May 15, 2013

Dozens Arrested for Medicare Fraud in South Florida

Federal authorities arrested nearly 100 individuals across the country for their involvement in Medicare fraud. Twenty-five arrests were made in South Florida alone. Miami-Dade County is often considered to be the hotbed for healthcare fraud. Miami criminal lawyers have kept busy over the past few years representing clients arrested for Medicare fraud. The highest profile defendant arrested in the most recent sweep was Roberto Marrero, a Cuban born actor and businessman, who is accused of stealing millions of dollars from the federal healthcare program. Both Marrero and his wife were arrested for submitting $20 million in bills to Medicare. The bills were submitted to the program for home health care for diabetic patients. The indictment alleges that the treatments were either not necessary or never provided.

The federal investigation into Medicare fraud netted offenders from Miami to Detroit to
Los Angeles. Those arrested included doctors, nurses and clinic owners and operators. The total amount billed to Medicare by those arrested tallied approximately $223 million. Marrero allegedly began his Medicare scheme to defraud back in 2007. He is accused of using his ill-gotten gains to purchase high-end automobiles and to launch a cable TV station.

The agency responsible for the investigation and the arrests is the Medicare Fraud Strike Force. There are currently 9 regions in the United States under the watchful eye of federal investigators. Each region has its own strike force investigating cases of fraud. The president's administration has vowed to reduce the amount of healthcare fraud perpetrated in the country and claims to have improved the oversight of Medicare billing. The Medicare fraud crackdown has become a priority of the federal government as indicated by the press conference which was attended by the U.S. Attorney General and the Human Health Services Secretary.

Marrero, his wife and several other defendants made their first appearance in federal court on Tuesday. Some of the defendants were represented by privately retained attorneys. Those who cannot afford to hire private counsel will be appointed an attorney from the public defender's office or private counsel registered with the federal court to represent indigent defendants. The government is seeking pre-trial detention on the couple. Both defendants are entitled to a hearing before the magistrate presiding over the case in an effort to obtain a bond. The pre-trial detention hearing is essentially a bond hearing to determine if the defendants are eligible for a bond, an if so, the amount of the bond.

Marrero and his wife are accused owning and operating Trust Care Health Services from 2007 to 2010. The indictment accuses the couple of submitting false bills to Medicare for the treatment of approximately 700 homebound diabetic patients who could not provide insulin to themselves. The charges allege that many of the patients did not require treatment and in some cases treatment was never provided.. It is also alleged that the couple paid recruiters to find patients with Medicare cards. The federal government is trying to locate assets obtained from the illegal enterprise as part of an asset forfeiture action.

Ninety Arrested in South Florida Medicare Crackdown, Bradenton Herald.com, May 15, 2013.

May 6, 2013

Judge Overturns DUI Manslaughter Conviction

A Palm Beach County Circuit Court judge overturned a DUI manslaughter conviction as a result of juror misconduct. In 2012, Jon Goodman, a well-known multi-millionaire, was convicted after a jury trial of DUI manslaughter. The victim in the case, Scott Wilson, was a University of Central Florida graduate that was residing in Palm, Beach County at the time of his death. Roy Black, a well-known Miami criminal defense lawyer, took the lead in the case. Despite a creative defense, his client was convicted of DUI manslaughter.

It is alleged that Goodman left the International Polo Club after consuming numerous alcoholic beverages. After leaving the club, Goodman's Bentley crashed into Wilson's Hyundai, causing the vehicle to enter a drainage canal. Smith ultimately died as a result of drowning. Criminal investigators determined that Goodman's blood alcohol level was twice the legal limit of .08 in the State of Florida. Traffic crash re-constructionists determined that Goodman's vehicle ran a stop sign and then crashed into Smith vehicle. Goodman was charged with DUI manslaughter and vehicular homicide and assorted other offenses.

At some point after the conviction, the criminal attorneys representing Goodman became aware of juror misconduct. One of the jurors, Dennis DeMartin was involved in at least two instances of misconduct. First, he deliberately failed to disclose during jury selection that his wife had been previously arrested for driving under the influence (DUI). Secondly, he conducted a unauthorized alcohol consumption experiment in his own home during the pendency of the jury trial. That was enough for the circuit court judge who presided over the trial to grant Goodman a new trial. Judge Jeffrey Colbath stated, "The cumulative affects of DeMartin's antics transformed an imperfect but fair trial into a constitutionally impermissible proceeding. Every person charged with a crime deserves a fair trial with out the likes of Dennis DeMartin. To allow this conviction to stand...would erode the integrity of the legal system."

The victim's parents are disappointed with the overturning of the conviction, but have vowed to continue the pursuit of justice and prosecute the person allegedly responsible for their son's death. Despite the judge's ruling, prosecutors have a good shot at a second trial if a plea deal is not reached. As a high-profile media case with victim's that are dedicated to the cause, it is highly unlikely that a reasonable plea offer will extended to Goodman. Unless, there is a evidentiary problem with case, a second trial is certainly in the cards.

DUI manslaughter is obviously the most serious criminal traffic offense in the State of Florida. To prove the offense, the prosecution must prove beyond a reasonable doubt that (1) a defendant was in actual physical control of the motor vehicle, (2) while in control of the vehicle, the defendant was under the influence of alcohol to the extent that his or her normal faculties were impaired or that the blood or breath alcohol level was .08 or more, and (3) the defendant's operation of the vehicle caused or contributed to death of the victim. DUI manslaughter is a second degree felony punishable up to 15 years in prison.

Palm Beach Polo Mogul's Conviction Overturned, Huffington Post.com, May 4, 2013.

April 23, 2013

Supreme Court Grants Immigration Relief

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

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

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

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

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

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

April 9, 2013

Medicare Fraud Case Lands Three Family Members in Prison

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

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

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

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

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

April 2, 2013

Supreme Court Finds Dog Sniff Unconstitutional

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

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

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

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

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

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

March 25, 2013

Federal Public Defender's Offices Face Budget Cuts

As federal budget cuts occur across the nation, the criminal justice system will not be able to avoid the same fate as other areas of government. Federal public defenders' offices all over the country are going to feel the impact of the mandatory budget cuts. Criminal lawyers employed by federal public defenders' offices claim the budget courts will cause staff reductions either by lay-offs or mandatory furloughs. Representatives of these offices say that the cuts and furloughs will cause cases to be delayed and the level of criminal representation will fall below the current standard. Both attorneys and support staff are either being laid off or are being forced to take off six or more weeks off without over the next half a year. A judge currently sitting on the Supreme Court of the United has expressed concerns that the criminal justice system could feel pressure as a result of the cuts.

The mandatory budget cuts are expected to slash 10% of the budgets of federal public defenders' offices. The United States Department of Justice have notified the offices of the potential cuts which have yet to take affect. U.S. District Judge Catherine Baker said that "It's important that people who don't have any power and any voice have people to speak for them." The cuts contravene the basic tenets set forth in United States Supreme Court case Gideon v. Wainwright. Fifty years ago the highest appellate court in the United States provided that criminal defendants be afforded a criminal defense lawyer in the event they could not afford one. Opponents of the cuts argue that the judicial system will get bogged down causing trials to be delayed and innocent people being convicted.

Some Miami criminal attorneys represent indigent defendants when the public defender's cannot due to conflicts of interest. As of yet, budget cuts have not impacted these lawyers that represent indigent clients. It is almost certain that the rates these lawyers bill will be cut as well. Potential budget cuts of this nature could cause these private attorneys to refuse to participate in the program. The same thing occurred a few years back in the state system when specially appointed public defenders had their rates cut to the point that the majority declined to continue representing indigent clients. Cuts of the nature could certainly bog down the criminal justice system in federal court.

Some federal courts have decided to reduce the number of days criminal cases are presented in court. These reductions come as a result of fewer public defenders and U.S. marshals being available for court. Representatives of the affected offices are also concerned that the budget cuts and furloughs will continue to get worse putting even more of a strain on the system. Staffing problems could become a concern as well, if support staff employees leave to find better paying jobs. While the level of the impact will be unknown for several months, the cuts are certainly going to have an adverse affect on the system.

Federal Defenders Face Deep Cuts, Delays in Cases,, Miami Herald.com March 24, 2013.

March 19, 2013

Dozens of Arrests Made at Ultra Music Festival

Every year, the Ultra Music Festival comes to town. The festival has become so popular that it now extends over two weekends. Tourists and locals alike flock to the festival. Despite the festivities, dozens of people are arrested each year for numerous criminal offenses. Anyone arrested at the festival should immediately contact a Miami criminal lawyer to assist in defending the charges. The majority of the people arrested have no prior contacts with the criminal justice system. Anyone arrested at Ultra should not panic. Hiring the right Miami criminal law firm can mean the difference between having a criminal record or coming out the situation completely unscathed.

A total of 84 people were arrested last weekend at Ultra on a variety of charges. The most common criminal offenses are related to drugs and alcohol. Drug possession charges are felony offenses and can have a significant impact on a person's life. The most common controlled substances found at Ultra are ecstacy and LSD. Anyone arrested for possession of either of these narcotics can be arrested and charged with a third degree felony which is punishable up to five years in prison. While none goes to prison for possessing ecstacy or LSD, failure to properly handle a case could land a person a permanent criminal record or a year long stay in the drug court program. The other common offense is drunk and disorderly conduct. While the offense is only a misdemeanor, it can certainly impact a person's life, both personally and professionally.

Experienced and qualified Miami defense attorneys know the ins and outs of the criminal justice system in Miami-Dade County, Florida. This knowledge allows for creative solutions to resolve criminal charges with without a permanent criminal record or a year-long stint in the drug court program. Cases can often be disposed of without requiring a defendant to return to the jurisdiction. There are hundreds of criminal defense attorneys in Miami and the South Florida area. The hard part is figuring out which lawyer will provide the best result. Try to interview at least a couple of attorneys. If you are out of town, a phone consultation will have to suffice. Look at a law firms website to determine if the lawyer you hire is qualified and experienced enough to get the result you seek.

If you are loved one is arrested at the festival, don't freak out over the situation. Everything is fixable with the right person working for you. Anyone from out of town that is arrested can post bond and immediately return home as long as the offense allows for a bond without appearting a bond hearing. All drug possession and misdemeanor cases have standard bond amounts. A person can either pay the cash equivalent of the bond which will be returned at the conclusion of the case to the person who posted the bond. Alternatively, a person can pay a bondsman 10% of the bond amount to secure his or her release. Bondsmen sometimes require additional monies for out of town defendants as collateral. Sometimes it is better to contact a lawyer first who can secure a bondsman for only 10% of the amount of the bond. Remember, if arrested, don't panic, hire a good lawyer and your problem should soon go away. Once the case is closed, a record can be sealed or expunged which will leave no record of the arrest.

84 Arrested During First Weekend of Ultra Music Festival, NBCMiami.com, March 19, 2013.

March 11, 2013

Feds Arrest Cops for Identity Theft and Tax Refund Fraud

Federal agents arrested two local police officers for identity theft and tax refund fraud. Both officers are accused of using the State of Florida driver's license data base to obtain names and personal information to commit the fraud. City of Miami Police Officers Malinsky Bazile and Vital Frederick, acting independently, got caught using the database to accumulate hundreds of names and associated personal information to file fraudulent tax returns. Bazile alone is accused of stealing $140,000 from the federal government that was meant to be returned to legitimate tax payers. Both defendants will appear this week with their respective Miami criminal lawyers for their bond hearings and arraignments. Both officers joined the City of Miami Police Department back in 2008. The arrests were made by the FBI and Miami police internal affairs detectives.

The arrests of these officers for identity theft and tax-refund fraud stem from the large scale investigation into an illegal gambling ring in Liberty City. In that investigation, officers were accused of providing protection for the gambling ring in exchange for money. Identity theft and tax-return fraud have become a big concern for law enforcement. It is a greater concern when police officers use their authority and access to public records to commit criminal offenses. Both officers are presumed innocent until they are found guilty by a jury or enter a plea. It is not clear how many state cases will have to be dismissed as a result of the alleged malfeasance.

The U.S. Attorney for the Southern District of Florida displayed disappointment and was quoted as saying, "To date, we have prosecuted Social Security office employees, hospital employees, clinic workers, former NFL players, gang members and violent criminals to name a few. Today, we sadly add law enforcement to the list of thieves." Bazile and Frederick are among the growing number of City of Miami police officers that have lost their jobs and are pending criminal charges. The entire investigation targeted officers working the Liberty City area. Both defendants are facing significant incarceration for the charged offenses. Their potential sentences will be determined by the federal sentencing guidelines which will take into account the number of victims and the amount of loss the federal government suffered. To make matters worse, both officers face a two year prison sentence for aggravated identity theft that will be stack on top of the sentence imposed by the federal judge presiding over the cases.

Over the past year, the federal government has indicted approximately 130 defendants accused of stealing more than $140,000,000 from the federal government. As the n umber of arrests grows, so does the sentences imposed in federal court for identity theft and tax-refund fraud. A defendant recently convicted of stealing more than $117,000 in tax refunds received a 16 year prison sentence. Assuming the officers do not cooperate with the federal government, they may even receive more time behind bars if convicted. Prosecutions for these types of offenses will continue until the Treasury Department can find a pro-active way of preventing the crime. South Florida is again on the radar screen as it is considered one of the capitals of this type of fraud.

Two Miami Police Officers Arrested on ID-Theft, Tax Refund Charges Linked to FBI Corruption Probe, Miami Herald.com, March 7, 2013.

March 4, 2013

Florida Judge Reverses Verdict in Sexual Predator Case

Defendants who were previously convicted of sexual motivated criminal offenses are subject to incarceration even after completing their sentences. Civil commitment pursuant to the 1998 Jimmy Ryce Act is a real possibility and allows for an indefinite period of incarceration for offenders labeled as sexual predators too dangerous to re-enter society after serving time in prison. As in criminal matters, defendants that qualify for civil commitment under the act are entitled to be represented by any Miami criminal lawyer of their choice. If a defendant cannot afford to retain a private criminal attorney, the Public Defender's Office will appoint a lawyer to defend the case. Defendants that are found to pose a danger to society upon their release by a jury are sent to the Florida Civil Commitment Center in Arcadia, Florida for an indefinite period of time.

Recently, a Miami-Dade County circuit court judge overruled a jury who decided that civil commitment was not appropriate. Juan Vega served 25 years in prison for several sexually motivated offenses such as sexual battery and kidnapping. Despite serving his sentence, Vega was held until a jury could determine whether or not he posed a threat to society upon being released from prison. Defendants sought to be held beyond their release date are entitled to a jury trial. In Vega's case, the jury decided that he would no longer pose a threat and decided against civil commitment. Vega's case is unusual because the judge disregarded the jury's verdict and decided that civil commitment was appropriate despite the finding.

The judge's ruling has angered criminal defense lawyers in Miami. It is the first time a circuit court judge in the State of Florida ordered civil commitment of a convicted sexual predator over a jury's non-commitment verdict. Now Vega's fate will be determined by an appellate court, most likely the 3rd District Court of Appeals. What caused the judge to overrule the jury? Apparently, the judge relied heavily on psychologists that evaluated Vega and found that there is a significant likelihood that he would re-offend if released from custody. Hundreds of Jimmy Ryce cases have been tried in the state. The majority of offenders have been committed, but some have prevailed. Of those released, some have become productive members of society, while others have re-offended and are spending the rest of their lives in prison.

Pursuant to the Jimmy Ryce Act, there are approximately 569 individuals being held in Arcadia in what is deemed to be civil confinement. Another 97 inmates in the state are awaiting the same type of trial that Vega just sat through. In Jimmy Ryce cases, the Florida Department of Children and Families evaluates all sexual predators set to be released from Florida prisons. If civil commitment is found to be appropriate for a particular defendant, he or she will be transferred to Arcadia, Florida pending a civil trial. After hearing testimony, a jury of six people must decide unanimously whether a defendant is a sexual violent predator who merits civil commitment by clear and convincing evidence for involuntary commitment to occur. If a majority feel commitment is appropriate, a judge will declare a mistrial and prosecutors can re-try the defendant. If the verdict is even or less than half decide that commitment is appropriate, the defendant should be released from custody.

Florida Judge's Decision in Sexual Predator Case Sparks Controversy, Bradenton Herald, March 4, 2013.

February 26, 2013

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

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

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

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

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

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

February 19, 2013

South Beach Bartender Charged with DUI Manslaughter

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

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

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

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

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

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

February 8, 2013

Feds Arrest 109 in IRS Identity Theft Crackdown

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

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

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

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

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

February 1, 2013

Police Officer Arrested on Extortion Charges

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

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

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

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

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

January 23, 2013

Army General Facing Court-Martial

Brigadier General Jeffrey Sinclair is facing court-martial charges involving sexual misconduct. Sinclair recently served in Afghanistan, but was reassigned to Fort Bragg, North Carolina to face charges in a military tribunal. Sinclair served five combat tours of duty. Despite his excellent 27 year career service record, the military has decided to pursue charges. It is uncommon for general officers to be charged in the military. In recent times, only two general officers have faced courts-martial charges. Typically, general officers accused of misconduct are relieved from duty and forced to resign in lieu of being charged with a criminal offense. Sinclair's problem is that he was accused of a series of sexual misconduct with multiple parties. That may have been too high a number for the military to overlook.

In the military, accusations of this nature and others are investigated by CID (Criminal Investigative Department). CID agents are very similar to other types of the law enforcement officers such as FBI agents or homicide detectives. However, CID agents do not make the decision to arrest. That decision is solely the responsibility of the chain of command. Each member of the chain of command is supposed to independently recommend whether a soldier should referred to a court-martial and what type of court-martial should be pursued. The most serious type of court-martial in the general. Defendants face the statutory maximum as set forth in the Manual for Courts-Martial. Additionally, a defendant faces a dishonorable discharge either by way of a guilty plea or a conviction at trial.

There are two types of special courts-martial, BCD (bad conduct discharge) and straight special. The maximum amount of punishment under a special court-martial is six months of incarceration. With a BCD, a soldier can be discharged as part of his criminal sentence, whereas, in a straight special a soldier cannot be discharged. However, if a soldier is convicted of crimes charged as a straight special, the chain of command can turn to an administrative discharge. A summary court martial is punishable up to 30 days with no discharge. Like a straight special, a defendant convicted at a summary court-martial can be administratively separated for misconduct. The only type of court-martial that requires a preliminary hearing before charges are preferred is the general. Anyone charged with a general court-marital is entitled to an Article 32 investigation, which is like a mini-trial where evidence is presented to a hearing officer. The findings of the Article 32 investigation are delivered to the chain-of command to help determine whether charges should be preferred or in other words pursued.

The allegations against Sinclair were heard at an Article 32 investigation back in November. Apparently five woman submitted evidence of illegal sexual activity which occurred in such venues as Afghanistan, Iraq, Germany, and two bases in the United States. Some of the woman soldiers involved were officers who are also in jeopardy of losing their military careers and being prosecuted as well. One of the woman officers faces adultery charges. Anyone in the military and is married is forbidden under the UCMJ from engaging in sexual relations with other parties. While adultery is an archaic offense in civilian life, the military takes this offense seriously. More problems arise when higher ranking officers have sexual relations with lower ranking officers in their chain-of command. Soldiers can be charged with fraternization if they engage in this type of conduct. In sum, Sinclair is being charged with sodomy, another crime not usually charged in the civilian world, wrong sexual conduct, violating orders and adultery. His career is over, but will he spend anytime in Ft. Leavenworth is the question.

Army General at Military Hearing on Sex Charges, Miami Herald.com, January 22, 2012.

January 17, 2013

Hit and Run Driver Sentenced to Jail

A driver that struck and killed a bicyclist on the Rickenbacker Causeway was sentenced yesterday by a circuit court judge. The prosecution argued for a six year prison sentence. Apparently, the Miami criminal attorney representing the defendant convinced the judge that a six year sentenced was too harsh. Instead, the Miami-Dade County Circuit Court judge presiding over the case sentenced the defendant to 364 days in the county jail, followed by two years of community control. The defendant had already been in custody for a year when he was sentenced by the court. He was required to waive all his credit for time served in exchange for receiving the sentence. Family members of the deceased, as well as others, have complained that the sentence was too lenient. The defendant also happened to be on probation for possession of cocaine on the date of the offense.

The defendant allegedly struck two bicyclists at around 6 a.m. on the causeway. Rather than stopping his vehicle and attempting to render aid, he fled to his Key Biscayne condo. He returned home and reported the accident to his father. Rather than contacting the police, they placed a tarp over th vehicle to conceal the crime. A security guard at the condo called the police. Condo security cameras captured the heavily damaged vehicle enter the property with the defendant behind the wheel. Additional video captured the defendant unsteady on his feet walking through the parking lot and later returning to the vehicle with his father. The defendant was arrested for leaving the scene of the accident involving death, leaving the scene of the accident involving great bodily injury and driving with a suspended license.

In and of itself, the sentence is not outrageously low despite the complaints from relative and fellow bicyclists. The most surprising aspect of the sentence is the fact that judge gave little weight to the fact that the defendant was on probation at the time of the offense. Cocaine possession is a third degree felony punishable up to five years in prison. Defendants that violate probation on a third degree felony can be sentenced up to five years in prison if they are found to be in violation at a probation violation hearing. In any event, the judge, despite the probation violation, issued the aforementioned sentence over the objection of many.

The defendant was facing up to 35 years in prison which is the statutory maximum under the Florida criminal statutes. His guidelines were much lower as death points under the Florida Sentencing Guidelines are not applicable for leaving the scene of accident involving death. The defendant avoided possible DUI manslaughter charges which carries a significantly higher penalty than leaving the scene of the accident. Because the defendant was not apprehended until 18 hours after the accident, the evidence of impairment had already dissipated. The fact that the defendant was unsteady on his feet was not enough evidence to prove manslaughter as he had just been involved in a serious accident. Without a blood draw, which would have been taken at the scene had he remained, the prosecution had no ability to prove that the defendant was impaired to the point that he could not safely operate a motor vehicle.

Michele Traverso, Driver in Hit-and-Runthat Killed Aaron Cohen Sentenced to 364 Days in Jail, Huffington Post.com, January 17, 2013.