Posted On: December 27, 2012

Divided Florida High Court Rules Defendant Is Not Mentally Retarded - State v. Hall

As fans of criminal defense law know, the U.S. Supreme Court has ruled that states may not put mentally retarded defendants to death. Not surprisingly, this has generated more death penalty appeals from defendants who--rightly or wrongly--contend that they are unfit for execution because of their diminished mental capacity. In State v. Hall, defendant Freddie Lee Hall argued that his death sentence should be vacated because a court had previously found him mentally retarded. A majority of the Florida Supreme Court disagreed, saying competent and substantial evidence was heard in lower courts that Hall was not retarded. A dissent argued passionately that he is.

Hall was sentenced to death for the 1978 murder of Karol Hurst. Direct appeals were exhausted early, but a federal habeas petition resulted in an Eleventh U.S. Circuit Court of Appeals order to hear evidence related to his absence from the courtroom and the effectiveness of his counsel. That hearing was fruitless, as was Hall's first petition to this court. However, his second petition resulted in a holding that errors at his trial were not harmless, and his case was sent back for re-sentencing. At that re-sentencing, the court again sentenced Hall to death, but held that he was mentally retarded and that this was a mitigating factor. A third trip to the Florida Supreme Court resulted in a holding that Hall was competent but mentally retarded. After the Supreme Court decided Atkins v. Virginia, Hall moved to vacate his sentence, resulting in the instant case. Over his objection, the trial court relitigated his mental retardation and denied relief.

On appeal, Hall argued that the trial court erred in picking an IQ of 70 as a cutoff for finding mental retardation, because a more appropriate standard would provide for a scoring range. A Florida law provides a definition of mental retardation, the court said, and it has survived several challenges claiming it's inconsistent with Atkins. It declined to revisit the issue. The court next dismissed Hall's arguments that he should have been able to introduce evidence that he met the second and third parts of the mental retardation test, saying Hall did not meet the first and thus, further inquiry was useless. Another piece of unadmitted evidence said Hall's IQ was 69; the high court said it was not error to not admit it because it was not competent evidence. Finally, the Florida Supreme Court ruled that it was not error to relitigate the issue of Hall's mental retardation, saying it had to be relitigated to meet post-Atkins standards.

One dissent to this opinion takes issue with the "absurd" result, given Hall's background; the other argues that the IQ cutoff of 70 is inconsistent with Atkins. Given the importance and passion connected to the death penalty, the dissents may be attempting to set up the case for an appeal to the U.S. Supreme Court. Homicide cases like this one frequently result in multiple appeals, as the record in this case shows, and the Supreme Court turns away death penalty appeals often. However, this case may get more attention because it creates an opportunity to clarify the Atkins ruling. A ruling clarifying the standard for finding mental retardation, particularly if it takes previous rulings into account, would apparently ease a burden on Florida courts.

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Posted On: December 26, 2012

Seventh Circuit Dismisses Appeal of Sentence Total That Exceeds Statutory Maximum - U.S. v. Craig

Because child pornography crimes carry very high sentences, many of the appeals are appeals only of the sentence, rather than appeals of the conviction itself. Defendants may believe it's easier to win an appeal of the sentence for several reasons: the length of the final sentences, the difficulty of challenging a conviction on a possession crime, and the convoluted sentencing guidelines created by ever-tougher laws from Congress. United States v. Craig is one case in which the complex sentencing guidelines may have created an opportunity for an appeal. David Michael Craig was convicted of producing child pornography; the sentencing guidelines said the sentence should be life in prison, but the statutory maximum for each individual count was 30 years in prison. The judge ultimately handed down a 30-year sentence and three concurrently-served 20-year sentences. The Seventh U.S. Circuit Court of Appeals ultimately dismissed the appeal as frivolous.

Craig sexually assaulted a friend of his daughter's when the victim was between the ages of 11 and 14. He took photographs of the assaults, which created some of the child pornography he was accused of producing; the remainder, he obtained by threatening to kill her unless she sent him more pornographic images. He ultimately pleaded guilty to four counts of producing child pornography. His total offense level was 43, meaning his guidelines sentence for each count was life in prison. However, the judge was unable to impose life sentences because the statutory maximum for each count was 30 years. Instead, the judge handed down a 30-year sentence to be served consecutively with three concurrent 20-year sentences, for a total of 50 years in prison (a de facto life sentence for the 46-year-old Craig).

The Seventh Circuit noted that the judge had ample precedent for this decision. the guidelines instruct district courts to sentence consecutively if necessary to bring sentences into the guidelines range, even if the total sentence would then exceed the statutory maximum for any count of which the defendant was convicted. Nonetheless, Craig appealed. The Seventh further noted that Craig's attorney filed a motion to withdraw after concluding that the appeal was frivolous, since guidelines sentences are presumed reasonable and nothing in the record gave him grounds for appeal. It granted the attorney's motion to withdraw, then dismissed the appeal. Judge Posner concurred separately to emphasize to trial judges that imprisoning the elderly is expensive and may have little value, which should be considered when imposing life sentences.

As a cyber crime attorney, I'm surprised and pleased to see a discussion of the costs of imprisonment from the appeals courts. Generally speaking, appeals courts don't have to concern themselves with practicalities; their job is to apply the law correctly, and they never look at the facts of the case except for guidance on applying the law. However, I strongly agree that longer and longer sentences don't necessarily benefit society. As the judge pointed out, the financial cost of incarceration includes medical care for elderly prisoners as well as room and board; the deterrent effect is minimal; and while older people do commit sex crimes, they do so in much smaller numbers. Unfortunately, this kind of analysis is rarely undertaken when Congress votes to increase sex offender sentences yet again, since the primary motivation for such laws is impressing voters.

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Posted On: December 19, 2012

Florida Supreme Court Strikes Down Noise Law As First Amendment Violation – State v. Catalano

Constitutional law comes up plenty in criminal defense law, but most often, it comes up in the context of unreasonable search and seizure or the right to a speedy trial. So I was interested and pleased to see that the right to free speech was the reason that a Florida state law was struck down last week. In State v. Catalano, Richard Catalano and Alexander Schermerhorn were convicted separately of violating a state statute forbidding loud car stereos that are “plainly audible” from 25 feet or more away from the vehicle. Both pleaded not guilty and moved to dismiss because the law was unconstitutional, but ultimately pleaded nolo contendere and reserved the right to appeal. The Second District Court of Appeal agreed that the law was unconstitutional, and after review, the Florida Supreme Court agreed.

Catalano was cited in 2007 and Schermerhorn in 2008. The 1990 law they were accused of violating forbade car stereos audible at 25 feet or further or that are “louder than necessary” when outside churches, schools or hospitals; it makes an exception for law enforcement and vehicles used for business or political purposes. They moved to dismiss their citations in separate county court cases, but those motions were denied based on a 1998 Fifth District Court of Appeal case. Instead, they pleaded nolo contendere, received withheld adjudication, and reserved the right to appeal. The circuit court for Pinellas County reversed, citing a Second District Court of Appeal decision saying the law was overly broad. Their appeals were consolidated in the Second District, which nonetheless denied review of the circuit court’s opinion, saying the decision comported with the law and also that the statute is an unconstitutional restriction on content.

The state appealed again to the Florida Supreme Court, asking for a determination on whether the statute is not overly vague or broad and whether the business and political exceptions were permissible. The high court found it was not vague, but it was broad and impermissibly treated different speech differently. On vagueness, the defendants argued that whether a stereo is audible 25 feet away is subjective because it’s determined by an individual law enforcement officer. However, the high court said, exact standards are not required for a finding of constitutionality. They had better luck arguing that the statute was overly broad. Because the statute exempts political and commercial speech, the Supreme Court said, it discriminates according to the type of speech—violating the First Amendment. And because removing the exemption would change the nature of the statute, the court said, it cannot be severed. Thus, it declared the whole statute unconstitutional.

Traffic tickets don’t sound like a big deal, but they can be in Florida, because state law requires authorities to suspend your driver’s license if you have too many unpaid tickets. As a result, traffic ticket defense can become part of defending a charge for driving while license suspended, or another Florida criminal charge. Sometimes, the driver has no idea there’s a problem until he or she is pulled over for unrelated reasons, and then thrown in jail or forbidden from driving home. That’s why it’s vital to address tickets you’d like to fight as early as possible, or get the help of an experienced attorney resolving a series of unpaid tickets.

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Posted On: December 18, 2012

Eleventh Circuit Rules Search Is Legal Despite 25 Day Delay in Obtaining Warrant – U.S. v. Laist

Searches are vital in child pornography possession cases, because this is one of the few crimes where just having something in your possession is enough to trigger severe penalties. As a result, if the search that turned up the evidence is deemed illegal, and the evidence is thus thrown out, the entire case may collapse. That was the result defendant David Laist hoped for in U.S. v. Laist, a case from our own home appellate court, the Eleventh U.S. Circuit Court of Appeals. The FBI seized computer equipment from Laist after Laist indicated that child pornography was on the equipment, but delayed seeking a search warrant for 25 days. Laist argued that the delay created an unreasonable search and seizure in violation of the Fourth Amendment, but the district court denied his motion to suppress and the appeals court affirmed.

Laist was a student at the University of Georgia when the FBI identified him as the owner of an online account that had been used to possess and distribute child pornography. Three agents found Laist at home, where he confessed that there was child pornography on his computer and five external hard drives. He signed two forms consenting to a search of the equipment. The agents seized the equipment as evidence, but Laist revoked his permission a week later on the advice of his criminal defense attorney. As a result, agents held them on probable cause and applied for a search warrant. However, the search warrant was not issued until more than a month after the search, because of the volume of work for the agent and the judge. At trial, Laist argued that this delay was unreasonable and violated the Fourth Amendment in his motion to suppress. After a hearing, the district court denied. Laist pleaded guilty conditionally and was sentenced to 10 years in prison.

On appeal, he renewed his argument that the delay was unconstitutional. The Eleventh Circuit started by noting that courts must review delay cases such as this on a case-by-case basis. The judge’s delay in reviewing the application was not attributable to the government, the Eleventh said; thus, only the delay caused by the FBI agent is relevant. And that delay was not unreasonable, the court said. While Laist had a clear interest in his computer equipment, he had been permitted to retrieve files he needed for school. Furthermore, the court said, Laist not only admitted to the agents that there was child pornography on the computer, but actually showed them an image, enhancing the government’s interest in searching his equipment. The agent was diligent enough in seeking a warrant; he started the process as soon as he knew Laist was revoking his consent to a search and put much detail into his affidavit. The agent was also extremely busy. Thus, the appeals court found the delay reasonable considering all the circumstances.

Though Laist himself did not succeed at getting his search thrown out, this case does cite a case in which a child pornography defendant had a search declared unreasonable. Notably, that defendant did not confess that the equipment did have child pornography on it and did not show an image to law enforcement. Both of those are factors that undoubtedly strengthened the case for the delay to be considered reasonable. That is, police already knew the nature of what they would find (though not its extent). In my experience as a criminal defense attorney, defendants often confess voluntarily—but this is a mistake, as Laist’s attorney undoubtedly told him. I advise all of my clients to stay silent when dealing with law enforcement, and leave the talking to an experienced defense lawyer.

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Posted On: December 12, 2012

Search of Cell Phone May Be Incident to Arrest Even When Not During Arrest – Commonwealth v. Berry

One ongoing issue in criminal defense law is to what extent police may search cell phones they find on defendants. The U.S. Constitution forbids unreasonable searches and seizures, but the Constitution was written well before we developed computers small enough to carry around in a pocket or purse, and only a small amount of caselaw addresses the subject. That’s unfortunate, because an illegal search can determine whether or not someone is prosecuted, particularly for crimes that stem solely from possession, such as drug possession or felon in possession of a firearm. So I was interested to read Commonwealth v. Berry, in which the Massachusetts Supreme Judicial Court reversed an order suppressing evidence from a warrantless cell phone search. The decision means prosecutors will be permitted to present evidence found on the phone.

Police were on patrol in a high-crime area of Boston when they noticed a gaunt-looking man nearby. A car pulled up and he got in; the officers followed it as it circled the block several times. When the man got out again, one officer followed him on foot, arrested him and discovered a bag of drugs he had dropped. The other officer pulled over the car, with help from a marked police cruiser, and arrested the driver, defendant Christopher Berry. Both men’s phones were seized. After they were taken to the police station, one officer picked up one of the phones, pulled up the list of recent calls, and dialed the most recently called number; the other phone rang. In trial court, both Berry and the customer moved to suppress evidence from this search, arguing that it was illegal and warrantless. The trial judge agreed, finding the search was not “incident to arrest,” making it lawful to search without a warrant, because it was distant in time and space from the arrest.

The Commonwealth appealed and the high court took up the case from the appeals court. After dismissing standing arguments from both sides, the high court ultimately reversed the partial suppression of the evidence. The phone belonging to Berry was on his person when he was arrested. Under Fourth Amendment caselaw, the court said, a warrantless search incident to arrest may include a search of the arrestee and items found on his person. In fact, the court said, a 1974 case found that a search that could have been made on the spot during the arrest may lawfully take place later, at the police station. Thus, the timing of the search did not render it invalid, the high court said. It went on to find that the scope of the search was also limited enough to make it incident to arrest. As with this year’s Commonwealth v. Phifer, the police in this case pressed one button to see a call list, reviewed it and placed one call; they had reasonable grounds to believe it would reveal evidence of a drug deal. Thus, the court said, this search under these circumstances was legal.

The court in this case took some trouble to emphasize that the result may not be the same under different facts, with a more invasive search or using a different advice. In essence, it was saying not to take this opinion as an indication that all searches of electronic devices will be upheld—and that’s good news for criminal defense attorneys in the state. Though the court found this search limited, I have read about plenty of other warrantless cell phone searches that cross the line. This may provide evidence to support criminal charges, but when it’s an illegal search, an experienced lawyer can get the evidence thrown out of court, and that can destroy or set back the entire case.

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Posted On: December 11, 2012

Fifth Circuit Rules Admission of Child Pornography as Evidence Was Permissible – U.S. v. Blank

I wrote here not long ago about an appeals court ruling calling for a retrial because the court incorrectly admitted child pornography videos that had little value as evidence, but likely prejudiced the jury. So I was interested to see another case in which the defendant unsuccessfully argued that his trial court erred in admitting child pornography as evidence, including showing one video and five images to the jury. In United States v. Blank, Travis Hunter Blank was convicted of transporting child pornography as well as possessing child pornography. He appealed not only the admission of the child porn as evidence, but also the sufficiency of the evidence against him and the trial court’s choice to dismiss his first indictment without prejudice. The Fifth U.S. Circuit Court of Appeals upheld the trial court on every issue.

Law enforcement intercepted an email from Blank’s account that had a child pornography video attached. This led to a search of Blank’s home. During the search, Blank voluntarily told a police detective that he had sent the video, that he downloads child pornography and that he has looked at it for the past 10 years. He followed it up with a written confession that said he may have seen 1,000 pictures over the past decade; a forensic search of his computers found 24 images. Law enforcement also recorded phone calls between Blank and family members, in which he made incriminating statements. He later attempted to blame a houseguest. A series of pretrial motions delayed the case enough that Blank moved for dismissal for violation of the Speedy Trial Act. This was granted, but without prejudice, allowing the prosecution to re-file. Blank was ultimately convicted by a jury of transporting and possessing child pornography.

On appeal, he argued that the court should have dismissed the case with prejudice; that the evidence was insufficient for a conviction; and that two exhibits of child pornography should not have been admitted. The Fifth Circuit rejected all of these arguments. On the Speedy Trial Act violation, it found that Blank’s offense was serious; the Speedy Trial Act violation was related to the overcrowded docket; and the delay did not prejudice Blank’s case. All these factors together weighed for dismissal without prejudice, the Fifth said. On the sufficiency of the evidence, Blank argued that the evidence made it equally likely that the houseguest was at fault. The Fifth rejected this argument, citing numerous holes in his theory, including his own written confession. Finally, it rejected the argument that the court should not have shown the pornography to the jury even after he stipulated that the material was child porn. A 2009 Fifth Circuit case, U.S. v. Caldwell, said defendants may not “stipulate the evidence away,” and Blank did not distinguish his case.

The opinion in this case didn’t reference the earlier case ordering a new trial for a defendant whose jury saw child pornography, and that case, from the Third Circuit, did not reference Caldwell. That’s too bad, because it would be interesting to see whether the judges involved in these cases feel there’s a circuit conflict. As an experienced cyber crimes defense lawyer, I believe it’s unwise to show juries child pornography, because the material tends to provoke strong emotional reactions. Under that influence, it can be harder for juries to make the rational decisions they need to make about whether the case has been proven beyond a reasonable doubt. Child pornography charges carry heavy penalties, so it’s vital that juries be given the tools they need to do their job fairly.

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Posted On: December 5, 2012

Divorce Order May Prevent Taking of Property to Satisfy Criminal Restitution Order – U.S. v. Duran

Restitution orders are a very common part of sentencing for crimes involving theft, including fraud crimes as well as outright theft and embezzlement. However, as with asset forfeiture laws for drug and child pornography defendants, any third party who also has an interest in the asset has a right to challenge the taking in court. In United States v. Duran, the Eleventh U.S. Circuit Court of Appeals ruled that the ex-wife of a defendant may bring a challenge to the federal government’s attempt to take the marital home as restitution. Lawrence Duran was convicted of conspiracy to commit Medicare fraud, and was ordered to pay more than $85 million in restitution. A South Florida district court denied ex-wife Carmen Duran’s motion opposing the government’s attempt to take their apartment, granted to her in the divorce. The Eleventh Circuit reversed this, finding the taking was barred by the Fair Debt Collection Practices Act.

Carmen and Lawrence divorced in June of 2010. As part of the divorce settlement, Lawrence agreed to transfer his interest in a New York City apartment to Carmen. In May of 2011, Lawrence pleaded guilty to 38 crimes related to Medicare fraud and received a sentence of 50 years in prison and $87.5 million in restitution. Five months later, the federal government requested a writ of execution against the apartment to collect its restitution from Lawrence’s interest in the property. Carmen was not served. The next month, however, Carmen moved to stay or dissolve the writ, citing multiple documents showing she had been granted Lawrence’s interest in the apartment during their divorce. The U.S. argued that its lien had priority and Carmen could still collect half of the sale proceeds. The district court denied Carmen’s motion without prejudice, saying it had no jurisdiction to make findings about the divorce and property dispute.

On appeal, Carmen argued that the district court does have the authority under the Fair Debt Collection Practices Act to determine ownership of assets under state law. The Eleventh Circuit analyzed the issue and eventually agreed. The FDCPA is best known as a consumer protection law, but it’s also the law that permits the federal government to satisfy criminal-court financial judgments through civil court. It permits the federal government to levy co-owned property only to the extent permitted by state law in the state where the property is located. It permits courts to deny or limit the government’s remedies at its discretion; it also requires courts to adjudicate ownership disputes because the government may only levy property in which the debtor has a “substantial nonexempt interest.” Thus, the Eleventh said, the district court had a duty to determine whether Lawrence had such an interest. It ordered the district court to, on remand, determine that question as well as ownership of the apartment.

It’s pleasing to see that an apparently innocent ex-spouse has the right to fight taking of her property by the government, for a debt that she is not alleged to have helped create. In general, courts are not always kind to co-owners of assets when it’s time for an asset forfeiture or restitution proceeding. Sometimes, there’s a perception that the claimant is not entirely innocent of the underlying crime. In my opinion as a criminal defense attorney, this is unfair; if the spouse or co-owner is guilty, the government should be able to prove it in a court of law. If not, it’s inappropriate to penalize him or her by taking away property without due process. Everyone should be presumed innocent until proven guilty—especially people who are accused of no crime.

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Posted On: December 4, 2012

Defendant Obstructed Second Investigation by Attempting to Obstruct First, Ninth Rules – U.S. v. Manning

Not surprisingly, law enforcement is full of extra penalties for defendants accused of obstructing an investigation. In addition to criminal charges for obstruction of justice or interfering with police work, there is also a sentence enhancement under federal law that adds more time to a sentence when the defendant obstructed the investigation. This normally is applied to a sentence for the crime the defendant is accused of obstructing. But in United States v. Manning, defendant Dale Wayne Manning was accused of obstructing the investigation into his felon in possession of a firearm charges by lying about his possession of firearms while he was on pretrial release for child pornography charges. Manning pleaded guilty to the underlying charge but challenged the sentence enhancement, but the Ninth U.S. Circuit Court of Appeals ruled that his intentions were irrelevant; he obstructed both cases.

Manning pleaded guilty to possession of child pornography under circumstances not recorded in the opinion. In March of 2010, he was sentenced to prison, but permitted to stay on pretrial release and make a voluntary surrender in a few months. Later that month, Manning’s pretrial services officer was told that Manning may have had some of his brother’s guns, in violation of his release terms. Manning claimed at first that he’d returned them, but eventually admitted that he kept them past the time when he was legally barred from possessing firearms. A few days later, the officer recommended revocation of Manning’s pretrial release. Manning never showed up for the resulting hearing because he had fled to Mexico. He later pleaded guilty to being a felon in possession of a firearm; his sentencing for that crime included the enhancement for obstruction.

On appeal, Manning argued that the obstructive acts didn’t qualify for the sentence enhancement, because they were intended to obstruct the investigation into the child pornography case, not the felon in possession case. The Ninth Circuit found his intentions irrelevant. Manning’s firearms possession made him guilty of being a felon in possession, even though they also violated the supervised release for child pornography possession. At the time he took his evasive actions—which included lying about the possession, reacquiring one gun, fleeing to Mexico and failing to appear at his hearing—he was under an active investigation for firearms possession. Thus, the court said, he was obstructive “with respect to the investigation, prosecution, or sentencing” of the felon in possession charge. Furthermore, the court said, a subsequent confession does not render false statements immaterial despite an Eighth Circuit decision otherwise.

Child pornography sentences are already very high. Even a casual review of child pornography appellate cases shows that many appeals focus on sentencing, because of the high sentences and frequent application of enhancements. Even without a second crime, Manning was likely facing a long sentence. It’s interesting to me, however, that the second crime was something that’s routinely applied to everyone convicted of a felony crime: bars on possession of a firearm. Many defendants object to this restriction, finding it an unreasonable limitation on their Second Amendment rights. Without having actually hurt anyone, Manning was breaking the law just because he never returned his brother’s guns; he may have fled just because he was scared of the consequences of this. That’s why it’s so vital to ensure that people facing criminal charges have an experienced attorney to help them understand their rights and legal duties,

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