January 19, 2012

Motion to Dismiss Murder Case Denied

Pursuant to the recently passed self-defense law of "stand your ground", a local circuit court judge heard a motion to dismiss filed by a well-repsected Miami criminal attorney regarding that issue. The defendant is a twenty-three year old man from New York charged with second degree murder accused in the stabbing death of homeless man outside a Miami Beach night club. According to court documents, the defendant came to Miami Beach in 2008 to party. Prior to entering a nightclub, the defendant purchased the ID belonging to the victim for $50.00. When the homeless man realized that a third party had taken his ID and sold it to the defendant, he went to retrieve the ID from the defendant. The victim allegedly threatened the defendant which caused him to flee into an alleyway. In the alley, a scuffle ensued between the parties. During the scuffle, the defendant took out a knife, stabbing the victim three times. At some point during the scuffle, the victim threw a book bag at the defendant.

After taking testimony and hearing arguments from the prosecution and the defense lawyer, the circuit court judge hearing the case denied the motion to dismiss. The judge found that the defendant was protecting the ID and not himself. He found specifically that " a reasonable person under these circumstances would have believed that if he had given the license back, it may have not been necessary to stab the victim." The lawyer representing the defendant intends on appealing the ruling as the law is still emerging and the order signed by the judge has issues to be raised at the appellate court level. Of course, the prosecution agreed with the ruling saying the judge was correct in his evaluation of the testimony and the evidence presented at the hearing.

In 2005, the Florida legislature amended Florida's self-defense laws to include "stand your ground". The law eliminated a citizen's duty to retreat if confronted with deadly force. Murder or other violent charges, such as aggravated assault and aggravated battery, can now be more easily defended with the new law. A defendant is justified in using deadly force if the defendant believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself while resisting another's attempt to commit murder or any other enumerated violent crime against him or her. The defense can be argued in two ways. The first is through a motion to dismiss heard and ruled on by the judge. If the judge denies the motion, the attorney can argue self-defense to the jury who is the tier of fact.

Several cases have been dismissed throughout the state based on the "stand your ground" law. Last year, a Palm Beach judge dismissed a first-degree murder case involving a shooting that occurred as a result of a confrontation on a boat between the victim and the defendant. A Miami-Dade County judge dismissed a murder case that occurred outside and apartment in Hialeah. Later in the year, a Broward County judge dismissed a charges against a man accused of murdering his wife's former boyfriend. Several other cases are set to be heard at the trial level and the appellate level. The area of the law is evolving and with every case that is heard, different theories of self-defense will come to light. However the cases are ruled upon, the "stand your ground" law provides a defense to some defendants charged with violent crimes.

Miami-Dade Judge Shoots Down Self-Defense Claim in the South Beach Murder, Miami Herald.com, September 18, 2012.

January 12, 2012

Convicted Drug Trafficker Seeking Sentence Reduction

One of the most infamous Haitian cocaine trafficking kingpins will go before a federal judge and seek a significant sentence reduction for cooperating with federal authorities. The defendant will appear with his Miami criminal defense lawyers seeking at least a 50% cut from his current sentence. Beaudoin Ketant operated one of the largest cocaine trafficking rings in Haiti until he was expelled by Jean Bertand Aristide in 2004. The expulsion from Haiti came at the request of the United States government. Federal law enforcement officers traveled to Haiti and the flew the defendant out of the country. The U.S. Attorney's Office indicted the defendant on charges of importation of cocaine and conspiracy to do the same. The indictment alleges that the defendant was responsible for the importation of in excess of 30,000 kilograms through locations such as Florida and New York.

Defendants charged in federal court will often have the ability to reduce their prison sentences by cooperating with federal prosecutors and other law enforcement officials. Prior to cooperating with federal authorities, a skilled defense attorney should thoroughly review a case, the evidence supporting the case and all discovery provided by the prosecution. After reviewing the case with the client, the decision whether or not to cooperate must be made. In the majority of cases, there is not much time to make this decision for a variety or reasons. First, federal judges move cases along at a rapid pace. Secondly, as time goes by, co-defendants will come forward to cooperate, dissipating the clients usefulness. Law enforcement wants new and fresh information that will lead to other prosecutions.

The rules for sentence reductions in federal court can be found in the United States Sentencing Commission Guidelines Manual. Section 5K1.1 provides for a sentence departure for substantial assistance to law enforcement authorities. The government must make a motion prior to a guilty plea being entered by the defendant. The motion must set forth that the defendant has provided substantial assistance in the investigation or the prosecution of another person who has committed an offense. The ultimate decision to a reduce a sentence and by how much is left up the judge. The judge will consider the significance, usefulness truthfulness and reliability of the information, the nature and extent of the assistance, and the timeliness of the substantial assistance. A defendant can also seek a reduction after a sentence has been imposed. A defendant can seek a reduction under Rule 35 for substantial assistance after a sentence has been handed down. The defendant in this case is seeking a reduction under the latter category.

According to prosecutors and defense lawyers, the defendant is going to receive a significant sentence reduction. Despite his serious involvement in drug trafficking, the defendant could see his term cut in half as his substantial assistance has led to 50 convictions of other Haitian nationals involved with cocaine trafficking and money laundering. His information has led to the successful conviction of both cocaine traffickers and individuals charges with taking bribes. The most interesting claim made by the defendant named Aristide a co-conspirator in the drug trafficking operation. The defendant purportedly paid Aristide money to allow the cocaine to travel smoothly in and out of the country. Haiti was a major hub moving cocaine from Columbia to the United States.

Haitian Drug Kingpin Prosecuted in Miami Could Get Big Cut in Prison Sentence, Miami Herald.com, December 21, 2012.

January 5, 2012

Ex-Cop Takes Plea to Reduced Charge

A former local police officer recently entered into a guilty plea to one charge of child abuse, no great bodily harm. The case stemmed from allegations that the ex-cop would fondle young girls during traffic stops. The defendant was originally charged with two counts of lewd and lascivious battery on a minor, but entered a guilty plea to the reduced charge negotiated by his Miami criminal attorney. According to court records, multiple other victims came forward on the case, but they were only to be used as witnesses. The prosecution intended on bolstering their case by presenting what is typically called Rule 404 evidence. Under the Florida Rules of Evidence, Section 90.404(2)(a), the prosecution can use similar fact evidence of other crimes, wrongs, or acts when relevant to prove a material fact in issue. The fact evidence sought to be used includes proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. However, the evidence may not be used for the sole purpose of establishing the bad character or criminal propensity of the defendant.

Rule of Evidence, Section 404(2)(b), applies specifically to child molestation cases. In a criminal case, involving a child sex offense, the prosecution can admit evidence of the defendant's commission of other crimes of child sexual abuse. If the prosecution intends on seeking to admit Rule 404 type of evidence, they must inform the defense lawyer and the client no fewer than 10 days before the trail commences. The prosecution must provide a written statement to the defense containing the offenses they seek to admit with as much specificity as required in an information or indictment. If a jury is allowed to hear the Rule 404 evidence, they will be specifically instructed as to the limited use of the evidence.

The case against the defendant broke down when one of the victim's alleged in a charged offense admitted that she had made up allegations of sexual abuse in a separate unrelated case. With the victim's credibility in question, the state dropped that count of lewd and lascivious conduct and pled the case out to a lesser charge with probation. According to the state, the case became very weak without that charge, which in turn led to the plea offer. The defendant entered a guilty plea and received a withhold of adjudication and 5 years reporting probation and was also required to surrender his police officer certification papers. The defendant is also required to complete a treatment program for sexual offenders as part of his probation. At the conclusion of his probationary period, the defendant will not be able to seal his record as aggravated child abuse is not a sealable offense under the Florida Statutes.

The question remains whether the defendant will be categorized as a sexual offender. While aggravated child abuse is not an offense that can cause a person to become labeled a sexual offender, the final word will be left up to the Florida Department of Law Enforcement (FDLE). Experienced defense lawyers know that a charge reduction to a non-sexual offense does not mean that a defendant will not be labeled a sexual offender. FDLE reviews arrest affidavits and not necessarily the charges when making that decision. They will consider the facts surrounding the case in making that determination. If a defendant is deemed to be a sexual offender by FDLE, many onerous restrictions will be put in place, including, but not limited to, where a defendant may live, being posted on the internet, and quarterly reporting requirements.

Former Miami-Dade Cop Takes Plea in Fondling Case, Miami Herald.com, December 29, 2011.

December 28, 2011

Pharmacies Targeted for Oxycodone Trafficking

Over the past several months clinics owners and operators, as well as doctors have been arrested and charged with operating "pill mills", a crime otherwise known as trafficking in oxycodone or other well-known pain killers. Now local and federal agents are after "mom and pop" type pharmacies located in the Miami and South Florida area. According to law enforcement, investigations are underway into what is being called a wave of rogue pharmacies that are now becoming the primary focus for the illegal distribution of prescription drugs. Anyone being investigated for or having been arrested for the illegal distribution of oxycodone or other prescription painkillers should retain a Miami criminal lawyer to represent them during any investigation in which they became involved or to defend any charges that have been filed in state or federal court.

Pharmacy owners caught up in the illegal distribution of prescription medications have had their permits suspended by the State of Florida. Curiously, the pharmacies have been allowed to remain open for business, but can no longer fill prescriptions. The U.S. Attorney for the Southern District of Florida claimed, "This is an epidemic, a public health crisis that has killed thousands in Florida. Our strategy is to attack the problem from all angles, from all the sources of oxycodone." The investigations are focusing on doctors, clinics and pharmacies that all work together to make the businesses look legitimate. In any event, both local and state prosecutors are focusing on all "pill mills" and their co-conspirators and charging all those involved with drug trafficking or conspiracy to commit drug trafficking.

Local and state law enforcement are cracking down on all methods of the illegal distribution of prescription medications. They are hoping that the recently broadened strategy to focus now on pharmacies will slow the epidemic that has plagued South Florida. They believe the increased focus on pharmacies along with the new anti-pill mill legislation that became law in July will have a positive impact in reducing the popular drug crime. The new law requires the state Department of Health to monitor the number of pain killers pharmacies distribute and determine the amount that can be distributed every month. The new law also makes it more difficult to open a new clinic in the State of Florida with increased scrutiny of permit requests.

Over the past several years, Florida has become know as the pain killer capital of the United States. At one point, 150 clinics operated in Broward County illegal distributing painkillers. It became so bad that people would travel from states such as Kentucky and Tennessee to illegally obtain prescription drugs. People from other countries such as Turkey and Mexico would travel to South Florida for the same purpose. Since June, federal criminal investigations have discovered multiple drug trafficking rings involving the illegal distribution of oxycodone operating out of at least seven pharmacies. One of the pharmacies operating out of Plantation is accused of filling 72 prescriptions on a daily basis. The feds increased focus on pharmacies and continued focus on "pill-mills" in general will lead to more arrests over the coming months.

Painkiller Peddlers: Pharmacies Targeted in Pill-Mill Crackdown, Miami Herald.com, December 24, 2011.

December 23, 2011

Healthcare Operators Plead Guilty to $60 Million Healthcare Fraud

The Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS) announced that three operators of a local healthcare agency have entered guilty pleas for their involvement in a $60 billion home healthcare Medicare fraud scheme. The three defendants with the assistance of their Miami criminal lawyers entered guilty pleas before a United States district judge to one count of conspiracy to commit Medicare fraud. According to court documents, the defendants were family members that fraudulently billed Medicare for home healthcare and therapy services that were never provided. The defendants used recruiters to locate patients in and around Miami who would in turn provide their Medicare numbers to the illegal enterprise. The company would bill the federal healthcare agency and pay kickbacks to the recruiters.

The federal government continues to crackdown on Medicare fraud. The cases being prosecuted generally occurred prior to the new changes in the billing requirements and polices related to healthcare claims. The reason for the delay in the prosecutions in these types of cases is caused by the extensive investigations and the numbers of defendants surrounding these types of organizations. Generally, the criminal investigations last between two and three years culminating in the arrests of several defendants. Once the defendants are charged in criminal court, many of them, due to the overwhelming evidence in the case decide to cooperate with federal prosecutors to avert long prison sentences. As part of the cooperation, defendants are required to disclose other individuals who were involved in the fraud. For example, clinic owners or home healthcare providers are required to give up doctors, therapists and recruiters who were also involved in the fraud.

Prior to cooperating with the federal government, defendants should seek advice from an attorney with experience in defending Medicare fraud cases in federal court. All of the documents, audio and video recordings and other evidence obtained in the case must be thoroughly reviewed before making the decision whether to cooperate or not. Entering into a cooperation agreement with the government should happen quickly if that is the decision made into how to handle the case. The more fresh information provided to investigators will increase the likelihood of a significantly reduced sentence. Delaying cooperation will allow for other defendants to come forward and provide the information. Providing information that has already been provided to the government is not as helpful when seeking a sentence reduction. In large part, the prosecution will determine the value of the information which in turn will be used to decide the amount of the reduction in the form of a 5K or a Rule 35.

Prior to the reduction, the defendant will be scored according to the United States Sentencing Commission Guidelines. Defendants will score differently depending on a couple of factors. First the amount of the loss to Medicare will significantly impact the guideline range. Other factors that will also impact the guideline range include whether the defendant was an owner or operator of the company, whether a defendant was a planner or supervisor, or whether the defendant played a minor role in the criminal offense. A defendant's level of involvement in the fraud will play a large role in determining whether levels are increased or decreased in calculating a guideline range. The key is to reduce the guideline range as much as possible before the sentence in finally reduced for cooperating with the government.

Three Guilty Pleas in $60 Million Medicare Fraud, South Florida Business Journal.com, December 20, 2011.

December 13, 2011

Supreme Court May Hear Florida Dog Sniffing Case

Florida has asked the United States Supreme Court to decide whether police officers can legally use a trained narcotics dog to sniff a front door of a residence without probable cause to believe that a crime has been committed inside the residence. Miami narcotics detectives received an anonymous tip that a particular residence was being used as a marijuana "grow house". Despite a lengthy period of surveillance on the house, the detectives were unable to gather any evidence sufficient enough to allow them to seek obtaining a search warrant. When the surveillance failed, the detectives approached the residence with a trained narcotics dog that alerted upon sniffing the front door. After the dog alerted, another detective approached the front door and then magically smelled the strong odor of marijuana emanating from the residence. The detectives drafted an affidavit in support of a search warrant which was then signed off on by a judge. The detectives returned to residence, busted down the door with the warrant in hand and discovered a large hydroponic marijuana grow house.

A Miami criminal lawyer filed a motion to suppress which was heard before a Miami-Dade County circuit court judge. Following the law issued by a federal appellate court, the trial court judge found that the dog's sniff was a search under the constitution and was improper without probable cause and a warrant. The federal court ruling in 2004 held that when searching a private home, "a firm line remains at the entrance, blocking the noses of dogs from the intimate details of an individual's life." The 3rd District Court of Appeal disagreed with the trial court, reversing the ruling by holding that a dog sniff does not equal a search and therefore a warrant is not required to put a dog up on the porch to sniff around the door of the residence. The Court of Appeal relied on another federal case which found that a dog sniff of contraband is not a search as no privacy interest exists in illegal contraband.

The Florida Supreme Court reversed the decision of the 3rd DCA and noted that a person's home is afforded a special status and that a dog sniff at the front door was an unreasonable intrusion into the sanctity of a home. The Court went further to say that a dog sniff is "a substantial intrusion" and constitutes a search within the 4th Amendment to the Constitution of the United States. Despite the ruling, the opinions of the justices were not unanimous with two of the judges dissenting. The state has taken the appeal up to the Supreme Court on the basis that the ruling in Florida is in direct contravention of the case it relied up at the 3rd District Court of Appeal. The state also noted in the appeal that the Florida Supreme Court's decision will hamper drug enforcement across the state if probable cause is needed before deploying a drug dog.

At this point, it is not clear whether the Supreme Court will hear the matter. Miami criminal defense lawyers would clearly be elated if the Court refuses to hear the issue in that drug sniffing dogs could only be used if probable cause for the sniff exists. In the event the Supreme Court believes that Florida is handing down rulings in direct contravention of the earlier laws, they will probably step in and intercede, finding that Florida has erred and overstepped its bounds. In either event, the law as it stands enures to the benefit of home owners. Anyone arrested for illegal contraband in the home, especially narcotics, that were discovered as the result of a sniff, should files a motion to suppress in their case.

Front Door Sniff By A drug Dog Require Probable Cause, Sunshine Slate.com, November 21, 2011.

December 6, 2011

Ex-Dolphin Arrested for Marijuana Possession

The Broward County Sheriff's Office with the assistance of federal, state and local authorities conducts a large scale crackdowns every few months in an effort to get drugs and guns off the street. The latest operation dubbed "Operation Cold Turkey" netted 280 arrests over a two day period. One of the big scores came when the investigation led to a marijuana grow house which contained large amounts of cannabis, guns and other illegal drugs. Other items seized during the operation included 2,000 oxycodone pills and illegal firearms. In a separate incident, a former Miami Dolphin player was among those arrested. He was charged with one count of possession of marijuana, less than twenty grams. Igor Olshansky was taken to the Broward County Jail where he was released on a $100.00 bond. It is not clear whether, the former defensive tackle will hire a Broward or Miami criminal lawyer to defend the charge.

Possession of marijuana is a first degree misdemeanor punishable up to 364 days in the county jail. While the potential punishment seems harsh, people arrested having a small amount of marijuana never go to jail. In fact, many of the cases are dismissed in Miami-Dade County because the officers fail to appear in court; and if they appear, usually forget to bring the marijuana with them to court. Either event will result in the dismissal of the charges. Prosecutors will offer first time offenders a pretrial diversion program which will result in a nolle pros or dismissal of the charges if a defendant completes a couple hours of drug classes and pays the enrollment fee. People who have prior criminal records will most likely not be eligible for the program and will be offered time served and court costs. If a person is not eligible for the program, experienced defense attorneys will set the case for trial as the plea offer will always be the same.

Marijuana possession charges can come in many forms depending on the amount involved in the case. Possession of less than 20 grams is a misdemeanor as previously discussed. Possession in excess of twenty grams of marijuana is a third degree felony punishable up to 5 years in prison. Sentences of this kind are very rare and usually require a defendant to have an extensive criminal record and would also require a conviction after a jury trial. The most serious of the marijuana cases is trafficking. To be charged with trafficking in marijuana, a defendant must be in actual or constructive possession in excess of 25 pounds. There are different levels of trafficking depending on the weight of the illegal substance. Cases involving between 25 and 2,000 pounds of marijuana carry a 3 year minimum mandatory sentence; between 2,000 and 10,000 pounds a 7 year minimum mandatory sentence; and in excess of 10,000 pounds a 15 year minimum mandatory sentence apples.

The majority of marijuana trafficking cases that come out of Miami-Dade and Broward County stem from "grow house" operations. Despite the harsh potential sentences a defendant faces if caught running a grow house, several defenses exist to fight these cases. More likely than not, narcotics detectives gained access to the residence containing the marijuana without the use of a warrant and generally rely on obtaining consent from the residents. Often times, the detectives threaten to arrest everyone present, unless consent is granted. If this issue arises, a motion to suppress the search should be filed as the consent was not truly voluntary. If the detectives obtain a search warrant, grow house cases are more difficult to defend unless counsel can convince a judge at a motion to suppress that the facts that established probable cause in the warrant were illegally obtained or untrue.

Former Dolphin Igor Olshansky Arrested on Marijuana Charge, Sun Herald.com, December 2, 2011.

November 30, 2011

Judge Hands Down 40 Year Sentence in Murder Case

The highly publicized case involving the stabbing death of a Coral Gables student has finally reached its conclusion with the exception of any appellate matters that they may be heard by the 3rd District Court of Appeal. Andy Rodriguez appeared at his sentencing hearing with his Miami criminal attorney. The circuit court judge presiding over the case ordered the defendant to spend the next forty years in prison. If that was not bad enough, the judge tacked on 10 years of reporting probation once the defendant concludes his prison sentence. The courtroom was packed with reporters and family members from both the victim's and the defendant's family members. While the sentence levied by the judge appears harsh at first blush, it could have been a lot worse.

The defendant was charged by information with second degree murder and convicted by a jury of the same offense. Because the defendant was not charged with or convicted of capital first degree murder, the decision on the sentencing was left up to the judge with no input from the jury. A second degree murder case is non-capital and therefore only a 6 person jury will decide whether a defendant is guilty or not-guilty. First degree murder cases which are capital offenses, which entitles a defendant to have a jury consisting of 12 jurors. The sentencing process varies a little. In cases where Defendants are convicted in capital first degree murder cases where the death penalty is being sought by the prosecution, the jury will vote on whether or not to impose the death penalty. The judge of course has the ultimate decision when the sentence is actually imposed. In all other cases, the six or twelve person will have no say in the sentence whatsoever.

In the case involving Rodriguez, the defendant decided to make a statement before the judge handed down the sentence. In all cases, a defendant is permitted to make a statement after he or she has been found guilty. Well thought out and planned statements can cause a judge to hand down a more lenient sentence than you would normally expect. In this case, the statement given to the judge at the sentencing hearing was quoted as being "tepid" and not overly heartfelt. The defendant in his statement denied the crime. Denying the crime after a criminal conviction shows a lack of acceptance of responsibility and lack of remorse which will have deleterious affect on the judge. That is why it is important for a criminal lawyer to prepare his or her client for the hearing. Another way to persuade a judge to hand down a lighter sentence is for defendant's to have his or her friends and family speak on their behalf. A good support structure goes a long way with a judge, depending on the crimes charged and convicted of, of course.

The judge in this case also sentenced the defendant to 10 yeas of probation after he completes his prison sentence. Whether the matter of probation was appropriate or not has been discussed around town. Probation sentences are usually ordered for first time offenders who did not qualify for the pre-trial intervention program, most likely because of the charge. After sentencing someone to 40 years of prison, a follow-up probation sentence hardly makes sense. Just because the judge sentenced the defendant does not mean he will serve the entire prison sentence. He will about serve 85% of that time provided there are no significant infraction during the prison stay. Cases where a judge sentences someone to life or cases involving minimum mandatory sentences do not allow for the 85% (gain time rule).

Forty-Tear Prison Term for Coral Gables High Killer, Miami Herald.com, November 29, 2011.

November 21, 2011

Constitutionality of State Drug Laws Going to Supreme Court

After months of legal arguments and thousands of motions to dismiss being filed by defense counsel, the question as to the constitutionality of the state's drug laws will finally come to a head. According to court records, thousands of defendant's convicted of or charged with drug offenses could be exonerated across the State. Every Miami criminal lawyer is anxiously waiting for word to come down from the State of Florida's highest court. While only two judges across the state have granted motions on cases involving drug crimes, some the appellate courts have ruled on the reading of the law while others have sent the cases to the Supreme Court as a matter of great public importance.

On September 14, 2011, a Manatee County Circuit Court Judge dismissed charges against 42 defendants involved in 46 cases. Manatee County falls within the Second District Court of Appeal. Two weeks after the Manatee County ruling, a three judge panel sitting on the court of appeal sent the matter to the Florida Supreme Court for a decision. Around the same time, another Miami-Dade County Circuit Judge dismissed numerous drug cases. That judge was in fact the first to find the drug laws unconstitutional. He agreed with a ruling handed down by federal judge who found Florida's drug law unconstitutional. The federal judge sided with a defendant charged will selling, manufacturing or delivering crack cocaine. The judge was quoted as saying, "Other states have rejected such a draconian and unreasonable construction of the law." The Third District Court of Appeal has jurisdiction over Miami-Dade County and ruled against the Miami judge.

From the prosecution's standpoint, the law is still valid because a defendant can present evidence that they did not know of the presence of the illegal substance or have guilty knowledge of the illegal substance. Defense attorneys contend that the law is unconstitutional because it shifts the burden of proof to the defendant. Under the Constitution of the United States, the government has the sole burden or proving criminal charges. We should not criminalize innocent conduct and shift the burden of proof. While it is not clear what the First, Fourth or Fifth District Court of Appeal have ruled, the Supreme Court is set to hear oral argument on December 6, 2011.

While the drug laws appears unconstitutional on their face, the Supreme Court will want to prevent the release or discharge of thousand of convicted or charged defendants under Florida's Anti-Drug laws. However, if for some reason, the Supreme Court strikes down the drug laws, motions to dismiss drug cases should be filed across the state. Don't lose hope. The Supreme Court has in the past ruled in favor of defendants involved in large numbers of criminal cases. For example, the highest court has previously found state sentencing laws unconstitutional and has ordered the local courts to re-sentence thousand of defendants. Whatever the case may be, the Supreme Court seems poised to hand down the answer before the end of the year.

Drug Law Case on Fast Track in Florida Supreme Court, Miami Herald.com, November 21, 2011.

November 14, 2011

Local Governments Generate Revenue Through Forfeitures

The Florida Contraband Forfeiture Act allows local governments to seize and seek the forfeiture of private property it they can prove that items taken are contraband articles. Contraband articles include controlled substances or drug paraphernalia possessed in contravention of the Florida drug laws, motor vehicles, real property, monies or currencies, or other personal items. Attorneys representing the local governments are responsible for filing the forfeiture actions. These lawyers must be able to prove that the items being forfeited must have been used as an instrumentality in the commission of; or in aiding or abetting in the commission of a felony; or were a acquired as a result of a criminal act. Anyone who is the subject of a forfeiture actions is entitled to retain a Miami lawyer to represent their interests and defend the action. Failure to timely respond to a forfeiture action will cause someone to lose their interest in the property.

Asset forfeiture cases routinely arise from criminal arrests, however, these cases are civil and not criminal in nature. While the forfeiture laws seem unfair, the Florida Contraband Forfeiture Acts provides many safeguards which help protect an individuals right to their property. Personal property may be seized at the time of the arrest. The government lawyers must notify the person whose property was seized of their intent to forfeit the property within five days of the seizure. The notice must be sent by certified mail. Once the individual has received the notice by certified mail, they are entitled to request an adversarial preliminary hearing, as long as the request is made within 15 days of receipt of the notice. Once a request for an adversarial preliminary hearing is made, the seizing agency must ensure that the hearing is held within 10 days. If the hearing is not held within 10 days, and the agency is at fault, the interest in the property will be returned to the owner. It should be noted that the arresting agency may attempt to hold the property as evidence of the crime. If this is the cases, the issue is litigated in criminal court.

If the seizing agency cannot prove at the preliminary hearing that the items seized were contraband under Florida law, the items must be returned. If the property holder loses the preliminary hearing, all hope is not lost, as the case may proceed to trial at a later date when a jury would determine whether or not the seized property was contraband under the letter of the law. Many of the local governments or police agencies will try to settle the cases early on as they have an incentive to close out the cases as soon as possible. A lot of this depends on the property they have seized. In general, the agencies will agree to return 40% of any money taken to avoid protracted lawsuits. When is comes to automobiles, boats or aircraft, an agency's position will be determined on whether or not they have some use for the property. Individuals who have had personal property seized can often purchase their property back at an agreed amount.

Many cash strapped jurisdictions in and around South Florida have upped their involvement in asset forfeitures to increase their revenues. For example, Boynton Beach, Florida has been seeking the forfeiture of automobiles and cash to pay their bills. Lawyers from the American Civil Liberties Union think that the Florida forfeiture laws may be unconstitutional, but have yet to challenge the law. Either way, individuals who have property seized do not have to rollover and see their assets taken from them. To fight the system, a qualified attorney experienced in defending forfeiture actions should be hired as the seizing agency has a lawyer working for them.

Confiscations after Crimes Pays Off for Boynton Beach, The Palm Beach Post.com, November 14, 2011.

November 1, 2011

Local Doctor Charged with Medicare Fraud

A doctor, previously convicted of Medicare fraud back in 1992, has again been arrested for Medicare fraud and drug traffcking. Twenty-three others were also listed in the indictment. The indictment alleges that the group sold prescription medications, mostly pain killers and billed the federal healthcare program millions for prescriptions that never existed. Miami criminal lawyers, either assistant federal public defenders or privately retained counsel, will represent the defendants. Frank Ballesteros, a Miami doctor, is accused of playing a major role in a large scale pill mill operation. The majority of the defendants received a bond in the case, however, the doctor was denied a bond. His lawyer represented him at a pre-trial detention hearing, but was denied bond as the magistrate found him to be a flight risk and a danger to the community.

The Constitution provides everyone the right to a bond. However, like in state court, there are exceptions in federal court. In the majority of the cases, the assistant U.S. attorney prosecuting the case will agree to a bond and set an amount depending on the severity of the charges and a defendant's ties to the community. On other occasions, the prosecutor will not agree to a bond. The remedy at that point is to request a pre-trial detention hearing. A magistrate presides over these types of hearings and can either grant a bond and set an amount, or can deny a defendant a bond. The prosecutor will generally proffer the facts of the case with the lead agent assisting in the hearing. The defense lawyer will be permitted to cross examine the lead agent. After testimony is taken, both counsel will argue to the magistrate why a bond is or is not appropriate in the case. The magistrate will then consider a defendant's ties to the community and whether or not the defendant is a danger to the community. If the magistrate finds either, the magistrate will not set a bond and order the defendant detained.

The Drug Enforcement Agency has been cracking down on clinics in South Florida that are illegally distributing oxycodone and other pain killers and arresting those involved with drug trafficking. The clinics are also wrongfully billing Medicare which leads to Medicare fraud arrests. The DEA claims that there are large groups of doctors, clinic owners and pharmacists that are working in concert in these illegal ventures. If caught working together, the defendants will also be charged with conspiracy to traffic in illegal substances and conspiracy to commit Medicare fraud. The special agent in charge was quoted as saying, "Drug trafficking and healthcare fraud are a vile combination, especially when offenders steal from taxpayers to pay for highly addictive, highly profitable street drugs."

The DEA busted five clinics located in Miami, Hialeah, and Plantation. Ballesteros is accused of writing all the phony prescriptions for these clinics. Anyone being investigated or arrested for being involved in a fraudulent clinic or pill mill should retain a defense lawyer experienced in defending these types of cases in federal court. Individuals charged with drug trafficking and Medicare fraud are potentially looking at long prison sentences and should be represented by qualified counsel as the consequences are so dire.

Miami Doctor Charged with Medicare Fraud, Convicted of Same Offense in 1992, Miami Herald.com, October 30, 2011.

October 27, 2011

Five Arrests Made for Insurance Fraud

Five local residents were arrested for their involvement in a staged car accident scheme to defraud. The defendants were arrested in this county and will mostly likely be charged with insurance fraud, grand theft and staging an automobile accident. It is not known how many counts will be filed by the state attorney's office against the defendants. Anyone charged with these types of crimes should seek out experienced Miami criminal defense lawyers that have defended staged accident cases. The investigation in this case was led by the Florida Department of Financial Services Division of Insurance Fraud. This agency typically investigates insurance fraud throughout the state of Florida. The defendants purportedly contrived the fake accident and and put their plan into motion. The participants in the accident sought treatment at Doral Center Rehab and Justin Medical Services. The clinics allegedly billed $83,000 to several insurance companies for services that were not necessary or never performed.

For years, Florida has been battling insurance fraud and staged accident cases. The problem got so bad the Florida Legislature modified the laws involving staged accident cases. The Financial Services Division of Insurance Fraud is going after everyone involved in staged accident. Their main goal is to shut down clinics involved in fraud and to put the clinic owners in prison or jail. Doctors are also being prosecuted and typically required to forfeit their medical licenses in exchange for staying out of jail and rather receiving a probation plea. Prosecutors handling these cases in Miami are assigned to a specialized unit with sole purpose of prosecuting insurance fraud.
These prosecutors typically work from the bottom up pleading out the secretaries and receptionists in an effort to go after the people who reaped the most benefit from the fraud.

Insurance fraud is committed when a person presents, prepares written or oral statements in support of an insurance claim knowing that the statement contains false, incomplete or misleading information concerning any fact or thing medical to a claim. It is also unlawful for anyone to solicit others to become involved in a staged accidents with the intent and purpose of filing false motor vehicle tort claims. Anyone who plans and solicits others to participate in a staged accident with the intent to commit insurance fraud can be charged with a second degree felony and is also facing a two year minimum mandatory prison sentence. Anyone being investigated for insurance fraud for participating in staged accident schemes should speak with a qualified defense attorney as soon as possible.

There are a few things to remember when an individual is charged with insurance fraud. Obtain criminal representation as soon as possible. Never speak to criminal investigators. Under the constitution, everyone has the right to remain silent. Any statements can and will be used to prosecute someone. Never speak to your co-defendants, as they may agree to cooperate with the prosecution and those statements can be used in court as well. In general, staged accident and insurance fraud cases are created after lengthy investigation. Hundreds of documents and CD's will be provided to the defense at the beginning of the case. All of this information needs to be reviewed to determine the strength of the state's case. Only after a complete and thorough investigation of the case and the corresponding discovery can an informed opinion be made on how to defend the case.

Five PIP Fraud Arrests Made in Miami, PropertyCasualty360.com, October 26, 2011.

October 20, 2011

Feds Charge 20 South Florida Residents With Mortgage Fraud

Federal authorities charged 20 individuals with mortgage fraud with losses alleged at $20 million. Of those indicted, many are professionals in the real estate industry. According to the indictment, the alleged fraud occurred between March 2006 and June 2008 when the defendants filed false loan applications and other documents to multiple banks to obtain $40 million in bank loans and lines of credit. The banks and lending institutions lost approximately $20 million as a result of the fraud. While the problem of mortgage fraud has been largely curtailed due to stricter banking policies, Miami criminal defense lawyers are still seeing indictments coming down the pike. Mortgage fraud investigations take months if not years, as well as, the subsequent arrests. Trhis leads us to believe that more indictments will follow.

The 25 count indictment includes real estate professional such as mortgage brokers, title agents, realtors, and real estate property appraisers. The defendants are charged with federal crimes such as bank fraud, receiving gifts for procuring loans and providing gifts for procuring loans. The indictment also seeks the forfeiture of money and property derived from the transactions. The U.S. Attorney for the Southern District of Florida issued a statement saying that he had never seen an indictment involving so many real estate professionals. He claimed that his office will continue to vigorously stamp out mortgage fraud and prosecute straw buyers, sellers, corrupt mortgage brokers and bank officials. If the defendants are convicted they face up to 30 years in prison on each count and substantial monetary fines.

As in most mortgage fraud cases, some of the defendants submitted false mortgage and line of equity applications on behalf of unqualified real estate buyers and borrowers. Bank employees assisted in getting the fraudulent loans approved. To cover up the scheme, other defendants failed to record or falsely recorded mortgage deeds and documentation. To secure the loans many of the straw buyers claimed to be doctors, dentists, engineers or other high paid professionals. The investigation into this large scale mortgage fraud scheme was conducted by the Financial Fraud Enforcement Task Force. The task force was solely created to investigate and prosecute large scale organized scheme to defraud.

Mortgage fraud, although considered to be under control by the federal government, still subjects defendants charged with crime to serious terms of incarceration. The crime of bank fraud itself does not subject defendants to lengthy prison sentences, but the large amounts of losses suffered by the lending institution is what puts defendant behind bars for several years. In cases with numerous defendants, it is inevitable that some of the defendants will testify against others listed in the indictment. Cooperation with the federal government can allow for defendants facing lengthy periods of incarceration with significantly less time. The amount of the departure from the sentencing guidelines will depend on the quality and quantity of cooperation provided by the defendant turned government witness.

20 South Florida Residents Charged in $40 Million Mortgage Fraud Crime, LoanSafe.org, September 30, 2011.

October 18, 2011

Another Judge Finds Florida Drug Laws Unconstitutional

While a Miami circuit court judge first ruled that the Florida drug laws unconstitutional, a second judge from Manatee County has followed suit and dismissed felony drug charges levied against 42 defendants. Miami criminal lawyers and defense attorneys across the state have been filing motions to dismiss on behalf of their clients charged with drug offenses. Although hundreds of the motions have been filed, very few have been granted. Many circuit judges have motions pending in their courts, but have declined to rule on them at this point. While numerous circuit court judges have handed down rulings, the final decision as to the constitutionality of the state will be determined by the Florida District Courts of Appeal and will ultimately be determined by the Florida Supreme Court as a matter of great public importance.

The turmoil regarding the Florida drug laws was initially caused by a Middle District of Florida judge. The Middle District is a federal court, which begs the question, why are some state court judges following the precedent set forth by a court with no jurisdiction. Typically, federal courts have no jurisdiction of over state court judges, but rulings can be used as guidance by state court judges regarding their cases. The federal court judge decided back on July 27, 2001, that the Florida drug laws violated the Due Process Clause of the United States Constitution. The basis for the ruling was that the Florida Statutes regarding drug offenses do not have a knowledge requirement. Generally, all crimes in Florida and across the United States require criminal intent. Florida is the only state where criminal intent is not a prerequisite to being charged with certain drug offenses.

The problem with the current state of the drug laws is that an individual can be charged and convicted of a drug offense despite the fact that the prosecution cannot prove that the defendant had the intent to possess or sell an illegal substance. The Florida Statutes specifically do not require that the prosecution prove knowledge that the presence of the illegal substance. Without the element of intent, a person can be charged even if he or she innocently, accidently, unintentionally or mistakenly possessed an illegal substance. The burden is placed on the defendant that he or she did not have knowledge of the presence of the substance. Shifting the burden to the defense goes against the general principles of the constitution which squarely places the burden of proof on the prosecution to prove its case.

The penalties for violating Florida's drug laws are very serious. Simple drug possession such as cocaine or ecstasy possession are third degree felonies punishable up to 5 years in prison. Sale or possession with intent to sell an illegal substance is a second degree felony punishable up to 15 years in prison. Drug trafficking is a first degree felony punishable up to 30 years in prison and can be a life felony if a firearm was used in the commission of the offense. There are other serious ramifications for being convicted of a drug offense such as a permanent criminal record or even a driver's license suspension. Only until the appellate courts rule on this issue will we know whether or not the laws will be upheld. As a side note, over 100,000 individuals have been convicted of what could be determined to be an unconstitutional law.

Tampa Bay Alleged Drug Offenders Challenging Florida Drug Sentences After Federal Judge Ruling, PRWeb.com, October 18, 2011.

October 6, 2011

Parents Can Be Convicted of Kidnapping

The Florida Supreme Court affirmed a conviction and held that parents can be charged and convicted of kidnapping their own children. A Miami-Dade County jury convicted Ricardo Davilla of kidnapping his 11 year-old son in Sweetwater at the family's home soon after arriving from Nicaragua. At trial, testimony came out that the defendant tied up the child, locked him up for weeks at time in closets and bathrooms and repeatedly beat him with a broomstick. Other allegations include that the child was sometimes blindfolded and gagged with a handkerchief. The defendant claimed that the child was being punished for lying and failing to wash dishes. Miami criminal lawyers often defend kidnapping charges, however, defending parents charged with crimes is highly atypical.

Kidnapping is a first degree felony punishable by up to life in prison. The charge often accompanies other charges like carjacking, home invasion robbery and armed robbery. Kidnapping can occur in a variety of ways. First, kidnapping is defined as forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his or her will. It is also the same definition attributed to false imprisonment. For kidnapping to occur, the defendant must also (1) hold a victim for ransom or reward, or (2) wrongfully imprison someone during the commission of a felony, or (3) inflict bodily harm upon someone or terrorize the victim, or (4) interfere with the performance of any governmental or political function. The defendant was charged and convicted of kidnapping based on the bodily harm and terror inflicted upon the child.

The child's mother was also charged with multiple counts of aggravated child abuse, child neglect and false imprisonment. After the jury convicted the mother, the judge sentenced her to 30 years in prison. The Supreme Court upheld the father's conviction by a 6 to 1 vote. The chief justice dissented by saying, "It is by no means obvious that the kidnapping statute is aimed at protecting young children from their own custodial parents." While the law certainly allows for parents to discipline their children, there are limits. Cases have been handed down which delineate the difference between acceptable punishment and child abuse.

Corporal punishment of children has also been permitted with limits. The law generally frowns on parents using objects as belts and paddles, with criminal charges generally being filed for parents who use extension cords and coat hangers. Prosecutors take cases where marks or welts are left on children after the physical punishment has been delivered. Parents who go overboard with physical punishment can and will charged with aggravated child abuse which under Florida law is a second degree felony punishable up to 15 years in prison. While criminal attorneys are retained to defend these types of charges, the best advise is to use restraint when punishing your children.

Florida Parental Kidnapping Conviction Affirmed, Miami Herald.com, October 6, 2011.