July 26, 2010

Four South Florida Residents Convicted on Mortgage Fraud Related Charges

Four South Florida residents were found guilty by a jury on mortgage fraud charges. The mortgage fraud scheme resulted in losses to the former Wachovia Bank in excess of $800,000. Government prosecutors from the U.S. Attorney's Office prosecuted the case that was investigated by the U.S. Secret Service and the Miami-Dade County Police Department, Economic Crimes Division. The four defendants, Sixto Figueroa, Susy Figueroa, Rolando Herrera and Manuel Garcia were each represented by a Miami criminal lawyer with years of experience defending clients in federal court.

The jurors heard testimony that the Figueroas were the masterminds of the mortgage fraud operation and recruited Herrera and Garcia to participate in their scheme to defraud. Herrera and Garcia were recruited to act as straw buyers for lots located in Port Labelle, Florida. Herrera and Garcia received kickbacks for their involvement in the mortgage fraud scheme. Herrera and Garcia paid inflated prices for the lots owned by the Figueroas. The Figueroas submitted fraudulent loan applications to Wachovia which contained false information including misrepresented financial information of the straw buyers such as tax returns and bank statements that had no basis in reality. Testimony also revealed that HUD-1 documents were also falsified which reflected that Herrera and Garcia used their own money to make the down payments and closing costs, when in fact the Figeuroas made all of the payments.

After Wachovia approved the loans, the money was sent to a title company which improperly released the funds directly to the Figueroas who in turn used the money to pay the closing costs for their co-defendants and the kickbacks for becoming involved in the fraud. Eventually, all of the loans went into default after the straw buyers failed to make the payments. All four defendants were convicted on charges of bank fraud and conspiracy to commit bank fraud, in violation of United States Code, 1349 and 1344. Each of the defendants is facing the statutory maximum of 30 years in prison, restitution and fines. The sentencing hearing federal court is set in September, 2010. The Figeuroas will likely receive significantly loftier sentences than the straw buyers as they were the organizers of the mortgage fraud.

As in all federal convictions or guilty pleas, a federal probation officer will investigate the defendants' backgrounds, calculate the sentencing guidelines for each of the defendants and draft a pre-sentence investigation report (PSI). The PSI will be used by the government prosecutors and defense attorneys as a basis for their arguments at the hearing the and the judge will consider it in determining what is supposed to be a fair sentence. The probation officer has 30 days to submit the report, while the attorneys have an additional 30 days to file objections to the report and/or sentencing memoranda of law.

Florida Jury Convicts Four Residents for Wachovia Mortgage Fraud Scheme, Loan Safe.org, July 23, 2010.

July 23, 2010

West Coast Man Convicted on Multiple Fraud Counts

A Sarasota man was convicted on multiple fraud charges in the United States District Court for the Middle District of Florida. Beau Diamond was formerly represented by a Miami criminal defense lawyer prior to the feds initiating an investigation, but the third lawyer he retained actually defended Diamond during the eight day jury trial. Sentencing has been set for October 7, 2010. Diamond was accused of running a $37 million Ponzi scheme while he was supposed to running a legitimate investment club. Many of the alleged victims testified on behalf of the government.

After hearing all of the evidence, the jury convicted the defendant on all 18 counts including mail fraud, wire fraud, money laundering, and other illegal monetary transactions. The government argued that Diamond spent $7 million of investor money to pay for an expensive condominium, a sports car and gambling trips to Las Vegas. Approximately 200 investors lost money as a result of Diamond's organized scheme to defraud. The prosecution alleged that the defendant guaranteed exorbitant returns to investors, but in reality was using new investors' money to pay old investors, and in reality he never a made a profit trading the FOREX market.

Prior to the sentencing hearing in federal court, a federal probation officer will do a thorough background check on Diamond in order to give the government, his defense lawyer and judge an idea about his past. The probation officer will also calculate Diamond's sentencing guidelines. The probation will take into account the offenses for which he was convicted and any aggravating or mitigating factors that can either increase or decrease his sentence. While Diamond's lack of a past criminal record will help him, the vulnerability of the victims, the amount of loss, the fact that he was the organizer, and the lack of acceptance of responsibility will weigh heavily on his recommended guidelines. The federal sentencing guidelines, are just that, guidelines. The court can deviate upwards or downwards depending on certain factors set forth in the federal statutes and case law.

After the pre-sentence investigation is completed by the department of probation, the judge, the government and defense counsel will be provided with a copy. Government lawyers and defense attorneys have 30 days to file objections to the report and to the calculated recommended sentencing guidelines. A experienced criminal attorney will object to all level increases and argue for as many level reductions applicable in a particular case. Defense counsel should also make Booker arguments in an effort to receive a sentence below the recommended guidelines.

The defense attorney who defended Diamond at trial will also handle the appeal in the case. In federal court, the trial lawyer is also responsible for all appellate matters. It is not likely that the U.S. district judge that presided over the trial will release Diamond pending the outcome of the appeal. In any event, Diamond is looking at approximately 20 years in federal prison, but will receive and exact sentence on October 7, 2010..

Beau Diamond to Learn His Fate on October 7, Sarasota Herald Tribune.com, July 23, 2010.

July 22, 2010

South Florida Man Convicted on Murder Charges

The high-profile case of Christopher Sutton finally came to close yesterday when a jury returned a guilty verdict on all counts after 10 hours of deliberations. The circuit court judge hearing the trial immediately imposed 3 life sentences after the jury returned guilty verdicts for 1st degree murder and attempted murder. Sutton was represented at the trial and sentencing by a Miami criminal lawyer with years of experience defending defendants charged with violent crimes. Two of the most experienced prosecutors from the Miami-Dade County State Attorney's Office was assigned to handle the case.

Sutton was alleged to have been the mastermind behind the murder plot that left his mother dead and his father blind. The prosecutors argued that the defendant planned the murders in order to obtain his parents wealth. The defendant was also angry at his parents for sending him to a reform school for 29 months. Prosecutors portrayed the defendant as a spoiled brat that also sold marijuana and cocaine. The most important witness to testify in the trial for the state was Garrett Kopp, the alleged trigger man that the defendant convinced to murder his parents. Kopp was initially charged with first degree murder and attempted first degree murder, however, in exchange for his testimony and cooperation, he was permitted to plea to second degree murder and receive a 30 year prison sentence.

The defense attorney representing Sutton argued that Kopp knew that drugs and money were in the home and committed the murder during the course of the burglary. Kopp told jurors that the defendant recruited him to kill his parents, showed him how to break into the home and provided him the gun with which to commit the murders. According to reports, Kopp's father convinced his son turn government's witness in an effort to reduce his sentence. Despite Kopp's bias, the jury apparently believed Kopp's story over the defendant's version of events.

The trial was very emotional. The defendant and his sister were adopted by the victims in the case. As the sentence was rendered jurors, family members and the judge were emotionally affected by the facts of the case and the subsequent result. Everyone except the defendant appeared affected by the trial. During the sentencing portion of the trial, the defendant did not make a statement and remained stoic as he received three consecutive life sentences. As corrections led him back to his, he passed by his father, but did not even give him a glance.

Christopher Sutton Found Guilty in Plot to Murder Parents, The Miami Herald.com, July 22, 2010.

July 21, 2010

Two Men Arrested for Armed Robbery of South Beach Tourists

Two South Florida men were arrested for committing a tourist robbery on South Beach. The two men that were arrested forced their way into a hotel room located on Miami Beach at gunpoint. Arturo Rosa and Carlos Valdivia were picked up early Wednesday morning, a couple of days after the crime was committed. A couple from Texas were on vacation and staying at the Parisian Hotel. When they returned from dinner, the two men were waiting in the room. The police reports do not indicate how the men gained entry into the room. Both defendants are currently represented by Miami criminal defense lawyers from the Miami-Dade County Public Defender's Office.

Both of the accused will remain in custody without a bond, at least until their arraignment date which is scheduled in approximately three weeks. Both men are charged with two counts of armed robbery with a firearm, one count of armed burglary and one count of burglary with an assault or battery. All three charges are first degree felonies punishable by life in prison (1st PBL). Under Florida law, anyone charged with a 1st PBL will be held without a bond at the initial bond hearing. The criminal lawyers representing the defendants can request that the circuit judge presiding over the case hold an Arthur hearing in an attempt to secure a bond.

Police reports allege that both defendant pointed firearms at the first victim demanding his jewelry, money, wallet and credit cards. They even threatened to kill him if he did not provide PIN numbers. He was then struck with a firearm and had his mouth taped shut. The second victim went to room looking for her friend when the defendants pointed the firearms at her taking her purse, wallet and jewelry. The defendants then took the couple's car keys and left the hotel. Both were arrested and proved confessions to the robbery detectives.

If the detectives can provide evidence that the defendant carried firearms, the defendants will also be subject to the 10/20/Life sentencing laws. According to the 10/20/Life sentencing laws, a person who carries a firearm during the commission of a felony is subject to a 10 year minimum/mandatory prison sentence. If a firearm is discharged during the commission of a felony, a 20 year minimum/mandatory sentence can be handed down. If a firearm is discharged and a person is actually shot, a life sentence can be handed down by the judge. The minimum mandatory sentence dictates that the entire sentence be served with no gain time for good behavior. The state will of course have the burden of proving that an actual firearm was used to enhance a defendant's sentence.

2 Arrested in Robbery of Tourist at Miami Beach Hotel, The Miami Herald.com, July 21, 2010.

July 20, 2010

Broward County Man Arrested on Child Pornography Charges

A Broward county man who spent time as a Boy Scout Volunteer was arrested by the Broward County Sheriff's Office for possession of child pornography. Possession of child pornography is not a crime commonly charged in Broward or Miami-Dade County, but when arrests are made, the cases garner a lot of media attention. Child pornography is defined under the Florida statutes as any image depicting a minor engaged in sexual conduct. Anyone who intentionally possesses, sells, lends, gives away, transmits or shows images of any kind depicting minors engaged in sexual acts can and will be charged with a third degree felony by the state attorney's office. Keep in mind that each depiction will carry a separate charge. For example, a person possessing five images can be charged with five separate counts and is looking at 25 years as opposed to 5 years in state prison. If you are being investigated for or have been arrested under the child pornography statute, immediately seek legal advice from a qualified Miami criminal lawyer experienced in defending these types of cases.

Gary Morano, was arrested on 75 counts of possession of child pornography. He was booked into the Broward County Jail and appeared at bond hearing. The standard bond for possession of child pornography in Broward County is $10,000 for each count and subsequently the bond was set at $750,000. In order to secure his release, Morano can retain a criminal lawyer to request a bond reduction, pay the amount set forth by the court, or hire a bondsman to post the bail. A bondsman will require a 10% premium or $75,000 to secure his release. Do to the high amount of the bond, the bondsman may also require additional collateral in the event the defendant decides to flee the jurisdiction.

The Broward Sheriff's Office working in conjunction with the South Florida Internet Crimes Against Children Task Force was able trace pornographic images back to a rental property owned by the defendant and his wife. The Task Force investigates sex offenses committed against children. Pursuant to a search warrant, detectives seized a computer belonging to the defendant which had images stored on the hard drive. The images depicted sexual acts of children between the ages of 6 and 10. According to the police report, the defendant was advised of his Miranda rights which he waived. The defendant told the police that he was the only one who had access to the computer and that he was aware that child pornography was stored on his computer.

In all cases where a person has been arrested, they have a constitutional right to refuse to speak to police officers or detectives and also have the right to counsel. In so many cases, the evidence collected by law enforcement is not enough to prosecute a case. In this case, the defendant would have had available many defenses to the charges. The police had no way to prove that the defendant downloaded the images, new they were present on the computer or even if the computer belonged to him. In this case, the defendant's statements divested him of many defenses and made the case harder for whichever criminal defense attorney represents him. As in so many previous blogs, always remember, never speak to police without speaking to a criminal lawyer first.

Boy Scout Volunteer Arrested on Child Porn Charges, The Sun Sentinal.com, July 20, 2010.

July 19, 2010

South Florida Man Charged in "Ponzi" Scheme

A federal grand jury finally handed down an indictment charging a South Florida man with running an $880 million Ponzi scheme. Nevin Shapiro, a resident of Miami Beach, was initially surrendered to federal law enforcement agents back on April 21, 2010. He was initially charged in federal court by complaint which is not uncommon as the government prosecutors decide how to proceed with the case. The criminal defense lawyer representing Nevin has most likely been in negotiations with the prosecutor, hence the delay in the indictment being handed down. The defendant has been in custody without bond since his initial appearance before a federal magistrate judge.

Shapiro is accused of operating his Miami Beach business, Capitol Investments USA with the intent to defraud investors. The indictment alleges that Shapiro solicited investor money for his wholesale grocery distribution business. Capitol did actively conduct business and the money taken in was used to pay older investors and to fund the defendant's lavish lifestyle. The indictment charges the defendant with securities fraud, wire fraud and money laundering. The indictment is also seeking an asset forfeiture of any money or property derived from the criminal course of conduct.

Capitol rolled along until January 2009 when investor money dried up. As with all Ponzi schemes, tough economic times make it difficult to impossible to find new investors. Once the money dries up, the house of card usually tumbles because there is no money to pay the older investors. While the scheme to defraud was operating smoothly, over 60 investors sent in excess of $880 million to be invested in Capitol. According to the indictment, the defendant misappropriated in excess of $35 million. The majority of the money was used to pay for an expensive Miami Beach home, yachts, cars, sporting events and gambling debts.

Shapiro was a long-time donor to the University of Miami athletic program. In fact, a student athlete lounge carried his name until it was removed for lack of payment in 2008. Shapiro is facing a maximum prison sentence of 55 years for his involvement in running the organized scheme to defraud. Based on th charges, Shapiro is actually facing more prison time than infamous South Florida Ponzi schemer Scott Rothstein. Ponzi schemes are notorious for coming to light at the end of economic cycle. While the number of Pozni schemes being uncovered is diminishing, the justice system is still replete with cases on the docket.

Grand Jury Indicts Nevin Shapiro, South Florida Business Journal, July 15, 2010.

July 16, 2010

Feds Keep Pressure on Medicare Fraud Suspects

Federal law enforcement authorities charged 94 people with Medicare fraud. Those charged are accused of filing fraudulent claims with the publically funded healthcare program. Of the 94 people indicted, only 36 have been arrested. Twenty-five of those charged were allegedly linked to Miami Medicare fraud schemes. One of those indicted in Miami was Dr. Jorge J. Dieppa. According to court documents, he allegedly filed $103 million in fraudulent claims to Medicare for home healthcare, HIV treatment and for medical equipment. The authorities were unable to locate the doctor, but believe he is on vacation. Dieppa faces many years in jail as the amount of loss to the federal healthcare system is rather large. He should retain a Miami criminal attorney experienced in defending cases in federal court that deal with healthcare fraud. The arrests come just before the healthcare fraud summit to be headed up by the attorney general and a high level official from the Department of Human Services.

Other individuals charged and/or arrested were linked to Brooklyn, Baton Rouge, Houston and Detroit. This just happens to be some of the cities where the Medicare strike force is targeting their efforts. As posted in yesterday's blog, some of the defendants fraudulently billed Medicare for unneeded or unprovided physical and /or occupational therapies that never occurred or that were unnecessary. The case out of Brooklyn, New York involved undercover federal agents and wiretaps that were used to implicate a Russian mob syndicate. The ring leader of the healthcare fraud operation was taped discussing payoffs to patients and clinic personnel.

Over 350 federal agent were involved in the arrests and the case is largest Medicare fraud bust since the inception of the federal healthcare program which began operating in 1965. Undoubtedly, the indictments and arrests were supposed to occur before officials conducted the summit on Friday. The federal government had to show the money and manpower thrown at the Medicare fraud problem was working. Future summits have been planned in cities where healthcare fraud is most prevalent including Los Angeles, Las Vegas, Boston, Detroit, Philadelphia and New York. The Obama administration is under pressure to prove that they are curtailing the problem, especially in light of the fact that the healthcare programs budget was increased significantly with the passage of the new healthcare legislation.

Anyone operating clinics must keep a sharp on their operation. While some individuals intentional defraud the federal healthcare system, others make unintentional billing mistakes which could cause federal agents to look at their clinic. It is imperative that clinics make as few mistakes as possible or they may find themselves at the heart of a federal investigation, or worse prosecution in federal court. If clinic owners, doctors, physician's assistant or patients find themselves being contacted by federal agents, they must seek out a Miami criminal defense law firm experienced in defending these types of charges in federal court. As with all other types of cases, never speak to law enforcement prior to speaking to qualified legal counsel in order to protect your interests and rights.

Feds Charge 94 Medicare Fraud Suspects in Miami, Other Cities, The Miami Herald.com July 16, 2010.

July 15, 2010

Medicare Fraud: A Continuing Problem

Despite the effort, man power, and millions of dollars being thrown at Medicare fraud, the federal government does not have an answer to the problem. South Florida and Miami Medicare fraud cases continue to exist despite the extensive operations of federal law enforcement investigators. As the fed clamps down, new areas are being targeted for fraud. Medicare is now being billed for fraudulent mental health and physical therapy treatments. Physical and occupational therapy schemes appear to be replacing the fraudulent billing for medical treatment and medical equipment. As concerns grow, the attorney general and the secretary for Health and Human Services will hold a healthcare fraud summit in Miami.

The head of the Medicare strike force for South Florida and the Miami area reported that the majority of Medicare fraud cases are still fraudulent billing for medical treatments for HIV patients, home healthcare for diabetics and billing for medical equipment, however, new types of cases are arising from billing by shady mental health centers. According to the director of Medicare in South Florida, the pressure placed on the medical clinics has caused them move to more fertile areas such as mental health and rehabilitative facilities. Just last year, rehabilitation facilities in South Florida billed Medicare approximately $171 million which significantly higher than California and New York. Despite the shift in strategies, it is apparent that Miami criminal defense lawyers will be defending clients charged with Medicare fraud in federal court for years to come.

Medicare fraud is expected to cost taxpayers approximately $68 billion next year. If the federal government ever gets its act together, it will like seek to shut down many clinics and health care facilities. Despite losing the battle, the Medicare fraud strike force has continued to investigate and the U.S. Attorney''s Office continues to prosecute these offenses. Since Medicare fraud became targeted in 2005, approximately 1,000 defendants have been prosecuted in South Florida and Miami for filing almost $3 billion in fraudulent bills. Whatever the angle may be, those who engage in Medicare fraud use the same tools such as kickbacks to patients, billing for unnecessary procedures and equipment and submitting fraudulent billing codes to skirt Medicare's technology.

Some experts blame the ongoing problem of Medicare fraud on the growing number of immigrants into the United States. The experts also believe that individuals turn to healthcare fraud because they believe the punishment for white collar crimes is less severe than punishments for violent crimes or drug trafficking offenses. Defendants charged with Medicare fraud and other white collar crimes should be aware that the penalties for these types of offense can even be more harsh. The penalties for white collar crimes always depends on the amount of the loss. That being the case, a person committing large scale healthcare fraud can receive a harsher sentenced that an defendant charged with cocaine trafficking.

Magnitude of Medicare Fraud in South Florida Grows, The Miami Herald.com July 13, 2010.

July 14, 2010

South Florida Man Arrested in Identity Theft Case

A defendant is alleged to have attached illegal scanners to automated teller machines in order to steal account information and rip-off tens of thousands of dollars. Mihal Arnautu, a Romanian national, is in custody in the Palm Beach County Jail. He is charged with 3 counts of fraud, grand theft, identity theft and one count of computer fraud and organized scheme to defraud. The defendant was arrested in Miami Beach by law enforcement officers from Palm Beach Gardens, Boca Raton and Miami Beach. He appeared at his bond hearing where a circuit court judge set bail at $68,000. However, he will not be released if even he posts the bond and he an immigration detainer.

Credit card fraud has been an increasing concern by state and federal law enforcement authorities. Lately, investigations are all leading back to Eastern Europe. All types of cyber and internet crimes have been emanating from that part of the world. Miami criminal lawyers have seen a rise in credit card fraud and identity theft cases that are being prosecuted in the Miami and South Florida area. Law enforcement authorities are cracking down on individuals that secretly place electronic skimming devices at ATMs. The "skimmers" are attached in an effort to capture victim's account numbers. Perpetrators also attach video cameras in order to gather pin numbers.

The police have gathered significant evidence against Arnautu. Surveillance videos retrieved in Palm Beach Gardens and Boca Raton depict the defendant placing skimmers on the machines and later removing them. A branch manager at Citibank located in Palm Beach Gardens reported that he located a skimmer at his branch. A further investigation conducted by the bank revealed that 28 accounts had be skimmed with loss exceeding $44,00.00. These cases of identity theft occurred between Palm Beach and Miami-Dade County. The Palm Beach County State Attorney was quoted as saying, "Some individuals fail to change their behavior after having been given the opportunity to avoid a criminal conviction through participation in a pre-trial program."

While this defendant was provided the opportunity to initially complete a pre-trial diversion program for first time offenders, it is a little surprising that the state attorney's office afforded the defendant that opportunity due to the nature of the case. Pre-trial diversion or intervention is available both in county and circuit. Prosecutors will often offer the program for minimal offenses. Only first-time offenders have the ability to participate in such a program. However, if a defendant successfully completes the conditions set forth by the prosecution, the case will be nolle prossed or dismissed within six months. Conditions include community service hours, certain classes and may also include a drug evaluation and treatment. While pre-trial intervention should never be accepted unless the prosecution can prove its case, it a guaranteed way to have the charges dropped. Once the charges are dropped a person can than go through the seal and/or expungement process.

Delray Beach Man Charged with ":Skimming" Accounts of ATMs, Stealing Thousands, The Palm Beach Post, July 13, 2010.

July 13, 2010

Jury Convicts Man for the Murder of His Wife

A jury convicted a former social worker's aide for the murder of his wife and the sexual battery of his step daughter in January 2005. Grady Nelson of Miami will face the death penalty for the first degree murder conviction for killing his wife. The defendant was also convicted of sexual battery and attempted first degree murder. The Miami-Dade County Circuit Judge that presided over the trial will also the preside over the sentencing hearing that will occur in a couple of months. The defendant's Miami criminal lawyers will most certainly file a mitigation packet before the sentencing hearing in an effort to stave off the state attorney's office bid for the death penalty. Prior to the sentencing hearing, a pre-sentence investigation report will be created for the sentencing hearing so that the judge and jurors will have a background report to determine whether the death penalty is appropriate.

The defense attorneys representing the defendant will have tough assignment in keeping Nelson from the death penalty. According to prosecutors, the victim was butchered when the defendant stabbed her 61 times. To make matters worse, her throat was slit and knife was found embedded in her head. Defense counsel argued that the defendant just happened upon the body and had nothing to do with the homicide. The sexual battery charges stemmed from the allegation that Nelson was having sex with the victim's mentally incapacitated 11 year-old daughter. The defendant has been previously been in custody for committing a sexual offense against the daughter 2005. The Miami-Dade County State Attorney's office eventually dropped the charges because it is reported that the victim gave inconsistent statements.

After the defendant was arrested for the sexual offense, a judge issued a domestic violence injunction. A domestic injunction is issued in family court by a civil county court judge. In criminal domestic violence cases, judges will issue a stay way order at the bond hearing. A stay away order is issued by a criminal court judge and requires that a defendant have no contact with the victim. An injunction is a separate court case that requires the petitioner to file a petition for issuance of the injunction . The judge will conduct a hearing to determine whether or not an injunction should be issued. If a defendant comes in contact with a defendant after the stay way order is issued, the judge may revoke the bail set at the initial bond hearing and hold the defendant in contempt of court. If an individual violates an injunction by coming in contact with the petitioner, that person can be charged with a second degree felony punishable up to fifteen years in prison.

The best evidence presented by the state at the trial was a taped recorded confession provided by the defendant. Without the confession, it would have been difficult for the state to prove its case. Despite the fact that the defense attorneys representing Nelson argued that the confession was coerced by law enforcement authorities, the twelve person jury agreed to convict him. As in previous articles, it cannot be stressed enough that anyone involved in an investigation should give not provide a statement to the police. In the majority of cases, the strongest piece of evidence that the prosecution present to a jury is a confession provided by the defendant. Always remember, that if you are placed under arrest you have a constitutional right to refuse to speak with law enforcement about your case.

Miami-Dade Jury Deciding Fate of Man Accused of Murdering Wife, The Miami Herald, July 10, 2010.

July 12, 2010

The Jimmy Ryce Act Explained

The Jimmy Ryce Act was passed in 1998 as a result of the kidnapping, sexual battery and murder that was committed in 1995. In 1995, a handyman named Juan Carlos Chavez approached a 9 year-old boy walking home from school in Miami-Dade County. The defendant pulled a gun on the child, forced him into his truck at gun point and then raped and murdered the child. Chavez was convicted and sentenced to the death penalty in 1998. As a result of this heinous crimes, the Florida legislature created the act allowing the civil commitment of defendants charged and convicted of sexual offenses. After a defendant serves out the sentence for the criminal act, he or she can be confined at a locked facility where they receive treatment until they are released. Sexual offenders will only be released after they are no longer deemed a threat to society. The civil commitment laws only apply to those who enter pleas or are convicted by a jury of sexually violent crimes.

The Department of Children and Family Services ("DCF") is in charge of running the Florida's Sexually Violent Predator Program. When a defendant is close to completing a prison sentence, DCF will review the case and determine if civil confinement is appropriate. Prior to making that determination, the defendant convicted of a violent sex offense will meet with mental health professionals. Once DCF determines that civil confinement is desired, a defendant must be found to be a sexually violent predator likely to re-offend either by way of a civil trial or by a voluntary entry into the program. Defendants are entitled to counsel in Jimmy Ryce actions. In fact, the public defender's office has a team of Miami criminal attorneys representing individuals been examined for civil commitment.

Presently, there are approximately 673 detainees in the Sexually Violent Predator Program. The number of defendants confined in the Florida Civil Commitment Center in Arcadia, Florida continues to grow year after year. The DCF has contracted GEO Care, Inc. to maintain and operate the center. The cost to run the center is extremely high, with a budget in excess of $25 million per year. The cost to house a single predator is about $36,000 per year which is more than double to care for an a regular state prisoner. Different sides argue that the program is too expensive while the other side says that the protection of the community has no price tag. From the inception of the center, no prisoners were released until 2005. Since that time, 31 committed defendant have completed the treatment and have been released back into the community.

All defendants charged with sex offenses or sexually motivated offenses should try to retain criminal law firms that have experience in defending these types of crimes. While a plea at first blush may seem like the way to resolve a case, especially if the amount of incarceration is limited, however, a defendant may not be released if he or she enters a plea into an offense that subjects them to civil confinement. That being the case, not only is the sentence that a person receives important, but more importantly is the offense for which that person enters a plea.

Grisly Attack on 9 Year-Old Sparked Florida's Effort to Put Away Sex Predators, The Florida Times-Union Jacksonville.com, June 27, 2010

July 8, 2010

Homeland Security Now Linked to Florida Jails

Immigration officials are now linked to the booking data maintained by all Florida county jails. Immigration and Customs Enforcement ("ICE") has achieved the ability to check the county jails for foreign nationals subject to deportation. The ICE field officer director in Miami announced that all 67 counties in the State of Florida are currently linked to their databases. The program is controversial, but will allow ICE to locate foreign nationals who have been convicted of previous crimes or are pending criminal charges. The director was quoted as saying, "This capability means that local law enforcement and ICE are automatically alerted when potentially deportable criminal aliens come into state and local custody." Prior to the creation of the Department of Homeland Security, criminal foreign nationals were not held because the booking centers were not linked to an immigration database.

This change brings up a couple of interesting points that need to be addressed. When a person is booked into a Miami-Dade County Jail, corrections will be notified by immigration and told to place an immigration detainer on a recent arrestee. Corrections will then note on the jail card that an immigration detainer is in place and will affix the detainer to the physical jail card. Once the detainer is place, it is futile to post a bond because the detainer will not allow the department of corrections to release the defendant. Even requesting a bond hearing is futile because a county or circuit court judge does not have the power to lift the detainer.

As long a person is in the United States legally, e.g. a local permanent resident, ICE will not issue a detainer unless the person is convicted. If a defendant is here illegally, a detainer will be issued. The important point here is that defendants very often enter pleas to credit time served as a matter of convenience. Once that plea is entered, depending on the charge, a person that can be detained and made subject to deportation proceedings. Another common occurrence is that a person entered a plea several years ago that when the plea was entered was not a deportable offense. Since the 9/11 attacks, immigration laws have become much more strict actually allowing for deportation for charges such as marijuana possession and cocaine possession.

If you or someone you know is being held in a county jail with an immigration detainer, it is imperative to contact a Miami criminal lawyer experienced in representing client is post-conviction relief matters. The only way to secure the release of person who was previously convicted of an offense is to file a motion to vacate. Once the motion to vacate is granted, the lawyer must secure a nolle prosse or a dismissal of the charges by the state attorney's office handling the matter. Another important point to remember is that a person in custody will not be transported to immigration authorities until the case is closed. Never enter a plea to obtain the transfer because even though the person will be transferred, the conviction or withhold of adjudication will guarantee deportation.

Florida Jail Linked to Immigration Databases, The Miami Herald.com, June 30, 2010.

July 5, 2010

Police Officers and Lawyers Indicted on Mortgage Fraud Charges

Several current and former Broward County police officers and one FBI agent have all been charged in a mortgage fraud indictment. The criminal defense lawyer representing one of the officers stated the cops did nothing wrong and were merely investors and that the mortgage brokers were the individuals committing the fraud. Thirteen defendants were charged in the indictment. The majority of the defendants appeared last week at their bond hearing. The magistrate hearing the cases approved bail for all of the defendants. The indictment alleges that the lending institutions lost in excess of the $16.5 million as a result of the scheme to defraud.

The cases against the officers is built around information provided by the mortgage brokers. They both surrendered last week and were granted bail. The indictment alleges that former Plantation police officer, Joseph Guaracino, while acting as the president of the "Home Buyers Group", located and purchased 38 properties in Broward and Palm Beach Counties on behalf of seven other current and former law enforcement officers. The defendant are charged along with mortgage brokers and lawyers for misrepresenting income, job titles, financial records and loan application to obtain loans between 2004 and 2007.

The two lawyers indicted on the case allegedly participated in the scam by acting as mortgage brokers and title agents. The FBI agent who is represented by two Miami criminal defense lawyers, has not been placed on administrative leave and is receiving pay. While it is unusual for law enforcement officers under investigation not to be suspended, the agent's supervisors are allowing him to work because they are of the belief that he did not violate any laws. The agent is accused of obtaining a loan on a $445,000 home by supplying misinformation. According to the indictment, he is accused of submitting false information in order to obtain the loan.

The current and former police offices may have a defense to the mortgage fraud indictment. The government will have to prove that the officers actually provided false information on the loan applications. The first line of defense will be that the mortgage brokers turned government witnesses actually provided the false information and not the police officers. The defense attorneys will point the finger at the government witnesses and show that the only reason they are testifying is to reduce their sentences. Without other independent evidence showing that the police officers actually falsified the documents, the governments case appears to be weak. Of course this only applies as long as the law enforcement officers did not provide statements inculpating themselves. Always remember that if you are being investigated for this type of case, seek out an experienced Miami mortgage fraud defense lawyer to protect your rights.

Mortgage Fraud Case is Bogus, Broward Cops' Lawyers Say, The Miami Herald, July 2, 2010.

June 30, 2010

Tampa Takes Over as Staged Accident Capital

The operations director for the National Insurance Crime Bureau says the epidemic of insurance fraud and staged accidents has taken the lead in Tampa, Florida. Staged accident cases arise when individuals become involved in intentional car crashes with the intent to file false claims with insurance companies. In a typical staged accident or insurance fraud case, an individual sets up a staged accident between willing participants who agree to become involved in car crash at pre-set time and location. The police arrive and fill out an accident report. The drivers and passengers of the vehicles typically go to a sham clinic that rarely if ever provide treatment for these individuals. The clinic bills the insurance companies under the policies who in turn provide monetary kickbacks to the participants in the staged accident. Clinic owners, chiropractors, physician's assistants, accident planners and organizers, drivers and passengers have all been charged criminally throughout the State Florida. Miami criminal defense attorneys have represented all of these types or participants in staged accident cases.

Miami used to hold the title of the staged accident capital, but has given way to Tampa. Miami-Dade County created a task force in an effort to quell the problem..In fact, the Miami-Dade County State Attorney's Office has a specialized division with prosecutors who do nothing else but charge and prosecute these types of insurance fraud cases. These efforts have apparently chased off the staged accident cases to more fertile ground. Tampa has seen a 209% increase in the number of stage accident cases. Nationwide, Tampa is now only second to New York City. As a result, Tampa has now created its own task force to fight the problem. The fraud is so out of control that the State of Florida is the home to $100 million dollars in false claims a year. The states with the highest levels of fraud are those that have no fault coverage like Florida's PIP (personal injury protection).

Staged accident and insurance fraud crimes are charged under Florida Statute 817.234. The statues were modified a couple of years back in order to send a message to all those involved in insurance fraud. As a result, organizers and participants in a staged accident case face a two year minimum mandatory prison sentence if the prosecution can prove that they knowingly planned, organized or participated in an intentional motor vehicle crash. Insurance fraud and staged accident cases are built by the prosecution from the bottom up. Investigators will seek to first interview the drivers and passengers to get them to provide information regarding the organizer and the sham clinics. Providing information to law enforcement investigators may or may not preclude cooperating participants from prosecution. If you are contacted by law enforcement regarding a staged accident, seek counsel from a criminal defense lawyer experienced in defending these types of cases.

If a participant desires to speak to a detective regarding a case, it is imperative to receive an immunity letter and a guarantee of non-prosecution. Otherwise, statements given can and will be used to prosecute a case with possibility of the cooperating witness receiving no benefit. If an individual decides that this is the proper course of action, they should retain a criminal lawyer to make sure their rights are protected prior to speaking with the authorities.

Tampa Speeds by Miami as Florida's New Capital for Staged Auto Accidents, St. Petersburg Times, June 29, 2010..

June 29, 2010

College Student Arrested on Robbery and Sex Offenses

A college student was arrested on charges related to the robbery and sexual assault of three young women in the West Kendall area. Benjamin Marcus Raucher was charged with armed robbery with deadly weapon, sexual battery, strong arm robbery, burglary of an occupied conveyance, burglary to a dwelling and several counts of simple battery. He is currently being held in the Miami-Dade County jail without a bond. He has not been formally charged at this point in the case, but is being held without bail after the bond hearing judge found probable cause on the armed robbery and the sexual battery charge. He is currently represented by a Miami criminal lawyer from the public defender's office.

One of the cases alleges that the defendant approached a 19 year old women as she was walking down the road on SW 56th Street and 118th Avenue. Raucher committed a strong arm robbery when he took the victim's purse by force. He also attempted to steal the women's necklace and ripped off her shirt in the process. The second case alleges that the defendant approached a women as she was puling into her driveway. As she exited her vehicle, he demanded her valuables. After turning over her property, the defendant fondled her and fled the scene. The third incident occurred in the area of SW 112th Avenue and SW 88th Street. The defendant approached another young female and held her at knife point. He again took the victim's property, fondled her and fled on foot.

Assuming the state attorney's office has sufficient evidence to proceed in the cases, the defendant is facing a significant prison sentence. Because he is 22 years-old, he can avail himself of the youthful offender statute prescribed by Florida law. The youthful offender statute provides that a defendant that is younger than 21 when sentence is imposed can take advantage of the statute. The court has the ability to deviate from the standard guidelines and can sentence a defendant to probation, community control or incarceration not to exceed 6 years. However, the court does not have the ability to sentence a defendant as a youthful offender if he or she is charged with a capital or life offense. For example, armed robbery is a 1st degree felony punishable up to life in prison while armed kidnapping is a life felony. A judge could sentence a defendant as a youthful offender to the former charge, but not the latter charge.

Another interesting provision of the youthful offender statute involves community control and probation violations. As stated earlier, a judge can sentence a defendant to probation or community control under the statute. In a typical case, a judge can sentence a defendant to a guideline sentence in the even the court finds a defendant violated the terms of his supervision. This applies to both technical and substantive violations. A technical violation consists of failing to report, failing to do community service hours, or failing to pay restitution. A substantive violation occurs when a defendant picks up a new misdemeanor or felony cases. In youth offender cases, the judge can sentence a defendant within the guidelines for a substantive violation, but can only sentence a defendant up to six years on a technical violation.

Police Arrest Man Who robbed and Fondled Women in West Kendall, The Miami Herald.com, June 29, 2010.