September 30, 2011

Immigration Authorities Make 3,000 Arrests

The U.S. Immigration and Customs Enforcement (ICE) is at it again. The department responsible for deporting immigrants back to their native countries made another widespread sweep netting 3,000 individuals with prior criminal convictions. This operation was the country's largest since 2003. Immigration and criminal defense lawyers around the country will have their hands full in attempting to have family members released from immigration custody. The recent operation involved 2,901 arrests during an operation that lasted seven days and was spread across all 50 states, Puerto Rico and the U.S. Virgin Islands. In Florida alone, 272 arrests were made with 56 coming in Miami-Dade County and 41 in Broward County.

The unusual thing about the latest ICE operation is that all of the individuals detained had prior criminal convictions. According to experts, immigration is changing its policy in that the department is seeking to detain and deport immigrants with criminal records and not undocumented immigrants lacking criminal records. Immigrants lacking criminal records are to be considered low priority cases, not necessarily subject to deportation. There are three categories of immigrants that now have high-priority for deportation: those with criminal records, those that are arrested crossing the border, and those have been previously deported and have returned.

This ICE operation specifically targeted individuals with prior criminal records. Of the 2,901 immigrants detained, more than 1,000 are considered to be highly dangerous criminals, while 42 were documented gang members and 151 are sexual offenders. Many of those detained had criminal convictions for murder, attempted murder, kidnapping, armed burglary, drug trafficking, aggravated child abuse, sexual offenses, aggravated assault and aggravated battery. Beside being detained for criminal records, some of the immigrants were arrested on additional charges for failing to abide by deportation orders or returning to the country after having been previously deported.

Loved ones who have family members in custody typically seek out immigration attorneys to assist in these legal proceedings. Often times, immigration lawyers have their hands tied in attempting to free someone from immigration custody. In most circumstances, the only way to circumvent deportation is by returning to criminal court and filing a motion for post-conviction relief. While the United States Supreme Court has recently handed down precedent allowing for relief when a defendant received affirmative mis-advice regarding the immigration consequences of taking a plea to particular charges. Even simple offense such as cocaine possession or possession of marijuana can allow for deportation. While the case handed down by the Supreme Court is helpful, Florida District Courts of Appeal have severely limited the circumstances when someone is entitled to vacate a plea. Unless the Florida Supreme Court reigns in the appellate courts, winning motions to vacate will be an uphill battle. Despite the current state of the law, experienced criminal defense lawyers can still win motions to vacate sentences. Most of the success will be garnered by unconventional means. In the end it does not matter how a criminal record is vacated, but that is in fact vacated.

ICE Detains Nearly 3,000 with Criminal Records, Miami Herald.com, September 28, 2011.

September 22, 2011

Florida Legislature Reacts To Anthony Trial

As usual, the Florida legislature always reacts to high-profile criminal law cases. After a jury acquitted Casey Anthony, the public became outraged that such a villainous defendant could walk free. The result, state politicians have submitted multiple bills seeking to modify Florida's child neglect laws already on the books trying to fill the gaps in the state statutes. Miami criminal defense attorneys are familiar with the current child neglect and child abuse laws as they have not been significantly modified over te past decade. The legislature wants to specifically create a statute that makes it a crime for failing to report a child missing. While Anthony was acquitted, proponents of the legislature believe such a statute would have led to her conviction.

Opponents of the new legislature believe that the creation of news laws also create unintended affects. Florida along with the rest of the states do not have a statute which makes it illegal to fail to report a missing child. Eight bills have been filed in Florida and 25 other states are considering similar legislation. A Republican senator told the Select Committee on Protecting Florida's Children that the Florida laws on child neglect already cover such a scenario. Florida's current child neglect statute already provides for a crime where a defendant fails to care for a child's physical and mental health. Prosecutors did not charge Anthony with any form of child neglect for failing to report her child missing.

Florida has seen the unintended consequences of laws passed by the legislation as a result of high-profile cases. In 2005, following the murder of a 9 year-old girl named Jennifer Lunsford, legislators passed news laws in an effort to crack down on sex offenders convicted of crimes such as sexual battery and lewd and lascivious conduct. The initial laws were passed, but had to be changed as sexual offenders and sexual predators found their only refuge under the Julia Tuttle Causeway. After much media attention, the laws were modified and public housing was provided for sexual offenders who could not find places to live. No one knows what the unintended consequences would be if the child neglect laws are modified, but many legislators are convinced that Anthony would still be behind bars if a failure to report a missing child law was passed.

Child neglect and child abuse are currently felonies under Florida Law. To prove he offense of child neglect, the state has to prove that defendant wilfully or by culpable negligence failed or omitted to provide a child with care supervision and services necessary to maintain the child's physical or mental health. Failing to report a missing child certainly seems to fit within the statutes purview. While a parent failing to report a missing child is an uncommon event, the legislation should hold off on passing news and unnecessary legislature until a case can be prosecuted on the laws as they stand. Adding unneeded statutes to the books in response to a high-profile media case seems to be an overreaction, while it is quite apparent that legislators have bigger problems to correct to improve the State of Florida.

Passage of a "Caylee law" No Sure Thing in Florida Senate, Palm Beach Post.com, September 19, 2011.

September 15, 2011

Motions to Dismiss Drug Charges Denied Across the State

Criminal defense attorneys across the State of Florida have been peppering the courts with motions to dismiss drug cases from simple possession to drug trafficking. To date, only one judge out of Miami-Dade County has granted motions to dismiss drug cases based on an obscure ruling out of the federal court in the Middle District of Florida. While the Miami judge was one of the first to rule on the motion, other judges across the state have failed to follow suit. The latest order denying motions to dismiss based on the unconstitutionality of the state drug laws comes out of Panama City, Florida. Defendants charged with drug offenses have had their lawyers running to the court houses to file these motions. Again, the media twisted facts and led the general public to believe that drug cases throughout the state would be thrown out of court. This could not be further from the truth.

The story began with a federal judge in the Middle District of Florida that ruled that Florida's Drug Abuse Prevention and Control act was unconstitutional. Soon thereafter, a Miami judge handed down an order dismissing drug cases in his courtroom consistent with the federal court ruling. Since that time, every other judge in Miami, as well as, judges from Broward and Palm Beach Counties have routinely denied these motions to dismiss. Judges on the west coast of Florida up through panhandle have all denied these motions. On September 13, 2011, a circuit court judge from Panama City denied a motion to dismiss a drug trafficking case based on the same grounds. In a nutshell, the judge's ruling indicated that he was concerned about the state's drug laws, but his ruling fell back on an earlier decision issued by the First District Court of Appeal.

In 2002, the State of Florida re-wrote its drug laws and promulgated a new version of the Drug Abuse Prevention and Control Act in response a ruling issued by the Supreme Court of the State of Florida in a drug conviction was overturned. The new law allowed an individual to be charged and convicted of a drug offense even though a person did not intend to possess drugs or were not even aware of their presence. Florida is the only state where a conviction for a drug offense can be legally sustained without proof of one's intent to possess controlled substances. The current state of law allows for jurors to presume that a defendant was aware of the presence of illicit substance and shifted the burden of proof to the defendant to convince a jury that he or she was not aware of the illegality of the substance or its presence. That is the crux of the argument in all of the motions to dismiss. Defendants should not be compelled to testify or present evidence in a case with the sole burden resting on the prosecution.

The federal judge that found the state statute unconstitutional ruled that holding someone presumptively guilty violated the basic fundamentals of the Constitution. The circuit court in Miami followed suit and dismissed 39 cases. After that, every other judge has upheld the state statute, leaving the decision to the appellate courts, with the ultimate decision likely residing with the Supreme Court of Florida. The issue may find its way all the to the Supreme Court of the United States. With all that being said, anyone charged with a drug related offense should believe the media hype or veiled promises from some lawyers. The chances of having a motion to dismiss a drug offense based on the grounds is slim to none. However, experienced criminal defense lawyers should eventually file these motions in all cases to preserve a defendant's appellate rights.

Judge Denies Motion to Dismiss Drug Charges, The Walton Sun.com, September 14, 2011.

September 8, 2011

Dozens Arrested in Medicare Fraud Case

Federal law enforcement authorities arrested 42 people alleged to have committed Medicare fraud throughout three counties in the South Florida area. Among those arrested were the owners of the Biscayne Milieu Health Center, a psychiatrist from Broward County, along with patient recruiters and assisted living facility landlords. Other defendants arrested in the case and accused of the fraud include home healthcare operators, HIV clinics owners and operators and medical equipment suppliers. In total, the purported criminal enterprise billed Medicare in excess of $160 million for medical services that were not necessary or in some instances never even provided to patients. Medicare paid out approximately $90 million. Broward and Miami criminal defense lawyers, either appointed by the court or privately retained will represent the defendants in the case.

According to government officials, this alleged Medicare fraud scheme was a bit different from those seen in the past. It is alleged that recruiters lured out-of-state patients to the South Florida and Miami area with the promise of giving them housing and a fresh start. Instead, the patients brought their Medicare cards with them and were placed in substandard assisted living facilities. The patients were also directed to attend mental health programs and group therapy sessions which would also be billed to Medicare. If the patients refused treatment they were kicked out of the ALF's and forced to live on the street.

The federal government continues to vigorously investigate and prosecute Medicare fraud cases in cities such as Miami, Brooklyn, Detroit and Los Angeles. Forty million people a year claim benefits, but the program has suffered billions of dollars in losses as a result of fraud, waste and abuse. With politicians and the federal government under the gun for losses incurred in the federal healthcare system, a new computer software program was initiated with the hope that the losses could be curtailed. The new program is said to be a proactive approach to defeating fraud, however, investigators claim the program is inadequate and that the federal government will continue to combat fraud after it has been committed.

Anyone being investigated for or having been arrested on these types of fraud charges must seek out legal counsel as soon as possible. Defendants charged in healthcare schemes to defraud are facing significant terms of incarceration because of the amount of losses suffered by Medicare. While fraud is a relatively low offense under the federal sentencing guidelines, the offense becomes much more severe when the losses accrue in excess of a million dollars. Owners and operators of clinics involved in illegal billing are also subject to multi-level increases if it determined that they were the leaders of organizers of the fraud. In any event, the feds continue to investigate and hunt down all those alleged to be involved in these types of criminal enterprises.

Medicare Fraud Case Nets Dozens of Arrest, Miami Herald.com, September 7, 2011.

August 31, 2011

Multiple Doctors Arrested on Oxycodone Charges

Federal authorities arrested 13 doctors that were involved in the operation of illegal pill mills. After completing a three year investigation dubbed "Operation Oxy Alley", 32 people have been indicted for their involvement in oxycodone trafficking. The investigation targeted owners, operators and doctors from the four largest pain clinics in the country. All of the arrests occurred in Palm Beach and Broward Counties, however, some of the defendants will likely retain Miami criminal defense attorneys. The defendants ages range from 25 to 76 and were charged with crimes including racketeering, money laundering and possession with intent to distribute controlled substances.

The are first oxycodone cases prosecuted b y the federal government where the defendants are being charged with racketeering. The indictment includes allegations that the defendants were involved with pill mills that handed out over 20 million pills and in turn made $40 million from the illegal sales of controlled substances. According to the FBI special agent in charge of the investigation, "As a result of today's takedown, we have dismantled the nation's largest organization that was illegally distributing pain killers and steroids." The is the first federal case where doctors, health clinics and suppliers have been indicted. It definitely shows that the focus has shifted from individuals possessing oxycodone to the individuals and entities that are distributing the highly addictive narcotics.

In a side note, one of the doctors has been charged with first degree murder in Palm Beach County in a case where a West Palm Beach man dies within hours of receiving pain killers from a clinic. Federal authorities are making a committed to shutting down the clinics that illegally distribute oxycodone. They are calling the problem an epidemic after the Florida Medical examiner released a report indicating that 2,710 people dies in 2010 by taking illegally prescribed pain killers. That figure was up 8% from 2009. The report also indicated that Florida is responsible for the distribution of 85% of the oxycodone sold in the country.

South Florida has become the focus of the oxycodone problem as individuals from all over the country travel to obtain the illegal substance. Some people are addicts while other travel here to get the pills cheap and return to their states to sell the drugs for a large profit. Drug trafficking in oxycodone carries steep penalties in state and federal court. Anyone caught with in excess of 28 gram of the substance faces a 25 year minimum mandatory sentence. The current campaign against the offense is now focused in clinic owners and doctors. Anyone involved with these types of clinics must know that the focus is now against clinic owners and doctors from Palm beach County to Miami.

Investigators Charge 13 Doctors in Pill Mill Crimes - and One with Murder, Miami Herald.com, August 24, 2011.

August 22, 2011

Florida's Drug Laws at Risk

A long road lies ahead for defendants charged with drug crimes, as well as, for prosecutors who are trying to keep their cases from unraveling. Recent decisions from the federal and state benches have put all drug cases under the proverbial microscope. A federal judge out of Orlando was the first to declare that Florida's drug laws are unconstitutional as they violate the 14th Amendment of the Constitution. While courts across the state are still undecided how to handle the matter, one state court judge has followed suit. Two other state court judges and one federal court judge have declined to throw out or dismiss cases in their courtrooms. As a matter of course, all Miami criminal defense attorneys should file motions to dismiss or motion to vacate previously entered pleas to all drug cases from simple possession to drug trafficking.

While it is unknown how many judges will toss the drug cases in their courtroom, motions should be filed on behalf of clients charged with drug offenses. The problem with the current state of the law can be traced back to 2002 when the Florida legislature repealed the knowledge requirement in dealing with drug cases. Florida is the only state that has done away with the knowledge requirement for narcotics offenses. In criminal cases, the prosecution has the obligation to prove that a defendant acted with criminal intent. Defense lawyers are currently arguing that the current law which fails to provide that knowledge is a key element in any offense is a violation of an individual's due process rights. As such, the facts of any particular drug case are irrelevant as the current conflict strikes at the heart of law as it currently stands on the books.

In the upcoming weeks and months, motions to dismiss open cases or motions to vacate previously closed cases will be granted and denied. Some judges will grant motions, while others will deny them which pretty much leaves defendants with the luck of the draw. Eventually the issue will be heard in the appellate courts as prosecutors and defendants file appeals depending on which side was victorious in their endeavor. At this point it is unclear which appellate court will render the final verdict. Appeals will be taken the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals and even to the Supreme Court of the United States. It is important to remember that any current victories in drug cases could be overturned putting a defendant in the same position he or she was in prior to winning the dismissal.

Statistics kept by the Florida Department of Corrections show that 94,000 individuals are currently serving prison sentences for a variety of drug crimes. While recent rulings are not going to result in prisoners being released at this time, the recent rulings are definitely a concern for prosecutors across the state. As judges come forward and begin dismissing cases, state attorneys' offices across the state will file their appeals. It is not clear whether judges will hold their orders in abeyance while waiting for higher court to rule. Because this is a matter of great importance, the appellate courts will probably rule sooner than later. In the meantime, courts will be flooded with motions further clogging the courts' dockets. Ultimately, if the laws are struck down, a little chaos will ensue as attorneys rush to file their motions.

Rulings Muddle Florida Drug Law, The Wall Street Journal, August 22, 2011.

August 15, 2011

Drug Crime Laws Declared Unconstitutional by Federal Judge

The South Florida criminal justice system is replete with defendants charged with narcotics crimes from simple drug possession to drug trafficking. Criminal attorneys across the state including Miami criminal defense lawyers are seeking to have drug possession and drug trafficking cases thrown out of court. In Miami, three judges have ruled on the matter with two disagreeing with the federal ruling, while a third is following suit. Florida, a state where drug-related crimes constitute nearly half of all criminal convictions, is likely to experience massive turmoil in its court system after a district court's ruling in Shelton v. Department of Corrections. After Judge Mary Scriven called Florida's drug statute "draconian," and declared some of the state drug laws unconstitutional, state courts have been buried with motions from lawyers looking to dismiss their client's drug related charges.

Under Florida law, prosecutors are not required to prove that a defendant has any knowledge of drugs on their person. In fact, Florida is the only state to do away with this aspect of a drug conviction. The knowledge requirement was removed nine years ago by the Florida Legislature, claiming that it was simply too burdensome on the prosecution to prove something as nebulous as "knowledge" of drugs. Judge Scriven notes that this reasoning makes an individual that unwittingly has cocaine hidden in their backpack just as guilty as a bona-fide drug trafficker. In her Shelton ruling, Judge Scriven argued that due to the heavy sanctions in place for drug traffickers (anywhere from 3-25 years in prison plus large fines), doing away with the knowledge requirement was a violation of a defendant's right to due process. For example cocaine trafficking can carry a 15 year prison sentence while trafficking in oxycodone can carry a 25 year prison sentence.

Despite her ruling, this legal drama is far from resolved. Palm Beach lawyer Nellie King, president of the Florida Association of Criminal Defense Lawyers points out that the "State Attorneys' Offices are going to argue that her decision is not binding, and they're correct. But her decision is right, so our job is going to be getting state courts to agree that Florida has been going about things the wrong way." Indeed, state court judges are not legally bound by the opinion of a district court judge. Two Circuit Judges in Miami-Dade have refused to acknowledge the ruling; one Pensacola judge refused to dismiss any of the 17 drug cases brought before him. Miami-Dade Judge Jorge Cueto contends that Scriven's legal analysis is "flawed." Miami-Dade prosecutor Christine Zahralban notes that there is no knowledge requirement for age in cases of statutory rape, a crime that also carries heavy sentences - why should drug cases be any different?

Despite many Florida judges not agreeing with Scriven, Miami criminal defense attorneys have had some luck. Judge Milton Hirsch believes that Scriven's ruling is "absolutely binding" and allowed for the release of many defendants with drug charges. Defendants that have posted bail on cases in his division were all released on their own recognizance, meaning they no longer have any commitment to the bondmen who posted their bail. With over 1000 pending drug cases currently in South Florida courts, Floridians can probably expect to see a large number of charges dropped. However, even if Florida were to change its drug laws to conform to Scriven's ruling, it is unclear whether any convicts already serving prison terms would be affected.

Legal Drama Flares in Florida Drug-Law Case, Miami Herald.com, August 13, 2011.

August 11, 2011

Area Teen Arrested on Murder and Carjacking Charges

Local police officials have announced that they apprehended one of the individuals involved in a carjacking that resulted in the death of a young couple. The double murder occurred in Miami Gardens outside of an establishment called "Mobile Mart". Eric Ellington, 16 years of age, was arrested at his Hollywood home and made his first appearance last week in juvenile court. He was represented by at the hearing by a Miami criminal defense lawyer from the public defender's office, but has since retained private counsel. In non-violent cases, juvenile defendants are either released on their own recognizance or released to their parents. In violent cases, the juvenile justice system can hold a defendant for only 21 days.

The state attorney's office can circumvent the 21 day holding period by binding a defendant over to adult circuit court. In adult court, a defendant can be held indefinitely if he or she is charged with a life felony or a first degree felony punishable by life in prison. In this case, the defendant has been charged with attempted carjacking and second degree murder. The defendant will be held no bond on the murder charge unless the attorney representing the defendant is victorious at an Arthur hearing or can get the state to agree to some sort of bond. Based on the charge, the latter will most likely not occur.

Prevailing at an Arthur hearing will depend on the strength of the evidence. The state has the burden of proving "proof evident, presumption great". If the state meets that burden, they will then have to prove to the judge that the defendant is a flight risk or a danger to the community. Considering the nature of the allegations, the state should have no difficulty in demonstrating the latter. If the state cannot establish "proof evident, presumption great", the judge will set a monetary bond and most likely require the defendant to house arrest with a monitor during the pendency of the case.

According to police reports, the enter incident was captured on video surveillance at the gas station. The defendant allegedly jumped out of an SUV and approached the victims. He allegedly pulled the driver out of his car and shot him. Another passenger from the SUV pulled the passenger out of the vehicle and shot her. Police believe there were two other persons in the SUV at the time of the murders. Police reported that they have other suspects and are continuing the investigation, but have only made one arrest to date. If the surveillance video is clear and the defendant made admissions to the arresting officers, it may be time for him to consider providing information as to the other suspects involved in the crime and where they may be located. If the defendant is able to assist authorities in locating the other suspects, he may be able reduce the possible life sentence he is currently facing.

Teen Arrested in Couple's Carjacking Death, NBC Miami.com, August 3, 2011.

August 5, 2011

Child Pornography Charges Could Be Dismissed

A former local elementary school teacher is currently facing child pornography charges in circuit court. Possession of child pornography is normally a third degree felony punishable up to five years in prison. A defendant can be charged with one count of every image in his or her possession. This case is interesting in that the Miami criminal attorney representing the defendant has filed a motion to dismiss the charges. The basis of the motion is that the defendant never downloaded or printed any of the illegal images. Court documents indicate that the defendant is accused of viewing child pornography from a computer located at the University of Miami computer lab.

It is very difficult to charge someone for viewing child pornography on a computer. Even though law enforcement can seize a computer through the use of search warrant and search the hard drive or internet memory for illegal images, prosecutors still have to prove that the defendant had knowledge that the images were present and that the images were actually downloaded by the defendant. Generally, prosecutors need the defendant to provide a statement to the police admitting to the illegal conduct. Anyone investigated for possession of child pornography should seek out assistance from qualified criminal lawyer prior to having contact with law enforcement authorities. If an arrest occurs prior to hiring an attorney remember to invoke your right to remain silent as it is in your best interests.

The authorities in this case are not relying on a statement provided by the teacher, but rather the assistance provided by one of the lab technicians. After drawing suspicion, the lab technician used a computer program to view what the defendant was viewing. She observed the defendant conducting searches for underage topless girls and other lewd photographs. The technician notified her supervisor who in turn contacted the Coral Gables Police Department. The detectives then set up surveillance cameras which captured the defendant looking at the child porn websites. Detectives also followed the defendant to shopping centers and supermarkets on Key Biscayne where is was feared that he was looking for underage girls. That part of the investigation turned up nothing and he was never charged for anything other than the child pornography at the computer lab.

The defense lawyer representing the defendant has filed a motion to dismiss based on the rationale that merely viewing images at the time when the defendant was arrested was not a crime because he never printed or downloaded any images. The argument is based on the fact that the Florida legislature only this year made it illegal to merely view child porn. The prosecution claims that the behavior was in fact criminal because the defendant had control over the images. The motion is set to be heard later in the month. The defendant is currently charged with 8 counts of possession of child pornography. If the defendant's attorney is successful all the charges will be dismissed. If unsuccessful, the defendant is facing up to forty years and may have to consider a plea bargain to avoid any jail time.

Miami-Dade Man Challenges Child Porn Arrest on Passage of New Law, Miami Herald.com, July 31, 2011.

July 27, 2011

Former Trafficker Charged with Medicare Fraud

A South Florida man previously convicted of cocaine trafficking and money laundering has been charged with committing Medicare fraud. The indictment alleges that Luis Alejandro Sanz, who had previously served a five year prison sentence, opened a healthcare clinic to purportedly treat diabetes patients. Court documents allege that he billed the federal healthcare provider $11 million of which he actually received $7 million. Because of his past criminal record, Sanz enrolled his wife as the sole proprietor of the clinic to avoid detection. Both defendants are scheduled to appear in court with their Miami criminal attorneys this week for their arraignment.

Earlier in the week Sanz and his wife were indicted on charges of healthcare fraud, money laundering and for paying kickbacks. The clinic operated from 2006 to 2009 obtaining clients through the use of patient recruiters. This is not the first instance where previously convicted felons have turned to healthcare fraud. Despite the law that precludes individuals with prior felony convictions from being Medicare providers, several have slipped through the cracks. While it is almost impossible for the federal healthcare agency to detect who put the money up to start and run the clinic, the Medicare program has dumped millions of dollars into its security system in an effort to prevent millions of dollars of fraud from occurring.

Congress awarded Medicare $350 million in the Affordable Care Act to develop software which allows for stricter screening of Medicare claims. Previously, Medicare used the "pay and chase" method for combating fraud. While many prosecutions and convictions resulted from this approach, the federal government could not recoup the money after the scams had already been completed. The new software being used by the healthcare program along with stricter screening for healthcare providers is intended to prevent the fraud and save the taxpayers millions of dollars. Time will tell if the new initiative will be more effective in combating fraud than its predecessor.
The upgrades in fraud prevention come as a result of millions of dollars in losses to the federal government. It is well documented that the majority of fraud is an was committed in Miami and throughout the South Florida area. Along with the fraud detection upgrades, the Medicare fraud task forces across the country are working in concert and sharing information.

While Medicare fraud itself is not a serious offense as far as punishment is concerned under the federal sentencing guidelines, the risk lies in the multi-level increases that are directly correlated to the amount of the loss suffered by Medicare. In South Florida, Defendants charged with Medicare fraud are facing 24 to 48 months if they enter guilty pleas and cooperate with government prosecutors and investigators. Defendant who go to trial and are convicted by a jury are looking anywhere form 10 to 20 years depending on their involvement in the fraud. At the present time, individuals charged with Medicare fraud are in the cross hairs of the United States Attorneys Office. Any charged with or being investigated for healthcare fraud, should retain a criminal lawyer with experience in defending these types of cases in federal court.

Former Miami Drug Trafficker Now an Accused Medicare Scammer, Miami Herald.com, July 27, 2011.

July 22, 2011

Murder Trial Begins for Coral Gables Student

A former Coral Gables student is standing trial for his alleged role in the stabbing death of a fellow student. The murder trial stems from an incident that occurred at Coral Gables High School. In opening statements, the prosecution portrayed the defendant as a jealous and angry young man, while the Miami criminal defense lawyer representing the defendant portrayed his client as a young man acting in self-defense and was simply protecting himself. On September 15, 2009, the defendant purportedly stabbed the victim during a fight over a girl. Although the confrontation lasted only a minute, the defendant stabbed the victim five times, one of thrusts struck the heart and killed the victim.

The defendant is charged with second degree murder with a deadly weapon and could face life in prison if convicted by the jury. Based on the opening statements, the defense seems to intend to rely on self-defense in the case. The defense claims that defendant was on the ground being choked by the victim when the defendant struck back with the knife. The defense went further to say that the choking was so violent that the defendant could not breathe and lashed out to save himself. Apparently, the defendant had marks on his neck, thereby corroborating the defense's theory of the case. The defense lawyers should introduce photos of the injuries during the case to solidify their case.

At the close of the evidence and after each side has completed their closing statements, the jurors will deliberate and have to decide whether the defendants was justified in using deadly force. There is a standard jury instruction that the judge will read to the jurors regarding this defense. The law allows for a defendant to use deadly force if a defendant reasonable believes that the force is necessary to prevent death or great bodily harm. The jurors will have to determine whether the circumstances in which the defendant found himself surrounded by justified the use of deadly force. The appearance of danger must have been so real that any reasonably cautious and prudent person under the same circumstances would have believed deadly force was necessary to avoid the danger.

The jurors will have to consider all of the evidence provided at trial to determine if the defendant's claim of self-defense will entitle him to a not guilty verdict. The jurors must consider physical, as well as testimonial evidence prior to coming to their decision. The testimonial evidence will come from people who were around when the incident occurred. The physical evidence that will be compelling in the case will be the video recording from the school surveillance system. The strength of video either for the defense or the prosecution will depend on the clarity of video and what it depicts. The jurors will review the video several times and then discuss what each one thinks about its contents before determining the guilt or innocence of the defendant. If the jurors cannot come to a unanimous decision, it could result in a hung jury, eventually requiring a new trial down the road. The trial is supposed to last approximately two weeks.

Prosecutor: Coral Gables High Teen Let Jealousy, Anger Lead to Murder, Orlando Sentinal.com, July 22, 2011.

July 14, 2011

Marijuana Possession Legal on South Beach?

Not yet, but advocates are pushing to decriminalize marijuana possession on the beach. More than a dozen people pushing for the new law arrived at city hall on Miami Beach with a petition that contained more than 9,000 signatures supporting the change. The new law would decriminalize marijuana possession of less than 20 grams and merely make it a civil fine. As it stands, people arrested for marijuana possession face a first degree misdemeanor charge punishable up to a year in jail. While it is not the most serious offense on the books, people arrested for this crime generally hire a Miami criminal defense lawyer to defend the charge. Typically in Miami, prosecutors offer pre-trial diversion of a withhold of adjudication and court costs.

If a defendant charged with marijuana possession has no criminal record, prosecutors will likely offer pre-trial diversion. A defendant will be required to pay a $250 fee to enroll in the program and then be required to complete a drug course. While the conditions are not onerous, defendants are only afforded to enter the program once. That is why it is recommended to fight the case and seek an outright nolle pros or dismissal of the charges. Although not recommended, the easiest way to dispose of the charge is to take a plea to a withhold and court costs, but that will leave someone with a criminal record and possible immigration consequences. If 4,300 signatures are verified and the city attorney and city commission find that the new ordinance is constitutional, the police will only be permitted to issue $100 fines and no longer be permitted to make arrests.

The new law does not appear imminent and there are many hurdles before it is passed. For now, the Miami Beach city attorney is of the opinion that the ordinance is probably not constitutional. In the event the ordinance is declared constitutional, the bill still has to be placed on a ballot and voted into law. In the event that occurs, Miami Beach would be the first city in the State of Florida to decriminalize marijuana possession. The move to change the law is being driven by the Committee for Sensible Marijuana Policy. The group has been pushing for the change since 2010. Proponents of the change claim that the new law would save millions for the city. They claim that Philadelphia passed a similar ordinance and saved $2 million the first year the change was in effect.

In the event the law is passed, all other laws involving marijuana will remain on the books. Felony marijuana possession more than 20 grams or marijuana trafficking offenses will continue to be charged and prosecuted. While felony possession cases are easily defended, trafficking cases are more difficult as a three year minimum mandatory sentence attaches. In either case, anyone arrested for any marijuana charge should seek out a qualified defense firm to defend the case. Even if time served or probation is offered, defendants must be aware that accepting pleas of this nature will subject one to deportation in the event they are not a U.S. citizens. Residents could also lose their green cards by accepting pleas for these charges.

Pot-Referendum Bid Put Off, Miami Herald July 7, 2011.

July 11, 2011

Feds Launch Medicare Anti-Fraud System

Federal officials finally launched the long awaited computer system to combat Medicare fraud. South Florida has been declared "ground zero" for Medicare fraud. A federal task force operating out of Miramar, Florida was the first to use the new program. For the last couple of years, the federal government has spent large sums of money and man hours to combat the crime. Numerous defendants have been sentenced to multi-year prison terms despite the efforts of the Miami criminal defense lawyers representing them. While in the past, the system used to detect and prosecute Medicare fraud has been mainly reactive, the new computer system definitely reflects a more pro-active approach to fighting the offense. While the use of the program began in South Florida, the system is being used nationwide to prevent the theft of millions of dollars from the federal healthcare program.

The new federal system is called "predictive modeling" and is designed to examine millions of Medicare claims filed on a daily basis. The program looks for suspicious claims to prevent fraudsters from using recruited patients or in the alternative using stolen Medicare identification numbers. According to Peter Budetti, the man leading the initiative, the new system will help identify similar scams occurring across the country. The new anti-fraud system is being used by all Medicare fraud task forces, some of which are set up in Miami, Detroit, Houston and Los Angeles. With all that being said, the federal government will continue to apply pressure to all those involved in healthcare schemes to defraud.

Federal investigators, last month, charged 21 defendants accused of stealing $21 million from the federal government. Six of the defendants are from the Miami area while the remainder were operating out of Michigan. Over the past year, South Florida prosecutors have charged in excess of 102 defendants with billing the federal government $441 million in fraudulent claims. Since 2007, the Medicare strike forces have been involved in the arrest in excess of 1,000 individuals responsible for filing $2.3 billion in fraudulent claims. South Florida led the way with $1.85 billion in fake claims. While it is not clear how much has been lost to fraud, estimates have reached as high as $60 billion. The new system of detection is designed to prevent the fraud from occurring while the old system was used to detect it after the fraud had already been committed.

Being investigated for or charged with Medicare fraud is a serious matter. The federal sentencing guidelines take into consideration the amount of loss in determining a potential sentence. The offense of fraud itself is only a level 6 offense. The problems lie with the multi-level increases that occur when substantial losses to federal healthcare system occurred. The cases prosecuted by the federal government are complex and indictments usually contain dozens of defendants. The defense of these types of cases should not be taken lightly and only qualified defense attorneys with experience in the arena should be retained to represent clients charged with this offense.

Medicare Anti-Fraud System Launched, Orlando Sentinal.com, July 11, 2011.


July 5, 2011

Bail Skippers Not Pursued

The majority of defendants arrested are entitled to post a bond to secure their release from custody. The procedure for posting bonds in the state court system can be accomplished in two ways. First, a defendant can pay the entire amount of the bond to the clerk of courts and then be released from custody. The most common approach to posting bail is by hiring a bondsman. A defendant will be required to provide the bondsman with 10% of the value of the bond and in many instances provide collateral for the difference. If money is not an issue, Miami criminal defense lawyers suggest posting the entire amount of the bond. Upon the conclusion of the case, the defendant is entitled to the return of the full amount of the bond. When using a bondsman, the 10% premium will not be returned.

While the majority of defendant charged with a crime appear in court to face the charges, a minority of defendants flee the jurisdiction with the hope that they can avoid prosecution. A defendant is who posts a cash bond and flees the jurisdiction is relatively safe from prosecution. Upon failing to appear for court, a judge will issue an alias capias or arrest warrant for the defendant. Unless the case is high-profile, there is little chance that the authorities will seek out the absentee defendant. In most instances, the case and the warrant will remain open unless a defendant tries to re-enter the country and is picked up by the customs authorities. In other instances, defendants are picked up on other cases in other jurisdictions for cases as minor as speeding tickets. In this cases, defendants will be arrested and returned to face criminal charges. Defendants who absent themselves from the court proceedings have a more tenuous situation when a bondsman is involved in the bail process.

In cases where a bondsman is used to post bail, and a defendant fails to appear in court, the bondsman is left in a precarious situation. Although he bondsman has received the 10% premium, he or she is on the hook for the difference in the bond. In simple terms, a bondsman will actively seek out a defendant who misses court as there is significant money to be lost if the defendant is not returned to face charges. Bondsman are more successful if a defendant remains local, but have a difficult time if a defendant leaves the country. To return a defendant to the United States to face charges, an extradition process mut followed. To the dismay of bondsman, counties are not willing to spend the time or money to extradite defendants back to court of original jurisdiction. Even though bondsman are able to track down defendants outside of the United States, the local prosecutors' offices are not willing to expend the time, energy or expense to get the defendants back to face charges.

While in most instances it is better to face charges with assistance of a good criminal attorney, a defendant who flees the country can be relatively at ease that they will not be extradicted back to the country to face charges. Prosecutors claim on the record that they avail themselves of the extradition process. However, they are aware of the difficulties in retrieving defendants to face charges. Prosecutors from all over the state will admit, that even though the proper extradition paperwork is filed, they have little power to make the process work. While it is never recommended to abscond from criminal charges, the safest way to avoid prosecution is to leave the country. Remember, once that decision has been made, any return to the United States will likely result in being arrested by customs authorities at airports or ports.

Pursuit Rare for Bail Fugitives Who Skip the Country, Florida Center for Investigative Reporting, July 5, 2011.

June 28, 2011

Local Doctor Sentenced to 20 Years for Medicare Fraud

A federal judge sentenced a doctor to 20 years in prison for his involvement in a Medicare fraud scheme that cost the federal healthcare system millions of dollars. The defendant appeared with his Miami criminal attorney and attempted to avert a lengthy prison term by arguing that his client should not die in prison and that he suffers from a heart condition and diabetes. The federal court judge presiding over the sentencing hearing felt little sympathy for the defendant. On the record, the judge chastised him for violating his medical oath, billing the Medicare system and disgracing himself, his family and the community. The defendant was found guilty of charges involving his receipt in excess of a million dollars for writing fake prescriptions with the intent to defraud Medicare. The jury found that the doctor was involved in billing Medicare for HIV treatments that were unnecessary or never provided to patients.

The sentence handed down was the second harshest ever involving a medical doctor convicted of being involved in healthcare fraud. A Miami-Dade physician was charged with a similar Medicare fraud in 2008 and was sentenced to 30 years in prison. That sentence was upheld last year in appellate court with a former United States Supreme Court Justice sitting as a guest judge. She declared, "a doctor should be treated more severely than other participants because the doctor is breaching a position of trust and an ethical obligation to put the patient's interests first." The judge hearing the case yesterday repeated ths same sentiments. The defendant helped operate the scheme using two clinics to bill Medicare. The owner of one of the clinics suffered a far less fate as she cooperated with the government to prosecute other perpetrators.

In federal court, defendants that cooperate with government receive significantly reduced prison sentences than those who go to trial and are convicted by a jury. While cooperating with the government against people you know and used to work with is definitely a difficult situation, it is far better than receiving a double digit prison sentence. Every defendant in federal court should seek qualified representation before deciding to accept or reject a plea. While this decision is always difficult, the case and the evidence supporting it must be critically analyzed to support this decision. The benefit of accepting a plea results in significant level reductions under the sentencing guidelines and of course the benefit of a large sentence reduction that comes with a 5K supported by federal prosecutors.

Federal prosecutors continue to focus on Medicare fraud cases involving HIV treatments, as clinics, mostly in the Miami-Dade area, have billed in excess of $2.2 billion worth of infusion bills. Clinics in the South Florida are have billed for 72% of all HIV Medicare claims despite the fact that only 8% of the population with HIV reside in the same area. While the defense lawyer representing the doctor attempted to appeal to the softer side of the judge, government prosecutors convinced her that the defendant deserved no sympathy and should be sentenced to 30 years in prison. Both the government and the judge focused on the fact that the defendant was a doctor and should be sentenced accordingly for this breach of trust.

Medicare Fraud Nets 20-Year Prison Sentence for Miami Physician, Miami Herald.com, June 27, 2011.