Miami Criminal Attorney Blog

The high numbers of mortgage fraud cases in Miami prompted the federal government to hold the first in a serious of Mortgage Fraud Summits here last week.

Representatives of the Financial Fraud Enforcement Task Force, an arm of government formed by President Obama in November to investigate and prosecute financial crimes, is composed of representatives from a wide range of federal agencies and regulatory authorities, as well as state of local law enforcement.

While questions will remain for years about who was minding the store during South Florida's unprecedented real estate boom, there is no question that authorities are attempting to make up for lost time with the zealous prosecution of mortgage fraud cases in Miami and throughout South Florida.

According to the task force, the Miami-Fort Lauderdale-Pompano Beach metro area is ranked first in the nation for Suspicious Activity Reports (SARs) filed by financial institutions that suspect mortgage fraud.

Florida routinely ranks second in the nation, behind only California, for suspected cases of mortgage fraud. In fact, Fannie Mae, the government housing lender, ranked Florida No. 1 in the nation in loan-origination fraud in 2008 and 2009, according to the Miami Herald.

"The mortgage fraud crisis cannot be ignored -- nowhere is the problem more serious than here in Florida," said U.S. Attorney for the Southern District of Florida Jeffrey H. Sloman. "Mortgage fraud puts lenders at risk, and forces homeowners to confront the real possibility of foreclosures, or worse, the loss of their homes."

Since September 2007, federal prosecutors in Southern Florida have charged 282 defendants with mortgage-related fraud charges involving more than $343 million in fraudulent mortgage loans.

As an example, the Herald used the case of 10 Miami-Dade County residents who were indicted in late January on South Florida mortgage fraud charges accusing them of defrauding three banks out of more than $24 million in loan proceeds.

Continue reading "Federal mortgage fraud task force holds inaugural meeting in Miami" »

Miami, Florida: it's not just for drugs anymore. We have white-collar crime with the best of them.

Miami is often referred to as a mortgage fraud hot spot. The question is, does that statement really encompass the boom of economic crime that has been en vogue in South Florida for the past five to ten years. This article will be the first in a series of posts that will examine the crime spree caused by the real estate boom and subsequent bust. We will look at the types of crimes committed, what is being done and what can be done about them, and what to expect in the criminal justice system as a result.

One of the commonly accepted conventions of the real estate boom was that no one asked questions. Everyone seemed to feel that as long as everyone was making money, there was no need to probe too deeply. Banks planned to sell their loans, so they did not do their due diligence on the borrowers. Mortgage & real estate brokers got their commission at the closing tables. So they could care less what happened in the long run. Investors planned to flip properties to other investors like hot potatoes. As long as there was a bigger fool out there, they never looked behind the curtain. So what was it that everyone was studiously ignoring? Buyers had no credit history. Brokers inflated applicants' income. Developers pumped up appraisal values. Appraisers gave the appraisal that we purchased not an independent exam.

What else is clear is that not enough is being done to restore the balance. The police, prosecutors and courts are underfunded and, in many cases, undertrained. Miami is fortunate to have some of the most savvy economic crimes prosecutors in the country, but their numbers are few. Similarly, the detectives who are qualified to investigate a mortgage fraud, appraisal fraud, or Ponzi Scheme are limited and inundated with cases.

This alarming set of facts begs the question: What can victims do and why should suspects be concerned? What's more, how will the real estate ship right itself if the state does not enforce the laws designed to regulate the industry? Keep checking back as we'll explore each of these issues in the coming weeks.

People, police included, make up their minds fast, like traffic through Miami. Once they decide that a particular client is a target of the investigation, it is an uphill battle for a lawyer to shake that belief. This is particularly true in a white collar case where the evidence consists so much more of flat paper and less of people with depth, personality and degrees of guilt or innocence. Investigators that have found a theory supported by the evidence are unlikely to have that belief shaken by protestations of innocence.

A polygraph is one thing that can make a dent. Now, it is certainly true that the polygraphs are inadmissible. It is also true that the test itself can be manipulated. They are subject to human error and human interpretation. For this reason it is critical to use an examiner that has an excellent reputation known to the police. There's nothing worse than presenting a polygraph taken by someone who the police think is a hired gun. However, if a suspect subjects himself to a polygraph examiner who is believed to be unbiased and comes through with flying colors then the attorney has a real opportunity to make progress.

First a client's willingness to take a polygraph speaks volumes about their sincerity. Second the results of that polygraph give the investigative officer something solid, some piece of paper to set against the other paper evidence. At that moment, and sometimes for the first time, the investigator has a reason to look for another theory. An attorney worth anything at all, had better have a compelling alternate theory at the ready.

Florida Courts have never determined that a polygraph is sufficiently accurate to be admissible. However, according to the Florida Supreme Court in Delap v. State, if both parties waive their objections to the test it can be admitted. So, if you have a client who is very confident that they will pass a polygraph. And by that I mean one that has already taken and passed a polygraph, you may seek a deal with the prosecutor that says the client will take a polygraph with an examiner that both attorneys agree upon and whatever the results are, you will agree to their admissibility.

This is strong evidence that not only the suspect, but the attorney really believes that the accused is innocence. Even the most hardened prosecutor has to take a step back and reconsider whether they have the right suspect. This might not only help you win the case, but prevent charges from ever being filed in the first place.

Miami Florida is fortunate to have some of the most sophisticated computer crimes lawyers and law enforcement personnel in the country. The US Attorney, State Prosecutor, FBI, Secret Service, Miami-Dade Police Department and City of Miami Police Department all have specialized units and personal dedicated to investigating and prosecuting Digital Crimes. So why is it that so many of South Florida Crimes seem to be limited to solicitation and e-bay fraud instead of intrusion, hacking, theft of service or the spreading of malicious code.

The answer is simple: corporate victims of computer criminals are often concerned with the PR ramifications of letting the public know about an investigation. I say an investigation not a prosecution. A prosecution shows the corporate victim after they catch the intruder taking affirmative steps to punish the person who dared test their security. An investigation on the other hand is much more nebulous.

During an investigation, no one knows who the perpetrator was. More questions than answers are presented. Not only is the company's security called into question: there is tremendous speculation as to who the intruder is and how they gained access. Were they an employee? Were they a competitor? Is this the first in a series of attacks? Most corporate victims do not want the distraction of having to answer these questions, let alone deal with the fear the unknown answers can cause among their clients and employees.

For this reason it is critical to have an understanding with the investigating agency that the existence of the investigation and the name of the victim will be kept secret until an arrest is made. The members of the Miami Electronic Crimes Task Force have repeatedly professed their commitment to maintaining media silence during the investigation of computer crimes. This makes good public relations sense and follows sound investigative policies.

It is critical that the victim, either directly or thorough their attorney, communicate that desire, not only to the investigating officer, but to the individuals responsible for speaking to the media. In this way, the corporation can control what kind of press release is made and when. By doing so, they can announce that they have captured the perpetrator and make the release a celebration of their responsiveness rather than a roast of their security.

In Miami, and the rest of Florida, if you get arrested for DUI and are given a breathalyzer test, you have the right to a second breath test from an independent source. The Florida Legislature has granted each driver the Statutory right to this independent breath test. All you have to do is ask, and pay, for it. One might ask, why bother? If it's that simple, why would the second test be any different from the first? There are two good answers to this. First, if you are refused the opportunity to a breath test you may win the case. Second, if you do get the second test, by the time you get there, your blood alcohol level might have decreased to a level below the legal limit.

Now that we know that we have the right to a second, independent breath test, how do we go about securing such a test? Picture this: you're in a police station at 3:00 am. You've just taken a breath test and you are over the legal limit. At this time you demand an independent breath test. The police have to give you access to a phone and a phone book. The rest is up to you.

It might surprise you how many people have made this simple request, "I'd like an independent breath test" and have not been provided a phone or a phone book. The failure of the police to give you those two things is sufficient to suppress the breath test they took. Once that scientific evidence is out, the question of impairment is one of opinion.

On the other hand, if we give the officers and troopers of Miami and South Florida the benefit of the doubt and presume that they do offer the accused a phone book and a phone. The accused then calls a toxicologist who does independent breath alcohol tests. By the time you get to the toxicologist or he gets to you, there is a great likelihood that your breath alcohol level will be lower.

Breath alcohol levels fluctuate in a curve. It goes up sharply over a half hour or so and then tapers off in the succeeding hours. Some have commented that you can "race a shot home." This statement is based on the theory if you drink a lot and then race home, you might not be drunk until you get there. (Not recommended.) This is the only time I see the independent test having the potential to hurt a defendant (if their breath alcohol level was still on the way up). However, it would have to be very close in time to the last drink. Given my experience with DUI arrests in South Florida, I think it very unlikely that anyone would have a rising breath alcohol level after they were given a breath test by an officer.

This is because the process of arrest takes a long time. By the time you leave the bar/party/dinner and get pulled over, get driven to the station, get processed and get the breath test it could be two or three hours later. Chances are that you blood alcohol level is on its way down by then. By the time you're given a phone and meet with the toxicologist, it might be another few hours. By that time, your breath alcohol level of a .09 might be a .04. That could be the difference between a DUI conviction and a handshake on the way out of court.

Miami-Dade, Broward, and Monroe Counties are inundated with "important" people who get arrested, particularly of DUI. The jails here have hosted a "who's who" of celebrities, from Al Capone to Donté Stalworth. Recently, an FBI agent was arrested for drunk driving near Oakland Park, Florida. His behavior during the arrest was a perfect example of how not to act when you are suspected of driving under the influence.

FBI Special Agent Jorge Miyar was pulled over at a DUI checkpoint on Oakland Park Boulevard near Northeast 17th avenue. The officer's first clue that Agent Miyar was intoxicated was when he ran over the curb. I will stand by my advice as a lawyer to all of you that running over a curb at a DUI check point is definitely not a good idea. It's not quite as bad a peeing on an officer's shoes, but it's definitely going to get you unwanted attention.

During the course of the interview, Special Agent Miyar told the investigating trooper, "I know I'm F-----, I've been drinking and I'm in an FBI car." He then went on to admit that he had been at a party where he had had about five beers. He took and flunked the field sobriety tests. However, he then refused to take the breathalyzer.

If there was ever any doubt that alcohol impairs your judgment, we can all look to Special Agent Miyar as an object lesson in the degenerative effects that booze has on the decision-making process. Needless to say, any lawyer worth his salt will tell you that you have the right to remain silent. That is not to say you should never speak to an officer, but confessing to the crime that the officer is investigating is certainly going to decrease you chances of getting a good plea bargain.

Just as you have the right to remain silent, you have the right to politely decline to perform the field sobriety exercises. There is no law that says you have to do the walk and turn or the Horizontal Gaze Nystagmus (HGN) test. The only thing this trained law enforcement officer refused was the breath test, but by that time, it was too late.

DUI cases are built on four things: driving pattern, statements, roadside tests, and the breath test. If you want to avoid a DUI: Don't swerve on the road or break any traffic laws. When you are pulled over, respectfully decline to answer any questions. When offered field sobriety exercises, respectfully decline to do so. Refusing to perform a breath test is also a crime, although it is infrequently charged. If you perform a breath test, you have the right to an independent test at your own expense. You should definitely avail yourself to that right. I'll explain why in my next article.

Miami resident Albert Gonzalez pleaded guilty to 20 criminal counts of conspiracy, computer fraud, wire fraud and access device fraud and aggravated identify theft in the Federal District Court in Boston. Mr. Gonzalez's sentence is not known at this time. However, the plea agreement that his lawyers reached with Federal prosecutors includes a proposed range from 15 to 25 years in Federal prison. His criminal sentence will be imposed on December 8, 2009.

This case is multijurisdictional as Gonzalez and his co-conspirators hacked into retailers in multiple states. Accordingly, while he has resolved the counts in Boston he is still facing charges Newark, New Jersey. Additionally, Gonzalez has already been convicted of in Brooklyn, New York where he faces up to 20 years in prison. By agreement between his attorneys and the Federal prosecutors in New York and Massachusetts, those two sentences are to run concurrently.
Gonzalez and his co-conspirators used computers to hack into major retailers such as BJ's, Boston Market, Sports Authority and several others. Once there, they installed "sniffer programs" to capture packets containing credit and debit card information traveling over the retailers network.

Once consumers' credit card numbers were known, Gonzalez sold them to other criminals who encoded the magnetic strips on phony credit and debit cards. In the course of this scheme they stole thousands upon thousands of dollars directly from ATM's. As part of this plea agreement , Gonzalez will be forced to forfeit property that was gained in connection with this crime as well as paying restitution. That restitution includes a million dollars in U.S. currency that was buried in his back yard.

Gonzalez is alleged to have stolen in excess of 130 million credit and debit card numbers. The scope of this crime and multiple jurisdictions involved demonstrate why it is imperative for the Federal authorities to work together to investigate these crimes. However, it is not always clear which agency is responsible. For crimes of this nature both the FBI and the Secret Services, created from the treasury department, have jurisdiction. Often times it is exactly this uncertainty that prevents these complicated crimes from being investigated and prosecuted.

DOJ: Miami Man Pleads Guilty To Hacking US Retail Networks, By Chad Bray, Of DOW JONES NEWSWIRES, September 11, 2009

America is the land of opportunity and second chances and no city in America epitomizes this more than Miami, Florida. Armando "PittBull" Perez has been twice arrested for driving under the influence and once admitted to being a drug dealer in Miami. Typically, you would not expect someone with this type of pedigree to be awarded the keys to the city. However, on August 19, 2009, Commissioner Tomas Regalado did just that.

In Pitbull's defense, and he seems to have had a very good one, he's only been convicted once and that was eight years ago. His more recent arrest, December 2007, had serious problems with the State's case. First, there was no breath test. Without that piece of scientific evidence, determining whether someone is drunk or not is very difficult, assuming they don't fall down or...

Obviously the question of whether someone is drunk or not is highly subjective, particularly if you do not know the person. Who's to say if a person is slurring their speech or just has an accent, especially in an international city like Miami. To deal with the variations from person to person, law enforcement developed the "Standardized Field Sobriety Exercises" also known as Road Side Exercises.

These Road Side Exercises are supposed to give an objective insight into a suspects ability to balance, listen, follow instructions and fine motor skills. For the Road Side Exercises to be effective, they must be done on a smooth, flat, well lit surface. In Pitbull's case, they were done on a hill.

With no breath test and no reliable SFST's Pitbull recently beat the 2007 driving under the influence charges. Shortly thereafter Commissioner Regalado was offering the keys to the city for Pitbull's service to the community. While I think we can all agree that if an officer fails to follow procedure, the case should suffer accordingly, I'm not sure that an acquittal necessarily warrants the keys to the city. It will be interesting to see how Pitbull handles his elevation to "role model" status.

Associated Press: Bilingual Rapper Pitbull gets key to city of MiamiAugust 2009

Many of you in Miami and South Florida have seen the commercials touting "Over the Limit, Under Arrest" depicting police pulling over drunk drivers with alcohol pouring out of their cars. These commercials and other initiatives are part of a nationwide effort to crack down on DUI.

As part of this initiative law enforcement has "vowed to arrest everyone found 'Over the Limit.'" However this statement is misleading and hides the real problems faced by local law enforcement. A suspected drunk driver is not given a breath test until after he is arrested. There are not hand held breath machines used in Miami-Dade or Broward Counties. Instead police officers rely on their observations of an impaired suspect and the extremely complicated field sobriety exercises.

In Florida, DUI officers receive an enormous amount of highly skilled and technical training. These officers, once trained are required to maintain logs of their observations to be compared to breathalyzer results to determine the accuracy of their conclusions. In fact, a truly competent DUI officer can determine a suspects breath alcohol level with out any equipment at all, by performing the horizontal gaze nystagmus test. Unfortunately, officers of this level of competence are few and in high demand.

When a traffic cop who has not had DUI training pulls over a suspected impaired driver, they will radio for a trained DUI officer to appear on the scene to perform the field sobriety exercises. If the results indicate impairment, the suspect is arrested and taken downtown for a breath test. However, if no DUI officer is available then the untrained or undertrained traffic cop must do the exercises himself and make a decision to arrest on only his opinion.

The very real fear caused by this "crackdown" is that as a result of the increased arrests, untrained officers will be left without assistance and encouraged to err on the side of arrest.

Wellington County News- Florida Law Enforcement to Launch Statewide Crackdown on Impaired and Unsafe Driving. Officers Vow to Arrest Everyone Found Driving 'Over the Limit.'
August 21, 2009 2:13 PM

Many criminal drunk driving cases in Miami, Ft. Lauderdale are won, not on the work of attorneys, but rather on one piece of evidence: the result of the breathalyzer test. The breathalyzer, specifically the "Intoxilizer" is a delicate instrument that must be carefully maintained. In fact, the Florida Department of Law Enforcement is responsible for calibrating and testing the accuracy of these breathalyzers against a control. The results of these tests are available to the public, and criminal defense attorneys throughout South Florida.

Recently it was discovered that one of the FDLE officers tasked with testing this equipment was tampering with the machines during the tests and thus skewing the results. Sandra Veiga was fired from the FDLE last October when it was discovered that she turned off breath-machines when it appeared they would fail inspection. The effect of this discovery has sent ripples through criminal defense community in South Florida.

In Broward County Florida, Judge Lee Jay Seidman excluded the breath results from a driving under the influence case where Ms. Veiga was a tester. There are hundreds of pending Broward cases that could result in a similar ruling from other judges. The question this raises is, what about the people who have already been convicted on the strength of breath tests where the intoxilyzer was maintained by Ms. Veiga?

It is rare to have a verdict or a plea overturned or set aside, however, this type of new evidence is exactly the circumstance that could bring about a new trial. Florida criminal law requires three things for a new trial based on newly discovered evidence: 1) the new evidence is material; (2) the new evidence probably would have changed the verdict; and (3) the evidence was difficult to discover.

There is no doubt that a case with a reliable breath result is completely different from one with a machine that was turned off every time it looked like it was going to fail. Accordingly, it may be difficult not to overturn these convictions

Miami Herald: Broward judge's ruling in DUI case could affect 1,000 cases
August 23, 2009

The debate rages on from Miami to Philadelphia to New England and West: Should Michael Vick be allowed to play in the NFL, after his conviction on criminal dog fighting charges and subsequent release. In it, football fans are pitted against dog lovers. However, maybe this opposition is misplaced. In many ways the advocates against criminal animal cruelty have never had a better example. Every time Michael Vick steps onto a football field the same message comes through:

This is exactly the type of message that PETA and every other animal rights organization should want shouted from the roof tops. So, rather than debating whether the level of punishment was sufficient, the real question is: Is the criminal justice system working?

As many people know, Michael Vick was convicted in Federal Court of maintaining an organized dog fighting ring at on of his homes in Atlanta Georgia.

The avowed goals of the criminal justice system are Punishment, Deterrence and Rehabilitation. Not only have all three been accomplished here, but Michael Vick's celebrity status makes the deterrent factor even more effective. Most people have never even heard of the crime of dog fighting, if it's illegal, what if any are the punishments for it. Without knowing the potential repercussions, a would be dogfighter cannot be deterred. Now thanks to Michael Vick's celebrity status, everyone knows that dog fighting is a crime, a federal crime at that and one that brings with it multiple years in prison for a first offence.
At no time in history have dogs and dog lovers gotten better press that the police and the criminal justice system is out to protect them.

The New York Times, Michael Vick's Apology August 19, 2009