November 18, 2010

Six Convicted Criminals Take Into Custody by ICE Authorities

Immigration and Customs Enforcement (ICE) is at it again by continuing to pick up illegal aliens with prior criminal records. The agency has been following the same protocol over the past year. Several Miami-Dade County residents were taken into custody for felony convictions such as drug trafficking, violent crimes such as robbery, aggravated assault and aggravated battery, and sex offenses. ICE has conducted numerous enforcement operations in order to deport convicted felons. The operation that netted the aliens yesterday was conducted by the Joint Criminal Alien Removal Taskforce or ("JCART"). The six individuals are being held in federal custody pending removal proceedings or deportation. Anyone being held by immigration authorities for prior criminal convictions should retain a Miami criminal attorney experienced in handling post-conviction relief matters in order to set aside past criminal convictions.

In most instances, the only way to get a relative or loved one out of immigration custody is to prove to an immigration judge that the conviction has been successfully vacated and the charges dismissed. The first step to successfully proceeding with a motion for post-conviction relief is locate the file at the clerk's office to determine if a plea colloquy is in the file. If the plea colloquy is not in the file, it must be ordered from the court reporter who was present in court when the plea was taken. The arrest affidavit must be evaluating to determine the severity of the crime. A prosecutor will be somewhat sympathetic if the charges or not serious or involve crimes of violence.

The next step in vacating a plea is to evaluate the colloquy. Fortunate defendants were not advised of the possibility of being deported by the judge. As long as a defendant is in deportation proceedings, and the plea was taken less than two years ago, a motion for post-conviction relief will most likely be successful. The Supreme Court of the United recently handed down a decision that affirmative mis-advice from a criminal defense lawyer regarding the immigration consequences is also a basis for vacating a plea. The appellate courts within the State of Florida are deciding whether this defect can be cured by a judge's plea colloquy. Just because a case is vacated does not mean that charges will be dismissed, unless an agreement can be worked out with the prosecutor. However, the older the case, the more difficult it is for the prosecutor to prove the case and in all likelihood will decide not to proceed with the prosecution.

Keep in mind that drug trafficking charges, violent crimes and sex offenses are not the only offenses that can get an illegal alien deported. Two convictions or even withholds of adjudications for simple marijuana possession can form the basis for being deported. In many instances, defendants accept plea to seemingly harmless charges only to find themselves in immigration custody years later. The best course of action for a person who is illegally in the United States or is a resident alien and is charged with a crime is to seek out a criminal defense law firm who will fight the charges and hopefully obtain a dismissal of the charges. This is the only measure that can guarantee staying in the United States.

ICE Arrest 6 At-Large Convicted Criminal Aliens in Miami, BorderFireReport.net, November 18, 2010.

November 17, 2010

Local Resident Avoids Felony Charges Under "Stand Your Ground" Law

A circuit court judge absolved a property owner of serious felony charges under Florida's controversial "Stand Your Ground" law. The defendant was charged with two counts of aggravated assault with a firearm, one misdemeanor count of improper exhibition of a firearm, and misdemeanor count for unlawful discharge of a firearm. Aggravated assault with a firearm is a third degree felony and carries a three year minimum mandatory prison sentence. Ernesto Che Vino was accused of pointing a rifle at two Florida Power and Light workers who entered his property to shut of his power for failing to pay the bill. The judge granted the defendant immunity for the first three charges, but left the illegal discharge offense in place. The Miami criminal attorney representing the defendant was pleased with the result.

The "Stand Your Ground Defense" was added to the books in 2005 and provided that citizens no longer had a duty to retreat from a deadly threat before using deadly force. On March 9, 2009, Vino, a former navy sniper, pulled the rifle on the FPL employees after he had been awaked by his barking dogs. The FPL workers testified that they identified themselves as employees of the local power company. The defendant testified that he was unaware of what they were doing on the property and he was fearful because he had previously been the victim of a violent burglary with a battery. Vino escorted the men off of the property at gunpoint and then fired a shot in the air. The unlawful discharge offense was left in place because the defendant was no longer facing a deadly threat.

Prosecutors from the Miami-Dade County State Attorney's Office have not yet decided to appeal the ruling. Since the law went into effect, this is the second ruling in a defendant's favor issued by a judge in Miami-Dade County. Prosecutors and Florida Power and Light officials are concerned that employees could be at risk as a result of the ruling. State law allows FPL employees to enter private prior to disconnect power. The Florida Supreme is currently deciding whether judge or juries are better suited to decide a person's fate.

To prove the charge of aggravated assault, the prosecution must show that the defendant intentionally and unlawfully threatened either by word or act to do violence to a victim, the defendant had the apparent ability to carry out the threat, and the victim had a well-founded fear that violence was about to occur. If a firearm was used during the commission of crime the three year sentence will attach. The 'Stand Your Ground" law provides a defense to many violent crimes in addition to aggravated assault, such as, aggravated battery and manslaughter.

Armed Owner is Cleared In FPL Face-Off, The Miami Herald.com, November 17, 2010.

November 15, 2010

A Guide to Probation Violations

Probation violations are a common and very serious problem for defendants lodged in the criminal justice system. The jails and prisons are replete with people who violated the terms of their probation. Any Miami criminal attorney will tell you that defending probation violations is a difficult task. First and foremost, probation violation cases can arise from substantial or technical violations. Substantial violations are by far the most serious of the situations. A substantive violation exists when a person currently on probation is arrested for a new offense. A technical violation arises when a defendant fails complete the conditions set forth that need to be completed during the length of probation. Technical violations include failing to pay restitution, failing to complete community service hours, failing to complete court ordered programs or failing to pay court costs. In either case, a defendant is subjected to maximum sentence he or she was facing for the charges on which the original plea was entered.

When a probation officer becomes aware that a defendant violated probation, he or she will file a probation violation affidavit and have the judge presiding over the case execute an arrest warrant. If a defendant becomes aware that a probation violation affidavit has been filed, the best course of action is to hire a criminal defense law firm that regularly handles these types of cases. An experienced criminal lawyer will place the case on calendar and attempt to resolve the case with the prosecution before an arrest is made. If an arrest warrant is served the probationer will be taken into custody and appear at a bond hearing. The judge presiding over the bond hearing will set the case in front of the court that initially placed the defendant on probation. The defendant will be brought before that court where one of two things will happen. The case will resolved on that date or case will be set for a probation violation hearing.

A probation violation hearing is completely distinguishable from a jury trial. In a jury trial, a jury is made up of six or twelve members of the community who will be the trier of fact and determine a person's guilt or innocence. A judge is the trier of fact in a probation violation hearing and determines a person's guilt or innocence. The standard of proof in a jury trial is beyond a reasonable doubt, while the standard in a probation violation only requires the evidence to shock the conscience of the court. The judge only has to have good faith basis that a probationer violated the terms and conditions of probation. Probation violations are serious because judge can sentence a defendant to the maximum to the charges initially pled to in court. For example, if a defendant entered a guilty plea to burglary with an assault of battery or armed cocaine trafficking, a judge could potentially sentence a defendant to life in prison for violating probation.

Substantive violations are far more severe than technical violations. A sentence will be far more harsh for a defendant on probation for grand theft who then gets arrested for another crime of dishonesty. In the case of technical violations, courts are more lenient and may only require the defendant to extend their probation to complete the special conditions. On many occasions, probationers test positive for cocaine or marijuana. The severity of the punishment will many times depend on the county where the original crimes were committed. For example, in Miami-Dade County, defendants are often reinstated to probation while in other counties, prosecutors seek jail sentences. In sum, all probation violations are serious and the best way to defend these types of cases is early intervention by experienced defense lawyers.

November 11, 2010

Recent Arrest Shows South Florida Source of Percocet and OxyContin Trafficking

South Florida is again linked to an arrest made in a drug trafficking case involving Percocet and OxyContin. Law enforcement authorities made an arrest after intercepting a package containing approximately 3,000 Percocet and OxyContin pills with a street vale in excess of $100,000.00. Two Miami-Dade County residents wee arrested in Massachuseets and were arraigned last week. Both defendants appeared at their bond hearing and received a $50,000 and $10,000 cash bail. If either defendant is able to come up with the bail money, the judge presiding over the case ordered that they remain on house arrest until the case is concluded. While people view painkillers as different than cocaine or marijuana, any Miami criminal lawyer experienced in defending drug trafficking charges will tell you that the punishment for oxycodone trafficking is more severe than the penalties for cocaine trafficking.

South Florida has long been known as one of the regions where it is easiest to obtain prescription pain killers. Miami-Dade and Broward County are replete with clinics that distribute pain killers for cash. The clinics also called "pill mills" are notorious for distributing oxycodone and other variances of pain killers. The clinics are not regulated because they operate as cash businesses that do not involve insurance companies. In 2008 alone, Broward clinics distributed more than 9 million pain killers. Oxycodone trafficking has become a serious problem and the legislature is attempting to implement a prescription drug monitoring program.

The Florida Statutes provide that any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or is in either actual or constructive possession of more than a certain amount of any morphine, oxycodone, opium, hydrocodone, etc. can be charged with a trafficking amount. Along with these narcotics, heroine also falls into the same statute. That is the reason why the punishments for these offenses are so severe. Heroine has long been known to be one of the most addictive illegal substances to ever hit the streets. Oxycodone and its relatives are considered to be manufactured heroine, hence the stiff punishments.

Trafficking in oxycodone between 4 and 14 grams carries three year minimum mandatory sentence. Oxycodone trafficking between 14 and 28 grams carries a fifteen year prison sentence. The same punishment is doled out to those convicted in multi-kilo cocaine trafficking cases. Anyone convicted in oxycodone trafficking in excess of 28 grams faces 25 years in prison. You do not have to caught seeling mere possession of oxycodone that exceeds the amounts set forth in the statue is enough to get a significant prison sentence. Keep in mind that 28 grams does not make up a lot of pills. The pills usually have a street value of about $20 -$30 per pill. Do the math, the money made in dealing prescription pain killers is not worth the effort. South Florida prosecutors are aware of the pill mills and the problems they cause. Unless there is a strong defense or a glaring weakness in the prosecution's case, they are unlikely to significantly offer pleas below the aforementioned guidelines.

Florida Pipeline a Major Local Source for Illegal OxyContin and Percocet, Enterprisenews.com, November 9, 2010.

November 8, 2010

Judge Denies Motion for New Trial for Convicted Cops

A circuit court judge denied a motion for a new trial submitted by police officers recently convicted by a South Florida jury. The trial received a huge amount of media attention. Each Miami criminal attorney representing the defendants filed the motion based on alleged juror misconduct. One of the jurors was accused or reading articles about the case on the internet while the other juror allegedly contacted his father who is in the legal field in another country. The judge believed the information provided to her, but did not find that the accusations did not rise to the level of misconduct.

The accused police officers were members of the Miami-Dade County crime suppression team and were accused of grand theft, burglary, criminal mischief, aggravated assault and battery. One of the officers was convicted of official misconduct, aggravated assault and criminal mischief. The other officer was convicted of only one count of burglary. Both defendants were acquitted on false imprisonment and grand theft charges. Both defendants are awaiting sentencing pending the completion of their pre-sentence investigation reports. Each defendant was being held in custody, until the judge released one of the defendants for medical reasons.

Under Florida Rule of Criminal Procedure 3.600, a judge must grant a new trial if he or she finds that the jurors determined the verdict by lot; the verdict rendered was contrary to the weight of the evidence; or new and material evidence, if introduced at trial, would have probably resulted in a not guilty verdict and the defendant could not have discovered the new and material evidence using reasonable diligence. The judge must also grant a new trial if the defendants rights were substantially prejudiced by showing the defendant was not present at a material proceeding of the criminal process; the jury received other evidence not admitted by the court; the jurors separated during deliberation without the court's permission; a juror was guilty of misconduct, the prosecutor was guilty of misconduct; the judge failed to read an instruction as required under the law; or for any other reason that did not allow for a fair trial.

Defense counsel argued in their motion for a new trial that the jurors actions must be construed as misconduct thereby allowing for a new trial. The judge after taking testimony found that the jurors actions while inappropriate, but did not amount to misconduct and therefore denied the motions for a new trial. With that being said, the defendant convicted of aggravated assault with a firearm, official misconduct and criminal mischief is facing 15 years in prison with a 3 year minimum mandatory. The other defendant is facing 21 months to 15 years in prison for burglary of an occupied dwelling.

Motion for News Trial Denied in Convicted Cops Case, CBS4.com, November 8, 2010.


November 4, 2010

Defendant Sentenced to Maximum for Theft of Patient Records

A defendant appeared in federal court for his sentencing hearing having already pled guilty to an indictment alleging the theft of patient records from Jackson Memorial Hospital. The defendant, elderly and infirm, sat in a wheel chair with his Miami criminal attorney at his side when the sentence was imposed by a United States District Court judge. The judge sentenced Ruben Rodriguez to the maximum sentence of 11 years despite his age and medical conditions. His defense lawyer argued for a sentence of 6 years, while government prosecutors asked for a 12 year sentence. The judge, unmoved by the defense's arguments, sentenced the defendant to maximum penalties under the law.

The indictment alleged that the defendant stole records belonging to more than 3,000 patients and sold the records to third parties. According to the pre-sentence investigation, Rodriguez obtained the names, addresses, phone numbers and medical records of patients and allegedly sold them to personal injury lawyers. The defendant would a pay a hospital employee $1,000 a month in exchange for records belonging to slip and fall, car accident, and stabbing and shooting patients. The employee received a total of about $27,000 between 2008 and 2009. The employee received a 10 month prison sentence for her involvement in the theft. The FBI is continuing to focus on Miami-Dade lawyers who received the records.

Rodriguez and his wife, who was also involved to a lesser extent, were charged with aggravated identity theft and conspiracy. The defendant's wife was prepared to plead guilty earlier in the year to her involvement in the theft of the records, but the judge refused to accept the plea. As in all plea agreements in both state and federal court, a judge can refuse to accept a plea offer if he or she does not think the facts merit a particular sentence. The employee received a minimal sentence because she cooperated in the prosecution of the husband and wife. She undoubtedly received a 5K from the government which allowed the court to deviate from the sentencing guidelines.

Another fact was less than helpful for the defendant at his sentencing hearing. Rodriguez was originally granted bail at his initial appearance and bond hearing. At some point in the case, the defendant was allegedly involved in witness tampering and had his bond revoked for obstructing justice. The judge who handed down the sentence said that the defendant acted out of greed and obtained money at the expense of vulnerable victims. Included in the prison sentence was a $100,000 fine. The real target of the investigation are the lawyers that paid Rodriguez hundreds of thousands of dollars in kickbacks in exchange for the information.

Theft of Patients' Records Nets the Max in Prison, The Miami Herald.com, October 26, 2010.

November 2, 2010

Local Man Sentenced to 40 Years on Sexual Battery Charges

A former chef entered a guilty plea into numerous sexual battery and attempted sexual battery charges. The defendant was accused of committing multiple rapes on Miami Beach between 2006 and 2008. The Miami criminal defense lawyer representing Arturo Ortiz-Soto originally negotiated a 30 year sentence between the defendant and the Miami-Dade County State Attorney's Office. After hearing the plea agreement, the circuit court judge presiding over the case refused to accept the deal as being to lenient. The judge offered 40 years to resolve the defendant's case which was immediately accepted. While it is not typical for a judge to reject a plea offer, judges always have to ratify any plea deals between the state and the defense. The nature of the charges involved with this case plus the media attention probably led to judge to reject the original agreement.

The information(s) accused the defendant of committing several violent rapes on South Beach. In state court, the information is the charging document which sets forth the number of and the types of charges a particular defendant is facing. The defendant at the time he allegedly committed the rapes worked as a sushi chef on Miami Beach. The first information accused the defendant of committing a sexual battery against a women in an alley on the beach. A second information alleged another sexual battery committed in an alley. The third and fourth information(s) alleged attempted sexual batteries which also occurred in alleyways on Miami Beach.

The last attack allegedly committed by the defendant was caught on video tape. After committing the last attack, Miami Beach police officers apprehended the defendant wearing a blood soaked shirt. After being arrested, the defendant purportedly admitted to all the crimes for which he was charged. DNA evidence came back positive on two of the cases. With the strength of the evidence, the defendant made the logical choice of entering a plea because he was facing up to 140 years in prison for his sex crimes. If the defendant had chosen not to accept a guilty plea, the prosecution would have had the opportunity to try him on 4 separate occasions. The judge would not have granted a motion to consolidate the cases as they all occurred on separate dates and at separate locations.

Another problem the defendant was facing if he went to trial would have been that the prosecution would have attempted to introduce the facts of all the cases to support a conviction in one of the sexual battery cases. Rule 404(a) prevents the prosecution from admitting evidence of other crimes, wrongs, or acts to prove the bad character of a defendant or propensity to commit the crime. However, the prosecution can use other evidence to prove motive, opportunity, intent preparation, plan knowledge, identity or absence of mistake. Based on the fact that the offenses were committed in a similar fashion, all the cases would have been heard to support a conviction in the primary case. Prior to other evidence of wrongdoing being admitted at trial, the court will hold a pre-trial hearing to determine if the evidence being sought to be admitted is proper.

Sushi-Chef Rapist Sentenced to 40 Years in Prison, The Miami Herald.com, November 2, 2010.

November 1, 2010

Sentencing Guideline Amendment to Help Seniors

Harsh sentences handed down in federal court against seniors have caused the legislature to scrutinize the federal sentencing guidelines. In recent years, many elderly defendants charged with white collar crimes or other fraud related financial crimes have received sentences which are tantamount to life in prison. Miami criminal lawyers will be able to use this amendment to better represent their clients at federal sentencing hearings. Prior to the amendment which went into effect today, the federal sentencing guidelines stated that a defendant's age is "not ordinarily relevant". The amendment now sets forth that age may be relevant in calculating potential sentences.

The amendment to the sentencing guidelines became necessary as many older defendants charged with white collar crimes have died in prison or will eventually die in prison. Statistics have shown that white collar defendants tend to be older than defendants charged with other crimes in federal court. For example, almost fifty percent of the defendants charged with tax crimes are over the age of 50. Over 25 percent of the defendants charged with money laundering were over the age of 50. Twenty-two percent of the elderly charged in theft and larceny cases are over the age of 50. Not only can the departure be used to help the elderly, the amendment can also assist in receiving sentencing departures on youths.

The federal sentencing guidelines were transformed from mandatory to advisory in 1987. Despite the change in the law, more than half of all defendants sentenced in federal court were sentenced within the guidelines. The newest change in the law came as a result as a result of famous defendants receiving sentences tantamount to life in prison for committing financial crimes. In the past, federal appellate courts have overturned reduced sentences handed down by United States District Courts for defendants with health or age issues. It is too early to tell how effective the amendment will be to assist defense attorneys in seeking reduced sentences for their clients. However, the amendment will provide more fodder to an attorney arguing on behalf of their client at federal sentencing hearings.

Hopefully, the amendment will be as effective as the sentencing departure permitted under state law allowing the court to significantly depart from the guideline sentences under the Youthful Offender Statute. Judges may sentence defendants below guidelines that are under the age of 21 at the time the sentence is imposed. The statute does not apply for defendants charged with capital offenses or life felonies like kidnapping or armed cocaine trafficking. However, young defendant charged with armed robbery or car jacking can avail themselves of the statute if the court is willing to go along with the defense attorney. The youthful offender statute allows the court to sentences a defendant up to a maximum of 6 years. The six years can include prison, community control or probation. On many occasions the only requirement is to complete the Miami-Dade County boot camp program. Hopefully the change in the federal law will be somewhat as affective as the state guideline departure rule.

White Collar Criminals in U.S. May Invoke Age to Seek Lighter Sentences, Bloomberg.com, October 29, 2010.

October 27, 2010

Prosecution Gets Manslaughter Conviction

Jurors returned a guilty verdict on manslaughter charges against a man who allegedly fired shots into a sofa on New Year's Eve that resulted in the death of a 11 year-old boy. Prosecutors alleged that the defendant fired shots into an abandoned sofa, not knowing that the victim was hiding behind it at the time the shots were fired. The defendant fired at least 14 shots with 5 of them striking the victim. One of the bullets pierced the victim's aorta causing him to bleed to death. The jury was out for about one hour before they returned the guilty verdict. The Miami criminal lawyers representing Zenon Fernandez expressed disappointment with the jury's conclusion.

To prove the allegation of manslaughter, the prosecution must prove beyond a reasonable doubt that a defendant caused the death of another through culpable negligence. Manslaughter and pre-meditated 1st degree murder or second degree murder vary in one important way. In the latter two offenses, the prosecution must prove that the killing was intentional rather than by negligence. Culpable negligence is defined as more than a failure to use ordinary care, but rather the negligence must be gross and flagrant. The course of conduct must demonstrate a wanton and reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or for the safety and welfare of the general public.

The basic manslaughter charge is a second degree felony punishable up to fifteen years in prison. However, the Florida Statutes provide for the charge of aggravated manslaughter. Aggravated manslaughter is a first degree felony punishable up to 30 years in prison. Manslaughter becomes aggravated manslaughter when a certain type of victim lost his or her life. Victims that will lead to an enhancement include the elderly, disabled adults, persons under the age of 18, or police officers, firefighters, medical technicians or paramedics acting in the course of their duties. The defendant in this case is facing aggravated manslaughter because the victim was 14 years of age.

The sentencing hearing for the defendant will occur in about two months once the department of probation conducts a pre-sentence investigation. The court, the prosecutors and defense counsel will use the pre-sentence investigation report as a tool at the hearing. The court will consider the defendant's prior record before imposing sentence. Conservatively, the judge will sentence the defendant somewhere in the 7 year range. However, the sentence will largely be dictated by the decedent's families input at the defendant's hearing. In cases where death resulted, the victim's family has a lot of influence in determining a sentence either by way of plea or at sentencing.

Man Guilty in Death of Boy Playing Game, Miami Herald.com, October 22, 2010.

October 25, 2010

Another Day, Another Medicare Fraud Bust

Federal law enforcement has charged four South Florida residents for their involvement in a multi-million dollar Medicare fraud scheme. According to the indictment, four healthcare operators attempted to bilk the federal healthcare program out of $200 million for medical services they did not perform. The indictment accuses four Miami-Dade County residents of being linked to American Therapeutic Corporation. The companies owner, chief executive officer and two other employees were taken into custody last week. American Therapeutic is the largest chain of clinics supported by the federal healthcare system. The defendants will make their initial appearance with their privately retained Miami criminal defense lawyers or attorneys from the federal public defender's office.

The indictment alleges that the company and the defendants charged Medicare on behalf of Alzheimer's patients for treatments that were not necessary or in most circumstances for treatments that were not even provided. Most of the purported healthcare recipients were referred to American Therapeutic by assisted living facilities (ALFs) in exchange for monetary kickbacks, The Medicare fraud case cost losses in excess of $163 million to the federal healthcare system and is one of the largest fraud cases on record. Like the other large fraud cases in recent history, The Medicare Frauds Strike Force was at the heart of the investigation.

Despite the media attention that the offenses of Medicare fraud and healthcare fraud, in general, have gathered due the long list of arrests and convictions have not dissuaded individuals from continuing a criminal course of conduct. The Justice Department holds press conferences after every major bust, but despite the dissemination of the information, Medicare fraud continues to exist. According the newest press release, the federal government will continue to fight the ongoing fraud at all costs. Last month, President Obama signed a new law requiring Medicare requiring the use new technology to flag suspicious activity rather than just paying out the billing requests. Until the recent law was passed, Medicare paid out bills without verifying whether or not the bills were fraudulent or not.

The federal healthcare system has been required to place a watch on many Miami-Dade clinics, as well as, clinics located in New York and Los Angeles where the majority of the fraud cases originate. Why is Miami a target of healthcare fraud? Last year alone, more than 100 clinics, the majority of which are located in Miami-Dade County submitted in excess of $425 million dollars in bills to Medicare. Fifty-six percent of all payments from Medicare were made to South Florida clinics, with the majority being in Miami, Broward and Palm Beach Counties. Anyone being investigated for or that has been arrested for Medicare fraud, should immediately retain a Miami criminal defense law firm specializing in defending healthcare fraud cases in federal court.

Federal Agents Round Up Ring of Mental Health Operators in Alleged $200 Million Medicare Fraud Case, The Miami Herald.com, October 21, 2010.

October 22, 2010

Local Resident Arrested for Lewd and Lascivious Molestation

The Hialeah Police Department arrested a middle aged man for committing a sex crime against a minor. The police report indicated that the assault occurred a public park and was committed against a 14 year-old boy. The defendant appeared with his Miami criminal lawyer from the public defender's office at his initial bond hearing. The judge presiding over the bond hearing set bail at $10,000.00. The bail amount is the standard bond for a second degree felony. The prosecution did not seek to have the bond increased as the defendant has no prior record for having committed a sexual offense.

The defendant was arrested for the charge of lewd and lascivious molestation and lewd and lascivious conduct which are second degree felony punishable up to 15 years in prison. Under the State of Florida Sentencing Guidelines, the charges are both level 7 offenses which carry a 21 month sentence at the bottom of the guidelines. The defendant is accused of forcing himself on the boy by kissing him and forcing him to fondle him. There is no indication that there were any other eyewitnesses to the incident. The boy and his father flagged down a Miami-Dade school police officer who eventually stopped and arrested the suspect.

To prove the charge of lewd and lascivious molestation, the prosecution has to prove that the defendant intentionally touched the victim in a lewd and lascivious manner, the breast, genitals, etc., or the clothes covering them. The victim also has to be under the age of sixteen for the offense to have been committed. Similarly, the offense of lewd and lascivious conduct requires to the prosecution to prove beyond a reasonable doubt that the defendant committed an intentional touching in a lewd or lascivious manner and the victim is under the age of 16.

The resolution of this case will be determined by two factors. The first will depend on the strength of the victim's testimony. Second, the parents of the victim will have to decide whether to have their child testify or work out a plea to avoid additional emotional harm to the child. Even if the defense attorney representing the defendant can obtain a probationary plea, the defendant will be deemed a sexual offender by the Florida Department of Law Enforcement. Being designated a sexual offender is problematic for a variety of reasons. The consequences that will result include restrictions on where a sexual offender can live and the quarterly reporting requirements. If the case is weak enough the attorney should attempt to charge bargain the case in an effort to prevent the defendant from being categorized as a sexual offender.

Man Accused of Molesting Boy at Hialeah Park, CBS4.com, October 21, 2010.

October 20, 2010

Ten South Florida Residents Arrested for Marijuana Trafficking

Multiple marijuana trafficking arrests were made by ICE (Immigration and Customs Enforcement) agents as part of an on going criminal investigation called "Operation Green Venom". The federal investigation has been ongoing since 2008 in an effort to curb the drug trafficking problem that has persisted from Miami up the eastern coast of the United States. The investigation is ongoing and to date has netted multiple arrests, $1.85 million and 225 pounds of marijuana. In total, 12 defendants were arrested, 10 from South Florida and two from New York. The 10 men arrested in South Florida are being held at the Miami Federal Detention Center. The defendants are facing extradition to New York to face charges of marijuana trafficking and money laundering.

It is unclear at this point whether the defendants will have their initial appearance in a Florida or New York federal court. In either case, the defendants will appear with their criminal defense attorneys who will attempt to secure bail or a bond for their clients. In federal court, in most instances, the initial appearance before a federal magistrate acts also as a bond hearing. The magistrate will decide on whether or not a bond should be set and the amount of the bail. The magistrate will make the determination by considering whether a defendant is a danger to the community or a flight risk. The defendants least involved in the in the marijuana trafficking operation will likely receive a better result at the bond hearing.

Federal, state and local officials have been cracking down on marijuana trafficking and grow house operation over the past three or four years. The down turn in the economy and the lucrative business of cultivating marijuana has led to a boom in the industry. As a result, Miami-Dade has created several narcotics teams that focus solely on investigating marijuana trafficking rings and grow house operation. The Miami-Dade County State Attorney's Office has also taken a dim view on defendants charged with being involved in marijuana grow house operations. The office has created a special narcotics division that has created a policy that all plea offers on marijuana trafficking cases must go through their unit to get waivers of the minimum mandatory penalties which can sometimes be a difficult task..

The penalties for marijuana trafficking vary between state and federal court. Defendants face minimum mandatory penalties under the federal sentencing guidelines and the state statutes provide for three, 7 and 15 year minimum mandatory sentences depending on the amount of marijuana seized as part of the criminal investigation. The federal sentencing guidelines provide for increased sentences as the amount of marijuana seized goes up. The defendants in this case are charged with trafficking in excess of 1,000 pounds of marijuana and face up to live in prison with a 10 year minimum mandatory sentence. In either jurisdiction, the penalties for marijuana trafficking are severe. Any one being investigated for or having been arrested on drug trafficking charges should retain a criminal defense law firm experienced in defending these types of cases to defend the charges as the consequences of long term imprisonment and deportation are a distinct possibility.

10 From South Florida Arrested in Federal Pot Trafficking Probe, Sun-Sentinal.com, October 18, 2010.

October 18, 2010

Lawyer's Assistant Sentenced in Federal Court on Fraud Charges

The former assistant to a currently jailed attorney was sentenced in a Broward County federal courtroom for her involvement in one of the largest Ponzi schemes ever unraveled in South Florida. Debra Villegas appeared with her criminal defense lawyer to be sentenced on racketeering charges for which she pled guilty earlier in the year. The federal judge presiding over the case sentenced her to 10 years in prison for her alleged involvement in the massive scheme to defraud. According to the indictment and accompanying court documents, Villegas was Scott Rothstein's right hand in the investment scheme. Along with a 10 year prison sentence, the judge ordered the defendant to pay restitution in the amount of $363 million to the 300 plus victims of the Ponzi scheme.

The defense attorney representing Villegas put on testimony at the sentencing hearing in an effort to persuade the judge to reduce her sentence and in fact requested that her sentence be served as home confinement so she could care for her children. Her estranged ex-husband is facing murder charges for which her children will be called as witnesses. The judge was unmoved by the argument and sentenced her to the maximum sentence allowed under the law. While as dire as the situation may seem, the judge allowed the defendant to surrender to serve her sentence beginning June 2011. According to reports, Villegas has cooperated with the federal law enforcement and prosecutors to assist in nabbing the rest of those allegedly involved in the fraud. The imposition of the sentence was probably delayed at the request of the prosecution and the defense for several reasons.

While the defendant apparently did not receive a break for her cooperation at the sentencing hearing, federal law allows for a sentencing departure at any time after the sentence is imposed under a Rule 35. Sentence reductions for cooperation with the authorities can occur at the sentencing hearing under what in common parlance is called a 5K. A 5K will be offered by the government if a defendant provides substantial assistance in the investigation or prosecution of another person who has committed a criminal offense. Of course, any agreement of this nature between the government and the defense, will require the court to make a final determination of percentage decrease in the sentence. The court will evaluate the significance and usefulness of the assistance provided; the truthfulness, completeness and reliability of the information provided by the defendant; the nature and the extent of the defendant's assistance; and the timeliness of the defendant's assistance.

A Rule 35 will probably be more beneficial to the defendant in this particular case than a 5k because she will be able to continue cooperating prior to the date she must surrender. In some cases, a defendant can receive a 5k and a Rule 35 as part of a sentencing reduction. A reason to rest her departure on a Rule 35 and not 5 K is to let time pass where the case will not be so fresh and the pubic's and the court's mind. Despite the defendant's cooperation with the FBI and IRS, the judge rejected her defense attorneys request for 7 years of house arrest. Maybe after further cooperation with the government, the defendant's sentence may reduced by the court.

Rothstein's Right-Hand Man, Debra Villegas, Sent to Prison, Miami Herald.com, October 8, 2010.

October 11, 2010

Tampa Takes Lead as Staged Accident Insurance Fraud Capital

Police out of Tampa arrested eight people for being involved in an insurance fraud scheme involving staged accidents. Tampa has taken over the top spot from Miami regarding these types of offenses. Hillsborough County has become acutely aware of the problem it faces regarding insurance fraud of this kind and intends to use significant assets to quash it. From 2008 to 2009, Hillsborough County experienced a 290% increase in staged accident claims rising from 232 to 487. Included in the in the figures are Tampa, St. Petersburg and Clearwater. The Hillsborough police says they uncovered a new type of scam where U-Haul trucks are used in the accidents because renters can secure a $1 million dollar policy for $100.00. As a Miami criminal attorney, I can tell you that the use of rental trucks due to high insurance coverage have been used in dozens of cases in South Florida.

For years, Miami had been considered the staged accident capital of Florida, but stricter laws and specialized insurance fraud units made life increasing difficult for those who were involved in staged accidents for the purpose of attending sham clinics and billing insurance companies for non-existent injuries. Miami was able to curb the problem form the bottom up Drivers and passengers of vehicles involved in staged accidents were arrested and facing significant jail time as a result of changes in the legislature. The law changed to read that any person that organizes, plans or participates in an intentional motor vehicle accident with the intent of filing personal injury claims is guilty of committing a second degree felony. More importantly, the offense carries a two year minimum prison sentence.

Because drivers and passengers were facing such dire consequences and most of the defendants were first-time offenders, they were offered the opportunity not to be arrested or receive significantly reduced sentences for their cooperation in prosecuting the accident planners, clinic owners and doctors involved in the elaborate schemes. Eventually, the majority of the drivers and passengers had provided enough information where the individuals responsible for the majority of the losses to the insurance companies were taken out of circulation. Dozens of clinic owners, doctors and others involved in the day to day operations of the clinic were arrested and the clinics closed. Over the past year, the number of arrests in Miami for staged accident insurance fraud cases have been significantly reduced, although the state court criminal docket remains replete with these types of cases. The cases stay open do to the swelling number of cases in the Miami-Dade County criminal justice system.

The overloaded docket and the overwhelmed prosecutors at the state attorney's office often provide the best defense to a stage accident insurance fraud case. An defense attorney will tell you that the longer a cases remains open the better the result will likely be for the defendant. The strength of these insurance fraud cases lies with flip witnesses or in other words with co-defendants who have been promised deals to testify against the ringleaders of the operations. Seldom is there any physical evidence and the prosecution relies solely on testimonial evidence. As long as a defendant did not make an incriminating statement to law enforcement, a solid cross-examination of the state witnesses will more often than not lead to an acquittal on the charges. Even if a case is weak, insurance fraud investigators leave little discretion to plead case out with the prosecutors. That being the case, anyone arrested for staged accident insurance fraud should prepare themselves for trial, at least in Miami-Dade County.

Hillsborough Deputies Arrest Suspects in Staged Car Crashes, TampaBay.com, October 9, 2010.

October 8, 2010

Man Sentenced to 22 Years for Medicare Fraud

A South Florida man was sentenced to 22 years in prison in federal court for his involvement in a multi-million Medicare fraud scheme. The defendant appeared with his Miami criminal attorney at his sentencing hearing. Defense counsel portrayed the defendant as a compassionate person while government prosecutors portrayed Ihosvany Marquez as a greedy scam artist living the high life with stolen taxpayer money used to fund the federal healthcare program known as Medicare. In total, the indictment alleged that Marquez and his partner Michel De Jesus Huarte along with their co-conspirators bilked the federal healthcare system out of $22 million.

Marquez earlier in the year entered guilty pleas to the charges of healthcare fraud, identity theft and money laundering. Huarte also entered guilty pleas to the same charges and received an identical sentence. Federal judges will generally impose the same sentence for defendants who are engaged in similar conduct. The only way the defendants could have sought a significant sentence reduction would have been to enter into a cooperation agreement with the federal government. Huarte and Marquez were the alleged ringleaders of the Medicare fraud and the government usually likes to work from the bottom to the top. That being the case, the government did not need these defendants cooperation to assist in the prosecution.

Government prosecutors painfully laid out for the federal judge presiding over the case the lavish lifestyle that Marquez lived as a result of the purported fraud he committed. They argued to the judge that the proceeds of the massive healthcare fraud were used to purchase expensive homes, automobiles, jewelry and race horses. The prosecution also admitted a dinner bill in the amount of $60,000 from the Forge Restaurant in Miami Beach. The defendant allegedly took family and friends to the expensive restaurant with taxpayer money. The judge displayed no sympathy for Marquez after she heard how he spent the illegally obtained money.

While the number of Medicare fraud cases being prosecuted in the Southern District of Florida have appeared to slow down, the reason may that the emergence of the Medicare fraud strike forces are acting as a deterrent. The other reason for the slowdown may be the systems of checks and balances recently imported into the healthcare system to detect fraud. Members of Congress and the President himself have had an ongoing concern about the amount of healthcare fraud being committed, especially in light of the recently passed healthcare reform laws. Anyone being investigated for or having been arrested on healthcare fraud allegations should immediately speak with a criminal defense law firm that has experience in defending these types of cases in federal court. The consequences of being prosecuted for this offense is apparent based on the sentences received by defendants mentioned earlier.

Convicted Miami-Dade Medicare Scammer Blow $60,000 at The Forge, The Miami Herald.com, October 8, 2010.