Articles Posted in Federal Criminal Defense

MarijuanaAccording to ABC News a senior citizen and her son, in Pasco County Florida, explain that the nursing home where she lives is denying her potential pain relief, by refusing to allow her to have the medical marijuana she has a legal prescription to take. This seems to be an issue that is affecting Florida residents who live in long term care facilities throughout the state. Ms. Simpson, who is  attached to a wheelchair and suffers from Parkinson’s Disease, has tried everything she could have possibly tried to assist her with the medical conditions she suffers from, but medical marijuana  had given her faith in a new alternative that would allow to live a little more comfortably.

Medical marijuana legislation in the State of Florida was finally established by the governor on June 16, 2017 after years of Florida residents explaining to the government all its health benefits. In Amendment 2 of the Constitution of the State of Florida, patients with a debilitating medical condition will not be found subjects to criminal or civil liability for consuming medical marijuana.  Debilitating medical conditions mean cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

Ms. Simpson’s son explains that after medical marijuana became legal in Florida, a doctor prescribed it for his mother and she applied for a compassionate use permit. When she was finally approved, and the medicine was delivered, they gave it to him and told him he had to take it home with him because it would not be permitted inside the nursing home. But according to a healthcare expert from the University of Florida, even though Ms. Simpson had a legitimate medical therapy reason for the use of medical marijuana and a prescription for it, it doesn’t mean they have to allow her to take it if they can provide her with other options for her pain.  This is one of the biggest dilemmas with the statue because it is not completely clear on the regulations of long term health care facilities and the acceptance of medical marijuana therapy.

PillFentanyl, a very addictive and dangerous narcotic, continues to rise in popularity among the United States.  On October 05, 2017, two people were arrested and charged with a 24-page federal indictment, along with seven others, of distributing the imitation opioid fentanyl through the United States, especially through states such as Florida where drug abuse has always been an issue.  According to the Sun Sentinel, Anthony Santos Gomes and Lisa Gomes, told the judge they were trying to hire attorneys to represent them but most likely both will be transferred to North Dakota to face the charges against them in that state.

According to the officials of the Drug Enforcement Administration, Internal Revenue Service, and the Department of Homeland Security the Gomes are being charged with five different counts in the indictment.  The indictment explains that Anthony Santos Gomes and Lisa Gomes were running a conspiracy to possess with intent to distribute…controlled substances and controlled substance analogues resulting in seriously bodily injury and death. The indictment also explains that they did all this knowingly and intentionally with the purpose of distributing the drug.

The National Institute of Drug Abuse, describes fentanyl as a powerful synthetic opioid that is very similar to morphine, but 50 to 100 times more potent. If prescribed, it is given to patients with severe pain or to manage severe pain after surgery.  The way drug abusers use this new dangerous imitation of fentanyl is swallowing it in solid form, snorting it in powder form, or by burning it and then injecting it or having it absorbed by the mucous membrane. Similar to heroin and morphine, fentanyl works by binding to the body’s opioid receptors, which are found in areas of the brain that control pain and emotion.  Then they drive up dopamine levels in the brain’s reward areas, producing a state of euphoria and relaxation.  On the streets this drug is combined with cocaine or morphine, making it more addicting and requiring higher dosages which usually lead to overdoses and killing those who consume it.

Increasingly the U.S. Attorney’s office has been actively pursuing men and women who were placed on Federal probation but have either stopped checking in or have violated their probation with a new arrest.   Federal probation is a sentence, just as is Florida state probation.  Violations of probation are most frequently one of the following:

  • Failing to report a change of address or get approval to move from the probation officer
  • Failing to follow the terms of current probation

The U.S. Department of Justice announced on July 22, 2016 the unsealing of what will be an epic Medicare fraud sweep involving members of the South Florida community, both in Miami and Fort Lauderdale.  This is the largest Medicare Fraud crime federal indictment in the history of the U.S. Department of Justice.  It involves a network of doctors, hospitals, health care providers, adult living facilities (ALF’s), nursing homes, and private physicians and health care providers who have collectively, (allegedly) fraudulently billed Medicaid and Medicare in excess of one billion dollars.

Named in 300px-FBISealthe unsealed indictment is the owner of a business that owns and operates over 30 facilities for profit that provide nursing and assisted living services.  The allegations include conspiracy, bribery, kickbacks and fraudulent billing of services either not provided or, as some unconfirmed reports indicate; provided to dead people.  The unsealed indictment is one of many that the joint task force anticipates will be bring dozens of people to court as criminal defendants in federal court in South Florida.  The Office of the Inspector General of the U.S. Department of Health announced it believes in excess of $2.5 Billion of fraudulent charges are paid out every year by Medicare and Medicaid fraudulently and that South Florida is the focus of the task force.  Also named in the unsealed indictment is Odette Barcha, 49, and Arnaldo Carmouze, 56, all of Miami-Dade County.

Philip Esformes, the owner of more than 30 facilities, was named as the “mastermind” of the conspiracy.  He is represented by attorney Marissel Descalzo and Michael Pasano of the Carton Fields law firm.  In 2013, Attorney Michael Pasano  also represented Karen Kallen-Zury who was convicted and found guilty,  along with others, of running a $70 million Medicare fraud and bribery scheme involving mental health hospitals.  Also convicted in the Southern District of Florida in that case was Daisy Miller of Hollywood and Michele Petrie of Fort Lauderdale.

Slavery and trafficking are synonymous.  Human trafficking includes Philippine young women who are transported to Saudi Arabia and confined as domestic servants, as well as commercial sex operations.  Human trafficking is defined as the use of fraud, coercion or force to exercise physical and psychological control of an individual to purpose the victim into commercial sex acts, confined labor or both.  For more a world-wide perspective on human trafficking, go to: National Human Trafficking Resource Center and the UN Office on Drugs and Crime. Defining criminality and prosecutions under federal laws is a three step analysis beginning with: 1) The act; 2) The means; and 3) The purpose.

Florida has a sex trafficking and human trafficking criminal statute which is quite comprehensive.  In Florida, local jurisdictions, such as Miami and Fort Lauderdale, prosecute sex trafficking and human trafficking cases under Florida criminal law.  Often, the scope of commercial sex trafficking operations crosses city and county jurisdictional lines.  A prosecutor in Fort Lauderdale cannot successfully prosecute a sex trafficking operation that is outside Broward County.  Because commercial sex operators are inter-jurisdictional operations, there is a federal task force in place.  The task force is active in Tampa, Orlando, Miami, West Palm Beach, and Fort Lauderdale.  Federal prosecutions are often undertaken when local state prosecutors decline to prosecute or refer a sex or human trafficking case to a federal task force.

Federal criminal codes 18 U.S.C §§ 1591 and 1594 are the most commonly used criminal cases filed in Federal Court.  The White-Slave Traffic Act of 1910, known as the Mann Act, outlawed prostitution and unlawful sexual activities which “cross state lines.”  Historically, the Mann Act was used to arrest and prosecute men, and women, who crossed from one state to another, and who were either unmarried or engaging in commercial sex.   The Mann Act has penalties of ten years.  The Human Trafficking Federal Statutes (18 U.S.C § 1591) prosecutions are more targeted to incarcerate operators of commercial sex enterprises in which prostitutes, both male and female, of age 14 or under are held as sex workers.  The age of the person providing commercial sex and the age of the “John” place different sentencing schemes to defendants.  The statute begins with a mandatory minimum of ten years to a 15 year minimum mandatory to life in prison.  If the age of the “John” is under 21 and the age of the sex partner is under 14, the 15 year minimums apply.   The Sentencing Guidelines provide for enhancements and a recommended sentencing range.  Please seek out more information on the guidelines for more insight into the sentencing exposure of defendants.

mateenNoor Zahi Salman, (the second and current wife of the Orlando shooter, Omar Mateen),  told the FBI she knew of Mateen’s plan for a mass murder shooting, accompanied him to scout out potential targets, went with him to the Pulse Club in Orlando, and accompanied him to buy a holster and ammunition.

Is that enough to charge Mateen’s wife as aiding and abetting the murders?  Can the law support a conviction?  Is arresting her a public relations issue or a law enforcement issue? These are all questions that investigators will be looking to answer in the next few days.

Decide for yourself. But first understand the law.  Aiding and abetting means “assisting in the commission of someone else’s crime.”  According to 18 U.S. Code § 2, Salman, if convicted of aiding and abetting, could be punished as a principal.

Most U.S. taxpayers do not run afoul of the Internal Revenue Service’s Criminal Investigation Division.   Known as the CID, it has special agents who work either with other criminal prosecution agencies, in or with inter-agency task forces, or are assigned on a case by case basis to a U.S. Attorney office.  Understand that the Internal Revenue Service does not commonly begin a taxpayer collection action with a Criminal Investigation Division special agent.  The most common I.R.S. taxpayer recovery begins with a telephone call to the target.  The caller is an I.R.S. collection agent, not a C.I.D. agent.

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Source: bragertaxlaw.com

If your first contact from the I.R.S. is a C.I.D. agent call you know that the ultimate outcome is most likely a criminal prosecution.  It is best to retain a criminal defense attorney if you are called by a C.I.D. special agent.  All customary investigations begin with a request for production.  The request is either by letter or by verbal communication from an I.R.S. agent.  Compliance is not voluntary but is mandatory so do not disregard an IRS request for production of records.  You can negotiate the time and delay factor but you cannot fail to comply.  Additionally, be very aware that your response must include all records requested.  Any selective response by you, or any omission of records is an open door to a criminal prosecution.  When we look over our law office records of criminal prosecutions for tax evasion it is common that the prosecutor includes several counts of obstruction of justice for failure to provide complete tax records.  If the first contact  you have with an IRS agent is a subpoena then you can conclude for certain that you are the subject of a criminal investigation.  Anyone whose first contact from the IRS is from a CID special agent would be well advised to retain a criminal defense lawyer at the outset.  The investigatory phase can last as long as six months.  As the subject of an IRS review you are entitled to be represented by an attorney, but it is not always needed.  Most if not all IRS inquiries resolve with an agreed resolution requiring payment of back taxes, fines and interest.  Very few IRS contacts resolve with a criminal prosecution.

This week the Security and Exchange Commission (SEC) announced that E.S. Financial Services, a Miami based brokerage firm, settled what could have been a major criminal case with an agreed $ 1 million penalty payment to settle the charges and possibly avoid criminal prosecution.

The SEC issued a press release which suggested that the E.S. Financial, now known as Brickell Global Markets, Inc., committed acts that substantially violate anti-money laundering statutes and related rules.  The agreed allegations are that the brokerage firm allowed non-U.S. individuals to sell and buy securities without revealing the people who are the beneficial owners.

The SEC’s continued investigation led to their issuance of an order, which instituted a settled administrative proceeding, in lieu of a criminal indictment.  And while no fraud occurred in this case, the SEC investigation concluded that there were significant “holes” or shortcomings in the framework and implementation of the firm’s customer identification program (CIP), which required brokers to, “…at a minimum…, implement reasonable procedures to verify the identity of any person seeking to open an account.”

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Source: irs.gov

On January 27, 2016, the Department of Justice Office of Public Affairs issued a press release announcing its victory in a Virginia federal court where a gas station owner pleaded guilty to a charge of conspiracy to defraud the United States in what appears to be a renewed effort to prosecute tax evasion cases by the Internal Revenue Service (IRS).

In this case, the defendant, Obayedul Hoque, owned a gas station and several Subway franchises in Alexandria and Arlington, Virginia, as well as in Washington, D.C. According to the criminal investigation division, the owner and co-conspirators, admitted to not depositing all of their gross receipts into the company accounts, and thus failed to report and pay taxes on a significant portion of their sales.

Presentence reports are prepared by the probation officer assigned to the federal judge’s courtroom.  The judge looks to the report in making sentencing decisions and defendants’ attorneys can object or supplement the presentence report.  Here are some considerations on how to help yourself if you are being sentenced in a federal criminal court.

300px-FBISealAfter verdict, the judge orders the in-court probation officer to prepare a pre-sentence report (PSR), then you and your attorney meet with the probation officer who will be preparing the PSR for your judge.  Look over the worksheet you are asked to complete and bring it with you to the meeting with the probation officer.

What I do, and suggest you insist be done for you, is have the defense attorney prepare an entire PSR, just like the probation officer’s finished product, and send it to the probation officer before he/she files their own PSR.  You know that you have fourteen days to object to the officer’s PSR, but objections have to go to an error in fact, not that the presentation of the facts, which can be very damning and negative.   Your lawyer’s “suggested” PSR is often used, or parts of it is used, by the probation officer in his/her final and completed PSR.