Posted On: May 30, 2013

Florida Supreme Court Permits Overworked Public Defenders to Withdraw From Cases – Public Defender v. State of Florida

As a former Miami-Dade County prosecutor who now works as a private criminal defense attorney, I appreciate what public defenders do. These are the attorneys who represent people who can’t afford a private attorney, and it’s generally acknowledged that they have a tough job, with a large caseload that can make it hard to get to know each client’s case. So I was extremely interested to see the Florida Supreme Court’s ruling in Public Defender, Eleventh Judicial Circuit of Florida v. State . This is actually a case that consolidated two appeals: one from the Miami-Dade Public Defender’s office, and another from an individual public defender from that office. Both cases made the argument that the right of the public defender’s clients to effective representation was being violated by the office’s excessive caseload. The Florida Supreme Court’s ruling permitted the office to withdraw, leaving defendants to fall back on state-appointed private attorneys.

The case filed by the public defender’s office started when it moved to withdraw from 21 cases, saying it wanted to withdraw from all future non-capital felony cases because of a conflict of interests. It alleged that its excessive workloads, created by underfunding, made it impossible to meet its legal and ethical obligations. The trial court ultimately decided that the caseload was indeed excessive, allowing the office to provide only minimally competent representation, and granted the motion to withdraw from all future non-capital felonies after arraignment. The Third District Court of Appeal took the case on the State’s appeal and reversed the trial court’s order, ruling that excessive caseloads do not create a conflict of interests and that it was inappropriate to decide the cases in the aggregate.

In the single-defender case, the trial court granted an individual public defender’s motion to withdraw for a conflict of interests, citing the same logic. It also denied a constitutionality challenge to the Florida statute that excludes excessive caseload as a reason to withdraw from cases. The Third District upheld the constitutionality and quashed the order allowing the defender to withdraw.

The cases were consolidated before the Florida Supreme Court, which ultimately found that excessive caseload is a permissible reason for the public defender’s office to withdraw. The high court said it was struck by the evidence that the public defenders were overwhelmed. For example, Miami-Dade public defenders routinely represented twice as many non-capital felonies per year as recommended; they may have 50 cases going to trial in a week. Because of this, the court said, defenders can’t do basic parts of their job and must prioritize some clients over others. It reversed the Third, saying aggregate withdrawals are most efficient in this case, and that the public defender’s office demonstrated cause for withdrawal. It then held that while the statute forbidding public defenders from withdrawing solely because of excessive caseload was constitutional, public defenders may withdraw anyway if they demonstrate that their excessive caseloads would result in ineffective representation. A dissent argued that the court should have required proof of imminent harm or likelihood of harm.

The dissent is arguing that evidence of huge caseloads is not adequate to demonstrate likelihood of imminent harm to Miami-Dade defendants. I disagree. One of my advantages as a private criminal defense attorney is that I can limit how many cases I take, in order to ensure that the cases I do take get enough attention to give each client adequate representation. Public defenders don’t have that luxury because they work for the state. I see no reason to require that they prove they are not superhuman—or, worse, allow a case to slip through the cracks and harm a defendant—before the situation is remedied. The non-capital felony cases at issue in this decision are often very serious; many drug crimes are non-capital felonies, as is sexual battery in most cases. These crimes carry many years in prison and the prospect of living with a felony conviction for life, which is why it’s vital for each defendant’s future that he or she gets adequate representation right away.

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Posted On: May 29, 2013

Appeals Court Requires New Child Porn Sentence Taking Defendant’s Circumstances Into Account – U.S. v. Martin

The sentences in child pornography cases are frequently appealed—possibly more frequently than the convictions themselves. That’s partly because the U.S. Sentencing Guidelines currently require very long sentences in child pornography cases, giving defendants a strong incentive to object to any irregularities in their cases. But sentences are frequently upheld by the appeals courts, which is why I was interested to see one that was sent back for re-sentencing from the Seventh U.S. Circuit Court of Appeals. In U.S. v. Martin, William Martin had argued for a lower sentence because of his previous psychiatric problems, low likelihood of recidivism and belief that the Guidelines are excessive. The trial court brushed all of this off, reasoning that child pornography offenders “are not rational thinkers in the first place.” The Seventh Circuit remanded for a new sentence.

Undercover police officers caught Martin sharing child pornography files on a file-sharing network. A search of his home, which he shared with his mother, uncovered hundreds of images and several videos of child pornography. He ultimately pleaded guilty to one count of child pornography possession. His pre-sentencing report noted that Martin had substantial mental health issues, including diagnoses of major depression and multiple types of substance abuse; a history of self-mutilation and suicide attempts; and at least one hospitalization. He was not taking medication or being treated at the time of his arrest because he couldn’t afford it. At his sentencing, Martin argued that he should be sentenced below the Guidelines for several reasons. The district judge nonetheless imposed the statutory maximum of 120 months, citing specific deterrence even though the court also said it believed child pornography offenders were undeterrable because they “are not rational thinkers in the first place. The court also cited the seriousness of the offense and a need to protect the public.

On appeal, Martin renewed arguments that he should have gotten a below-Guidelines sentence because his personal characteristics indicated a low chance of recidivism; the Guidelines produce excessive sentences in possession cases; there’s a resulting trend toward lower sentences, possibly creating a disparity; and his personal contribution to the harm of child porn was necessary. The Seventh Circuit found that the case warrants at least a remand, because the district court appeared to have failed to address several of Martin’s arguments that the Seventh felt deserved serious consideration. In particular, it cited Martin’s argument that the Guidelines are too harsh as to simple possession of child porn, and his arguments about likelihood of recidivism, which were tied to his substantial mental health progress since receiving treatment. The Seventh rejected Martin’s other arguments, as well as an argument that the “irrational” comment was procedural error, before remanding.

I can’t agree strongly enough that the Sentencing Guidelines are unreasonably harsh when dealing with child pornography possession. The U.S. Sentencing Commission has been studying the issue, in fact, and recommended earlier this year that Congress change the Guidelines. Among other problems, the Commission’s report said risk of recidivism no higher for child porn offenders than for other offender types. It also recommended removing some of the sentence enhancements that inflated Martin’s sentence, such as the enhancement for using a computer. Child pornography is now a cyber crime precisely because it’s rare to find someone committing child porn crimes without a computer, and leaving this enhancement on the books doesn’t make children any safer.

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Posted On: May 22, 2013

Eleventh Circuit Upholds Tax Evasion Conviction and Sentence as Reasonable – U.S. v. Paul

I’ve written here several times about tax evasion and tax crimes, particularly in the context of the IRS investigation of UBG customers’ overseas holdings. A case out of the Eleventh U.S. Circuit Court of Appeals, which is the federal appeals court that serves Florida, reinforces my previous warnings that there are serious consequences for tax crimes. In U.S. v. Paul, the Eleventh Circuit affirmed the conviction and sentence of William Paul for tax evasion and failure to file a tax return. Paul argued that the court erred in admitting as evidence a child support order, not granting him a delay after he decided to represent himself, adding a sentence enhancement for obstruction of justice, and failing to dismiss the failure to file charge. The Eleventh Circuit upheld all of the decisions.

Paul was the office manager for his wife’s medical practice. In that role, he decided in 2004 to change the practice’s legal status from an S corporation to a nonprofit organization, listing himself as the president of the nonprofit. Nonprofits are required to file a Form 990 tax return every year, and Paul apparently filed in 2004 and 2005, but not in 2006 or 2007. At trial, his wife and an IRS agent both testified that Paul arranged the practice’s affairs in order to avoid taxes. This behavior included, among other things, construing his wife’s income as a loan in order to avoid having to report income and thus pay taxes on it. After the federal government discovered the fraud, the income was underreported. For example, a late return for tax year 2006 reported $2,589 in income for Mrs. Paul, but her “loan agreement” with the medical practice put it at $400,000.

Paul appealed his conviction and sentence of 53 months in prison, an upward departure from the U.S. Sentencing Guidelines. He argued that he should have been granted a delay to prepare after deciding to represent himself, but the Eleventh disagreed. Paul didn’t show he was prejudiced by the lack of a continuance, the court said, because he had already had two continuances and had adequate access to discovery materials. He argued that the child support order was admitted in error, but the court said Paul had invited this by saying he didn’t object, and it was withdrawn as irrelevant in any case. The government proved that Paul violated tax laws willfully, the Eleventh said, noting that he knew he had to file Form 990 and had deliberately arranged his wife’s affairs to avoid having either of them pay taxes personally. Because he used sophisticated means to avoid it—depositing the “loans” into 35 bank accounts created for 13 shell businesses within the nonprofit—he merited his sentence enhancement. The Eleventh also upheld a sentence enhancement for obstruction of justice because Paul interfered with his wife’s communications with her attorney and encouraged her to plead not guilty.

The Guidelines sentencing range for Paul, with the sentence enhancements, was 33 to 41 months in prison. That’s already a lot of time in prison for tax evasion, but the court added another entire year because it felt the Guidelines didn’t adequately reflect the seriousness of the case. Indeed, the Eleventh Circuit noted that the maximum penalty permitted by law is 21 years; Paul received four and a half years. Nonetheless, most criminal defendants in tax cases receive probation. That’s most likely in cases where the losses to the government were low or the defendant’s behavior was not intentional; tax law is so complex that accidents do happen. When they do, however, the possibility of prison makes it absolutely vital to retain an experienced criminal defense attorney.

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Posted On: May 20, 2013

Guilty Plea in Failure to Register as Sex Offender Case Did Not Waive Appeal – Commonwealth v. Batista

As a cyber crime defense attorney, I’ve written a lot here about post-conviction laws on sex offenders. Here in Florida, residency restrictions are so strict that it’s not uncommon for the offender to end up homeless, and the homelessness complicates the offender’s ability to comply with registration requirements. Because I’m so familiar with that situation, I was interested to see a Massachusetts case, Commonwealth v. Batista, in which a homeless ex-offender was charged with failing to verify his registration information. Because he was homeless, Alexis Batista had to appear at a police station every 30 days to verify his information. He pleaded guilty to failure to appear, and the court ultimately sentenced him to time served with no community parole supervision. The Court of Appeals added the parole, agreeing with prosecutors that it was legally required, but the Massachusetts Supreme Judicial Court reversed.

Batista’s underlying crime was rape of a child and indecent assault and battery on an individual over age 14. He was convicted in 2006. After his release, he had to appear at a police station every 30 days to verify his registration information, because he was homeless. He failed to appear in January of 2011. The complaint subsequently brought by prosecutors included language noting that people charged with failure to verify who had been convicted of an enumerated offense shall be penalized with community parole supervision for life (CPSL). Batista pleaded guilty and suggested that he be sentenced to only time served (about 30 days); the judge accepted this. The prosecutors then petitioned for a mandate forcing the judge to add CPSL, arguing that it was required by law. One justice from the Supreme Judicial Court vacated the sentence and remanded it, and Batista appealed.

Both sides agreed that CPSL is required in Batista’s situation—his prior conviction for rape of a child was adequate to give rise to CPSL. But Batista alleged that prosecutors failed to expressly allege in their complaint that he had a prior conviction for one of the enumerated offenders. The prosecutors agreed, but said Batista had waived his right to make that argument when he pleaded guilty. The Supreme Judicial Court disagreed. Under case law, the prosecution argued, a knowing and voluntary guilty plea waives appeals that are not jurisdictional. But those cases concerned defendants who wanted to withdraw their pleas later, the court said, whereas Batista is arguing to keep his sentence as originally imposed. As an appellee, the court said, Batista may raise any grounds apparent in the record, including one that, until now, he hadn’t needed to argue. It reversed the single judge’s ruling.

This is a good example of how people charged with a serious sex crime are often made to continue doing time long after they finish their prison sentences. The opinion doesn’t say why Batista ended up homeless, but in general, starting over is hard for a former felony offender. With a felony conviction on his record, he may have had trouble getting a job; residency restrictions might have limited his ability to live with family members. And life on the streets can make it tough to get to the police station on time, making a sex offender registration violation more likely. I believe these cases will be common until states take a hard look at whether post-conviction restrictions truly serve their citizens’ safety.

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Posted On: May 15, 2013

Sixth Circuit Affirms Longer Sentence After Resentencing for Attempting to Entice Minor – U.S. v. Johnson

Because of the long sentences typical in federal child pornography and attempted enticement of a minor cases, it’s not often that I encounter an appeal from someone with two federal offenses. But in United States v. Johnson, the Sixth U.S. Circuit Court of Appeals affirmed a sentence for a defendant who not only had a prior federal offense, but had been re-sentenced after a prior appeal. Robert T. Johnson of Kentucky was convicted in 2001 of transmitting child pornography and attempting to persuade a minor to engage in sexual activity. He served a sentence of five years and three months and a period of supervised release—but when those periods were up, he was caught doing it again. In this appeal, the Sixth Circuit upheld a sentence of 30 years in prison that Johnson received on remand from a prior appeal.

Johnson’s first offense involved his communications with an FBI agent posing as a 14-year-old girl. He sent the “teen” multiple child porn images and arranged for the two to meet for sex. Instead, he was arrested for, and ultimately pleaded guilty to, transmitting child pornography and attempting to persuade a minor to engage in sexual activity. After 63 months in prison and two years of supervised release (a period when offenders’ Internet use is usually supervised), Johnson was once again caught sending multiple images of child pornography and trying to arrange sex with an individual he believed was a 13-year-old girl. This, too, was an undercover police officer. He pleaded guilty to transporting child pornography, sending obscene material to a minor, and possession of child pornography, and ended up with a sentence of 320 months in prison. His first appeal challenged the substantive reasonableness of the sentence, and the prior Sixth Circuit panel remanded, finding an ambiguity in the sentencing.

On remand, Johnson received a 360-month sentence, and again appeals. In a situation where a higher sentence was handed down on remand, the Sixth said, there’s a rebuttable presumption of vindictiveness. However, the court concluded that the judge in this case relied on its previous opinion. The previous opinion said the court couldn’t be sure whether the 320-month sentence was derived from an upward departure from the Guidelines or a downward departure, since it wasn’t clear whether a sentence enhancement for having a pattern of activity involving sexual abuse of a minor. Johnson’s first appeal argued that this enhancement was not applicable. On remand, the court determined that the enhancement does apply because the two convictions for child pornography crimes constituted “a pattern of activity involving the sexual abuse or exploitation of a minor.” Thus, it found that the presumption of vindictiveness was rebutted, and it rejected the appeal of both the sentence and its purported vindictiveness.

The meat of this opinion is rather short, which is disappointing because the court dedicated no effort to discussing what the sentencing guideline means. It’s clear that with more than one offense, Johnson has a pattern of some kind of activity. But I suspect his appeal hinged on an argument that child pornography crimes, and chatting up undercover police officers, do not “involv[e] the sexual abuse or exploitation of a minor,” and that argument wasn’t explored. I should also note the large difference between the sentences for Johnson’s first and second convictions; the second conviction carried about five times as much time in prison as the first. Because the stakes are very, very high for people facing a second charge, it’s absolutely vital for them to hire an experienced cyber crime defense attorney right away.

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Posted On: May 14, 2013

‘Revenge Porn’ and the Law: Why You Could Be Prosecuted for Posting It

I am pleased to announce that a former client of Seltzer Law, P.A. has had some success with her campaign to make “revenge porn” a crime. Revenge porn is the name for posting naked or sexually explicit pictures of a former spouse, boyfriend or girlfriend and adding identifying information, as an act of revenge. The issue came to our attention when Holly Jacobs came to our law office looking for help with revenge porn her ex-boyfriend had posted. Jacobs, who has legally changed her name, gave naked photos to Ryan Seay when they were dating seven years ago. After they had broken up, Seay uploaded those photos to the Internet and added identifying information. Then he began sending them to her boss and colleagues. Seay is now criminally charged with cyberstalking, and a proposed Florida law would make revenge porn itself a felony crime.

Jacobs first became aware of the problem after her breakup with Seay, when a friend called and told her someone had posted a nude picture as her Facebook profile picture. She knew it had to be Seay because he was the only person with naked pictures of her. By the time Jacobs got online, it was gone, but she started doing Google searches for herself regularly. One such search turned up more naked pictures on a website—along with her full name. She asked webmasters to take them down, but more kept appearing. In fact, there are multiple websites that are clearinghouses for ex-lovers to post this kind of involuntary pornography. Then Seay allegedly created an email address in Jacobs’s name and sent the pictures directly to her boss and co-worker. Later, he allegedly told the university HR department about the pictures, requiring Jacobs to explain the situation to her dean. She eventually left her job over the incident.

Unfortunately, there’s currently no Florida law that makes revenge porn a crime. Because Jacobs was over 18 when the pictures were taken, the police said, there was nothing they could do. (Explicit photos of someone 17 or younger can be prosecuted as child pornography crimes.) When Jacobs came to Seltzer Law a few years ago, we helped her get pictures taken down from many websites. But her tormentor kept posting them in new places, and sometimes altered them to make it look like there were more. Last year, he allegedly published the time and date of a conference session where Jacobs was to present her thesis, causing her to back out of the presentation. That was the same year she decided to change her name and decided to move on. She also founded End Revenge Porn, an organization dedicated to criminalizing revenge porn. And she redoubled her efforts to get the case criminally prosecuted. After she got Sen. Marco Rubio to take up the case, the State’s Attorney’s office finally charged Seay with stalking, harassment and unlawful publication.

Florida’s anti-revenge-porn law appears to have died in committee, at least for now. That’s unfortunate, but as a criminal defense lawyer, I should note that revenge porn activities are frequently criminal even without a special statute like this. One example is the stalking and harassment charges Seay faces. Other examples from End Revenge Porn include vandalism and violating a protective order, cyberstalking and hacking-related charges. Seay would face up to four years in prison if convicted; the proposed Florida law against revenge porn would provide up to five years in prison for those convicted. That’s in addition to pending lawsuits against revenge pornographers. That’s why it’s vital for victims to continue advocating for criminal penalties, even if they are initially turned down. A new law would give law enforcement a powerful tool, but existing laws already make revenge porn a fairly serious crime.

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Posted On: May 7, 2013

Florida High Court Requires a Warrant Before Police May Search Arrestees’ Phones – Smallwood v. State

I’ve written here several times before about the ongoing question of whether and how police may search the cell phones of people they arrest. This is an important question in criminal defense law because important evidence may lie on cell phones—but police may also use them to go on “fishing expeditions” for evidence of unrelated crimes. And while there are already limits to police search powers under the Fourth Amendment to the U.S. Constitution, courts are still deciding how to apply those limitations in the digital age, when you can carry a library’s worth of data around on your mobile phone. I’m happy to say that the Florida Supreme Court recently ruled that police need a warrant to search the phones of people who were arrested, in Smallwood v. State. Cedric Tyrone Smallwood moved to suppress information taken from his phone after his arrest, and the Florida high court ultimately agreed to suppress it.

Smallwood was arrested for the armed robbery of a convenience store, and prosecuted for that as well as a firearms crime. During the arrest, an officer seized Smallwood’s phone, locked Smallwood into a police car, and looked for relevant data on the phone. He found several pictures of money, a gun and jewelry. The state got a search warrant well after the photos were found, but at trial, Smallwood’s attorney objected that the search was still illegal. Though a search may be lawful if it’s incident to arrest, the defense lawyer argued that this exception did not apply because the search was not conducted to preserve evidence or protect officer safety. The trial court disagreed, denying the various objections the defense raised during and after trial. Smallwood was convicted.

On appeal, the First District Court of Appeal affirmed the use of the cell phone evidence, but noted a wide range of opinions on this topic. In light of its Fourth Amendment concerns, it asked the Florida Supreme Court to review this question: Does 1973’s United States v. Robinson allow a police officer to search through a suspect’s phone incident to arrest, when there is no reasonable belief that the phone contains evidence of a crime?

The Florida Supreme Court ultimately decided it does not. Searches without judicial approval are presumed unreasonable unless they fall within certain exceptions. The court first concluded that Robinson is not on point here because it was decided 40 years ago, before the rise of handheld computers. (A dissent disagreed.) Applying a 2009 U.S. Supreme Court case, Arizona v. Gant, the Florida court concluded that it was legal for the officer to separate Smallwood from his phone, but not to search it. Once the phone was removed from Smallwood’s person, there was no risk that he would destroy evidence and no way for him to use it as a weapon. Thus, neither exception to the requirement to get a warrant existed, and the officer violated the Fourth Amendment. “We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant,” it concluded, before adding that the error was not harmless or made in good faith.

The Florida high court compared authorizing cell phone searches to providing a key to the arrestee’s home. I must agree. The sheer amount of data on a late-model mobile phone was hard to imagine that the time that Robinson and other important Fourth Amendment cases were decided. The papers an arrestee can have on his or her person would have to be carried in a wheelbarrow to begin to match the size of the data. And, as the court pointed out, there are numerous kinds of highly sensitive data on typical mobile phones, such as banking information and personal email. It would certainly be easier for police to find evidence of a crime if they were given permission to go through this data whenever they wanted, but that’s not what the Fourth Amendment allows. This issue will likely be revisited in the U.S. Supreme Court, but I believe the Florida court made the right decision.

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Posted On: May 6, 2013

Ninth Circuit Rejects Call for Joint and Several Liability for Child Porn Possessors – In re Amy & Vicky

Last week, I wrote in this space about a child pornography possession case in which a dispute arose over financial compensation to the victims of the child porn. As I’ve noted here before, there are at least three people who routinely seek financial compensation from people caught in possession of “their” child pornography. They say knowing that people possess pictures of their childhood sexual abuse re-injures them, causing substantial psychological damage that makes it difficult for them to live normal lives. However, courts have been divided on whether and how they should be awarded restitution, because the law was written with in-person victimization in mind. In In re Amy & Vicky, the Ninth U.S. Circuit Court of Appeals revisited a previous appeal by those two young women, pseudonyms for two victims, rejecting a call for joint and several liability just after the Sixth Circuit did the same.

The case had been to the Ninth Circuit before, on an appeal filed only by Amy and Vicky. In the underlying case, Joseph Cantrelle was caught in possession of child pornography that included images of both Amy and Vicky. The Eastern California district court denied both young women’s petitions for restitution, adopting a presentencing report that did not recommend restitution because there was not enough evidence supporting it. However, the first Ninth Circuit panel reversed, finding adequate evidence supporting restitution provided by the petitioners themselves. That panel nonetheless rejected the petitioners’ argument that U.S. v. Kennedy, the controlling precedent on these restitution issues from the Ninth Circuit, should be overruled. That case requires petitioners to show proximate causation between the defendant’s crimes and the victims’ losses. The issue has split the circuit courts; the Fifth Circuit recently declined to require proximate causation.

The new Ninth Circuit panel re-heard the case after the district court, on remand, calculated the restitution order using the formula created by the Eighth Circuit in United States v. Gamble. This calls for excluding the damages sustained by the petitioners before the defendant had their materials, then dividing the proportion of remaining damages by the number of standing restitution orders. The victims’ new appeal renews their argument that Kennedy should be overturned, and also argues that the district court should have imposed joint and several liability because the Crime Victims Rights Act says restitution should be paid for “the full amount of the victim’s losses.” The Ninth said the district court committed no errors; how to calculate restitution “is an open question in this Circuit,” it said. Joint and several liability is not authorized in the relevant laws; and of the circuit courts to consider it, only the Fifth has imposed it, while others have expressly declined to impose it. The panel added that there is still no reason to overturn Kennedy and upheld the award.

The Ninth Circuit’s opinion notes that the arguments against Kennedy were made primarily to preserve the issue for a larger Ninth Circuit panel or the U.S. Supreme Court. While I do not believe Kennedy should be overturned, I would welcome Supreme Court review of child pornography restitution rules because some clarity would be welcome. Joint and several liability is better for victims because it makes each possession defendant liable for the full amount, and requires the defendants, rather than the victims, to sort out who owes how much money to whom. But it’s also not realistic to ask people who are already in prison for child pornography possession to sort this out, and of course prisoners are unlikely to have enough money to pay the full amount. For this reason, I would welcome a court ruling or federal legislation intended to address this issue.

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Posted On: May 2, 2013

Eleventh Circuit Reverses Immigration Removal Order, Finding No Misrepresentation – Ortiz-Bouchet et al v. Attorney General

Because I represent so many people seeking help changing or protecting their immigration status, I was interested to see a recent ruling reversing an order that two people be removed from the United States. The Eleventh U.S. Circuit Court of Appeals, which is the federal appeals court for Florida, ruled that an immigration appeals judge applied the wrong standard when it ordered the removal of a married couple. In Ortiz-Bouchet et al. v. Attorney General, Kelvin Ortiz-Bouchet and Edith Carolina Malpica-Zapata were ordered removed on the grounds that they were inadmissible when they attempted to adjust their immigration status. Neither was in possession of valid entry documents; Ortiz had procured documents by fraud; and Malpica had sought entry into the United States after spending time as an undocumented immigrant. The Eleventh Circuit found that two of the rules didn’t apply to their situation, and that Ortiz did not make a willful misrepresentation.

The couple sought post-entry adjustment of status while they were already in the United States. An immigration judge ordered them removed instead, finding that they were removable because they were inadmissible by law. The immigration judge said neither were in possession of valid entry documents. Furthermore, the IJ ruled, Ortiz had procured the documentation he did have by fraud or willful misrepresentation of facts. And finally, the IJ said Malpica was inadmissible because she was seeking admission within 10 years of departing the United States, after being unlawfully present for a year or more. They appealed to the Bureau of Immigration Appeals, which affirmed this ruling without comment or an opinion.

The Eleventh Circuit started by finding that the rule prohibiting entry for people without valid entry documents is only for people seeking to enter the United States. It does not apply to people adjusting their status, as Malpica and Ortiz sought to do, the court said. On the fraud and willful misrepresentation issue, the Eleventh found that Ortiz’s misrepresentations were the responsibility of Marciel Cordero, who Ortiz hired to submit a religious petition for entry that included false statements. Ortiz testified that he had never seen the documents and his signature was forged; this statement was not rebutted. The IJ found that Ortiz didn’t willfully misrepresent a material fact, but nonetheless ordered him removed for willful misrepresentation. The Eleventh reversed, saying the BIA has made clear that fraud requires actual misrepresentation. Finally, the appeals court found that Malpica had left the United States pursuant to a grant of advance parole. Under a previous case, the Eleventh said, this does not qualify as a departure within the meaning of immigration laws; thus, Malpica was not removable. It vacated both people’s order of removal.

In my experience representing people subject to removal or deportation proceedings, most cases that make it to the appeals courts are upheld without much comment. So it’s pleasing to see that the Eleventh Circuit reversed this removal order with an opinion that took the time to scrutinize the case’s history. Indeed, the fact that the first immigration judge made mistakes of law is disturbing, and a good reminder that people fighting removal and deportation need an experienced immigration lawyer on their side. The consequences of being removed from the United States are life-changing: it can end a career and separate the immigrant from loved ones who remain in the United States, sometimes including U.S.-born children. That’s why, if you face an immigration crime or immigration proceedings, you should call Seltzer Law. P.A., as soon as possible to discuss how we can help.

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Posted On: May 1, 2013

Sixth Rules Courts Cannot Impose Joint and Several Liability for Child Porn Restitution – U.S. v. Hargrove

I’ve written here several times before about the practice of ordering financial restitution from defendants caught in possession of child pornography. This is not done through a lawsuit; federal law permits criminal courts to make orders of restitution. However, because the restitution law was designed for situations where the victim and the defendant had direct contact, courts have come up with widely varying ways to handle restitution in child pornography possession cases, where the victim—the child in the pornography—has almost never met the defendant who possessed the pornography. So I was interested to see another federal appeals court weigh in on how to split liability among defendants in U.S. v. Hargrove. Ultimately, the Sixth U.S. Circuit Court of Appeals ruled that the district court may not impose joint and several liability on Christopher Hargrove for his part of the injuries to the young women claiming financial restitution.

Police examination of Hargrove’s computer found more than 800 images of child pornography and 16 videos. Among them were images of Vicky, Amy, and L.S., pseudonyms of young women who were sexually exploited as children by people who took pictures. Hargrove took a plea bargain and pleaded guilty to one count of possession of child pornography, but then fled; after he was caught, he also pleaded guilty to failure to appear. He was sentenced to five years in prison for the child porn possession and an additional year for fleeing, as well as 20 years of supervised release. All three victims requested restitution in the full amount of their damages, but the Tennessee district court held that the amounts should be apportioned because they had already collected from other defendants. It ordered him to pay $3,000 to each, or if the victims cannot get needed care for lack of money, alternatively made Hargrove jointly and severally liable for $150,000 to each victim.

Hargrove’s appeal focused only on the restitution order. At the outset, the parties agreed that the district court should have, under 2012 and 2013 Sixth Circuit rulings, determined whether Hargrove proximately caused the victims’ losses. Hargrove argued that he could not have because no evidence showed they knew he possessed the images. The Sixth found this irrelevant; harm to these defendants is caused by their knowledge that the material is out there, so they need not have interacted with Hargrove personally. Proximate cause may exist when an individual act that is insufficient in itself is aggregated with many others, the Sixth said. However, it asked the district court, on remand, to determine whether the injuries the victims claimed were caused by Hargrove’s actions, and reminded the district court to exclude harms incurred before Hargrove possessed the materials. It further suggested that rather than using joint and several liability, the district court use a formula it had approved in a previous case.

Interestingly, Judge Clay’s concurrence argued that joint and several liability would make more sense than the formula. In my opinion as a cyber crime attorney who handles many child pornography cases, this disagreement underscores the fact that the restitution law is being used in ways Congress didn’t intend. I believe the law doesn’t provide a way to apportion liability between many defendants who don’t know each other or the victim because Congress didn’t anticipate such a situation. Yet that’s exactly the situation these internet-based child pornography crimes create. Most federal appeals courts are allowing these claims, so the best way to resolve the joint liability issue would be for Congress to clarify the rules. Until that happens, defendants like Hargrove will continue being liable for huge sums of money for a possession crime.

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