Posted On: May 31, 2011

Oregon Man Accused of Child Pornography Crimes Requests Computer Equipment Back

As a child pornography criminal defense attorney, I was interested to see an article about a child porn defendant who asked the prosecution for his computer and other equipment to be returned. The man, Joseph Schesso of Portland, is accused of possessing, distributing and making child pornography. According to the Seattle Post-Intelligencer, Schesso was indicted in Washington last week after a tip from European investigators eventually led Washington police to his home and his collection of child pornography. Through his attorney, he has asked for the release of several laptops and what he calls a “super computer” seized in the raid, even though his ability to use computers is restricted while he waits for his trial. The newspaper did not report why Schesso wants the computers.

According to the article, German police contacted U.S. Immigration and Customs Enforcement in late 2008 to report Schesso as a distributor of child pornography. ICE agents eventually raided Schesso’s home while he was out and seized computer equipment containing more than 500 videos and 3,100 images of child pornography. His wife told investigators that Schisso had a long-term “problem” with child pornography. Schisso has denied ever molesting a child, but agents later found deleted photos on his digital camera suggesting that was not true. In later interviews, the girl said he had sexually assaulted her twice. If convicted of the current charges, he faces a mandatory minimum of 15 years in prison.

What interested me in this story, as a cyber crime criminal defense lawyer, was the request for the computers back. Most people don’t realize this, but federal law gives the government the right to permanently seize property related to child pornography offenses. Under the law, the government can keep the pornography itself; anything purchased with profits from the illegal activity; and any property “used or intended to be used” to commit the offense. Thus, Schesso’s computers are almost certainly subject to the forfeiture law because they were likely used to commit the child pornography offenses he’s accused of. It doesn’t matter whether the property was also used by Schesso and his wife for harmless activities like doing their taxes or taking pictures of family events; the government is free to take it. In fact, if Schesso happens to own his home, the government may also be able to take that. This can be defended in court, but it’s difficult to do — which is why it’s vital to have a cyber crime criminal defense attorney on your side as soon as possible.

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Posted On: May 25, 2011

Chicago Bears Player Arrested for Theft and Assault After South Beach Nightclub Fight

As a Miami theft criminal defense attorney, I was interested to see theft charges against a high-profile defendant — a football player most recently with the Chicago Bears. According to a May 23 article from NBC Miami, Garrett Wolfe, who will be a free agent when the NFL lockout ends, was arrested early the morning before for refusing to pay a bar tab and fighting officers who responded. Wolfe, a 26-year-old running back, was drinking at the Cameo nightclub in Miami Beach before things got out of hand. He is facing charges of retail theft, resisting a police officer with violence, disorderly conduct and assault on a police officer.

Reports said Wolfe was kicked out of the bar early Sunday after refusing to pay a bill for three bottles of champagne, which totaled nearly $1,600. After he started arguing with the staff, bouncers kicked him out and police responded. When the police asked Wolfe to settle his bill, the police report says he responded “F--- you, I’m not paying for s---, I run s--- here!” That was followed by a physical scuffle in which officers said they were forced to hit Wolfe in the face and knock him onto the ground. Injuries to his face are visible in his booking photo. Two officers said they also suffered minor injuries. He was eventually arrested and hit with the four charges, and later released on a bond of $11,500. The incident may hurt Wolfe’s future as a free agent, which was already in doubt because of the lockout.

The lockout angle will interest many football fans, who have noticed that Wolfe would already be in training under normal circumstances. But as a Fort Lauderdale assault criminal defense lawyer, I’d like to discuss the specific charges Wolfe faces. As I’ve written here before, “resisting an officer” is frequently charged by police officers who don’t happen to like the defendant’s attitude, personality or looks. Disorderly conduct is another law that can be used in that way. Frequently, an experienced criminal attorney can mount a strong defense against both. In this case, Wolfe’s case is complicated by the retail theft charge, which presumably stems from the bill for the champagne, and the charge of assault on a police officer. Depending on the circumstances, a south Florida resisting arrest defense attorney could make a deal allowing Wolfe to plead to those charges and pay for the champagne in exchange for dropping the other charges.

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Posted On: May 23, 2011

Arizona Court Sends Child Pornography Case With Allegedly Tainted Evidence Back to Court

I’ve written here recently about the issue of legal searches in child pornography possession cases. These defendants, like all defendants, have a Fourth Amendment right to be free of “unreasonable search and seizure.” That’s a vital issue when the charge is possession of child pornography, because the illegal materials can usually only be found with a search. When police officers overstep their rights, child pornography criminal defense lawyers like me can argue for the evidence to be thrown out. That was what happened to Arizona defendant David L. Greenberg, 43, when a trial court threw out the evidence against him. Last week, the Arizona Daily Sun reported May 20, an Arizona state appeals court reversed that decision, clearing the way for Greenberg to be tried after all.

Greenberg was originally arrested for secretly videotaping adult women as they undressed, then breaking into one of the women’s homes. After that arrest, police searched his home and found hundreds of instances of child pornography. He was indicted in 2009 on charges of sexual exploitation of a minor, surreptitious videotaping, voyeurism, drug charges, weapons charges and trespassing. However, the judge in Coconino County ruled that the evidence from the search of his home should not be admitted, because the facts alleged on the search warrant were “so facially deficient that the executing officer could not reasonably assume they were valid.” The Arizona Court of Appeals disagreed, finding that the facts clearly supported the probable cause needed for the warrant. The decision means the county is free to prosecute Greenberg again, but an attorney for Greenberg said he planned to appeal the ruling to the Arizona Supreme Court, which could delay any trial.

As a cyber crime criminal defense attorney, I’d be interested to see what the facts alleged on the warrant were, since it’s hard to judge which side has a better argument. However, decisions like this are generally worth keeping in mind because they show that defendants do have civil rights — even when they’re accused of something very serious or unpopular. The Constitution grants Americans the right to be secure in their homes unless the police have a good reason to think a search is necessary. A warrant is supposed to show that good reason. In this case, it’s possible that police had good reason to think Greenberg had something illegal in his home. It’s also possible that they didn’t, but decided that because Greenberg was accused of a sex-related crime, it was worth a “fishing trip” to see what else he might have. As a cyber crime criminal defense lawyer, I work hard to protect my clients from the latter type of search, which is overturned fairly often in court.

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Posted On: May 23, 2011

Cyber Crime Defense Lawyer Tapped for SC Magazine Piece on White House Cybersecurity Proposal

I've been on television several times in the last few months to share my perspective as a cyber crime criminal defense attorney on high-profile criminal cases. Now, I'm proud to say I was also asked to comment in print on the President's recent proposal to replace the 47 state laws on cybersecurity breaches with one federal law. SC magazine, which serves IT professionals, ran the piece May 13, just a day after the White House released its legislative proposal. As I told the magazine, I like the idea in theory, because it could eliminate confusion for businesses that collect consumers' data -- but I'd prefer that the government not dictate exactly how companies operate.

Experience in technology and its intersection with the law can make a big difference when you're charged with an Internet or technology crime. To get an experienced cyber crime defense lawyer on your side, call Seltzer Law, P.A. today at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

Posted On: May 18, 2011

Miami-Dade Prosecutors Announce DUI Diversion Program for First-Time Offenders

A policy shift by the Miami-Dade State’s Attorney’s office has the potential to radically change the way south Florida DUI defense lawyers like me do our jobs. As NBC Miami reported May 10, the prosecutors have announced that first drunk driving offenders in the county will no longer be prosecuted for drunk driving. Instead, those offenders will have the option to choose a program in which they are convicted of reckless driving and sentenced to a fine, a year of DUI classes, an ignition interlock device and possible community service. Failure to complete this probationary period would likely bring the DUI charge back. The program will be offered only to first offenders who did not get into an accident, had no children in the car with them and have no history of reckless driving.

The program is similar to pretrial diversion programs offered in other jurisdictions for offenses like drug possession or passing bad checks. In essence, it gives the defendant a chance to avoid a serious conviction in exchange for successfully completing a parole period designed to discourage and change the behaviors that got him or her into trouble in the first place. Criminal defense attorneys told the media they were cautiously optimistic about the program’s ability to address the alcohol problems underlying DUIs. A MADD spokesperson said the program sent the wrong message but may help prevent drivers from getting off scot-free. The State’s Attorney’s office echoed that, saying offenders can currently have their cases dismissed if witnesses don’t show up. The office also said the program would give defendants a chance to turn their lives around.

As a Miami drunk driving criminal defense attorney, I’m eager for more information on this program. At first glance, this looks like a good thing for first DUI offenders. Rather than face a criminal conviction for DUI, which carries loss of your driver’s license and skyrocketing insurance rates, this program would offer defendants a chance to plead to reckless driving instead. Reckless driving is not free of consequences — it puts four points on your license and carries optional jail time — but it’s generally better for the defendant than intoxicated driving. That’s especially important because many first drunk driving charges stem from foolish mistakes, not habitual alcoholism, and this policy could prevent them from facing very harsh penalties while giving them a taste of what could happen if they aren’t more careful. And of course, defendants retain the option of not taking the plea deal and defending the DUI charge in court. As a Fort Lauderdale intoxicated driving criminal defense lawyer, I look forward to hearing more from the State’s Attorney’s office.

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Posted On: May 16, 2011

22 Men Arrested for Soliciting a Minor Online in Interstate Sex Sting by Florida Police

As a solicitation of a minor online attorney, I was interested to see reports of a recent series of arrests by the Polk County Sheriff’s Department in central Florida. According to the Ledger of Lakeland, the department arrested 22 defendants, all men, for traveling to Polk County for what they thought was sex with a child. The defendants were responding to false advertisements placed on craigslist, OKCupid and other websites from parents or guardians who wanted older men to teach their children how to have sex. The fictional “children” were as young as nine years old, and the defendants traveled from Texas, Virginia, Maryland and Missouri as well as cities across Florida. The Orlando Sentinel reported charges including traveling to attempt to seduce a child and use of a computer service to solicit a child. Reports suggested all defendants will face charges in Florida, not federal charges.

The effort was a collaboration between Florida counties including Polk, Lake, Osceola, Hernando and Hendry; the Orlando and Plant City police departments; the Florida Department of Law Enforcement; the Polk County State’s Attorney’s office and the Florida Attorney General. However, Polk County Sheriff Grady Judd took the lead in a press conference last week called in Winter Haven, where he held up gifts the arrestees had brought for the “children.” These included sex toys as well as stuffed animals, flowers and other more traditionally romantic gifts. Polk County has run seven such investigations totaling 122 arrests since 2006, the Ledger said, and as a result, potential targets are starting to resist coming to the area. The people arrested included people from all walks of life: students, a former CEO, a computer consultant to the federal government and others.

A casual observer might wonder if these defendants can use an “entrapment” defense to the charges, since of course they wouldn’t have come to Florida if the fictional parents and guardians hadn’t offered them sex with the fictional children. However, as an online solicitation of a minor defense lawyer, I’m afraid entrapment is not automatically available, even to people who were caught in a “sting.” In order to prove entrapment, you must be able to show that the government enticed you to do something you weren’t otherwise inclined to do. Prosecutors will try to show this inclination by demonstrating that you had child pornography depicting similar acts in your possession, or that your online communications with detectives showed you needed no prompting. However, if this kind of record doesn’t exist and detectives had to repeatedly encourage you, entrapment may be an option. If you’d like to pursue this defense, it’s important to speak to an experienced cyber crimes defense attorney as early as possible in your case.

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Posted On: May 16, 2011

Cyber Crime Attorney on Fox and Friends to Discuss Michaels Debit Card Theft

I was invited recently to be a guest on yesterday’s Fox and Friends, the morning talk show on Fox News. The topic was a recent discovery of a security breach at the Michaels chain of craft stores, in which thieves took money from bank accounts connected to debit cards customers used at the store. They asked my opinion as a cyber crime defense attorney, and one thing I was able to say is that vigilance is very important for bank customers who use debit or credit cards. I also discussed the advantages of using a credit card instead, since the much longer pay period gives you a chance to dispute fraudulent charges.

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Posted On: May 11, 2011

Surveillance Video and New Information on Accuser Could Change FIU Rape Case

As a Miami-Dade sex crimes criminal defense lawyer, I know cases of rape and sexual assault can frequently pit one person’s word — and credibility — against another’s. So I was very interested to see a May 8 article in the Miami Herald suggesting that the truth in the Garrett Wittels rape case may be more complicated than it originally seemed. Wittels is a talented hitter for Florida International University’s baseball team, and the most high-profile of three young men accused of raping two girls of 17 at a resort in the Bahamas. The girls’ names are being withheld because of their age, and that means information on their families is limited. But according to the Herald, newly released surveillance video seems to contradict the stories the girls gave the police. Perhaps even more damaging is the news that the father of one girl has been sued for an alleged plan to have a woman falsify a rape allegation and a racially charged fight at a pro sporting event.

Jonathan Oberti and Robert Rothschild are accused along with Wittels. The three young men were in the Bahamas to celebrate the birthday of another friend at a resort and casino. There, they met the two accusers, both 17. Their stories about the night differ, but both sides agree that the girls drank alcohol before meeting the young men (minus Oberti) and joining them at the casino. They also agree that there was sex after the girls followed the accused to their hotel room and met up with Oberti, although the accused say the sex was consensual. The video contradicts the girls’ statement that they left the bar themselves and were followed, showing one leaving hand in hand with Wittels. It also shows a lot of physical flirting and kissing in the casino, which the Herald said the girls frequently initiated.

The allegations against one girl’s father have to do with a sports organization not named here to avoid identifying the daughter. A letter from the organization’s law firm accused the father of planning to hire an actress to claim she was sexually assaulted at an event put on by the sports organization. It also accused him of planning to stage a physical fight in the stands to make it look like the organization was hostile to minorities. Later, the same organization sued the father for setting up tents outside two sporting venues, where he planned to make “Girls Gone Nutz” videos in the style of “Girls Gone Wild.” The organization received a restraining order preventing the father from representing himself as working for or with it.

Of course, the father’s alleged or actual misconduct does not affect whether the girls’ allegations are true. But if I were the south Florida sex crimes defense attorney representing the accused young men, I’d investigate whether there was more than a coincidental relationship between the allegations against the father and the current case. It’s disturbing to see that the father accused of planning to make false allegations of rape for financial gain — particularly since there are apparent inconsistencies in the girls’ story. False rape charges can ruin reputations and careers even if the accused is never convicted. A conviction adds prison time and possible sex offender registration requirements after release. As a Fort Lauderdale sex crimes defense lawyer, I vigorously fight false allegations, using the facts as well as back stories explaining the accuser’s possible ulterior motives.

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Posted On: May 9, 2011

NY Child Pornography Conviction Overturned Because of Flaws in Search Warrant

The issue of when police may search suspects and defendants is important to me as a cyber crime criminal defense attorney. Under the Fourth Amendment, evidence from unreasonable searches and seizures is often thrown out of court as “tainted” by the police’s violation of the defendant’s civil rights. Particularly in cases of child pornography possession, where prosecutors have to prove nothing but knowing possession, this can make the difference between conviction and no conviction. So I was very interested to read about a man from upstate New York whose conviction for possession of child pornography was thrown out because of major mistakes on a search warrant. As the Ithaca Journal reported May 5, John Gavazzi, 47, may not have to serve the remainder of his sentence or register as a sex offender now.

Gavazzi was arrested in 2009, when he lived in the Village of Greene in Chenango County. The New York State Police approached a judge in the village to get a search warrant that found child pornography images in Gavazzi’s possession, although no details were provided. Gavazzi pleaded guilty to possessing a sexual performance by a child and promoting a sexual performance by a child. He served 90 days in jail and was serving 10 years’ probation, plus sex offender registration, when the appellate division of the New York trial court unanimously overturned his conviction. The problem: the judge in the Village of Greene signed a search warrant from “Local Criminal Court, Town of Broome, Broome County.” (There are such a town and county in New York, but the town is not within Broome County or Chenango County.) The justices objected to the fact that this court did not exist, and said the judge’s signature was illegible and not backed by other identification. That invalidated the search warrant, they said, which made evidence collected under it inadmissible in court. Prosecutors may still retry Gavazzi without the evidence, a long shot, or appeal the ruling to the New York Court of Appeals.

As a cyber crime criminal defense lawyer, I’m pleased to see that this court was willing to uphold the rule of law and defendants’ rights, even when it might not be popular with the community. The mistakes on the warrant were described in the article as “technical errors,” but in fact, they’re important safeguards. Search warrants exist so police have to demonstrate a good reason to search citizens; judges are supposed to exercise independent third-party judgment about this. If this judge was so addled as to add, or fail to correct, the names of a county and town where he did not preside, who’s to say the rest of the warrant was given the scrutiny it deserved? Throwing out this kind of warrant gives police and prosecutors an incentive to be fair and aboveboard. As a child pornography possession defense attorney, I know defendants sometimes need all the help they can get defending themselves from police overreaching.

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Posted On: May 4, 2011

Family Members Convicted for Trying to Stop Tasering of Man With Heart Problem

As a Miami resisting arrest criminal defense attorney, I know that "resisting arrest" is often misused by police officers to punish arrestees they don't happen to like. But I was still surprised to read that a Kendall woman and her adult son were convicted of resisting an officer without violence because they tried to stop police from Tasering another adult son with a heart condition. Ana Ramirez and Hernando Yunis were convicted last week by a Miami jury on charges stemming from their attempt to pry Taser prongs off of Christian Pagan. Pagan, 25, has Down syndrome and an unspecified heart condition, and spent several weeks in the hospital after the incident.

Ramirez is the mother of both Pagan and Yunis. She had originally called 911 to stop a violent outburst by Pagan, New Times Miami reported April 27, but specifically asked the officers not to use the Taser. However, Pagan reportedly charged one of the responding officers outside the home, and the officer used the Taser, saying she feared for her safety. That's when Yunis and Ramirez tried to pry the prongs of the stun gun off of their brother and son. For their trouble, they were arrested for "resisting arrest without violence," the less serious of Florida's two resisting arrest crimes. Yunis and Ramirez will not serve jail time and the conviction will not be on their records, but each must pay $400 in court costs, the New Times said.

To me, as a Fort Lauderdale criminal defense attorney, this story underscores how arbitrarily police use charges for "resisting an officer." Yunis and Ramirez were clearly trying to protect Pagan, and they did it in a way that does not appear to have put the officer in any danger. Indeed, the most serious danger in the encounter appears to be the danger the officer knowingly put Pagan in by Tasering him, despite having been warned about his heart problem. In general, resisting an officer without violence is a useful charge for police officers who feel that someone has been disrespectful or uncooperative. That means it's very easy for police officers to misuse on people they just happen not to like. An experienced south Florida obstruction of justice criminal defense lawyer can fight for clients in this position, forcing police officers to specify in court exactly what behavior they felt rose to the level of criminal so jurors can decide for themselves.

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Posted On: May 2, 2011

Florida House Passes Bill Reducing Penalties for Sexting for Minors Under 18

As a Miami-Dade child pornography defense attorney, I've written here many times before about the issue of sexting among teenagers. Sexting is the practice of sending and receiving sexually explicit pictures via text messages. Most parents and school administrators agree that this isn't desirable behavior among teens — but there's no existing law to address it. Unfortunately, prosecutors sometimes use child pornography laws to prosecute kids involved in sexting, even though the pictures aren't child pornography as it was originally envisioned by the authors of the laws. Worse, this kind of prosecution sets up kids for adult lives as convicted felony sex offenders. I'm happy to say that Florida started to address this last Friday, when the state House passed a law reducing sexting penalties substantially for minors.

Under the proposed law, authored by Rep. Joseph Abruzzo (D-Wellington), the penalties would change only for minors. Minors are guilty of sexting if they use a computer or other device to electronically transmit or distribute a photo or video "which depicts nudity and is harmful to minors." A first conviction would lead to community service and a $60 fine for defendants. The second offense would be a misdemeanor and the third would be a felony. Compare that with the offense of transmitting child pornography or transmitting material harmful to a minor, both of which are felonies in Florida. It is expected to come up for a vote in the state Legislature within a few weeks, and if passed, would take effect October 1. Abruzzo told WBPF last month that his goal is to teach kids that sexting is a bad idea, not penalize them with felony charges and sex offender registration obligations that last decades.

I couldn't agree more. As a south Florida cyber crime criminal defense lawyer, I have read about many cases of teenagers who were hit with felony charges and all of the associated penalties for one act of sexting. That includes at least one young adult in Florida, Philip Alpert, who ended up on the sex offender registration list after sending out a picture that his 16-year-old then-girlfriend had posed for voluntarily. As of 2009, he was on probation, having trouble finding work and kicked out of college. That's too much punishment for a mistake made out of immaturity. If the sexting bill passes, it will stop this kind of overreaction, while giving prosecutors the tool they need to address sexting in a way that shows that actions have consequences. As a Fort Lauderdale cyber crime criminal defense attorney, I think that's the best outcome for everyone.

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