prison-cells-jpg--300x169Federal sentencing was upset when the Supreme Court, in 2005, ruled that the Sentencing Guidelines are no longer mandatory but merely advisory.  What was then thought a landmark decision (taking sentencing from the heartland of the Guidelines back to judicial discretion) has been somewhat  illusory.  “Illusory”…yes as now a federal judge doing a sentencing of a federal criminal defendant now can sentence a non-guidelines sentence, if the judge desires.

Excerpt of the introduction of Federal Guidelines

This brief post is an introduction to the path from a sentence that is set by the Sentencing Guidelines Commission to a non-guidelines variance sentence.

First the court must determine what is the correct guidelines range, let’s use a level 21 Guidelines of 37 to 46 months and move forward.  First you must give a legal reason for the judge to pronounce a sentence that is non-guidelines.  There is a wealth of caselaw to use here.  In essence you are providing the judge, in a Defendant’s Sentencing Memorandum, the caselaw which supports a judicial finding that a non-guidelines sentence is appropriate.  All the arguments arise from federal statute  section 3553 which you find as 18 U.S.C. 3553(a)(1)-(7).  Read it.  You will see and you must be familiar with the four basics of sentencing policy created by the Congress in the statute  What follows is the basics, heartland and the entire world of sentencing: the 3553’s.  Read is slowly: The court must pronounce a sentence that is “sufficient but not greater than necessary” to achieve the goals of 3553. It must reflect the seriousness of the offense and at the same time promote respect for law.  The federal criminal sentence must also  provide a just, or appropriate punishment for the offense.  The sentence must provide adequate deterrence to any criminal conduct by others (future federal criminal defendants).

Moving on, it must protect the public from any further crimes by the defendant before the Court and the sentence should provide the defendant with some of the needed educational and or vocational training while in custody.  The federal criminal court judge must balance the purposes, nature and circumstances of the offense with the history and characteristics of the Defendant.  Then, with a look over the judicial shoulder and a view into the future, the judge must fashion a sentence that avoids unwarranted differences or disparities of sentence for like-situated defendants and provide for restitution so the victim is compensated.

Your federal criminal attorney will argue some of the leading cases such as Gall vs U.S. 552 US and a host of other cases.  What appears like a confusing mess is very simple after you see the path for federal sentencing.  Step one: convince the judge to give a non-guidelines sentence by demonstrating that the guidelines are either out of date or have been eclipsed by new law, new studies and new sentencing laws.  Just this past year the Congress passed and President Trump signed a new sentencing statute that puts most of the past twenty years of caselaw and sentences in a new light.

If you, or a loved one or friend, is facing a federal sentencing then take the time to read over 18 U.S.C. 3553(a)(1)-(7) and sit with an experienced federal criminal defense attorney who knows your district court and it’s sentencing attitude.  Good luck!

 

 

 

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.

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.

CollegeAt the beginning of this year CBS News reported that there were more than 300 open investigations of sexual violence at colleges and universities across the country according to the Department of Education.  They also explained that of the 223 schools under investigation, five are located in Florida.  The five schools are Full Sail University, Stetson University, the University of South Florida, the University of Miami and Florida State University.

The Orlando Sentinel also states that many Florida residents believe that no one ever gets convicted of rape on Florida’s public universities.  According to police records, in 2012 and 2013 55 rapes were reported on between different campuses but only five arrests were made and of those five cases, three have already been dismissed.

The parents of these victims feel that there is something wrong with the way universities and colleges are handling sexual assault and rape cases, they want law and regulations changed.  They also feel that there are hidden reasons why the schools handle these cases the way do and those hidden reasons are usually funding, student attendance, and the school’s reputation.

Under the investigation completed by the Orlando Sentinel, four of every five campus-rape cases were actually considered date rapes and three of every four of those cases, the alleged victim was extremely drunk or on drugs.  Alcohol and drugs created more complicated issues when the perpetrator and the victim are actually acquaintances at a social event, rather than when the perpetrator is a stranger.  Recently, the White House and Congress have declared that campus sexual assault and rape is a widespread issue and that colleges are doing too little to stop it.

According to the FCASV ( Florida Council Against Sexual Violence), the State of Florida university police departments say they take rape allegations seriously. They usually have several officers investigate. Then the victims are referred to victim’s advocates; witnesses and suspects are interviewed; security-camera videos and entry card-readers are checked; and clothing and other evidence are sent to the Florida Department of Law Enforcement for DNA tests.

Universities have also created noncriminal student-discipline programs that victims can use instead of courts. They offer a lower standard of proof and no criminal punishment to certain students. This is because a sexual-battery conviction in Florida carries a prison sentence of up to 15 years and it also establishes the lifelong stigma as a sex offender, which many parents do not wish for their children.  State attorneys offer very few plea bargains for cases of this matter, most of them only offer a misdemeanor battery that doesn’t carry a sex-offender identification and no prison time.

Therefore, who is to blame for the lack of safety the students encounter on a daily basis? Are the schools doing a good enough job to keep the students safe and are they providing enough information on their campuses’ that explain where help could be found for those types of situations? Why are certain cases publicized and others are not? How are schools planning to fix these issues? These are a few of the many questions that parents and the Department of Education have for those in charge of the universities and colleges dealing with these types of crimes. According to the DOE, the number of victims of sexual assaults in college should be decreasing with how advanced criminal technology is nowadays, not increasing.

Sexual AssaultSexual assault cases are on the rise in the United States because victims are finally opening up about it after allegations against Hollywood movie producer, Harvey Weinstein. Sexual assault, according to the Bureau of Justice is a wide range of victimizations, separate from rape or attempted rape. These crimes include attacks or attempted attacks generally involving unwanted sexual contact between victim and offender. Sexual assaults may or may not involve force and include such things as grabbing or fondling. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling verbal threat, and attempted rape.

On October 5th, 2017, the New York Times published the initial article that opened the door to the Weinstein sexual harassment epidemic and those of other Hollywood artists.  According to the Rolling Stones, the article from the New York Times revealed allegations of many women who explained that Mr. Weinstein has been sexually harassing women in the industry for decades.  The allegations of these women went into deep patterns of intimidation and even rape.  This event is just one of the thousands of situations that happen around us everyday but the victims decide to suffer through it alone due to fear.

According to RAINN (Rape, Abuse, and Incest National Network), every 98 seconds, another person is experiencing sexual assault.  The number of people victimized each year is composed in the following way: 80,600 inmates were sexually assaulted or raped, 60,000 children were victims of “substantiated or indicated” sexual abuse, 321,500 Americans 12 and older were sexually assaulted or raped, and in the military 18,900 experienced unwanted sexual contact.  The majority of sexual assaults occur at or near the victim’s home, a public place, a relative’s home, parking lots or garages, or on school property.

The Rolling Stones explains that Weinstein’s victims date incidents back to 1984 and since then almost 30 reports followed into 2015.  The investigations have been able to reveal the pattern he had when committing these crimes.  Weinstein would invite younger women to his hotel room or apartment on a professional pretense, appear in a bathrobe or completely undressed, and request a massage and/or sexual favors, either implicitly or explicitly offering the exchange for career advancement. Many of the victims refused to speak about these incidents in public due to fear of jeopardizing their careers.

Many of these cases are not reported in a timely manner because woman believe that they live in a society where they are discouraged from coming forward with stories of harassment and rape.  According to the National Institute of Justice 9 out 10 victims of rape are females and only these statistics have not changed since 1998.  When these types of crimes are committed it is important to report them as soon as possible because each state has different statutes of limitations.

Since statutes of limitations vary from state to state it is important for victims to understand that the sooner they report these crimes the quicker the police will catch these perpetrators. This is crucial when there is DNA involved.  When conducting an investigation DNA evidence can make or break the outcome of the alleged crime. These types of forensic exams are beneficial in three ways:  it increases the likelihood of identifying the perpetrator, it increases the likelihood of holding them accountable, and it prevents them from committing future sexual assaults.

CrashThe State of Florida continues with its operations to crack down on Personal Injury Protection (PIP) fraud and it has encountered two more cases in the past two weeks. One of the PIP kickback schemes discovered totaled in $2 million and the other one totaled in $23 million dollars.  Attorneys, chiropractors, and clinic owners are all being charged with auto insurance fraud, mail fraud, wire fraud, and health care fraud.

According to the court papers filed with U.S. District court in Miami, they are accused of orchestrating a kickback scheme to take advantage of the state’s mandatory personal injury protection car insurance program.   They are also accused of using chiropractors and tow truck drivers to solicit patients and clients.

The Florida Office of Insurance Regulation explains that the intent of the PIP program was to provide injured drivers up to $10,000 in immediate medical coverage in lieu of establishing fault through the court system.  Their goal was to reduce payment delay for injured drivers, as well as limit the utilization of the court system.  In the State of Florida, PIP coverage is required to be purchased by everyone who owns a motor vehicle that is registered in the state.

According to the Sun Sentinel, the state and federal government spent years and millions of taxpayer dollars wiring up witnesses and tapping phones thinking these clinics were leading a Russian organized crime network, instead they discovered a crime ring of corrupt clinic owners, chiropractors, and lawyers who operated in Miami, Broward, and Palm Beach County. Their operation was so elaborate that they defrauded the insurance companies more than $23 million between 2010 and this year.  If convicted the defendants could face 20 years or more in federal prison.

The crime investigators stated that kickbacks between $500 to $2100 per patient were given to tow truck drivers and body shop owners who would direct the accident victims to clinic that were owned by the defendants.  They would have the doctors and chiropractors register the clinics under their names to cover up their ownership.  The defendants would tell these doctors and chiropractors the treatment the victims were going to receive based on the amount of money they believed the case was worth and not the treatment the victim actually need it. The medical staff knew exactly what to write on the medical reports in order for the victim to qualify for the entire amount of benefits available based on the insurance policy.

The prosecutors on this case are calling these clinics “PIP mills” in relation to “pill mills” that have also under been under investigation because of insurance fraud.  The defendants are both being held in federal prison and without bond because of fear that they will flee the country because of ties and frequent travels to Ukraine and Israel.

 

OpioidsThe opioid crisis continues to worsen throughout the entire county, but in certain states more than others because the drug has become more accessible.  To makes matters worse, insurance companies are taking advantage of this situation by overcharging for the drug treatment needed by those who suffer from all types of drug addictions. One of the rehab capitals of the United States is Palm Beach County, Florida.  The state of Florida has a billion-dollar drug treatment industry that, according to an NBC investigation, is overwhelmed by clients who continue to overdose and increase in insurance fraud.

According to the National Institute of Drug Abuse, opioids are a class of drugs that include the illegal drug heroin, synthetic opioids such as fentanyl, and pain relievers available legally by prescription, such as oxycodone (OxyContin®), hydrocodone (Vicodin®), codeine, morphine, and many others. The reason why people are abusing the use of the drug is because not only does it relieve pain but it produces euphoria that many become dependent on. Overdoses on opioids have continued to severely increase since 2007, especially because the drug is now being mixed with other drugs to produce other addictive effects.  Family members of the drug abusers rely on drug treatment centers to save their loved ones but the outcome is the complete opposite.

Dave Aronberg, Palm Beach County’s top prosecutor and State Attorney, stated to the NBC News investigator that the entire drug treatment industry has been corrupted by the accessibility of easy money.  Mr. Aronberg also explains that, the actors of this industry have taken advantage of well-intended federal law, and a lack of any good law at the state level, to profit off people at the lowest stages of their lives.

The law he refers to is the Affordable Care Act, which along with the federal Mental Health Parity Act passed in 2008, was meant to ensure people suffering from addiction could get the care they needed. People saw this as an opportunity to make a lot of money and have taken advantage of desperate people, who are usually young or dependent on their families. These scammers have also made it difficult for genuine and ethical centers to prosper because people are losing faith in the credibility of these centers.

According to the investigation done by NBC News, within a few months of a drug abuser reaching the drug treatment centers, they would call their family members stating that they had transferred to another sober home. Bills from the insurance companies kept arriving to their homes with treatment worth thousands of dollars. The bills included from medical treatments, lab tests, chiropractic therapy, and counseling.  When they family members of these victims called the treatment centers to figure out why the bills were so high, the person on the other end of the phone would hang up. The insurance bills detailed charges of $5,000.00 for things like a urine test or $1,800.00 for one counseling session. One of the victims bills reached $1.2 million for only 15 months of treatment, even though they were bounced among nine different facilities.

Governor Rick Scott, officially declared Florida’s opioid crisis a state of emergency in May of 2017. Also, legislators recently passed a bill that would increase penalties for brokering. They believe this will give prosecutors sharper tools to crack down on what a grand jury last December found was rampant brokering and fraud across the insurance industry.

StudentsAccording to the Florida Sun Sentinel in 2005, teacher Blake Sinrod, was accused of molesting four third grade students at Coral Sunset Elementary School.  He fondled the four girls in his classroom during their reading groups, a classroom movie, and he would also instruct them to touch his genitals or he would he would place their hands on his genitals over his clothes. After a 12-year-old lawsuit, the Palm Beach County School District gave the approval for a $3.6 million settlement.

Mr. Blake Sinrod was fired from Coral Sunset Elementary in 2006 and his teaching license was revoked in 2008.  Mr. Sinrod plead guilty in 2006 to molesting two of the four girls but the four families persisted in filing a joint civil suit against the school district.  According to file from 2006, the defense used by Mr. Dale Friedman, the defense attorney, was that the victims were old enough to understand the consequences of of their actions and conducted themselves in careless and negligent minor.  The parents of the four victims could not believe this was the defense tactic used by the school district.

Attorney Dale Friedman, told the Sun Sentinel that the district’s outrageous claim was used in an effort to reduce potential damages the district might have to pay out, a tactic she referred to as “comparative negligence.” Friedman insists, “We have never blamed the girls or given them the appearance of holding the girls responsible for what their teacher did.” But this defense only weakened the defense’s case further because it re-victimized the victims. According to Mr. Jeffrey Herman, an attorney who represents victims of sexual abuse, explained that he had never witnessed the use of such a defense and the fact that the school district was blaming the four girls of what happened to them would remain as permanent record of the case.

However, when the parents of the four third grade students filed a civil law suit in 2006, their lawyer at the time, Charles Bechert, said that the parents believed their children were preyed upon in part because they were immigrants and that perhaps the teacher thought their parents would not know how to report the crimes, or feel comfortable doing so.  This is something that continues to happen to children all over the world but children do not speak out about it because of fear of their families being deported or hurt in any form.

According to 7 News what infuriated the parents of the victims and their attorneys is that the school district failed to investigate or take proper action against Blake Sinrod in the sexual molestation incidents in 2003.  The Sun Sentinel reports that the school district also uses as its defense that Mr. Sinrod’s actions were unknown and beyond the foresight of a reasonably prudent person.  But this insufficient for both the parents of the victims and their attorneys because they do not understand how the School District did not think that this man was a danger to the students and why he was not revoked of his teaching license from that very moment.

Police Officer During a huge undercover sex sting operation, Florida police arrested a total of 277 people for soliciting sex or for displaying themselves as prostitutes.   The operation was called “No Tricks, No Treats” and within the arrested were doctors, pharmacists, and even other cops according to the press release from the Polk County Sheriff’s Office.  The operation started on October 10, 2017 and lasted until October 15, 2017.

The operation consisted of undercover detectives and investigators from different law enforcement agencies advertised false posts on websites, social media sites, and phone applications as either prostitutes or they would request sex workers.  The reports demonstrated that 209 of the people arrested were accused of soliciting sex of the undercover officials and 51 of them had exhibited themselves as prostitutes on the internet.  The remaining 17 were arrested for other offenses that were either worse or less than the rest of the group.

According to the Polk County Sheriff Grady Judd, this operation composed the largest amount of people arrested in the history of the Polk County Sherriff’s Office.  The worst part about the operation was having to arrest Sergeant Luiz Diaz, who had been a police officer for 17 years, because he is suppose to be setting an example for the community.  But in situations like these, everyone is help accountable and now Sergeant Diaz no longer works for the Sheriff’s Office.

Sergeant Diaz wasn’t the only professional who broke the law, according to the police reports, some of the other suspects arrested were a cancer surgeon, teacher, pediatrician, Air Force veteran, retired deputy sheriff, retired police officer, active colonel in the U.S. Marine Corps and several pharmacists. Around 215 of the people arrested were traveling from other states because Florida is known for Human Trafficking and its accessibility.

The Department of Children and Families counted nearly 1,900 reports of human trafficking in 2016, which was a 54 percent increase from the year before, and in 2017 the numbers continue to increase.  According to the Polaris Project, which job is to track human trafficking across the United States, declared that the state of Florida had the third highest number of reported cases in 2016 after Texas and California. This is due to Florida’s favoritism amongst tourist and the temporary populations.

Advocates for victims call human trafficking modern day slavery and according to the Florida State Law, human trafficking is defined as soliciting, recruiting, harboring, transporting or otherwise obtaining another person to exploit him or her for labor, domestic servitude or sexual exploitation. According to the National Human Trafficking Hotline, the victims are manipulated through means of force, fraud, or coercion. Some examples of these means of manipulation of fraud include false promises of work/living conditions, withholding promised wages, or contract fraud. Coercion may include threats of harm to self or others, debt bondage, psychological manipulation, or document confiscation. Many are forced to consume drugs, to the point that they become addicted and will do anything to obtain the drugs.

It is operations like “No Trick, No Treats” that allow for the government to help these victims and make them feel safe.  These official operations take off the streets people who continue to abuse these people for their personal pleasure or profit.