Posted On: August 26, 2013

Fifth Circuit Finds No Reversible Error in Failure to Explain Sentencing Reasoning – U.S. v. Rouland

Often, when I read cases involving child pornography crimes, I see defendants appealing their sentences rather than the convictions themselves. That’s because the convictions tend to be based on uncontroverted evidence; child pornography possession requires only that the prosecutor prove possession, an easy task. But the sentences are often very long, which has prompted calls for reform—and often prompts individuals to challenge the sentences as unreasonable. In U.S. v. Rouland, the defendant, Roger Rouland of Texas, appealed his sentence because the district court that sentenced him failed to respond to his request for a sentence below the Sentencing Guidelines. Rouland also appealed the conditions of his supervised release, they were special conditions and there was no reason to think they were warranted. The Fifth U.S. Circuit Court of Appeals rejected all of his arguments as meritless.

Rouland pleaded guilty in January 2012 to possession of child pornography and attempted possession. The opinion says only that an investigation found such material on Rouland’s “computer media devices.” The presentencing report recommended a Guidelines sentence of 30 to 37 months. Rouland himself filed a 169-page sentencing memo arguing that he should have a below-Guidelines sentence because of his educational and professional achievements, family ties, faith and back pain history. At the sentencing hearing, Rouland made no objection to a memo requesting nine conditions of Rouland’s supervised release. The court then sentenced Rouland to 30 months without explanation, to be followed by a five-year term of supervised release whose terms were not orally pronounced. The following written judgment included supervised release terms requiring no access to pornography of any kind, and submissions to substance abuse, mental health, cognitive behavioral and workforce development evaluations.

Rouland’s appeal started with the lack of explanation for the sentence itself. He argued that the district court was required to explain its reasoning, and that it didn’t adequately consider his arguments for a below-Guidelines sentence. The Fifth Circuit disagreed, saying Rouland’s appeal doesn’t meet the high plain error standard. Failure to adequately explain a sentence is error, the court said, but it doesn’t affect Rouland’s substantial rights because his sentence is within the Guidelines. The Fifth next rejected Rouland’s argument that the supervised release conditions that were imposed only in writing and not orally. It agreed with the prosecution that Rouland waived his rights by not objecting to the admission of an exhibit including the challenged conditions. In addition, the court said, he cannot show any error would affect his substantive rights. Finally, it disagreed that the special conditions imposed are special; they are standard in the Western District of Texas’s judgment form, and the court found this adequate.

I’d like to call attention to the deference the Fifth Circuit gives here to the Sentencing Guidelines. Since U.S. v. Booker, the Sentencing Guidelines are not mandatory, but a starting point for courts handing down sentences. Thus, while courts can presume that sentences within the Guidelines are reasonable, their inquiry into the matter shouldn’t end there; they ought to entertain any other arguments the defendant is making. Unfortunately, in practice, many appeals courts rubber-stamp sentences that are within the Guidelines. In my job defending people accused of serious cyber crimes, I prefer to vigorously dispute sentencing decisions early in the case, to give any appeal the best chance possible.

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Posted On: August 21, 2013

Statutory Rape is Not a Violent Crime Supporting Career Offender Status, Eleventh Rules – Spencer v. U.S.

I’ve written here several times before about federal sentence enhancements for things like being an “armed career criminal” or a “career offender.” These statuses are used to get the defendant much more time in prison than he or she would otherwise get for the current offense. As a result, there’s a lot of controversy over whether specific offenses qualify the defendant for those statuses. In Spencer v. U.S., the Eleventh U.S. Circuit Court of Appeals made a rare ruling for the defendant in such a controversy. Kevin Spencer of Central Florida was originally in court for distributing crack cocaine, but he was sentenced to roughly double the typical sentence because he qualified as a “career offender” because of prior convictions for drugs and statutory rape. The Eleventh found that the statutory rape was not a crime of violence qualifying Spencer for career offender status.

Spencer was 18 when he was charged with both of his priors. One was possession of cocaine with intent to sell, which is undisputedly a crime qualifying him for career offender status. The other was a Florida felony child abuse charge stemming from sex with his 14-year-old girlfriend. (It is not disputed that the sex was voluntary.) Spencer pleaded guilty to child abuse as part of a plea bargain. The plea agreement provided little detail, but when Spencer was caught at age 21 with the crack cocaine, the judge sentenced him, over his objections, as a career offender, noting that this doubled the sentence. Spencer then directly appealed to the Eleventh Circuit, which rejected his first appeal. But afterward, the U.S. Supreme Court decided Begay v. U.S., which limited the “crime of violence” priors qualifying for a sentence enhancement to crimes similar to those enumerated in the statute. Spencer moved to set aside his sentence based on this, and appealed the trial court’s denial.

He had better luck with the Eleventh Circuit the second time around. The court first agreed that Spencer can make his case under 28 USC 2255, which permits courts to set aside unconstitutional or illegal sentences. It concluded that a sentencing error involving wrongful career offender status or similar status can create a miscarriage of justice, noting that career offender status substantially increases sentences. In so ruling, it disagreed with similar but not entirely alike cases from the Eighth and Seventh Circuits. The Eleventh then found that third-degree felony child abuse in Florida is not a crime of violence as envisioned by the career offender statute. The statute requires either physical or mental injury to the child, requiring the court to look to the record to determine whether there was physical injury. But the record is not helpful, the court said, so it treated the conviction as the least culpable crime under the statute, for mental injury. And this is not a crime of violence, the court noted. It vacated the trial court and remanded for resentencing.

This decision is good news for Florida defendants who have priors. Any time that I defend someone with one or more prior convictions, I look carefully to see whether the client is eligible for this kind of sentence enhancements. If so, defending the crime aggressively, or negotiating a plea to a lesser offense that wouldn’t trigger the enhancement, is absolutely vital. It’s also interesting to me that the Eleventh noted the cost of keeping Spencer in prison for another six-plus years. The financial cost is less important than the cause of justice, in my opinion as a criminal defense attorney, but it would be a powerful argument for sentencing reform here in Florida, if we were having such a debate.

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Posted On: August 19, 2013

Eighth Circuit Rules Private ISP Was Not Acting as Government Agent – U.S. v. Stevenson

The legality of a search is vitally important in cases of child pornography crimes, because with child porn, mere possession is enough to create a long prison sentence. If the search was not legal under the Fourth Amendment to the U.S. Constitution, the resulting evidence must be thrown out as the fruit of a tainted search. And because the search was generally enough to establish possession, the prosecution often doesn’t have a case after the results are thrown out. But civil rights like this only apply to the government; citizens have limited civil rights when they interact with private businesses like internet service providers. That was the message in United States v. Stevenson, a case from the Eighth U.S. Circuit Court of Appeals focusing on evidence uncovered by AOL. The court ultimately ruled AOL was not a government agent because it was required to report child porn it discovered in Stevenson’s email.

Stevenson emailed a child pornography image from his AOL account to his Gmail account. AOL uses technology that can spot child porn and automatically notify the National Center for Missing and Exploited Children. In this case, the NCMEC passed the tip along to Iowa authorities, who determined that Stevenson owned both accounts and got a warrant to search his home. A forensic search turned up 721 images and four videos. After he was charged, Stevenson moved to suppress the evidence, arguing that AOL’s scan violated his constitutional rights. He served AOL with a subpoena for related documents and asked for a hearing on them. The district court quashed the subpoena and denied the motions, saying AOL is a private actor not subject to the Fourth Amendment. Stevenson entered a conditional guilty plea and appealed.

On appeal, Stevenson argued that AOL was effectively an agent of the government because statutes or regulations encourage it to conduct this type of search. The Eighth Circuit did not agree. The U.S. Supreme Court has held that private companies are agents when regulations create a strong preference for testing, in a case involving laws giving railroad companies broad drug-testing powers. But here, the Eighth said, AOL is not expressly authorized to scan users’ emails or forbidden from contracting that right away, and users are not legally required to submit to the scanning. Thus, the court concluded that the reporting requirement was not adequate to make AOL an agent of the government. For the same reason, the court found, the trial court was correct not to order a hearing on the issue of whether AOL was a government agent; there was no contested fact issue. Finally, it upheld the quashing of Stevenson’s subpoena; even if AOL documents show what Stevenson anticipated, the court said, this would not establish that it was a government agent.

Even AOL users who are not involved in anything illegal might be taken aback to learn that their emails are automatically scanned for child pornography, viruses and other evidence of cyber crimes. But the Eighth Circuit is correct that private companies are not subject to the Fourth Amendment restrictions on searches. Nonetheless, as a defense attorney who handles many child pornography possession cases, I question the legality of a search whenever it makes sense in the circumstances. Law enforcement officers make mistakes just like everyone else, and those mistakes sometimes infringe on our civil rights. By aggressively finding and exposing these violations, defendants can break down the case that law enforcement has built against them.

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Posted On: August 14, 2013

Eleventh Circuit Orders Acquittal Where Prosecution Failed to Prove Gun Sale Illegal – United States v. Fries

In every contested criminal case, the standard to convict someone is proof beyond a reasonable doubt that he or she committed the crime being prosecuted. My job as a criminal defense attorney is to point out when prosecutors have failed to do that—by finding problems with their proof, the way it was obtained, and other aspects of their cases. In U.S. v. Fries, the Eleventh U.S. Circuit Court of Appeals decided, unusually, that the prosecution simply failed to prove an essential element of the firearms crime that Theodore Stewart Fries was accused of. Fries sold a gun at a Tallahassee gun show to an undercover agent from the Bureau of Alcohol, Tobacco and Firearms. This violates a federal law banning interstate firearms sales unless one party to the sale is to a licensed dealer. The Eleventh ultimately agreed with Fries that the prosecution failed to prove that the agent was not a licensed dealer.

Fries was approached by ATF agents Donald Williams and William Visnovske at a 2009 gun show. Visnovske posed as a Georgia resident visiting the area and asked to buy a gun, but Fries refused because it’s illegal to sell to someone from out of state. He suggested that Williams, posing as a Florida resident, might like to buy the gun. Neither party mentioned whether they had a federal firearms license. The agents left, but tried again in April of 2010. That time, Fries did sell a gun to Visnovske, still posing as a Georgia resident. Again, there was no discussion of license status and no request for Visnovske’s ID. Fries was then federally charged with selling a gun to a nonresident who was not a licensed firearms dealer. At trial, there was no evidence presented about whether Visnovske was a licensed dealer, and the jury instructions omitted the license as an element the jury had to find proven. Fries was convicted.

Fries appealed, but his attorney moved to withdraw from the appeal, saying it was frivolous. The Eleventh Circuit denied that motion, ordering briefing on issues related to whether the licensing element of the crime was proven. Not surprisingly, Fries argued on appeal that it was not, so his conviction should be reversed or a new trial should be granted. Because Fries hadn’t made this argument in trial court, the Eleventh used a higher standard of reversal: only where reversal is necessary to avoid a manifest miscarriage of justice. Fortunately for Fries, the court did find it necessary. The statute requires proof that both parties not have federal firearms licenses. The Eleventh “comb[ed] the record” but failed to find any evidence at all about Visnovske’s license status. Thus, it reversed his conviction. A concurrence added that “it is not asking to much to expect a prosecutor… to ensure that all of the elements in [the indictment] are proven.”

I agree. No one should go to prison if the government did not truly prove that they committed a crime. Though it may seem like Fries was lucky to have his guns and firearms conviction reversed, it’s likely that he spent some time in prison, which is not very lucky. This case does show that prosecutors make mistakes—and it’s my job to find those mistakes and use them to my client’s advantage. In addition to failing to prove a vital element of the crime, prosecutors and police can make mistakes with gathering and storage of evidence, civil rights violations and more. At Seltzer Law, P.A., we can use those mistakes to break down the cases against our clients, creating lowered or dropped charges, lowered penalties and more.

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Posted On: August 12, 2013

Ninth Circuit Declines Habeas Petition in Case of Computer Generated Child Porn – Shoemaker v. Taylor

Computer-generated child pornography has an interesting legal history in the United States. A 1996 law made it illegal to possess or trade images that appear to be children engaged in sex, even though no child was involved in making them. But in 2002, the U.S. Supreme Court overturned that law, saying it criminalized free speech. In response, Congress passed a 2003 law that (in relevant part) criminalized “simulated” or “virtual” child pornography as long as it was “obscene”—that is, lacking in serious non-prurient value. As a result, Americans can be convicted of child pornography crimes involving drawings of children engaged in sex, computer-generated images, or adults intended to look like children—but only if the images are judged obscene. That fact-specific standard came into play in Shoemaker v. Taylor, an appeal of the denial of a habeas corpus petition in California.

Stephen Shoemaker was convicted of eight counts of child pornography possession under California state law, after police found the images among many, many more legal adult pornography images. He contended at trial that two images were initially innocent and had been digitally altered to be pornographic; the other six, he said, were innocent nudes. He was sentenced to 90 days in custody, lifelong sex offender registration, a fine, probation and a year of sexual compulsiveness classes. His state appeals exhausted, he filed a habeas corpus petition with the Central California district courts. He argued that the jury erred in finding that any of the images were prohibited child porn; the judge erred when instructing the jury and permitting the prosecution to argue that the jury could consider the context of the pictures; and his conviction was not supported by the evidence. The Central California district court denied his petition.

The Ninth U.S. Circuit Court of Appeals affirmed. It first ruled that the six nude photographs were not innocent, upon review of the actual images and application of Dost factors to test for lasciviousness. It went on to rule that the morphed images, regardless of whether they were truly morphed, are also not protected speech because the Supreme Court has not ruled on whether images of real children that have been manipulated to look pornographic are protected speech. Because such images involve real children, the Ninth said, the concerns of New York v. Ferber are in play: children can be harmed by the circulation of a permanent record of their exploitation. That’s true even though no actual sexual abuse may have taken place, the court said. The Second, Sixth and Eighth Circuits have held likewise, it noted. The court went on to agree that the prosecution’s context argument was error, but held the error harmless.

I would apply Ferber differently from the way the court did here. That case held that child pornography is not protected speech, as adult pornography is, because making it requires that a child be sexually exploited. That’s the harm to society created by child pornography. In a picture of a child that’s digitally altered, it’s not clear that the child is sexually exploited—certainly not in the same way, and possibly not at all. The reputation harm cited by the Ninth may not be a serious concern; there’s a limited audience for these images and the child took no part in making the image. But as a cyber crime attorney, I doubt that these images are disappearing—so courts may have more opportunities to consider this.

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Posted On: August 7, 2013

Prosecutors Drop Charges Against Deerfield Beach Man Accused of Sexually Abusing Child

Because I defend a lot of people accused of sex crimes, I was interested to see a recent article about a South Florida man accused of molesting a 10-year-old girl. According to the South Florida Sun-Sentinel, the charges against James Hollis, Jr. were dropped by prosecutors more than a month after his arrest. Prosecutors wrote in an Aug. 1 memo that there was no reasonable likelihood of conviction for several reasons. For one thing, the child’s aunt waited two days to report the allegation—saying she wasn’t sure if it had really happened. For another, a laboratory analysis of the t-shirt and pillowcase the girl was using at the time found no semen. That finding convinced state’s attorneys that the case was unlikely to succeed, according to the article. Hollis, 23, also denied that the molestation had happened.

According to the article, the girl said Hollis, a friend of her family, had committed sexual battery against her while they watched a cartoon together. He was arrested for it in June. However, prosecutors later concluded that there wasn’t enough evidence to make a conviction reasonably likely. The finding does not mean that prosecutors or police don’t believe Hollis did what he was accused of doing. Rather, they don’t believe they could prove it beyond a reasonable doubt in a court of law. This is an important distinction. As I noted after the Casey Anthony trial, “beyond a reasonable doubt” is a high standard—and it should be when someone’s freedom is at stake. If prosecutors bring more charges than the evidence supports, they run a strong risk of losing the trial. Because the Constitution forbids double jeopardy, they would never be allowed to re-try the defendant.

However, having the charges dropped doesn’t mean the accusation will have no effect on Hollis. Being accused of sex crimes against a child often results in immediate conviction in the “court of public opinion,” without a trial. Reputations can be ruined by these accusations before anything is proven. If the accused works in a job with an elevated behavioral standard (such as the military) or with children, he or she may be fired long before a trial. People who know the accused may turn against him or her based on their feelings of revulsion about the crime rather than the evidence. That’s one reason a strong defense is so vital for people accused of this crime. A strong showing that the evidence is on your side can help correct some of the damage the charges can do.

Seltzer Law, P.A., represents clients accused of all kinds of crimes—no matter how serious or upsetting. Based in downtown Miami, we represent clients across South Florida, in Orlando and throughout the state. Lead attorney David Seltzer is an experienced former Miami-Dade state’s attorney who understands how prosecutors put together their cases. Now, he uses that inside knowledge to help clients defend against serious criminal charges. We understand that criminal charges and arrests can come 24 hours a day and seven days a week, because police officers don’t go home after business hours. That’s why we answer potential clients’ calls 24 hours a day and seven days a week.

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Posted On: August 6, 2013

Seventh Circuit Upholds Above Guidelines Sentence for Child Porn Distribution – U.S. v. Stinefast

The sentencing guidelines for child pornography crimes are infamous for being inflated—resulting, in some cases, in downward departures from the guidelines. So I was interested to read a Seventh U.S. Circuit Court of Appeals opinion upholding a sentence that was actually above the guidelines. In U.S. v. Stinefast, Corey Stinefast of Illinois was charged with distribution of child pornography after he handed an informant a CD full of the material. He was later discovered to have a very large cache of child pornography. He received an above-guidelines sentence of 38 years in prison and appealed the sentence only, arguing that it was unreasonably high as well as alleging misconduct by the prosecutor. The Seventh Circuit ultimately upheld the sentence as reasonable.

The FBI began working with an informant in Illinois after the informant was caught in possession of child pornography. To reduce his sentence, the informant agreed to expose the other two members of a local child pornography ring, who were Stinefast and his co-defendant, Jose Garcia. He wore a wire when Stinefast gave him a compact disc full of child pornography, which formed the basis for Stinefast’s arrest and charges. Agents also searched Stinefast’s home and found more than 200,000 images and videos of child pornography. He was charged with one count of distribution and eventually pleaded guilty, after withdrawing a mental health defense after examination by a prosecution mental health expert. At sentencing, he asked for consideration of his own history of being sexually abused and his low IQ. The court ultimately sentenced him to 216, agreeing to the prosecution’s request to go above the guidelines sentence of 121 to 151 months.

On appeal, Stinefast argued that the prosecution had made inappropriate comments at sentencing; that the court should have considered the mitigating factors he mentioned; and that the above-guidelines sentence was substantively unreasonable. The Seventh Circuit rejected all three arguments. The sentence was not unreasonable, the court said, because the district court was within its discretion to consider Stinefast’s large and occasionally disturbing child porn collection, his past conviction for pulling down young boys’ pants, and his failure to reform after serving time for prior convictions. Stinefast’s mitigating factors were not well supported, the court added, and the district court did acknowledge them and indeed cite them in its determinations. And the allegedly improper comments by prosecutors, related to an implication that Stinefast had molested children, were not prejudicial even if they were improper, which it felt they were not.

District courts do indeed have wide discretion, because they are the finders of fact in criminal cases. But in my opinion, courts should consider whether long prison sentences like this are truly deterrents, or truly just more penalty heaped onto an already serious penalty. Part of the stated reason for Stinefast’s long sentence was the size of his child pornography collection and the inclusion of especially disturbing material. Both of these issues were cited in the U.S. Sentencing Commission’s report on child pornography sentencing as reasons why sentences are inflated: child pornography possessors are often collectors because they barter with the material, so size and disturbingness doesn’t necessarily reflect their own proclivities. Adding yet more time onto a sentence for those reasons seems an awful lot like an emotional decision without rational basis.

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