Articles Posted in Florida Criminal Defense

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IMG_6709-2-194x300DRUG BUSTS

100 ‘most asked ‘ questions

WHAT IS TRAFFICKING?

Possession with the intent to sell or deliver any illegal drug (usually more than a personal use amount) or controlled substance is trafficking.

It commonly is understood to mean you have enough of the ‘stuff’ to be “in the business”, and a transfer to someone.   But, depending on what it is, and where you live, you can be a trafficker by giving away one pill.

Trafficking begins at 5 grams for federal law.  Some States: 28 grams.

If you knowingly sell, buy, deliver (giving away a pill is a delivery) a controlled substance (anything illegal, anything that requires a prescription from a doctor), you can be convicted of trafficking.

Ever ‘borrow’ a sleeping pill?  Pain medication?  Give it to someone?    Re-read the definition of trafficking: you are a trafficker.   Scary stuff, huh?

 

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IMG_6709-2-194x300DRUG BUSTS

100 ‘most asked ‘ questions

WHAT IS CONSTRUCTIVE POSSESSION?

You can be charged with possession of a controlled substance under the constructive possession theory.

Constructive possession means that although the controlled substance is not on your person or within your immediate vicinity, the contraband is in a place over which you have control.

The state must prove: 1) control over the place 2) that you have actual knowledge it is there 3) that you can exercise dominion and exclude others from possession.

Constructive possession can be charged to one person or more than one person, if it can be proven that everyone had equal or shared possession, knowledge and control.

 

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IMG_6709-2-194x300DRUG BUSTS

100 ‘most asked ‘ questions

IS RESIDUE POSSESSION?

Yes.  Residue is possession.

In most state courts they don’t care if there is a trace amount, or a consumable amount of a controlled substance.

If it can be chemically identified as a controlled substance, or residue it is possession.

Ash is residue.

The film of smoke inside a pipe or bong is residue.

In most states you cannot be convicted of possession of a controlled substance if it is found in your body tissues or fluids.

Consuming a controlled substance, which often happens when someone is stopped by the police and tries to eat the drugs is charged as the crime of obstruction of justice, tampering with evidence, or resisting arrest.

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IMG_6709-2-194x300CRIMES

50 ‘most charged’ crimes defined

BATTERY

A battery is an unlawful touching.

The state must prove:

  • The defendant intentionally touched or struck the victim against his/her will.
  • A battery may become a felony when the touching causes serious bodily harm.

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us-supreme-court-300x225What Do I Do After I’m Arrested In Miami Florida?

This three-part series title: What Do I Do After I Am Arrested in Miami , is a complete run through of the criminal court processes from arrest through final disposition of a Miami criminal case.  This Article is Part Three of a Three Part Series that begins with the final disposition of your criminal case filed by the Miami State Attorney’s Office case.  Please also see parts two and three in this series regarding Miami Criminal Cases and processes.

Final Disposition of Your Case:

At some point, you will need to decide whether you want to resolve your case by agreement with the state, to ‘plead open’ to the mercy of the Court, or to proceed to trial.

To resolve your case by agreement with the State Attorney’s Office, your attorney and the Assistant State Attorney, assigned to prosecute your case, must come to a complete agreement regarding all of the terms of an agreement for all of your pending charges.  The court can accept or reject the terms of the agreement but cannot modify the terms without your advance consent.

If you decide to ‘plead open’ to the mercy of the Court after consulting with your attorney, the judge will decide what sentence will be imposed after considering your ‘Criminal Punishment Code Score Sheet’, which lists your offenses in severity and assigns points for those offenses.  If you decide to go to trial, you and your attorney should have some legal defense and be otherwise fully prepared.  The fact that the State’s case against you is very weak is a defense in itself.  Generally, if you do not have a defense that will present well in Court, you should consider another option.  There is nothing worse in your case than going to trial unprepared, with little or no defense.

Sentencing Issues and The Criminal Punishment Code:

The Criminal Punishment Code Score Sheet is like a report card that the judge reviews at the time of sentencing.  The score sheet tabulates a specific number of points per offense scored at the time of sentencing set by Florida statute in consideration of the severity of the offense or violation.  If your total combined score is less than or equal to 44 points, the judge can impose a non-state prison sanction which could mean, county jail time of one year or less, house arrest, probation, a fine, payment of Court costs, or even no punishment at all.  If total points are greater than 44 points, the Court will impose mandatory state prison time unless the Court finds both a legal reason to downward depart and is willing to downward depart from the minimum prison sentence set by the criminal punishment code.  A downward departure sentence is a sentence below the minimum permissible sentence based upon a legally permissible exception in sentencing laws.  The judge does not have to grant a bonafide downward departure motion and it is completely in the Court’s discretion to disregard it under the law.  Your attorney can assist you in deciding what course of action is best depending on your charges and other factors unique to your case.  No two cases are the same.

Hiring the Right Attorney:

Consulting with an attorney on your case gives you a chance to interview the attorney to determine if he or she is the right attorney to represent you in your case.  You should feel comfortable with the attorney that you hire and confident that he or she will work diligently in preparing the best defense possible for you.  You will know when you have found the right attorney for your case.  Make sure that you ask a lot of questions during your consultation and during the pendency of your case.  Your attorney cannot prepare a proper defense for you without your assistance.  You are the most valuable asset in the defense case.

This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting legal advice.  You should consult with your attorney to determine the best course of action to take on your case.  For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Defense Lawyer Ralph S. Behr.

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GovermentWhat Do I Do After I’m  Arrested  In Miami  Florida?

This three part series: What Do I Do After I Am Arrested in Miami, is a complete run through of the criminal court processes from arrest through final disposition of a Miami criminal case.  This Article is Part Two of a Three Part Series that begins with the Miami State Attorney’s Office case filing decision.  Please also see parts one and three.

Case  Filing  Decision:

The State Attorney’s Office will generally begin to review the case filing package on your case within 2-weeks after your arrest and make a filing decision within 21 days of your arrest, if you are in custody.  If you are not in custody, the filing decision generally takes about 30 days or longer.  Once the State files what is known as an ‘Information’ in your case, the Clerk’s Office will post your charges into the Clerk’s computer and you will be noticed with an Arraignment date.  You may also have changes to your bond on the same date, assuming there are added charges or changed charges, from the charges that you were originally arrested for by the police.  This is common because, the police do not  always arrest  you  for the identical offenses that your are ultimately charged  with by the State Attorney’s Office.

Pre-Filing Package:

Before your charges are filed, you have an opportunity to provide the case filing Assistant State Attorney with additional materials such as;  witness  statements, documents, recordings, and papers for his or her consideration in determining what, if any, charges should be filed against you by the state of  Florida.  I have represented thousands of clients pre-filing, which many times has gotten charges completely dropped. Oftentimes, supplemental materials filed by you will result in greatly reduced charges that are in  the process of being filed against you.  The pre-filing package represents the first line of defense in many cases.  If you do not file supplemental materials with the State Attorney’s Office,  the case  filing Assistant State Attorney will  rely solely upon the case filing package of materials received from the police department, and  may accept all allegations and statements contained in the police package as true.   This could result in  more serious charges  being  filed against you in the criminal Information.  Your defenses will rarely be set forth in the police reports used as the basis to arrest you.  It is unfortunate indeed  that  more defendants do not utilize the pre-filing package opportunity in an effort to have reduced charges filed.  I can assist you with these critical stages in your case.

The Defense Case:

After Arraignment in your case, you can  file a ‘notice of discovery’, which is an official  request for the state  to file a discovery response  listing  witnesses, papers, and other specific evidence upon which the state will  rely in attempting to prove it’s case against you.   You are entitled to take discovery depositions from all material state’s witnesses in the preparation of your defense.  The state will  also provide you with copies of all relevant papers in your case, which may include witness statements, lab  reports,  photos, crime scene reports, police reports, and  all other materials.  You may also list defense witnesses and use defense exhibits in your case, provided that you give notice of these witnesses and materials to the state in advance.  This is known as reciprocal discovery.

As your case progresses and as your attorney prepares your defense, pretrial motions may be filed on a variety of legal issues.  As a general rule, the harder your attorney works on your case- the better your ultimate disposition in the case will be.  Your attorney should examine the facts of your case and determine whether some or all of the charges filed against you can be dismissed and to file the appropriate defensive motions for dismissal.   The results achieved in every case differ depending on a variety of factors, such as the nature of the charges, your prior arrests, the strength of the state’s case, the strength of the defense case, the judge, and the Assistant State Attorney assigned to your case.  The prosecutor assigned to your case may change during the pendency of your case, which is quite common.  This could be a good thing or a bad thing. Being fully prepared for all possibilities is the key to a successful defense.

Part Three Of Three will discuss what happens next through disposition of a criminal case filed in Miami, Florida.

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This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting  legal  advice. You should consult with your attorney to determine the best course of action to take on  your  case. For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Defense Lawyer Ralph S. Behr.

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IMG_1145-300x212What Do I Do After I’m Arrested In Miami Florida?  Part One of Three Part Series.

This three part series: What Do I Do If I Am Arrested in Miami Florida,  is a complete run-through of the criminal court processes from arrest through final disposition of a Miami criminal case.

Part One Of Three:

You have been arrested in Miami (by a Florida  police officer or deputy sheriff), this starts the criminal court process. Bienvenidos a’ Miami!  I will lead you through the mine-fields after your arrest in South Florida, and there are many.

Posting A Bond:

In all cases, you are entitled to a reasonable set of pre-trial release conditions, or bond, unless it is a capital charge, or you are currently on pre-trial release in Florida or any other jurisdiction.  Generally, this requires that you post a bond with the court.  A bond is a binding agreement to pay, or deposit money to the court to assure the Court  that you will appear for your scheduled court dates.  This holds true regardless of whether you are arrested in Miami, Florida, or anywhere else in  Florida.  A bond is intended to assure your appearance in the case.  Your bond may either be a cash bond in smaller cases, or a surety bond in larger cases.  To post a surety bond you will need the assistance of a bondsman who will file a bond  with the court on your behalf, guaranteeing your appearance at all scheduled court dates.  The bond is a conditional release.  Therefore, if you are arrested for a subsequent offense while you are out on bond, your original bond may be revoked by the court without notice.  If you cannot afford to post the bond that is set by the court it may be necessary to request a bond reduction hearing with the court.  I can move the court on your behalf quickly for a bond reduction.  Depending on the severity of the allegations made against you, the court may also impose other conditions of your pre-trial release, which could include many other restrictive conditions, such as electronic monitoring.

Magistrate  Court:

Once  you  are  arrested,  you  are  entitled  to  a  magistrate  hearing  within 24 hours if you are still in custody for a determination of whether probable cause exists for your arrest.  I have represented thousands of clients in magistrate court.  Probable cause for an arrest are facts and circumstances, which would lead a reasonably prudent person to believe that a crime has been committed.  If no probable cause is found for your arrest, you can be released on your own recognizance.  In the majority of cases, probable cause is found by the magistrate judge and the bond amount is generally set by the Clerk of Courts, as a standard bond amount.  If your arrest stems from an arrest warrant (a court order by a judge commanding your arrest), the judge signing the arrest warrant will set the bond amount, which is typically higher than a standard bond amount for the same offense.

Tracking Your Case:

Within a day or two, the probable cause affidavit or initial arrest report on your case, will filter it’s way to the Clerk’s Office from the booking desk at the jail.  You will be assigned a case number and judge by random assignment.  This information  is normally viewable online at  the  Clerk Of  Court’s Website.  You can track certain information about your case, including court dates and case status from the same site once it is logged online.

Part Two Of Three we will discuss what happens during and after a criminal case filing decision is made by the Miami State Attorney’s Office.

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This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting  legal  advice.  You should consult  with your attorney to determine the best course of action to take on  your  case. For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Lawyer Ralph S. Behr.

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MxDnDcp7TuChwQ9W1RAkVQ_thumb_27e8-300x187Money Laundering in the High-End Super-Rich Luxury Home Market

In Miami and New York City, federal anti-money laundering agencies have launched a major effort to end buying high end housing with laundered money.  These are apartments in multi-million-dollar condominiums, waterfront high end homes in Palm Beach, Boca Raton, Los Angeles and D.C.  The Task Force is now operating full steam!  Take note that there are Federal Grand Juries actively investigating money laundering in New York and Florida.   Government money laundering federal prosecutors have begun a campaign to take down lawyers and real estate agents who facilitate these money laundering transactions.  How?  First there now is a push to emphasize the “know your client” rule.  The American Bar Association has published an attorney’s best practices pamphlet http://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014oct_abaguide_preventingmoneylaundering.authcheckdam.pdf which is a must-read for lawyers in New York, Miami, and now Boca Raton Florida who have clients from outside the U.S. who purchase expensive homes with cash.   “Know Your Client” means… the true beneficial party must be known by his or her government issued identifier.  Identifiers are tax identification number(s).   For U.S. citizens? — a social security number.  For non-U.S. nationals?  –Their citizen identification is now required: passports are acceptable citizen identifiers.  A Beneficial Owner, or true equity-owner- person, is a living human being.  Best practices are to not accept transactions where the buyer is a business or a partnership or an entity: that is no longer good enough to shield you from a major problem.  You should (read that must) know the name of a living, breathing person.  It’s best to actually have personal contact with the beneficial owner(s).  If you don’t , and the government looks at the transaction and begins a money laundering investigation you (Real Estate broker or salesman, or Mr. or Ms. Attorney), will have a visitor from the Treasury Department, or the FBI and then it’s off into a major kettle of woes.  First thing is hiring your friendly federal criminal defense attorney.  Or responding to a Grand Jury subpoena.  Or a meet with the FBI investigator, or the U.S.  Attorney’s case agent.  It gets worse.  Think about the Bar, or your practice partners, or your clients who read about you being indicted in federal court on a wire fraud, or money laundering charge.  https://www.southfloridacriminaldefenselawyerblog.com/

Is it worth the aggravation to explain to your golfing buddies in Boca Raton about your miseries?  How about your friends in Miami who thought you were at the top of your game and now you’re playing hardball with the U.S. Attorney’s Office in New York.  So, what to do?  Here’s a few things to do:

  1. Remember that 78% of all real estate transactions in Miami and Boca Raton require compliance with the Bank Secrecy Act.  https://www.fdic.gov/regulations/safety/manual/section8-1.pdf

If you’re not familiar with it then call your malpractice underwriter and get the protocol for a closing.

  1. Learn and learn well, that starting today you have to (must) monitor, identify, know and name all parties to the transaction. Find and identify (with numerical identifiers) the true beneficial persons of interest: the buyer who walks and talks and will live in the five-million-dollar waterfront townhouse in Palm Beach.
  2. Go online and read the first page of the U.S. Treasury’s Department of Financial Crimes Enforcement Network (FinCEN).  https://www.fincen.gov/
  3. Or call your federal criminal defense lawyer in Fort Lauderdale, or Miami, or New York. Don’t be bashful it’s a call that can save you money and maybe your license!
  4. Again, go online and read about Suspicious Activity Reports (SAR’s) what they are and how attorneys and real estate agents and brokers can be tagged for not making a SAR report.
  5. Refamiliarize yourself with the definition of Willful Blindness.
  6. Go online to the website of the Association of Certified Anti-Money Laundering Specialists (ACAMS) or go online to find the local Chapter of ACAMS and call one of the names on the registry of members.
  7. Ask a banker for a contact in their internal Anti Money Laundering Compliance department.

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PillsOwner and president of a New Port Richey pharmacy, Nicholas A. Borgesano, plead guilty to two counts of conspiracy in the Middle District of Florida on October 30th, 2017, for being at the center of a multi-million-dollar mediation fraud scheme.  Mr. Borgesano is 45 and his sentencing will be scheduled in federal court before United States District Judge James S. Moody Jr. and is facing a maximum of 15 years in prison.  Count one is for conspiracy to commit health care fraud and count two is for conspiracy to engage in monetary transactions involving criminally derived property.

According to the Department of Justice, the fraud ran from October 2012 to December 2015 and it impacted private insurance compaies, Medicare, and Tricare a health care program for the military.  Before him, seven others had plead guilty in connection to the scheme.  As part of his testimony, Mr. Borgesano explained that him and his co-conspirators owned and operated numerous pharmacies and shell companies to execute a fraud scheme involving prescription compounded medications. Per the Tampa bay Business Journal, compounding is when pharmacists or physicians combine drug ingredients to create another medication in order to attend to individual needs.

With this scheme they generated more than $100 million in fraudulent proceeds.  Mr. Borgesani owned and controlled A to Z Pharmacy, Havana Pharmacy, Medplus/Newlife Pharmacy, and Metropolitan Pharmacy, Jaimy Pharmacy, and Prestige Pharmacy.  It was in these pharmacies where he created the submission of false and fraudulent reimbursement claims for prescription compounded medications, pain creams, scar creams, and private insurances.  They all manipulated billing codes, paid for kick backs and bribes to further the exchanging and signing of prescriptions for patients he never saw.   The disbursement of all the money was done through wire transfer to the co-conspirators, by assets, or checks.

Most of all their properties will be forfeited including 50-foot racing boat, expensive cars, and houses which equal to over 7.6 million dollars. The total amount that will be forfeited is the result of everything that was purchased with income from the fraud scheme.

The investigation of this fraud scheme was part of the Medicare Fraud Strike Force conducted by the FBI and with the assistance of HHS-OIG and DCIS.  According to the Department of Justice, The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country.  They operate in nine different locations in the United States and since it’s creation on March 2007, it has charged over 3,500 defendants who have falsely billed the HealthCare system for $12.5 billion.

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HorseOn November 4, 2017, Donna Byrne, was seen riding a horse while under the influence of alcohol on a busy highway on Combee Road near North Crystal Road in Lakeland, which is 35 miles east of Tampa.   Byrne was found around 3 PM, smelled like alcohol, her eyes were watery red, and she got off the horse she was moving from side to side.  She had ridden the horse for a stretch between 10-15 miles long in Polk County, described a spokesman for the Polk County Sheriff’s Office.

According to The Orlando Sentinel, Sheriff Grady Judd explained that Ms. Byrne was not in any condition to be on the road at all. He also explained that she put both her life and the life of the horse in danger and of anyone who driving on the road during the time of the incident because that highway is known to be extremely busy.   When she was finally taken of the horse and was administered a sobriety test, Byrne alcohol levels were of .157 and .161, which is twice the state’s legal limit of .08.

In 1993, an appellate court in California ruled in People vs. Fong that people riding animals on the highway are subject to the same rules as the drivers of automobiles, meaning people must ride their animals at a reasonably safe speed and avoid reckless behavior. In Florida, several criminal defense lawyers explained to The Washington Post that they are doubtful that the DUI charge will hold up in Florida court. This is supported by Florida law which states that people riding animals on roadways or shoulders are treated as pedestrians, and are not subject to the same rules as automobile drivers.  According to these lawyers, if charged, a person riding a horse drunk might be charged with disorderly conduct, similarly to a publicly intoxicated pedestrian.

The Polk County Sheriff’s Department spokesman explains that the road where Ms. Byrne stopped on is a very busy road and that if someone would have hit the horse then that person would be in danger. Therefore, making Ms. Byrne a danger to herself.  Based on her actions before and after the police officers arrived at the scene, the officer had sufficient probable cause to arrest her and consider the horse a vehicle. The officer further explains that this is also considered a vehicle because the woman put a saddle and bridle on this horse and was riding it to get from point A to point B, while drunk.

The laws on whether a person horseback riding can be charged with a DUI or DWI varies from state to state but, CBS News confirmed that Ms. Byrne has been charged with a DUI and animal neglect for endangering and failing to provide proper protection for the horse.  Ms. Byrne’s past criminal history consist of five felony charges and ten misdemeanors, which include animal cruelty, drug possession, violation of probation, and criminal traffic.

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