April 2013 Archives

April 23, 2013

Supreme Court Grants Immigration Relief

Despite the recent ruling by the Supreme Court of the United States denying the retro-activity in Padilla type cases, the high court ruled in favor of immigrants with minor marijuana offenses on their record. On Tuesday, the Supreme Court declared that a resident of the U.S. of Jamaican decent should not have been deported for a misdemeanor amount of marijuana. Criminal lawyers in Miami and across the nation will applaud the new ruling, but it is at most a consolation prize in light of the ruling that determined that Padilla would not apply retro-actively. The Supreme Court in Chaidez ruled that a defendant cannot withdraw guilty or no lo contendere pleas in cases that were resolved prior to March 31, 2010 even if they received affirmative mis-advise from their lawyer.

Adrian Moncrieffe resided in the United States since the age of 3. In 2008, Moncrieffe was pulled over by police officers in the State of Georgia. He was found to be in possession of approximately 1.3 grams of marijuana and charged with possession of marijuana with the intent to distribute. Moncrieffe entered a plea to the charge which amounted to a short period of probation with no jail time. In fact, he was eligible to have his case expunged once he had complied with all the conditions set out in the plea.

After completing his sentence, Immigration and Customs Enforcement (ICE) picked up Moncrieefe at his residence, incarcerated him and initiated deportation proceedings. After hearing arguments on the matter, the Supreme Court Justices ruled 7-2 that Moncrieffe should have had the opportunity to contest the deportation. The majority of the court found that possession of a small amount of marijuana is not an aggravated felony, and was therefore insufficient to permit automatic deportation. Criminal records involving aggravated felonies subject immigrants to deportation without exception. Misdemeanor amounts of marijuana allow for deportation, but in the majority of cases, immigrants are granted waivers under those circumstances.

Immigrants that are not U.S. citizens arrested for simple possession of marijuana should not entered a plea to the charge. While the punishment in the State of Florida for such an offense is typically time served, serious immigration consequences can arise from entering such a plea. While one conviction for simple possession can allow for a waiver in immigration court, a second conviction will subject someone to automatic deportation. Immigrants arrested and charged for simple possession should hire a qualified and experienced criminal defense attorney to contest the charge.

An experienced defense lawyer can often find defects in the case and file appropriate motions which may lead to a dismissal of the charge. If there are no defects ion the case, another option would be to enter a pre-trial diversion or pre-trial intervention program. In Miami, first-time offenders can enroll in the program and exchange for completing a drug class, the prosecution will dismiss the case. Entry into one of these program will have no negative immigration consequences because a defendant never enters a plea. The best advise is to seek counsel and avoid taking a plea at all costs. Remember there are options that may cost a little more up front, but will avoid a defendant from later facing deportation proceedings.

Court Limits Deportations Over Marijuana Crimes, Miami Herald.com, April 23, 2013.

April 9, 2013

Medicare Fraud Case Lands Three Family Members in Prison

Last Friday, in a federal courtroom packed with spectators and family members, a federal judge handed down lengthy prison sentences to three family members who were previously found guilty for their involvement in a multi-million Medicare fraud scheme. Antonio Macli, his son Jorge Macli, and his daughter Sandra Huarte, were all sentenced for their participation in healthcare fraud allegedly being committed at their clinic referred to as Biscayne Milieu. All three defendants appeared with their Miami criminal defense lawyers at the sentencing hearing. The defendants had been previously convicted by a jury in the Southern District of Florida.

U.S. District Judge Robert Scola handed down heavy sentences for the three defendants for running a Medicare fraud scam that received $11 million from the federally funded healthcare system. The patriarch of the family, Antonio Macli, received a thirty year sentence for his actions as the clinic owner. His son, Jorge Macli, received a 25 year sentence for his action s as the company's operating officer. Macli's daughter, Sandra Huarte received a 22 year sentence for her actions as the bookkeeper of the clinic. After Judge Scola pronounced the sentence, he told the defendants that their crime was committed in the healthcare fraud capital and that the scheme was multifaceted and complex. The judge was disturbed by the fact the defendants used vulnerable patients with substance abuse problems to line their own pockets.

In the summer of 2012, the defendants went to trial in an effort to be absolved from a healthcare fraud that billed Medicare an estimated $57 million. The bills submitted to Medicare were for mental health services that were not provided, or were provided, but needed. According to prosecutors, the scam occurred between 2007 and 2011. During that time, the clinic purportedly treated 1,100 patients supposedly diagnosed with mental disorders such as schizophrenia and bi-polar disorders. Five other individuals were convicted at the jury trial, including the clinic's medical director. The 72 year-old psychiatrist from Plantation, Florida received a 12 month prison sentence. Twenty other people were charged for their involvement in the fraud, all of which entered guilty pleas to limit their exposure.

Each of the Miami defense attorneys representing the defendants minimized their client's involvement in the Medicare fraud scheme. Despite the statements made on the defendants' behalf, Judge Scola lowered the boom on all three. After hearing evidence over a two month period, which involved testimony regarding the inner workings of the fraud and the kickbacks that were being paid to patient recruiters, the judge handed down a sentence that could be considered heavy-handed to some. Anyone being investigated by the federal authorities for Medicare fraud or anyone having already arrested charged for Medicare fraud should seek counsel with experience in federal court defending Medicare and healthcare fraud related cases.

3 Miami-Dade Family Members Get Long Prison Terms in Multi-Million Dollar Medicare Fraud Case, Miami Herald.com, April 5, 2013.

April 2, 2013

Supreme Court Finds Dog Sniff Unconstitutional

The Supreme Court of the United States finally handed down an anxiously awaited opinion regarding canine searches and the 4th Amendment. Most criminal defense attorneys in Miami, Florida and across the country waited to see how the Supreme Court would decide the matter. In a 5 to 4 decision, the high court decided that police officers cannot bring drug sniffing canines onto a person's property to search for drugs without first obtaining a warrant and that a dog's alert on the front porch is not sufficient in and of itself to merit the issuance of a warrant. The appellant in the case was charged with operating a marijuana grow house or in more common parlance trafficking in marijuana. The appellant, Joelis Jardines, was arrested and charged with multiple offenses involving marijuana trafficking.

On December 5, 2006, Miami-Dade narcotics detectives with special training in detecting marijuana grow houses received an anonymous tip regarding a residence being used to grow marijuana. Relying solely on the anonymous tip, a canine officer was summoned to the scene. The detective stood on the porch when his canine alerted to the front door of the residence. The alert by the canine along with the anonymous tip was enough for the narcotics detectives to obtain a search warrant. After returning with the warrant, a search of the residence revealed 179 marijuana plants growing inside the house. The street value of the marijuana seized was approximated to be worth $700,000. As a result of the search, Jardines was charged with marijuana trafficking and grand theft of electricity from FPL. His criminal attorney entered a not guilty plea on his behalf and filed a motion to suppress the marijuana as it was obtained through an illegal search.

The trial judge heard testimony from the prosecution and the defense and granted the motion to suppress. The state attorney's office appealed the decision which was reversed by the 3rd District Court of Appeal. The Supreme Court of Florida reversed the decision of the lower appellate court. The Supreme Court of the United States agreed with the Florida Supreme Court and found the search to be in violation of the 4th amendment. A number of dog sniff cases have been heard over the past couple of years. Most of the cases have been upheld contrary to the latest ruling. For example, canine sniffs are constitutional when checking automobiles or to search luggage in the airport.

Justice Antonin Scalia opined that the Fourth Amendment protects citizens from the government looking into their homes and in addition the area surrounding a home which is often referred to as a curtilage.

"The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home," Justice Antonin Scalia said for the majority. "And the officers here had all four of their feet and all four of their companion's, planted firmly on that curtilage -- the front porch is the classic example of an area intimately associated with the life of the home."

Drug Dog's Sniff is an Unconstitutional Search, Rules U.S. Supreme Court, Huffington Post, March 26, 2013.