Posted On: June 29, 2011

Florida Supreme Court Reduces Sentence Under Habitual Felony Offender Law – Mapp v. State

As a Fort Lauderdale theft criminal defense attorney, I was interested to see a Florida Supreme Court ruling on retifying mistakes made in the sentencing of a burglary and theft defendant. In Mapp v. State, Charles Mapp pleaded guilty in Polk County of burglary, theft, grand theft auto and possession of cocaine and drug paraphernalia. The appeal centers not on the charges themselves, however, but on a mistake by the prosecution. Florida has a law designating certain defendants as Habitual Felony Offenders, which enhances the sentences of people accused of felonies who have two previous felonies, and either are still serving time for the previous convictions or committed the new felony within five years of the last conviction. To use this law, prosecutors must provide advance notice that they intend to; they did not do this in Mapp’s case. Rather, they brought it up at a sentencing hearing after the guilty plea, and Mapp was then sentenced as an HFO on some counts, plus restitution for the thefts.

Mapp’s south Florida criminal defense lawyer filed a motion to strike the sentence and restitution, claiming the HFO designation and amount of restitution were both sentencing errors. These were granted, and the prosecution appealed to the Second District Court of Appeal. That court reversed. Mapp’s attorney had moved to strike under Florida Rule of Criminal Procedure 3.800 (b), which pertains to sentencing errors; the Second found that they were errors in the sentencing process. Because Mapp’s lawyer hadn’t brought the objection up under the applicable rule, the appeal court found the issue was not preserved for appeal. It reinstated the sentence, and Mapp appealed to the state Supreme Court.

The high court was a great deal more sympathetic. It started by establishing that “there is no question that Mapp was improperly classified as a habitual felony offender,” since the state had conceded this. Thus, the only issue was whether Mapp’s motion under Rule 3.800 (b) properly preserved his appeal. The Supreme Court found that it did. Under its own previous decision in Jackson v. State (2008), Rule 3.800 (b) applies when the error affects the sanctions ultimately imposed (such as a sentence). Furthermore, the court wrote, breaking specific laws on HFO sentencing constitutes fundamental error, which is covered by the rule under Jackson. Thus, it reinstated the trial court’s order to strike the HFO sentences. However, it agreed with the Second that Rule 3.800 (b) did not apply to the restitution order and upheld that part of the decision.

This decision pleases me, as a Miami burglary criminal defense attorney. The distinction the appeal court drew, between an error in the sentencing process and an error in the sentence itself, is very fine. Indeed, one might say that the appeal court was splitting hairs. That’s unfortunate because the outcome matters a lot to Mapp and others in his position. HFO sentencing doubles the penalties for third-degree felonies like the ones he was facing. Because he was not given notice about the HFO sentencing request, he essentially pleaded guilty thinking he would serve no more than half the time he was given. The Supreme Court’s decision here preserves defendants’ right to fully understand the sentencing they face before they enter a plea.

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Posted On: June 28, 2011

Cyber Crime Defense Attorney Appears on Headline News to Discuss Casey Anthony Trial

At the beginning of this month, I had the privilege of appearing on Fox News to discuss the legal aspects of the Casey Anthony murder trial, which is making headlines in Florida and across the nation. I'm proud to say that I appeared on CNN's Headline News again today to discuss the trial. Joseph Jordan, a witness who helped search for the body of Caylee Anthony, attracted attention by invoking his Fifth Amendment right against self-incrimination when he was asked whether he'd ever been threatened with felony prosecution. I told HLN that Jordan likely didn't realize that the question was benign, since "felony prosecution" is a pretty scary phrase in itself. In general, witnesses asked a yes or no question like this typically don't have to worry about their rights -- but when in doubt, I always, always recommend getting the advice of an experienced defense lawyer.

Posted On: June 27, 2011

Appeals Court Upholds Conviction for ‘Knowing’ Distribution of Child Porn – U.S. v Collins

A ruling from the Eighth U.S. Circuit Court of Appeal caught my eye as a child pornography criminal defense lawyer. In United States v. Collins, Matthew James Collins of Iowa argued that there wasn’t enough evidence to support his conviction for attempted distribution of child pornography. Collins was convicted of that offense as well as receipt of child pornography; he was originally also convicted of possession, but the court voided that conviction because it was already included in the receipt offense. Investigators found Collins through his use of peer-to-peer file-sharing to share child porn. Law enforcement seized two computers from Collins that he had gotten from a friend; his defense centered around arguments that the friend or another user had downloaded the pornography. He was convicted and sentenced to about 19 and a half years in federal prison.

On appeal, Collins argued that the proof of the knowing distribution offense was insufficient at trial, because the mere use of a file-sharing program does not establish beyond a reasonable doubt that the user intended to share those files. The Eighth Circuit did not agree. The court wrote that Collins acknowledged understanding computers well enough to download photos from his phone, and that he had downloaded and installed Limewire file-sharing software on both computers. Thus, a jury could reasonably infer that he intended to distribute the material, the court wrote. Furthermore, past Eighth Circuit decisions had upheld knowing distribution convictions, though only under sentencing enhancements, which use a different standard of proof. Finally, the Eighth wrote, the Tenth Circuit has upheld a conviction for distribution based on the use of a file-sharing program.

It’s difficult for anyone who wasn’t in court to judge whether the jury and appeals court made the right decision, since this opinion doesn’t contain a lot of background on the facts. But as a cyber crime criminal defense attorney, I’m disturbed by the implication that mere use of file-sharing software is enough to support a distribution conviction in some courts. This is not true everywhere; I wrote last year about a state-court acquittal for a South Dakota attorney who possessed files because they were relevant to his work as a defense lawyer. He also used Limewire, but apparently did not understand the program well enough to realize it was sharing his files by default. As a child porn defense lawyer, I believe it would be unjust for courts to simply assume that users intend to share files without examining whether they knew about or changed default file-sharing settings.

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Posted On: June 27, 2011

Cyber Crime Defense Attorney to Appear on Radio Tonight

I'm proud to announce that I will appear on the radio tonight to discuss the results of a weeklong "sex sting" that ended with the arrests of 25 people in Pensacola. As this article says, law enforcement officers posed as minors online to lure the suspects into meeting them at a house in Pensacola, presumably for sex. I will be on Pensacola's NewsRadio 1620, on Pensacola Right Now with Branden Rathert, which airs from 4 to 7 p.m., to discuss the charges, methods and possible defenses from my perspective as a solicitation of a minor defense lawyer.

If you or someone you care about is facing this kind of charge, you should talk to Seltzer Law, P.A. right away to see how we can help. You can reach us anytime -- 24 hours a day and every day of the week -- at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Posted On: June 20, 2011

Federal Appeals Court Partially Reverses Restitution Order – United States v. Michael Wright

As a child pornography criminal defense attorney, I’ve written here several times, most recently in March, about the trend toward courts ordering financial restitution payments in child porn cases. In these cases, people convicted of possessing, sending or receiving the materials — but not creating it — are ordered to pay money to the children whose pictures appeared in the materials. One particularly active victim is a young woman who is named only as “Amy” in court papers, who was forced to participate in making child pornography when she was under 10. Amy shows up in a new court ruling by the Fifth U.S. Circuit Court of Appeals, which says a Louisiana man was correctly ordered to pay her restitution. But in United States v. Wright, the court sent the case back to trial court to determine the amount, saying the original amount had no basis in the record.

Michael Wright pleaded guilty to possession of child pornography, which waived his right to appeal but not his right to contest penalties in excess of the statutory maximum. The court later ordered Wright to pay $529,661 to Amy as restitution, to fund counseling and other financial needs stemming from her sexual abuse. Wright moved to oppose this, arguing that the restitution law requires victims to show defendants directly harmed them, which he said did not apply in his case. The district court denied the motion and Wright appealed.

The Fifth Circuit started by noting that it reviewed Wright’s appeal under the precedent of its March decision, which found against a similar defendant. After dismissing prosecutors’ arguments that Wright had waived the issue, the Fifth used the same logic used in the March decision to find against Wright. The relevant section of the law, 18 USC sec. 2259(b)(3)(F), defines the victim’s losses including “any other losses suffered by the victim as a proximate result of the offense.” Wright argued that Amy’s losses were not a proximate result of his possession of images created years before he possessed them and without her knowledge. However, the Fifth found in both cases that the language at issue did not apply to the entire sec. 2259 and was only a catchall provision for “other losses,” and that Amy was a victim because she was harmed by Wright’s possession. However, the court then went on to find an abuse of discretion in the amount of money awarded by the trial court. The trial court gave no reasoning whatsoever as to why Wright should pay some costs but not others, and did not discuss his liability as one of many people who downloaded the materials. Thus, it sent the case back to trial court for a clearer determination of what costs Wright should pay.

In March, I wrote that I disagreed with the earlier decision, and the same logic applies in this case. As a cyber crime criminal defense lawyer, I know restitution laws were originally created to keep criminals from profiting from lucrative crimes like fraud and drug trafficking. That logic doesn’t apply to downloading child pornography — something done for personal gratification. Even if Wright hadn’t been caught, he still wouldn’t have profited from his crime. And as a child porn possession defense attorney, I disagree with the court’s underlying logic that Amy was harmed by defendants’ possession of child pornography; the harm to her is real, but was done by her abuser. I look forward to hearing from other courts on this subject.

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Posted On: June 15, 2011

Colts Player and Former Hurricane Arrested in Fort Myers for Possession of Marijuana

As a south Florida drug possession criminal defense lawyer, I was disappointed to read about another NFL player arrested in our state for offseason misbehavior. Javarris James, a running back for the Indianapolis Colts, was arrested in Fort Myers for possession of 0.4 gram of marijuana. James, an Immokalee native, is known in Florida as a player for the Miami Hurricanes and a star at Immokalee High School. He is also the cousin of Colts and Hurricanes alum Edgerrin James. According to the Naples Daily News, the younger James, 23, was released an hour after his booking on a bond of $1,000. He is scheduled to appear in court June 28 to face the misdemeanor charge.

The Naples paper reported that James was originally pulled over by Fort Myers police “over concerns about the level of tint in his windows.” When they opened the car, police said, they smelled marijuana and conducted a search. The police report said they eventually found pieces of marijuana on the floor of the car between the center console and the passenger seat. If convicted of marijuana possession less than 20 grams, he faces up to a year in jail and a fine of up to $1,000. Like all NFL players, James is currently locked out of offseason training or personnel moves, thanks to a dispute between team owners and their players. According to the newspaper, some Colts players are meeting for private workouts — which might make drug use inadvisable — but it wasn’t clear whether James was among them.

As a Miami-Dade drug crimes defense attorney, I’d like to point out that the crime James is accused of is very, very minor. The marijuana he’s accused of possessing is 0.4 grams, which is about 0.014 ounces. To find that little of the drug, the police must have had to be very thorough in their search. In fact, the tiny amount of the drug, and the minor window-tinting “concerns” that triggered the traffic stop, make me wonder whether police were entirely honest when they said they searched the car because they smelled marijuana. Sadly, some police officers still react with suspicion when they see a young African American man driving an expensive car. As a Fort Lauderdale drug crimes defense lawyer, I don’t doubt that James can afford an experienced attorney, and I hope that lawyer keeps these issues in mind when responding to the charges.

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Posted On: June 13, 2011

California Court Overturns Conviction for Imposing Daughter’s Head Onto Pornography

I’ve written here about several child pornography cases involving defendants who used Photoshop or other software to impose children’s heads onto the bodies in adult pornography. In particular, as a child pornography criminal defense attorney in Miami, I have followed the case of John Stelmack, a former elementary school principal from Bartow, who was convicted on child pornography charges stemming from imposing students’ heads onto naked adult bodies. Last December, Stelmack was freed by a Florida appeals court, which said the pictures did not meet Florida law’s definition of child pornography. In New York, a federal appeals court came to the opposite conclusion this year. Now, as the San Francisco Chronicle reported June 9, a California man has been freed on appeal after a conviction on similar charges.

Joseph Gerber of Milpitas, near San Jose, started to get to know his estranged 13-year-old daughter in 2008. Over the first few visits, he began offering her marijuana and cocaine. While the girl was high, Gerber allegedly asked her to pose for photos. She agreed, but when he asked her to take off her clothes, she reportedly burst into tears. After she told her mother what happened, her mother called the police, who searched Gerber’s home. There were no underwear photos, but investigators did find seven pictures in which the girl’s head had been superimposed on pornographic photos of adult women.

Gerber was tried and convicted of possession of child pornography as well as drug charges. However, the California law used to convict him specifically said it was illegal to possess pornography showing minors “personally engaging in or simulating sexual contact.” Because of that phrasing, the Sixth District Court of Appeal overturned Gerber’s conviction for possession of child pornography, saying interpreting the law more broadly would violate a 2002 Supreme Court ruling striking down laws against “virtual” child pornography that never involved actual children. The California court wrote that Gerber’s pictures were protected by the First Amendment, even though viewers might find them repugnant.

As a cyber crime criminal defense lawyer, I have to agree. It’s difficult to defend a man who allegedly came close to sexually exploiting his daughter, but the law is the law. Florida’s Second District Court of Appeal came to the same conclusion last year. Neither state has a law banning “composite” or otherwise computer-generated images, although the federal government does — passed explicitly to get around the 2002 Supreme Court decision. In my opinion as a cyber crime criminal defense attorney, legislatures should consider the purpose of laws against child pornography possession, which is to discourage people from exploiting children to make it in the first place. When the pornography is Photoshopped or otherwise digitally created, it might still be shocking and sad, but it doesn’t meet the standard to override the First Amendment.

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Posted On: June 8, 2011

Illinois Seeks to Extradite Man Convicted of Vehicular Homicide of British Businessmen

As a Fort Lauderdale vehicular manslaughter criminal defense attorney, I was interested to read that the state of Illinois is seeking to extradite Ryan LeVin after his conviction here in Florida. LeVin, 36, is the wealthy Illinois man who pleaded guilty last week to killing two pedestrians in Broward County. LeVin was sentenced to just two years of house arrest after he agreed to pay financial compensation to the families of the victims. However, the Chicago Tribune reported June 6, the state of Illinois is seeking LeVin’s return to that state because he allegedly violated parole stemming from an earlier crash by traveling to Florida for trial without permission.

LeVin’s Florida crash took place in 2009. At first, he told authorities that a friend was driving when his Porsche jumped a curb in Fort Lauderdale and hit Craig Elford, 39 and Kenneth Watkinson, 48. The Porsche left the scene, and LeVin allegedly switched cars with a friend who later abandoned the Porsche on an entrance ramp. LeVin later admitted that he had been drag-racing and accepted responsibility for the deaths. In court, he would have faced up to 45 years in prison, but the Tribune said he had settled a civil case with Elford and Watkinson’s families, who asked the court for leniency.

At the time of the Florida crash, LeVin was on parole for a 2006 Chicago crash that injured a policeman, led a high-speed chase on an expressway and led to the discovery of cocaine in his car. Following the Florida crash, LeVin’s parole was revoked and he spent six months in jail. He was again on parole when he went to Florida to face charges there, but Illinois authorities said he didn’t have permission to travel. He would likely receive less than six months in jail, the Tribune said, before serving the house arrest at his parents’ condo by the ocean.

This case has gotten a lot of coverage as an example of “checkbook justice” in Florida. But as a south Florida manslaughter criminal defense lawyer, I’d like to discuss the issue of extradition to another state. Unlike international extradition, extradition between U.S. states is generally not refused. But that doesn’t mean someone in LeVin’s position has no defense. He has the right to contest the extradition, including the right to ensure that he’s being validly charged with a crime, that the paperwork is correct and that he is the person Illinois is seeking. In this case, the biggest issue might be whether LeVin did indeed violate his parole by going to Florida to answer the charges, which Illinois authorities must have been aware of. As a Miami criminal defense attorney, I handle interstate and international extradition defense whenever my clients need it, so I know that fighting extradition really can delay or even end a prosecution.

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Posted On: June 6, 2011

New York State Proposes Education Instead of Prosecution for Teens Caught Sexting

As a cyber crime criminal defense attorney, I’ve written many times here about the legal problems posed by the practice the media has named “sexting.” When teenagers take naked or explicit photos and then send them via text message or Internet, they can be charged with making child pornography, even though the pictures are almost always of themselves or consensual. As a result, teens in some areas have been subjected to harsh penalties intended for adults who exploit children, or become test cases for alternative penalties. Now, the New York state legislature is moving to offer prosecutors an alternative to conventional child porn laws. As the Wall Street Journal reported June 6, the “Cyber Crime Youth Rescue Act” would give prosecutors the option of sending kids to an educational program instead of jail.

New York follows at least 12 other states, including Florida and New Jersey, that have considered laws intended to treat teen sexting differently from adult child pornography offenses. Under the bill, the state Office of Children and Family Services would offer a training program for first offenders ages 18 and younger caught distributing sexual photos of themselves online or via text message. The program would explain the potential legal consequences of being caught sexting; the possible consequences for their personal lives and future careers; and the possibility that the photos could end up traded as child pornography forever. To be eligible, teens would have to show prosecutors they didn’t intend to commit a crime. The measure has not been co-introduced in the New York state Senate, and Gov. Andrew Cuomo has taken no position on it.

I hope the state legislature joins its neighbor in New Jersey and passes this measure, because as a child pornography criminal defense lawyer, I believe it’s a better way to handle teen sexting. As things currently stand, there’s no clear guideline for how to handle kids caught sexting, which leaves the door open for prosecutors to treat kids just the same as adults caught harming children many years younger. As the bill’s sponsor noted, teens prosecuted for child pornography can live with the results for the rest of their lives: a felony conviction, sex offender registration and the possibility that the photos will fall into the wrong hands (as Rep. Anthony Weiner of Brooklyn can attest). As a child pornography defense attorney, I believe bills like this give prosecutors the tools to handle sexting without ruining young lives or giving kids permission to ruin their own.

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Posted On: June 1, 2011

Cyber Crime Defense Attorney Talks About Casey Anthony Trial on Geraldo

I had the honor recently of appearing on Geraldo Rivera's show on Fox News. The subject was the Casey Anthony trial, which is major news in Florida and across the United States. Anthony is accused of killing her little girl and trying to cover it up, and Geraldo asked me to comment on the case from the perspective of a Florida criminal defense attorney. Among other things, I discussed the effects of allegations that Casey Anthony herself was sexually abused, which could change the way the jury reacts to her story.

Posted On: June 1, 2011

Police Shootings and Alleged Civil Rights Violations Mar Urban Beach Weekend

As a south Florida assault criminal defense lawyer, I was interested to read about the police shootings and controversy surrounding Urban Beach Weekend in Miami Beach. As the Miami Herald reported May 30, two separate officer-involved shootings took place very early on that day, leaving one suspect dead and three officers and four bystanders wounded. None of the people involved were named in the Herald story, but the three officers were expected to recover. The driver in the second incident has been arrested on unspecified charges. Witnesses also accused police officers, who came from several south Florida departments to handle the crowd, of grabbing and destroying cell phones being used to videotape the incidents.

In the first incident, a driver identified as 22-year-old Raymond Herisse struck a police officer with his car just before 4 a.m. Instead of stopping, Herisse sped away; Miami Beach police chief Carlos Noriega said Herisse was intentionally trying to hit officers, hitting parked cars and forcing officers and pedestrians to jump out of the way. Some reports said the driver was firing from the car, but officers found no gun when they opened the car, and reports say no one else was inside the car. A total of 12 officers did shoot more than 100 bullets at the car, including shots fired from a semicircle of officers after it stopped, which eventually killed Herisse. All seven of the wounded officers and bystanders were hurt during this incident, and Noriega acknowledged that the police bullets may have been responsible. A witness told reporters that a police bullet hit her friend. A witness captured some of the incident from a roof:

In the second incident, a driver violated the police roadblocks set up after the first shooting and drove toward several officers who were on foot. The officers fired into the car, which crashed into a police car parked at the side of the road. No one was injured, fortunately. However, a witness to the first incident told CBS 12 that police grabbed and destroyed his phone after seeing him filming the first incident. Narces Benoit of Palm Beach County said he was taping the first shooting when an officer ran up to him and wordlessly grabbed his head and smashed him to the ground. He said the officer stepped on his back, threw the phone on the ground and stepped on it, “cussing me out the whole time.” Benoit said police took several other phones with cameras from witnesses on the street, and that he plans to file a complaint.

From the facts presented in these articles, it’s difficult to say whether police acted appropriately with the original driver. However, as a Miami-Dade resisting arrest criminal defense attorney, I agree with the ACLU that there should be an independent investigation into this and any other officer-involved shooting. Urban Beach Weekend has a troubled history, though it’s also had calm years, and it’s not hard to imagine officers overreacting to perceived threats. That seems especially likely in the second incident, when officers would have been still upset from the last one. Even a driver who had accidentally gotten into the “secured” area could be perceived as a threat by officers on foot who were tired and on alert. However, the officers’ choice to seize and destroy the camera phones of witnesses seems like a pretty clear violation of their rights to speech and property. As a Fort Lauderdale disorderly conduct criminal defense lawyer, I would caution people involved in this incident to get experienced legal help immediately, because officers may find bogus charges to file against them if they feel it helps cover for official misconduct.

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