mandatory sentence. While that sentence is a worst case scenario, defendants charged with DUI manslaughter often serve terms of imprisonment. Depending on the strengths and weakness of the case, along with the input of the victim's next of kin, the state will make a plea offer down the road.. Only time will tell what that number will be.

"Party Princess" Karli Tomica Faces DUI Manslaughter Charge, ABC News.com, February 19, 2013.

February 8, 2013

Feds Arrest 109 in IRS Identity Theft Crackdown

It is once again tax season, and in an effort to head off the continuing problem of tax fraud, federal authorities have taken legal action against 389 people suspected to some degree of being involved in identity theft and tax refund fraud. Criminal defense lawyers in Miami, Florida have seen an up-tick in the number of arrests and prosecutions in federal court dealing with identity theft and tax fraud. The large scale action taken by the IRS and other federal authorities has led to 109 arrests, 189 indictments and dozens of court complaints and informations. The majority of criminal activity uncovered occurred on the East Coast and in Midwest states.

Not only are individuals being targeting, but businesses as well. The IRS and other federal criminal investigators are also looking at approximately 197 money service businesses that include check cashing stores to determine if they themselves played a role in identity theft and tax return fraud. The areas of the country being scrutinized are New York, New York; Philadelphia, Pennsylvania; Atlanta, Georgia; Tampa, Florida; Miami, Florida; Chicago, Illinois; Phoenix, Arizona; Houston, Texas; San Diego, California; El Paso, Texas; Tucson, Arizona; Birmingham, Alabama; Detroit, Michigan; Oakland, California, San Francisco and San Jose, California.

The main targets of identity theft and tax return fraud of the federal authorities are the individuals and businesses that acquire individual's social security numbers and other personal information, such as names and dates of births to file fraudulent federal tax returns. The IRS commissioner has decreed, "As tax season begins this year, we want to be clear that there is a heavy price to pay for perpetrators of refund fraud and identity theft. We have aggressively stepped up our efforts to pursue and prevent refund fraud and identity theft, and we will continue to intensely focus on this area." If that is not a warning, I don't know what is. The IRS has upgraded its hardware and software to more efficiently screen tax refunds. The IRS acknowledged that the new screening process will slow the processing of legitimate tax returns and refunds, but that it is a necessary evil to prevent fraud.

To combat fraud, the IRS has also hired 3,000 employees to screen for identity theft. That number has more than doubled since 2011. The crime of identity theft is taken very seriously by the United State Attorney's offices across the country. Under the federal sentencing guidelines, aggravated identity theft carries a two year prison sentence that will tacked on the normal federal sentencving guidelines. The guidelines will be determined by the amount of loss and the number of victims involved in the identity theft. For example, someone indicted for identity theft facing a guideline sentence of 57 to 71 months will also have to contend with the additional two years that can be added to the time of imprisonment. Anyone being investigated for or having been indicted for identity theft or tax refund fraud should immediately seek assistance fro a criminal lawyer with experience in federal court defending white collar crimes.

IRS Identity Theft Crackdown Leads to 109 Arrests, News10net.com, February 8, 2013.

February 1, 2013

Police Officer Arrested on Extortion Charges

The FBI arrested a local police officer for two counts of extortion. The charges allege that Officer Harlod James was involved in providing protection to a sports betting ring that operated out of Liberty City. James is scheduled to appear in federal court with his Miami criminal lawyer on Friday. It is widely expected that the defendant will enter a guilty plea when he makes his court appearance. James got caught up in a FBI corruption investigation that targeted a barbershop that was running an illegal gambling operation. Prior to his arrest, James resigned from the City of Miami Police Department. He was an 8 year veteran of the department. The arrest further tarnishes the reputation of the city's police department.

James is accused of providing protection for a courier that was transporting purported tax refund checks. The federal government is accusing James of accepting cash payments in exchange for providing protection. James only received $800 from his alleged protection scheme. James appeared in court yesterday at his initial appearance and entered a not guilty plea to the indictment charging two counts of extortion. The criminal attorney representing James was able to secure a $75,000 bond for his client which was then posted. James is scheduled to appear in court today and enter a guilty plea. James is the second police officer arrested to date for his involvement. Officer Nathaniel Dauphin was arrested last January and charged with one count of extortion for allegedly accepting a $5,000 cash payment in exchange for protection.

The FBI working in conjunction with the City of Miami police are expected to arrest more officers who were also allegedly involved in providing protection to the illegal gambling ring. Most of the officer currently being investigated, but not charged, have resigned or been relieved of duty. In total, at least 10 city cops are expected to be arrested and face federal prosecutions for similar conduct committed by James and Dauphin. No mention has been made by the media whether any of those arrested are going to cooperate with the federal government in the prosecution of their fellow officers. However, if James takes a plea two days after being arrested, it is apparent that he probably worked out some sort of deal with the federal government in exchange for his cooperation.

A second City of Miami police officer, Luis Hernandez, was arrested on charges including armed kidnapping and sexual battery. Hernandez appeared at his bond hearing yesterday and was denied bail. Armed kidnapping is a felony that carries a potential prison sentence of life. Any one arrested for a capital offense or first degree felony punishable by life in prison will be held without bail. There are two way to obtain bail in these types of cases. The first is to convince the prosecutor to stipulate to a bond. If a defense lawyer cannot convince the prosecution to agree to a bond, the second option is to request an Arthur hearing. An Arthur hearing is a mini-trial where a judge must determine whether there is enough evidence to keep a defendant incarcerated. The state must meet their burden of "proof evident, presumption great". If the state cannot meet that burden the judge will set a bond. If the state meets their burden, the judge can still set a bond if a defendant is not a risk of flight, nor a danger to the community.

Another Miami Police Officer Criminally Charged with Extortion in FBI Probe, Miami Herald.com, January 31, 2013.