Posted On: March 31, 2008

Online Solicitation: When Does the State of Florida do What's Right Under the Law?

The law is in place to protect all of us, including police, so what makes them feel that they can (a) toe the line, or (b) break the law? First, before I continue on this topic, let me stress that the case I am referring to is not being prosecuted in South Florida, but it is being prosecuted in the State somewhere.

I was recently retained to work on a matter pertaining to cyber crime. Upon my review of the facts, I was shocked and appalled that the prosecuting agency was acting in this manner - not willing to discuss the case or the lack of the case they have. Instead, what it appears as though they are willing to do is create law, which as the current state of the case law stands would be great for the defense bar!

I am referring to an online solicitation case with chat logs, not closely, but CLEARLY entrap the defendant. The undercover is the aggressor in each chat, brings up all the sexual conversations, even after the defendant continually says he is not interested in that, and even goes so far on one occasion as to initiate the chat session. Do you want more? The undercover, after she continually invited the defendant to come and visit, asked him of course to bring protection, to which the defendant again said, do not want to have any sexual contact/relations. Undercover, then offered to book a hotel room for them! It went on...

Now if this case ever came across my desk when I was a prosecutor, I would have slapped the detective upside the head and then explained to them why I was not filing the case.

If that isn't enough, there are other issues. Did I mention to you that they are missing NUMEROUS portions of the chat logs as they had computer issues and could not save them. What they do have are excerpts that were cut-and-pasted from the chats, but they are INCOMPLETE. Oh, and they only chose to use the logging feature provided to law enforcement at certain times to record the chats, when it suited them. And of course, there is no mention in the chat logs by the undercover of her age, being a minor, there are references but no direct mention. Also, they said it was common practice for their department to wipe the undercover computer's hard drive, thus making it impossible for any recovery by the defense. This case is a mess for the State, yet there is no telling them that.

On the issue of the chat logs, there is a case on point that addresses this situation. In United States v. Jackson, 488 F.Supp.2d 866 (8th Cir.(Neb.) May 08, 2007), the Court held that cut and paste chat logs failed to meet the foundational requirements of authentication, and thus not admissible at trial. The Court stated that the State has the burden of proof to show that the transcripts are authentic and trustworthy. Id., at 871; see also United States v. Black, 767 F.2d 1334, 1342 (9th Cir.1985); Fed.R.Evid. 901(a); United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000); United States v. Webster, 84 F.3d 1056, 1064 (8th Cir.1996).

In Jackson, the State sought to introduce “editorialized” transcripts, as portions of the conversations were not available as they were omitted in the copy and paste process, not saved, or destroyed. Jackson, at 870. When the time came to use the actual chats, the computer had been wiped, there was no logging feature used, and the editorialized versions were all that was available. Id. “The cut-and-paste document offered by the State is not an accurate original or duplicate, because it does not accurately reflect the entire conversations between the defendant and [undercover]. Id. At 872.

A computer forensic expert testified that there were numerous alternatives to the cut-and-paste method that would have been far more accurate, and would not have allowed data to be lost. Furthermore, that had the computer not been erased, the chat logs may have been recoverable. The Court went on to state that the missing data “creates doubt as to the trustworthiness of the document…[as] deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.” Id. It is clear that the proposed document does not accurately reflect the contents of the original. Id. At 872.

Two additional cases that also address the admissibility of chat logs and transcripts are United States v. Tank, 200 F.3d 627 (9th Cir.2000) and United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir.1998). However, these cases are distinguishable as the actual computer files were offered as evidence, not cut-and-paste versions.

The Court in Jackson, went on to exclude the chat logs in lieu of allowing the officer to refresh his recollection as to the missing portions, as doing so would have allowed the government to indirectly present the chat logs to the jury, and create an unfair situation for the defendant. Jackson, at 872; see also Hall v. American Bakeries Co., 873 F.2d 1133, 1136 (8th Cir.1989).

So is it worth it to hold your ground and start creating law that probably won't conform what's right, or should the prosecutor here realized that you can't win them all?

Posted On: March 25, 2008

Jorge Cueto for Circuit Court Judge

Sorry for the absence to all my loyal readers, been a busy month moving to our new digs. But I am back and today showing support for a near and dear friend of mine running for Judge. Here is a letter that I received that I wanted to share.
___________________________________________________________________________
Dear Neighbor:

Jorge E. Cueto, a resident of Country Walk, has filed as a candidate for Circuit Court Judge, in Group 11 of the Eleventh Judicial Circuit of Florida. Jorge has over thirty years of professional experience in both the private and public sectors. He was admitted to the Florida Bar in October 1992. As an Assistant State Attorney in the Eleventh Judicial Circuit, he prosecuted defendants in the County, Juvenile and Felony divisions of the Miami-Dade courts. His last assignment with the State Attorney’s Office has been in the elite Public Corruption Unit.

Prior to joining the State Attorney’s Office, Jorge was legal counsel and vice president for a mid-western corporation. In that capacity, he practiced general commercial and corporate law, and executed a number of mergers and acquisitions. Jorge also served honorably as a member of the Miami-Dade Police Department for sixteen years. His last assignment was Commander of General Investigations for the Cutler Ridge District. Jorge was assigned to the County Board of Commissioners where he was named Staff Counsel to the Public Safety Committee of the Board. Jorge is conversant in Spanish, French, Portuguese, and Italian and has a working knowledge of Russian. He has taught several topics as adjunct professor in the College of Urban and Public Affairs of Florida International University. Among these courses were Comparative Legal Systems, Criminal Law, Organized Crime, Origins of Terrorism and Public Personnel Management.

Jorge graduated from Immaculata-LaSalle High School in Miami, Florida. He attended Boston University and received his Bachelor of Science in Chemistry/Biochemistry from the University of Miami. He earned a Juris Doctor from the School of Law of the University of Miami. He also attained an ISO 2000 Quality Auditor Certification through DePaul University and has designed quality control systems conforming to this international standard. Jorge Cueto successfully completed the required CPA curriculum for the State of Illinois CPA at the College of DuPage. He has been admitted to the Forensic Accounting Master Program at Florida Atlantic University.

Jorge’s personal and professional affiliations include membership in The Florida Bar, The Cuban American Bar Association, The American Chemical Society, The League of Prosecutors, Phi Delta Phi Legal Honor Society, University of Miami Law School Alumni Association, The Historical Museum of South Florida and the International Police Association. He currently serves as a board member of the Miami-Dade Citizens’ Independent Transportation Trust.

Jorge Cueto has been married to Ana Maria Cardin Cueto for over thirty years and they are blessed with three adult daughters: Elizabeth, AnaMari and Lauren.

Because of his extensive public service to this community, intellect and commitment to the law and justice, Jorge would be a fair, impartial and well-balanced judge, equipped with a varied technical legal background and the richness of the life he has led. That is why I am asking you to endorse and support his candidacy and contributing in any way you can. Enclosed you will find a self-addressed envelope. Please join me in voting for my husband, Jorge, for Circuit Court Judge on August 26th, 2008.

Sincerely,

Ana Maria Cardin-Cueto

Jorge Cueto for Judge!

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Posted On: March 5, 2008

Miami is no Different, So What happened to our Rights? Text Messages v. Email Communication

Not sure what I find more amusing, the fact that government agencies can get electronic text messages without a search warrant, or that fact that they think this behavior is legal. The right to be free from government intrusion has been a staple our constitution since the beginning of time. So tell me what the difference between an email and a text message is? Answer, for an email you need a search warrant which articulates probable cause, for a text message you need a government agent who believes they have reasonable doubt. But they both contain content, which under the current state of the law in this country REQUIRES a search warrant signed by a neutral judge.

Now as technology changes so does the law, so why haven’t the courts bought into this? In the past, the cellular phone providers didn’t log text messages. Some still don’t. So I can understand why subpoenas were sufficient for text message logs in the past, because there was no content. But today, with content being logged, why the courts having such a hard time grasping that content is content, and an email is no different than a text message.

Verizon Order to Turn Over Text Messages

What Right to Privacy?

Eventually this matter will resolve, but again, it will take time for it to filter through the courts. There is a judge out there who will be able to clearly see that content is content. Until then, we will continue to battle this issue in the courts.