Posted On: September 28, 2012

Eleventh Circuit Sends Back Sentencing for Fleeing and Eluding Defendant – U.S. v. Johnson

In the course of my job defending clients from serious criminal charges, I defend a lot of clients who are accused of fleeing from police in the course of another crime. Many states, including my own state of Florida, make it a crime to flee from police at high speeds, reasoning that this puts the officer and the public in danger. In federal court, however, this can be penalized with an enhancement of the sentence for the underlying crime, meaning the defendant serves more time on the same charge rather than facing an additional charge. In United States v. Carrell Johnson, the Eleventh U.S. Circuit Court of Appeals rejected this kind of sentence enhancement, finding that prosecutors provided insufficient proof that the defendant bore responsibility for the driver’s dangerous conduct.

Carrell Johnson helped another defendant rob a drugstore in Atlanta, and then was a passenger in the getaway car. To escape police cars that had surrounded the store, they rammed one car, sped and ignored traffic signals, causing such chaos that police called off the chase. After they crashed and were apprehended, Johnson pleaded guilty to what was presumably his part of the robbery: interfering with commerce by threats or violence, brandishing a firearm, and being a felon in possession of a firearm. His sentence was then enhanced by two levels for “recklessly creating a substantial risk of death or serious bodily injury” while fleeing from law enforcement. Johnson objected to the reckless endangerment enhancement several times, but the district court overruled.

In his appeal to the Eleventh Circuit, Johnson argued that his sentence was procedurally unreasonable because the district court did not support the sentence enhancement with fact-finding, and also should have made a specific finding as to the application of the reckless endangerment enhancement. The Sentencing Guidelines permit application of the enhancement for conduct the defendant “aided and abetted, counseled, commanded, induced, procured or willfully caused.” The Eleventh had addressed the situation in a previous case, and sent that case back for the trial court to consider whether the defendants had done any of those things toward the dangerous conduct at issue. The same applies to this case, the Eleventh said. Prosecutors must show that Johnson directed the car chase in some way, not just that he helped plan the robbery itself. From the current record, the Eleventh said, that wasn’t shown. Thus, it remanded the case for a new sentencing that answered those questions.

As a criminal defense attorney who handles robbery charges and other serious crimes, I am pleased to see the Eleventh Circuit establishing a standard for this sentence enhancement. A two-level sentence enhancement leads to more years in prison, so looking into whether Johnson was actually guilty of dangerous fleeing is extremely relevant to his civil rights. The prosecution is required to actually prove its allegations in every case, in fact—but sometimes, dislike of the underlying crime can lead to careless mistakes in the trial court. That’s why it’s absolutely vital for defendants accused of serious crimes like armed robbery to get help from an experienced lawyer who knows how to protect their rights.

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Posted On: September 27, 2012

Third Circuit Orders New Trial for Defendant Whose Jury Saw Child Pornography Videos – U.S. v. Cunningham

A challenging part of my work as a criminal defense attorney who handles child pornography cases is the visceral reaction many jurors have to child pornography itself. The materials are offensive to many people, and because they feel so strongly, many will judge the defendant based solely on an accusation. Showing the materials is therefore highly likely to evoke a strong reaction from the court and create a strong reaction. That’s exactly what happened in United States v. Cunningham, and the Third U.S. Circuit Court of Appeals decided it was enough to require a new trial for the defendant. David Cunningham of western Pennsylvania was discovered sharing child pornography through the Internet and prosecuted for both receipt and distribution of child pornography. He appealed on the basis that the court should not have shown samples of the materials in question to the jury, and the court agreed.

Law enforcement officers identified files Cunningham was sharing on peer-to-peer networking sites as child porn. They traced the IP address to his home and identified him as the sharer. Though he admitted to police that he had downloaded the files, he pleaded not guilty. At trial, he filed a motion to prevent the prosecutors from showing the actual files to the jury, arguing that their value would be outweighed by the danger of unfair prejudice, particularly since his defense was that someone else had possessed and distributed the videos and he stipulated that they were really child pornography. The district court denied this and permitted a two-minute excerpt from seven videos to be shown. After the defense saw the video, it filed another objection seeking to remove certain images and the audio, but the court, without seeing the excerpts, ordered only the removal of the audio. Cunningham made one more request to the court to view the excerpts before trial, which was again denied. He was convicted and sentenced to 17.5 years in prison, plus 20 years of supervised release during which he may not use the Internet except at work.

On appeal, Cunningham argued that the district court should have viewed the videos before deciding whether to show them to the jury, and also should have excluded or limited them as having little value. He also argued that the court erred by failing to adequately describe them to potential jurors during voir dire. The Third Circuit agreed that the court abused its discretion by failing to review the videos. Because of the “deeply disgusting, inflammatory character” of the materials, the court could not have made a proper decision about their value or prejudice to Cunningham without viewing them. Thus, the Third said, the district court abused its discretion. It further ruled that some of the images in the videos had no probative value. While they did show that Cunningham knew their content, a smaller number of images would have sufficed. And those images, particularly two violent ones, created a “tremendous” risk of unfair prejudice, the appeals court added, making their admission another abuse of discretion. Declining to rule on the voir dire issue, the court vacated the conviction and remanded for a new trial, with orders to watch videos if it wished to admit any as evidence.

As a child pornography defense lawyer in Miami, I am pleased that the Third Circuit ordered a new trial for this defendant. Though the court made it clear that it did not enjoy the descriptions of the videos’ content, it made a distinction between disgust for that content and the rights of the defendant. This is exactly the distinction that federal law is concerned with helping juries to make. In this case, Cunningham was accused of distributing and receiving child porn, and was not attempting to argue that the materials were not child porn. Thus, showing them to the jury was not very valuable as evidence, as the Third detailed—but it was likely to provoke strong negative feelings about Cunningham. While this would certainly have helped the prosecutors get a conviction, the appeals court was right that it was unfair to Cunningham.

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Posted On: September 21, 2012

Florida Supreme Court Rules Juveniles May Be Charged With Battery by a Detainee – Hopkins v State

As a juvenile crimes defense attorney, I believe we have a separate set of rules for minor defendants because minors are in some ways less culpable for their actions than adults. That’s why I don’t believe laws for adults should be applied to minors, at least under most circumstances. That’s why I was interested to see the Florida Supreme Court’s decision in Hopkins v. State, a case involving a juvenile detained in a juvenile detention center. Laveress Hopkins challenged the charge against him of battery by a detainee, saying detention in a juvenile facility was inadequate to support the detainee charge. The trial court dismissed, following a First District Court of Appeal decision, but the Fourth District overturned it and the state Supreme Court upheld that decision.

Hopkins was detained at the St. Lucie Juvenile Detention Center when the new charges arose; the circumstances were not described in the opinion. However, the use of the “battery by a detainee” charge enhanced the offense from a first-degree misdemeanor to a third-degree felony. Hopkins moved to dismiss, relying on the First District Court of Appeal’s 2003 decision in T.C. v. State, which held that the charge was inapplicable to juveniles in juvenile detention facilities. The trial court disagreed with T.C. but felt bound by it and dismissed the case, urging the state to appeal. The Fourth District Court of Appeal did take up and reverse the case, finding that there existed contradictory cases that were on point. Hopkins appealed to the Florida Supreme Court.

That court affirmed the Fourth District’s ruling calling for reinstatement of the battery charge. The relevant law (section 784.082) applies to “a person who is being detained in a prison, jail or other detention facility...” The state high court found it clear and unambiguous that a juvenile detention facility could be classified under “other detention facility.” It also noted that the statute uses the word “person,” showing that the law is not limited to adult detainees. Furthermore, it noted, the law’s preamble specifically noted juvenile crime as a reason for enactment. Hopkins argued that the rule of lenity should apply to exclude juveniles from the law, but the court ruled that the rule was inapplicable, since the statute was not subject to differing reasonable interpretations. Thus, it upheld the Fourth District.

One thing about this case that interests me as a criminal defense lawyer here in Miami is the difference this makes for Hopkins. A first-degree misdemeanor is just below a third-degree felony in terms of seriousness, but a felony conviction carries several consequences that a misdemeanor does not. If you are convicted of a felony, you must disclose it on many job applications, which can hurt your chances of being hired. Felonies can also disrupt your right to vote and own a firearm, and of course, a felony carries additional time in prison. All in all, as a juvenile crimes defense lawyer, I am not surprised that Hopkins sought to exclude the charge against him from the enhancement. For a minor under the age of 18, these are heavy penalties that can hurt his adult life before it even starts.

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Posted On: September 20, 2012

Juvenile Adjudication Is Prior Conviction for Sentence Enhancement Purposes – U.S. v. Woodard

Proving clients not guilty is a vital part of my job as a child pornography criminal defense attorney. But because the lengths of sentences for the same crime can vary dramatically in some circumstances, another important part of my job is defending clients from overreaching by prosecutors during the sentencing phase of a trial. After a defendant is found guilty in federal court—where online child pornography possession is often tried—he or she is subject to sentencing according to a complex set of federal guidelines that depend partly on things like prior convictions or acceptance of responsibility. The meaning of those guidelines was in dispute in United States v. Woodard, a recent child pornography appeal decided by the Eighth U.S. Circuit Court of Appeals.

Frank Joseph Woodard of Iowa pleaded guilty to possession of child pornography. When he was sentenced, however, the prosecutors in his case cited a juvenile adjudication for second-degree sexual abuse as a prior conviction “involving sexual abuse.” A prior conviction increases the defendant’s time in prison from 0 to 10 years for the base offense to 10 to 20; the prosecutors further sought to use the juvenile adjudication to apply a five-level sentence enhancement. Woodard did not deny that the juvenile case took place or that the facts reported by the prosecutors were accurate, but challenged the use of a juvenile adjudication as a prior conviction. After a hearing, the Iowa district court decided that both sentence increases could apply, and sentenced him to 14 years in prison.

Woodard appealed, challenging the determination itself as well as alleging the trial court failed to establish that the juvenile case was determined in a constitutional manner. Both aspects of the appeal failed. The Eighth Circuit addressed the question of whether a juvenile adjudication could count as a prior conviction in 2002’s U.S. v. Smalley, which involved the Armed Career Criminal Act, and the court did not find Woodard’s attempt to distinguish that case from his convincing. Next, the court rejected the argument that one juvenile conviction did not establish “a pattern of activity involving the sexual abuse or exploitation of a minor.” Under the U.S. Sentencing Guidelines, only two such instances are required, the court said, and it is not required that all result in conviction—meaning a juvenile adjudication should be sufficient in any case. Finally, the Eighth found that sufficient evidence supported the constitutionality of the juvenile adjudication; pointing out that documentation is lacking is insufficient to establish that any constitutional rights were actually denied. Thus, it upheld Woodard’s sentence.

The Eighth Circuit notes in its decision that this decision joins it with several sister circuits in deciding that a decades-old conviction is sufficient for a sentence enhancement in sexual abuse cases. Woodard’s juvenile adjudication was 19 years old when the instant case was sentenced; other circuits have permitted enhancements for conduct as old as 35 years old. As a cyber crime criminal defense lawyer, I think this shows how difficult it is for child pornography defendants to convince courts they have changed their ways. In other cases, a very long gap between offenses may convince a court to show mercy in sentencing, but there is a perception that child pornography defendants are unable to change and simply get caught when their luck runs out. As a child pornography defense attorney, I think it’s more complex than that—and I’m disappointed that courts don’t agree.

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Posted On: September 12, 2012

Florida High Court Rules Prosecutors Must Prove Status in School Trespassing Case – J.R. v. State

In order to convict anyone of a crime in Florida, prosecutors must prove all of the elements of the crime. Part of my job as a South Florida criminal defense attorney is to point out the flaws in the cases of prosecutors who do not prove all of those elements, because defendants should not be convicted when the crime is not proven. That was the logic behind a recent Florida Supreme Court ruling in J.R. v. State of Florida, in which a minor was adjudicated delinquent for trespassing at a middle school. J.R. was warned twice by Miami-Dade County School Police officers for trespassing at the school before his arrest for the third trespass. In its decision, the Florida high court said prosecutors must show that the officers were designees of the principal before they can convict J.R.

Officers Orlando Gutierrez and Gregory Williams had warned J.R. at least twice before the arrest to stay off the grounds of Ruben Dario Middle School, where he was not a student. After the third encounter, they arrested him and charged him with trespassing “after being warned by the principal or a designee.” After testimony at a bench trial, J.R. moved for dismissal because the state had not presented evidence that either officer was a designee of the principal as required by the statute. This was denied and J.R. was adjudicated delinquent. On appeal, the Third District Court of Appeal upheld the ruling, relying on a similar delinquency case that was itself on appeal to the Florida Supreme Court, D.J. v. State.

In D.J., the high court ultimately found that the status of the person giving the warning was an essential element of the crime, and thus the status must be proven beyond a reasonable doubt. Similarly, the Florida Supreme Court found that the state was required to prove the designee status of the officers in J.R.’s case, and overturned the lower courts. In D.J., the court held that the statute’s wording necessarily implies that the person giving the warning must have been given express or implied authorization from the principal to exercise authority over the school property. No evidence showing this was presented at either trial, the court noted. Mere status as school police officers was not sufficient evidence, the court said, and the trial court did not cite any authority establishing it. Thus, it reversed and remanded the case.

As a Fort Lauderdale juvenile criminal defense lawyer, I applaud this decision. It reaffirms the basic right of all defendants, juvenile and adult, to have the evidence against them proven beyond a reasonable doubt. This is a very important constitutional right for all criminal defendants, but which unfortunately can be overlooked by courts convinced of the defendant’s guilt. Though school police officers may very well have implied designee status from principals, the law requires that prosecutors take the trouble to prove that before they prosecute teens for delinquency or try to convict adults of a crime. As a Miami-Dade criminal defense lawyer, I believe this relatively high standard is the right one to apply when someone’s freedom and future are at stake.

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Posted On: September 10, 2012

Court Rules Deleted Child Pornography May Count Toward Sentencing – U.S. v. Keefer

As a cyber crime criminal defense attorney, I sometimes handle cases that turn on technical issues. The date a file was opened; the presence of a virus; and the locations of files can all make a big difference in a case. In United States v. Allen L. Keefer, a child pornography possession case, the defendant won resentencing because of an important difference in where the files were located -- but then failed in an argument that he had never opened the files. Keefer, of Ohio, was originally sentenced to 17 and a half years in prison for possession of child pornography. However, a previous appeal to the Sixth U.S. Circuit Court of Appeals overturned the sentence, because many of the images were in the unallocated space of his computer. He received a new sentence on remand, but a second appeal did not succeed.

Keefer originally pleaded guilty in 2009 to one count of possession of child pornography and two counts of distribution. His sentence was subject to a five-level enhancement because he was accused of possessing 600 or more images. That number, however, was based on law enforcement’s discovery of 1,215 images in “unallocated space” or “free space,” which is the area where deleted files are kept on a computer. Those files still exist, but will be overwritten when new files are created and saved, and do not appear in the files the user can see. Keefer appealed this sentence, saying only 39 files were on the usable part of his hard drive, and that he did not have any knowledge of the files in the unallocated space. The Sixth Circuit agreed that there was no evidence that he knew of the files, and sent the case back for resentencing.

On remand, the Ohio district court heard evidence from the computer forensic expert who examined his hard drive. That expert testified that digital evidence showed most of the deleted files had been opened on Keefer’s computer at some point or downloaded in their full size and kept in the temporary files of a Web browser. Thus, the expert said, he believed Keefer had known about them and possessed them within the meaning of the law. Keefer was resentenced to 17 and a half years and again appealed. This time, however, the Sixth Circuit did not agree that the sentence was unreasonable. While it ruled in Keefer I that merely having files in unallocated space was not enough proof of possession, it said, the testimony on remand provided the necessary proof. Furthermore, Keefer testified that he opened files long enough to decide whether he liked their contents, showing that he knowingly viewed them. Thus, it upheld the sentence.

As a child pornography possession criminal defense lawyer, I have sympathy for the situation Keefer’s testimony suggests. Taking his testimony as true (though the Sixth Circuit cautioned that he was heavily medicated), it appears that he is being sentenced on the basis of images he opened and rejected as well as images he collected and kept. Though this may seem unfair, the law penalizes defendants based on the number of images they “possess” under the law (including, as we see here, deleted files they knew about), not just the number of images they intended to keep. That’s why an important part of my job as a child pornography defense attorney is establishing exactly what files my client “possessed” and knew about, through testimony as well as digital evidence.

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Posted On: September 5, 2012

Florida Cybercrime News Update: NYC Invests $4.2 Million in Anti-Cybercrime Infrastructure: What Are the Implications for the Sunshine State?

Cybercrime in Florida and beyond is becoming a booming business, as both law enforcement and criminal operators develop and discover technologies and innovate new systems.

Manhattan’s District Attorney recently announced that the City of New York will be spending an additional $4.2 million to battle computer crime. District Attorney Cyrus R. Vance, Jr. and Christine Quinn, a City Council Speaker, both are recent victims of identity theft, so there must be a personal element to their quest, as well. The influx of cash is not designed to help the DA’s office hire new people as much as it is earmarked to invest in powerful new technologies to help investigators trace and analyze cell phone calls and neutralize cybercrime activities.

Does This Upgrade Augur a “Sea Change” in How Cybercrime Will Be Fought in Florida and Elsewhere?

If you’ve been come under investigation for phishing, identity theft, fraud, or another cyber crime in Florida, you may be wondering if/how these prosecutors’ new tools and toys will impact your defense and chances for freedom and clemency.

The reality is that cybercrime is a new frontier – both for criminals and for law enforcement. As new technologies emerge, new types of crimes become possible and new types of “crime fighting activities” also become possible. To what extent can these new crimes be prosecuted? To what extent are these new crime-fighting activities effective, legal…or even Constitutional?

Many of these questions remain up in the air.

The moral is that, as a Florida cybercriminal defendant, you’re caught up in an exotic, new, confusing environment. This can be a positive development, in that, if you prepare an effective strategy and work with a respected, experienced Florida cybercrime defense team, like the team here at Seltzer Law, PA, you might be able to reduce or even eliminate your charges.

On the other hand, the new, chaotic environment presents challenges. For instance, prosecutors may have leveraged surprising new methods to compile evidence against you or your associates that they can use to blindside you in court. They may also be able to show that you’ve broken more laws than you had realized.

To protect your rights and interests, get in touch with our legal team today by calling 1-888-THE-DEFENSE (888-843-3333) any time, 24/7, for a thorough and systematic assessment of your case.

Posted On: September 3, 2012

Surprise Turn in the Case of Sanzaro v. United States: 79-Year Old Suspect Surrenders After Hiding Out for Nearly Two Decades

It’s a Florida criminal case like something out of the Godfather – a 79-year-old suspected organized crime boss finally surrenders to police after nearly two decades on the run.

Paul Sanzaro met up with federal agents back in February 1995. At that meeting, the Feds told him that his safety was in jeopardy, because he played a role in a "crime drug ring gone wrong" that had operated in South Florida between July 1994 and January 1996. He and his associates were charged with importing massive amounts of heroin and cocaine and doling out those drugs to dealers. Sanzaro’s co-defendants pled guilty and walked away with big jail sentences. But Sanzaro himself abandoned his family and went on the lam, after he learned that there was a contract on his life.

A Strange Twist in This Florida Crime Story

After years of running, in May 2011, out of nowhere, Paul Sanzaro showed up at the offices of a well-known organized crime attorney, Murray Richman. He reportedly told the lawyer “life on the run is no life at all. I can’t do this anymore.” Sanzaro said, “I’ve got a family I want to see again, I’m sick, I have no money, I look like a bum – I want to have some a semblance of normality again.” Given all the federal charges against Sanzaro, he could face life imprisonment along with a whopping $4 million in fines.

As far as what will happen now to Sanzaro… who knows? From reports, it sounds like he has led a difficult life, to say the least.

If you’re a Southern Florida criminal defendant who has been caught up in a bad situation, such as a drug deal gone wrong, the team here at the Seltzer Law, PA, can help you understand what you might be able to do -- not only to fight your charges but also to get your life back in order.

Take that first step. Connect with our team today at 1-888-THE-DEFENSE (888-843-3333).