April 15, 2014

Proposed 2014 Revisions to Federal Sentencing Guidelines

Federal Sentencing has been praised and pilloried since 1984 when the Sentencing Commission, a creature of the Congress, was created. Over the years it has been seen as race neutral, gender neutral, and fair. Heralded as removing judges from the influences of money and lawyers, it has both succeeded and failed beyond expectation. It is now being reviewed. Thankfully. And, amazingly CNN has reported favorably on it!

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The Sentencing Commission published some revisions, and they will be implemented. The Congress forever palavering over voters, who want criminals in prison, has evolved. Critics who have been overwrought and often wrong are tempering and things are where they should be: on the road of reform.
The elimination or the cocaine/crack disparities has been accomplished. The US Attorney’s Office has created and is implementing reviews of sentences that will be reduced. Minimum mandatory sentences are being halved. States, Florida and (surprise!) Texas have or are dealing with the issue of incarceration, retribution and the return of the incarcerated to functional citizenry. Drug addiction criminal sanctions include programs not only jail cells. The adage that every problem is a nail and every solution is the hammer is rolling back. Many criminal defense lawyers, both State and Federal, are reporting from the front lines of federal criminal trials and sentencing and the reports are not good, but they are being reported. It is a rationalizing process. And, as no surprise to Tea Party and moderate republicans, National Public Radio agrees!

So… what is going on here? What is being changed?...
Changes go to the DRUG QUANTITY TABLE. The proposed amendments would lower, by two levels, the base offense levels, which means taking 2 to five years off of the sentencing guidelines range(s). Although not a big drop in years it is an attempt to balance the public rage and push to jail addicts and suppliers. Federal Statute Title 18 section 3553 lists statutory factors for a proper and balanced sentence: the circumstances of the criminal act (the offense), the character of the defendant, the judge’s responsibility to the community at large to discourage criminal acts by others who become aware of the certainty of punishment, protecting the public from the defendant returning to the community and victimizing others, and, lastly, to salvage any future hope that the defendant can become a part of the general public who behaves well and pays taxes.
As the Attorney General told the Congress, being effective is being smart and the revisions say “smart” not “blunt”. And your federal government has chimed in with a balanced report of the subject:

Smart is smarter and the proposed amendments are a start toward and a part of the evolving of a view of bad behavior that can only remove those who sin by housing them in concrete and metal bars until age, death or human evolvement (both societal and personal) emote change. Change is needed from both realms and the proposed changes have enlisted support from all parties and actors in the criminal justice realm.

January 17, 2014

Doctors Charged in Pain Clinic “Pill Mill” Cases

A concerted drive by the U.S. Attorney’s Office and a task force comprised of State and Federal agencies, police and sheriff agencies in Broward, Dade and Palm Beach County has resulted in over a dozen major cases in Florida and U.S. District Court in the Middle and Southern District(s) of Florida. (DEA's "Operation Pill Nation" and "Operation Pill Nation 2") pills.jpg
The initial investigation by the joint federal and state task force resolves with a criminal case filed in Florida court or Federal Court. The press calls them “Pill Mill” cases. (See CNN Article)

Doctors, Physician Assistants, Pharmacists and nurse practitioners are the focus. The federal agencies have succeeded in many instances by charging conspiracy counts coupled to sale, distribution and trafficking charges (Florida criminal courts). The objective is to stem what was a rising number of deaths by drug overdose of oxycodone, oxycontin, and a slew of opioids drug cocktails by accidental overdose and in some instances, suicide. As a result, doctors have abandoned the practice of pain medicine resulting in a lack of medical services for those suffering from chronic pain from cancer, injuries and long term disabling diseases such as arthritis, joint conditions, automobile accidents and end of life issues. (See "Florida's pill mill crackdowns hurting those in real pain")

South Florida has been the focus of these cases and a small cadre of criminal defense lawyers in Miami and Fort Lauderdale have developed an expertise in these cases due to the number of cases filed in this district. Political pressures and excessive prosecutorial zeal has resulted in a rush to charge and charges by the medical establishment that patients are suffering because doctors are afraid to prescribe pain medications for fear of prison.

January 16, 2014

Sealing and Expunging in Florida

Florida provides a limited opportunity to seal and or expunge criminal records. The good news is not as good as one would hope and the bad news is a deal breaker. Here's what is going on...

First: sealing and expunging doesn't erase your arrest or the result. It doesn't eliminate your biggest issue: getting it off of Google. The State of Florida will permit you to seal and or expunge but only if it is a non-violent crime, and only once. The list is very long and includes any crime involving children, seniors, crimes of dishonesty and a long list which you can get by viewing the statute. But, even if you get the State to seal or expunge, it doesn't disappear. Any state agency can get at it, all law enforcement, any Federal agency, any employer where you are working with children, seniors, or people with mental disabilities. Worse still, it only applies to records kept by the State, it doesn't apply to records kept by non-State entities. For example, when I Google your name it will always come up on any website that dumped the arrest: which is all of them. So if we get your records sealed and you apply for a job, a loan, a rental, a credit card: they will find it on a search engine.

The sealing and expunging gives you, under the Statutes (Florida Statute §943.0585 & Florida Statute §943.059), the right to say that the event didn't occur, but not really, it says you can say the records were expunged: which is as a practical matter useless. Worse still, if anyone has looked online and asks you if you have any criminal event in your history and you deny it...game over. It is your lack of candor that will harm you and probably more than the actual fact that you were arrested or convicted. What to do???

First: understand the very limited advantage you get with a sealing and expunging. You get the moral high-ground to say that you are so concerned with your record that you sought to have it sealed and expunged. Second, know that it will never go away: like a bell cannot be "un-rung".

My advice is to relax and know that arrests and convictions have become so common in our society that most companies have to deal with the fact that a high percentage of Americans have a criminal history and so you can realize that having a record is not always a deal breaker. Just acknowledge that you have a criminal event in your history, that you have changed and are now a better person and that you want them to know so they don't think you're hiding anything. If you interviewed me you would be okay with getting past the fact that I had an arrest and look at the whole person. An employer interviewing 20 people will find that a majority have a crime in their background and that is the reality of our times.

The process: first sent a fee to the Florida Department of Law Enforcement and they will respond by telling you that your record is, or is not, eligible for sealing and or expunging. Step two: file a motion in your local circuit court for a sealing and expunging. You will get a case number and a judge. Next: the State Attorney has to be approached and asked if they have a position either opposing or not opposing. Next: get a court hearing date and then a Judge will either grant or deny your petition. Once granted then you send it to FDLE and they will, in about three months, seal and expunge. They don't notify you when it's done and you get nothing formal. Most people need a lawyer to help them through the process which, years ago was much simpler, but now requires two court hearings and a motion in written form to get it done.

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December 8, 2013

Confession: Good For the Soul, Bad If You are Arrested

Don’t confuse clearing one’s conscience with yourself and your maker with talking to the police. I wrote the book on it: CAN THE POLICE LIE TO ME?
Yes….the US Supreme Court calls it “aggressive interrogation” but to normal folk it means lying. The police can promise you anything short of a walk to induce you to make a statement and the courts will consider it voluntary. “I’ll go easy on you”, “I’ll speak with the prosecutor for you…” “Tell me what you did or I’ll go hard on you”….all spoken by a cop to get you to make a so-called voluntary statement. Do not go there!!
If you are the subject of a police investigation you have no duty to give any information that will be used to prosecute you in a criminal court. If the police are there to arrest you then you must go with them. Do not resist. Do not oppose them taking you in custody. You may have a bad night in the local jail, but any criminal defense lawyer can help you get a fair trial if you don’t make any statements to the police. Remember the mounted fish on my wall, the one that has the following brass sign below it, which reads: ‘IF I ONLY KEPT MY MOUTH SHUT I WOULD NOT BE HERE TODAY”.
When in doubt, if you have any questions: go to my FREE! App and download it to your smartphone, iPad, iPhone, or tablet…. The name of the free app is SAY NO TO POLICE. It’s easy to use, fun to read, and can inform you on most of the things that judges and cops know, but don’t want you to know!

December 5, 2013

Talking Dirty in the Courtroom

Florida State and Federal courts have rules to stop prosecutors from making conclusions and accusations in their questions, opening statements and closings. Smart lawyers watch out for this prosecutor’s trick. If you have an active criminal case, felony or misdemeanor, speak to your criminal defense lawyer about how to defeat this prosecutor’s trick…

I have several “PAIN CLINIC” cases in my office, some in Florida Federal court and some in Florida State courts. Each time the prosecutor uses the words “pill mill” I’m on my feet. My doctor clients are physicians at a pain clinic, not a “pill mill”. Watch for words that make you look bad, like “the accused” (you are a defendant), and object. I do!

Think out of the box and look for ‘dirty words’ and tell your criminal defense lawyer to object. In Florida State criminal courts here in Fort Lauderdale and Miami, attorney Ralph Behr (me) is famous for sending prosecutors to the woodshed for bashing my clients with “dirty words” like “evildoer” and “bad man” and “criminal”. A fair trial means the prosecutor, whether in Palm Beach criminal courts or a court near you.. cannot accuse and abuse a defendant by using words that contain conclusions: that’s for the jury to determine.

April 19, 2013

South Florida and the Death Penalty – 32 Years on the Death Row

Florida has 406 inmates currently on death row, of which 28 have been there longer than Larry Mann. Larry Mann was sentenced to death for the kidnapping and murder of a 10-year-old girl who was riding her bike to school. The crime occurred on November 4th, 1980.
Florida is one of the 33 states in the country that has death penalty. Since 1976, there have been 75 executions. In Florida, already 23 innocent people have been freed from death row and 6 clemencies were granted.
In capital cases in the State of Florida, the Judge may override a jury decision and the government has the authority to grant clemency on the advice of the Board of Executive Clemency.
Larry Mann’s latest appeal was denied by the US Supreme Court and more than one hour later, the death sentence was carried out.

April 15, 2013

In South Florida and all of its jurisdictions such as Miami, West Palm Beach, Fort Lauderdale, Hollywood, Pompano Beach, Aventura, Boca Raton and Coral Springs, many pretrial motions can be filed by the defense. A few of them are Motion to dismiss, Motion to suppress, and Motion to Sever.

If the evidence the State has against the defendant is a product of an unlawful search, the defense can move the court to suppress that evidence. If a confession or admission was obtained illegally, either by interrogating the defendant without letting him know of his Miranda rights, or by the use of threats, then the defense can move to court to suppress the confession or admission.

The Motion to Suppress needs to specifically state the particular statement or evidence sought to be suppressed, the reasons for suppression and a general statement of the facts on which the motion is based.

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April 15, 2013

Defendants Taking Pleas in Absentia

What happens if a defendant lives outside of the State or even the country, and would like to enter or accept a plea offer?
A defendant can, if he or she wishes, enter what is called a plea in absentia.
A plea in absentia is done in the form of an affidavit which the Defendant signs, indicating that he understands the consequences of his plea and that he accepts the plea offer from the Prosecutor.
This can be done anywhere as long as the form is notarized.
Once the defendant completes and signs the form in front of a notary he or she will send the document to his or her attorney who will bring it up in front of the judge.

If you know someone who wants to enter a plea in absentia, call our offices to speak with attorney Ralph Behr.

Call our offices now, 954-761-3444. Phones answered 24/7

March 26, 2013

Out Of County Defendants and the Misdemeanor Drug Court Program

There is an alternative for defendants who reside out of the county to divert from the criminal system and have their cases transferred to drug court. The program is called the Day Reporting and Reentry Division (DRRD). There is a minimum of 6 months participation in the program which can also continue to one year.
There will be status hearings every months but the defendant’s presence is waived unless the judge mandates the defendant to appear in court. Not only there will be status hearings every month, but also there will be mandatory drug testing that need to be done at an approved lab within 48 hours of a phone call.
The defendant will be in constant contact with a community control supervision specialist. The drug tests results will need to be sent to that specialist by email or fax and the defendant is required to report every week by phone or email.
A 12-hour Lifestyle Education Class and Comprehensive Bio-psychosocial Assessment must be completed and the defendant must attend NA/AA meetings and provide proof of attendant on a monthly basis.
Every requirement can be met wherever the defendant resides.
If you or someone you know is interested in diverting the case to drug court, you need an experienced criminal defense attorney. Call our offices to speak with attorney Ralph Behr at 954-761-3444.

March 25, 2013

White Collar Crime Prosecutions

Robert Mueller III is the Director of the FBI. He has 36,074 employees, 13,913 special agents, but he calls the shots. And if a shot across your client’s bow is going to come, he’s the man who brings the misery down on us. So if you advise clients, Boards of Directors, Legal Counsel, etc. on what’s coming down the road, no need to read tea leaves, just listen to The Man. And he has spoken.
Director Mueller spoke in Miami April 2, 2012 and today, almost one year later, I can say with certainty that his speech is the most important roadmap for White Collar Criminal defense lawyers to use in counseling our clients. Read his speech and you’ll see that the FBI and SEC and FINRA and most of the FCPA and Patriot Act prosecutions we’re dealing with over the last year were foreseeable. So if you advise corporate clients on white collar matters, if you assist clients in setting up internal controls, investigations and advisories, line up your caseload and re-read his April 2, 2012 speech. I’ll bet you an amount equal to your past year’s parking fees at U.S. Federal Detention Centers (visiting your in-custody clients), that the roadmap was published. As is said “govern yourself accordingly”.
And here is the list extracted from Director Mueller’s speech:
1. Money laundering
2. Health Care Fraud
3. Mortgage Fraud
Followed by….corporate and securities frauds and Foreign Corrupt Practices Act (FCPA) prosecutions, both civil and criminal.

March 12, 2013

South Florida Defendants and Bond Reduction

So you have been arrested last night and the judge posted a bond that you cannot afford. What do you do next? Do you stay in jail? Yes you do, unless you hire an attorney to get you what is called a bond reduction hearing.
In South Florida and all of its jurisdictions such as Miami, Fort Lauderdale, Boca Raton, Hollywood, West Palm Beach, Pompano Beach or Aventura your lawyer can file what is known as a motion to reduce bond. This means that you are asking the judge to set a bond reduction hearing if the initial bond is too high.
Reasonable bond is something you are entitled to, and it means that the bond is reasonable for you, not for an average defendant.
Your lawyer filed a motion to reduce bond and the judge set a bond reduction hearing, what happens next? At the bond reduction hearing, you have to convince the judge of four things.
1. That you are not a risk of flight
2. That you have sufficient ties to the community to assure your appearance in court
3. That you are not a danger to the community
4. That you do not present continuing danger to the victim.
Defendants only have one chance to reduce their bond.
If someone you know has been arrested and needs a bond reduction hearing, you need an experienced criminal defense attorney. Call our offices to speak with attorney Ralph Behr at 954-761-3444.

March 8, 2013

Charged as an Accessory in South Florida

In South Florida and all of its jurisdictions such as Fort Lauderdale, Miami, West Palm Beach, Pompano Beach, Hollywood, Aventura, or Boca Raton, an individual who intentionally participates in a crime or helps a criminal before or after the crime, may be held responsible for it.

Take for instance someone who knows his friend will be going to a warehouse to commit burglary Monday night, and agrees to babysit for the burglar’s children while the burglar commits the crime.

The State needs to prove that the defendant is an accomplice by proving that they intentionally helped in the commission of a crime. The state must prove that the individual knew that the principal was going to commit a crime and he or she intended to help the crime succeed.

Another way of being responsible for a crime is being an accessory after the fact which is someone who knows that a felon has just finished committing a crime and helped the felon avoid arrest or trial.

If you have been accused of being an accessory or an accomplice, call attorney Ralph Behr. You need an experienced criminal defense attorney on your case. Call our offices at 954-761-3444