June 29, 2015

Human Trafficking Victims Sue Website Used to Conduct Cybersex Sting

An ongoing police operation has led to dozens of arrests on solicitation and human trafficking charges, according to the Providence Police Department and the city's Major Jorge Elorza. Throughout this operation, police have focused on the classified ad Backpage, posing as prostitutes and luring the defendants in.

Thanks to recent changes in federal human trafficking laws and the laws of states like Rhode Island and its neighbor, Massachusetts, neither of which prosecute sex workers under the age of 18, there has been an interesting development to come out of this focus on Backpage. Two victims, now 17 and 20, are suing the website for the role it played in their having been sold for sex 1,900 times. The publication has vehemently protested that Backpage, or any other website, could be considered a third party in human trafficking.

Suing parties in human trafficking cases through the civil court has been an option since the amended Trafficking Victims Protection Reauthorization Act of 2003, but few cases have come forward. The verdict in this case could potentially mark a new development in the ongoing effort to define and fight federal cybersex crimes.

Back in Rhode Island, Major Elorza is also looking for ways to bring civil action against the website, claiming that Backpage has "willfully and knowingly" allowed itself to be used to facilitate prostitution and human trafficking. The citizens of Providence have expressed public outrage at the website as well, pointing out that prostitutes and johns have used Backpage repeatedly to post their services and arrange meetings.

It remains to be seen what impact this scrutiny on Web publications will have on the underage sex industry -- or indeed, what impact civil suits will have on the First Amendment rights of publications like Backpage. Without doubt, going after the publications themselves ushers forth a whole new chapter in the fight against child solicitation in the U.S. 

Your freedom and future may be at stake as a result of false charges of online cybercrime or solicitation. We can help. Call Seltzer Law, P.A. right now at 1-888-THE-DEFENSE (1-888-843-3333) for a free and confidential consultation.

June 24, 2015

Understanding the Difference Between Solicitation and Human Trafficking

A recent article in the online legal journal, Above the Law, discussed a typical cybersex prostitution sting in Texas that had an interesting legal twist. One of the men taken into custody that day, Aaron Watkins, turned out to be a third year Baylor law student.

Intrigued by the law student's foray into territory most attorneys only hear about from clients, the writer pointed out that Watkins was one of the few arrested that day on charges of conspiracy to commit human trafficking. The question he raised: What is the main difference between a solicitation and a human trafficking charge?

Solicitation is any request to perform a sexual act. Asking to have sex with an underage child, whether or not in exchange for a fee, is a felony offense; whereas the solicitation of a person of legal age to have sex in exchange for money is considered a misdemeanor offense in most states.

Human trafficking is a more serious, federal offense in which an individual, typically a third party, threatens, coerces, or tricks victims into the prostitution trade. As the name implies, "trafficking" involves moving victims from one location to another in order to use them as prostitutes. We’ll discuss an example of this type of crime in more detail in a subsequent post, so stay tuned.

To protect your name, your freedom and your reputation, get in touch with a qualified Florida cybercrime defense attorney at Seltzer Law, P.A. immediately at 1-888-THE-DEFENSE (1-888-843-3333) for a free and confidential consultation.

June 15, 2015

Florida Cybersex Sting Nets Men Who Worked at Disney World and other Tourist Attractions

The latest installment in Polk County Sheriff Grady Judd's crusade to crack down on Internet child sex offenders led to the arrest of no less than 22 men, each one of them looking to have sex with girls whom they believed to be between the ages of 10 and 14. Instead of finding a young girl, the men who entered the designated meeting spot in Clermont, Florida got the surprise of their lives when sheriff's deputies burst on the scene instead.

Although stings like these have become commonplace across the nation, Operation L&P, named for the two participating Florida counties, Lake and Polk, made national press because its details were especially salacious. Several of the men arrived with sex toys; one had allegedly brought along a whip.

What's more, several of the men arrested worked in places where they were able to interact children regularly. One was employed by Disney World and another by Sea World; a third offender worked at Universal Studios. Perhaps the most disturbing case was that of 22-year-old Ahmad Saleem, a community activist and youth counselor whose specialty license plates read "Invest in Children." Saleem allegedly arrived at the meeting spot allegedly hoping to have sex with a 12-year-old.

Operation L&P also went after prostitutes, making 79 arrests at the same Clermont location. Critics noted that Sheriff Judd judged defendants harshly; he allegedly sneered at one man, who drives a luxury car but who also receives food stamps. Judd speculated that perhaps the man was "saving his food money to engage in prostitution." Statements like these can win points with the press and grab headlines. But they also create a demonizing atmosphere in which it becomes hard for people unjustly accused of cybersex crimes to receive equal justice under the law.

A seasoned Miami cybercrimes attorney with Seltzer Law, P.A. can help you understand your defense options and create an effective response to your charges. Call us 24/7/365 at 1-888-THE-DEFENSE (1-888-843-3333).

June 10, 2015

Three Vermont Men Arrested in Underage Prostitution Sting

A joint task force involving law enforcement agents from the South Burlington Police Department, the Vermont Internet Crime Against Children Task Force, the Colchester Police Department, the Vermont Attorney General's Office, and the Vermont State Police took three men into custody for soliciting female officers online and agreeing to have sex with them in exchange for money. The men were 20, 29, and 30 years of age.

They remain in jail pending arraignment on bonds ranging $5,000 to $7,500.

The sting took place during a single five hour period. According to law enforcement agents, the officers clearly stated that they were 14-year-old girls. However, a statement released to the press revealed that some of the men had also expressed a desire to pay for sex with women who were over the age of 18.

In cases like these, it becomes very hard to know how much coercion law enforcement agents placed on the alleged perpetrators. There have been instances where police represented themselves as older women, only to bring up in the course of further conversation that an underage girl would be available for sex as well. Thinking that they would avoid the underage girl, but unwilling to jeopardize the meeting by offending anyone, men with no intention of breaking the law have fallen victim to bait and switch tactics like these and faced serious legal repercussions. 

What can you do to respond to cybercrime charges? Call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to speak with an experienced Miami cybercrime defense lawyer about your options.

June 3, 2015

Joint Task Force Takes 23 Texas Men into Custody for Online Solicitation

Some fascinating cybercrime news out of Texas...

The arrests were the result of a joint task force that included local Katy and Sugar Land police departments, the Missouri City police department, the FBI, and the Department of Homeland Security. Detectives worked for a month posing as teenage girls on social media sites to establish a meeting spot with the men. They then waited for the men to arrive at the designated spot so that they could arrest them.

Ranging in age from 19 to 59, the men faced charges of soliciting a minor, unlawful firearms possession, possession of a controlled substance, and having an outstanding warrant. In other words, police used the pretext of the sting to cast a wider net. Meanwhile, the men's mug shots, along with the charges and the amount of their bond, appeared in slideshow format on a local television channel's website one day after the arrest.

From the perspective of law enforcement, the sting illustrates the value of the coalition and gives the perception that they are being tough on crime. But when photographs of the men taken into custody are posted before the men have their day in court, the system has failed all Americans. Some of these men will go on to be cleared of all the charges. In an attempt to create a deterrent against an abhorrent crime, the authorities are, in some cases, destroying the reputation of innocent men. This unintended consequence of joint task forces designed to stop cybersex crimes is reason enough to rethink the entire policy.

Do you need help responding to federal cybercrime or solicitation charges? Call an experience Miami cybercrimes attorney with Seltzer Law, P.A. today to schedule a free consultation. Call anytime at 1-888-THE-DEFENSE (1-888-843-3333).

May 25, 2015

Do Cybersex Sting Operations Constitute Entrapment? 

That was the question posed by police officers and legal experts in Lubbock, Texas, where authorities have resorted more and more often to using sting operations to catch defendants in the act of soliciting minors. To cite just one typical case, a 22-year-old man named Kevin Porter was indicted on a second-degree felony charge for arranging to meet someone he thought was a 14-year-old girl for the purpose of having sex with her. Arrested by police when he arrived at the meeting place, Porter now potentially faces time in prison.

Lubbock authorities defend their operations, pointing out that, in many cases, the victims of these crimes are real. They cite the recent conviction of 26-year-old Christopher Wayne Howard, who was sentenced to 27 months in prison by the U.S. District Court in Lubbock for a single count of transferring obscene data to a 13-year-old girl. Predators are out there, they say, and the exploitation of children is a particularly heinous offense.

The main point of contention is this: does using sting operations to catch offenders in the act simply create offenders out of men who would otherwise never have considered soliciting a minor? Police are quick to note that they simply plant the bait in sites where offenders have already entered; they don't use pop up ads to lure people in.

The flaw in this logic is that Texas employs what is called an "objective focus" when the state looks at the standard for entrapment. If a jury deems the police's actions in baiting a suspect are reasonable, then the police are not guilty of entrapment. When police officers pose as 14-year-old girls, however, jurors may be overcome with disgust and outrage at the defendant simply for responding, making it hard for jurors to see entrapment, even when it is legitimately there.

What can you do to respond to cybercrime charges? Call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to speak with an experienced Miami cybercrime defense lawyer about your options.

May 20, 2015

"National Day of Johns" Leads to Nearly 600 Arrests

A nationwide sting operation involving law enforcement in 17 states ended a month-long investigation with the arrest of almost 600 individuals. Most of the defendants were taken into custody on solicitation charges after responding to fake ads for prostitution posted online at Backpage.com. 

Launched in 2011 to highlight the role that the Internet plays in promoting and advertising prostitution, the sting initiative netted 23 alleged cyber criminals and federal human traffickers. In Phoenix, Arizona, police recovered prostitutes who had been brought into town for the Super Bowl by their pimps. A man taken into custody in Las Vegas on federal human trafficking charges was extradited to Ohio. Police arrested two individuals for attempting to post prostitution ads using computers in the Cincinnati public library.

In addition to making arrests, police seized a variety of property, including 221 cars belonging to men who had driven to meet women for the purposes of having sex. In four cases, police found narcotics on defendants. 

Although human trafficking and cybersex crimes are serious offenses, casting the net so wide in the hope of preventing federal crimes may cause more problems than it prevents. It can be difficult to recover property seized in connection to a sting operation, even if the charges are later dismissed. And for innocent people who just happened to be in the wrong place at the wrong time, being taken into custody on solicitation charges can be a devastating and life-changing event.

Do you need help responding to federal cybercrime or solicitation charges? Call an experience Miami cybercrimes attorney with Seltzer Law, P.A. today to schedule a free consultation. Call anytime at 1-888-THE-DEFENSE (1-888-843-3333).

May 11, 2015

Duval County Man Arrested for Soliciting a Minor

Thomas Jones, dubbed "the face of evil" by police, was recently arrested at a Florida CVS store, where he allegedly believed he would rendezvous with a 13-year-old girl he met on the Internet.

In reality, the 43-year-old father had been speaking to police detectives conducting a month-long investigation.
During that time, Jones communicated not only with someone he thought was an underage girl but also with a man he believed to be the uncle of a 14-year-old who was soliciting sex for his niece. Jones allegedly said that he would "love to have a young love" and detailed the sexual positions he wanted to the detective posing as the teenager.

Neighbors of Jones expressed unease and surprise when they heard about the arrest. One neighbor said that he had planned to move even before he heard the news, and he was relieved that he was leaving the neighborhood.

Per news reports, Jones cooperated with authorities, admitting that he had gone to the CVS store to meet a 13-year-old. He remains in custody with bail set at over one million dollars.

One can only speculate why Jones agreed to speak with police directly upon being taken into custody. He may have felt that there was no point in trying to hide the facts once he was caught. However, it is crucial not to follow his lead. Since even innocent people can make incriminating statements under duress, the best strategy is to remain quiet until an attorney shows up.

A seasoned Miami cybercrimes attorney with Seltzer Law, P.A. can help you understand your defense options and create an effective response to your charges. Call us 24/7/365 at 1-888-THE-DEFENSE (1-888-843-3333).

May 6, 2015

Florida Customs Officer Charges with Online Solicitation of a Minor

Walter Rivera, a 29-year-old U.S. Customs and Border Protection Officer who worked at Miami International Airport, was recently suspended without pay after being charged with online solicitation of a minor.

Rivera allegedly used a cellphone app to have conversations with a police detective he believed was a 15-year-old boy named James; he was arrested when he arrived at the alleged meeting place.

According to police, Rivera exchanged pictures with the detective posing as a boy and described a desire to lie next to him and "see where things go." He also offered to perform oral sex on "James."

Rivera told authorities that he reached out to the boy because he was bored and lonely. He said that he had used the app on a prior occasion to speak with a 16-year-old, but he had never met that boy in person. 

Despite the fact that Rivera had no prior criminal record, the judge used this affidavit to argue that he believed Rivera was a repeat offender. He ordered Rivera to wear an electronic ankle monitor if he was released from jail before his next court appearance.

The self-incriminating statements in Rivera's affidavit underscore how important it is for defendants to obtain legal council as soon as possible. Being arrested can be so traumatic and unsettling that people may unknowingly confess to crimes they did not even commit in an attempt to explain away the circumstances or demonstrate a cooperative attitude.

Your freedom and future may be at stake as a result of false charges of online cybercrime or solicitation. We can help. Call Seltzer Law, P.A. right now at 1-888-THE-DEFENSE (1-888-843-3333) for a free and confidential consultation.

April 27, 2015

Repeat Offender Charged with One Count of Cyber Child Solicitation

A 25-year-old Madison, Alabama man named Justin David Beatty was recently taken into custody on a single count of electronic solicitation of a child, the result of an ongoing police investigation.

Authorities allege that Beatty solicited a child under the age of 16 to post explicit photos on the Internet. He is being held on a $100,000 bond.

This is not Beatty's first offense. In 2012, he was arrested for the possession of child pornography and allowed to participate in a pretrial intervention program for first-time offenders.

Cases like this one, sadly enough, reinforce public opinion that sexual predators do not benefit from treatment programs, since recidivism rates are high in any case, and there is nothing that can be done about it. In fact, this belief is not true. Recidivism rates among sex offenders is actually lower than that of other criminals, with about a 20 percent reconviction rate for child molesters and a 47 percent reconviction rate for non-sex offenses.

With treatment, these percentages go down. One published review of 80 independent comparisons between those who received treatment and those who did not found that recidivism rates declined 37 percent with treatment, from 17.5 percent in the control group to 11.1 of those who went through treatment programs.

Intervention programs like the one Beatty entered are one of the best ways to lower the rate of child sex offenses. Nevertheless, public perception continues to favor tough sentences and draconian measures aimed at putting offenders in prison for a long time. Unfortunately, the result is that a number of first-time offenders -- approximately 40 percent -- go on to commit non-sexual crimes after serving time behind bars when they could have entered treatment programs instead.

What can you do to respond to cybercrime charges? Call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to speak with an experienced Miami cybercrime defense lawyer about your options.

April 22, 2015

Orange County Technology Expert Charged in 33 Counts of Cybersex

Recent arrest reports suggest that Qayed Murtaza Shareef, the 39-year-old CEO of a Southern California digital advertising company solicited two Virginia boys, aged nine and 10, to take explicit videos of themselves. Per the allegations, Shareef used the messaging app Tango to contact the boys and, eventually, to choreograph the specific sexual acts he wanted them to perform.

Shareef, who maintains his innocence, allegedly sent the boys adult pornography and videos of himself engaged in sex acts. Investigators are concerned that these boys aren't the only victims.

The authorities first became aware of the case over a year ago when one of the boy's mothers found a video on her son's tablet. But due to Shareef's knowledge of computer technology, officials believe he was able to elude investigators.

The Orange County Child Exploitation Task force took Shareef into custody at his Aliso Viejo home and charged him with 33 counts of lewd acts with a child under 14, possession of child pornography, and distribution of pornography to a child. If convicted, he faces 752 years in prison.

This case is disturbing not only because of the crimes themselves but also because it illustrates how easy it is for someone with technological expertise to evade the law. Where an investigation pits the savvy of the alleged criminal against that of the authorities -- who use some of the most advanced technology in the industry to catch predators -- some victims and even some alleged perpetrators may be denied justice under the law.

Your freedom and future may be at stake as a result of false charges of online cybercrime or solicitation. We can help. Call Seltzer Law, P.A. right now at 1-888-THE-DEFENSE (1-888-843-3333) for a free and confidential consultation.

April 13, 2015

First Amendment Impacts Cybercrime Laws in Texas

Glen Timberlake, a 27-year-old from Austin, drove all the way from central Texas to rural Michigan to meet a girl he met online two years ago while playing Minecraft. Police took him into custody when the girl's mother recognized him outside their home. He was carrying a butcher knife and claiming that he "wanted to get some answers."

The mother of the 14-year-old had already notified the authorities some time ago, claiming that the online relationship had became inappropriate, with Timberlake sending the girl videos of himself engaged in sexual acts, at least one involving a dog. The Austin Police Department was aware of Timberlake's odd behavior and had allegedly issued him a warning to stay away from the girl.

Although Timberlake was charged with numerous felonies and placed in jail on a $700,000 bond, authorities were not able to charge him with cyber solicitation of a minor, which carries a stricter penalty, due to recent changes in the statute. The 2013 session of the Texas State Legislature struck down the part of the law that would characterize explicit online conversation with a minor a crime, declaring that it violated the First Amendment. Now, adults are only breaking the law once they cross the line and attempt to act on their words.

Ironically, this change in the law means that a first-time offender caught in a cyber sex sting operation faces more time in prison than a violent interstate stalker like Timberlake.
Changes to the statute have local police departments scrambling to find a more effective way to investigate and prosecute these cases. They are no longer assigning them to the Child Abuse Unit and have moved them over to Human Trafficking, claiming that online predators use the same grooming behaviors and methods to lure their victim as human traffickers do.

A seasoned Miami cybercrimes attorney with Seltzer Law, P.A. can help you understand your defense options and create an effective response to your charges. Call us 24/7/365 at 1-888-THE-DEFENSE (1-888-843-3333).

April 8, 2015

5 Arrested in Colorado Child Prostitution Case

Five men ranging from the age of 19 to 57 were taken into custody by Weld County officials, part of a multi-agency sting operation coordinated by the Department of Homeland Security. Posing as the mother of two girls, aged 11 and 14, an undercover agent placed ads saying that her daughters were available to have sex in exchange for cash. She also exchanged text messages with the men.

Affidavits for the case state that the men traveled to local hotel rooms, expecting to meet either one or both of the girls. They were arrested on the scene.

One of the men, Amis Cody Brownell, age 34, had an active felony warrant for theft in neighboring Larimer County. Officers also found two grams of methamphetamine in Brownell's vehicle when they took him into custody. He faces an additional charge for unlawful possession.

This case, and others like it, raises an uneasy question about the purpose of multi-agency cybercrime sting operations. The vast majority of men apprehended by such operations have no existing criminal record. Yet every once in a while, the sting nets someone with warrants for another arrest or finds incriminating evidence on the suspect's person or in his vehicle.

Some civil libertarians wonder whether cybercrime sting operations are casting a deliberately wide net in order to find criminals outside their intended scope. They fear that these operations may serve to erode defendants' rights and could lead to cases in which individuals receive disproportionately long sentences for their crimes.

Do you stand falsely accused of a serious computer crime? A Florida cybercrime defense lawyer at Seltzer Law, P.A. can help. Please

March 30, 2015

Teacher Arrested by FBI on Child Pornography Charges

The FBI arrested an award-winning Bronx teacher for allegedly using apps like KIK and Instagram to post explicit photos of underage boys as young as 12. The teacher, Jon Cruz, paid the boys in gift card to take nude selfies as well as photos of their feet and faces. He was taken into custody on several charges of producing, receiving, and distributing child pornography.

Cruz caught the attention of federal prosecutors when the parents of one of the boys discovered gift receipts in the boy's email account. They found that Cruz used several IP addresses to access his KIK accounts, one of them linked to the New York City school system.

According to officials, Cruz posed as a teenage boy, using the photo of a former student and claiming that he was "a nerd who had a thing for jocks." He paid not just for nude photos but also for pictures of the boys' rooms and "thumbs up" portraits.
Cruz served on the Bronx Science Speech & Debate Team for a decade, a position for which he received a number of awards and national acclaim. He is currently being held on $1 million bail.

This case is disturbing for several reasons. While the alleged victims were clearly manipulated and exploited, transcripts uncovered by the FBI depict a man who may be mentally ill. The Cruz case highlights the fact that the system needs better psychological treatment options for offenders, not just stricter laws and more zealous prosecution.
To protect your name, your freedom and your reputation, get in touch with a qualified Florida cybercrime defense attorney at Seltzer Law, P.A. immediately at 1-888-THE-DEFENSE (1-888-843-3333) for a free and confidential consultation.

March 25, 2015

Virginia State Department Official Arrested in Cyber Sting Operation

Daniel Rosen, one of the many office directors in the counterterrorism bureau of the U.S. State Department, was taken into custody after being charged with arranging to have sex from a minor. The senior official has spoken out publicly about the danger of exposing youth to corrupting adult influences, which makes his arrest for the alleged charges all the more concerning.

Rosen stumbled into an online sting operation conducted by Fairfax County's Child Exploitation Unit, which makes up to 100 arrests a year by monitoring various sites and chatrooms frequented by teens. A female officer, posing as a teenage girl, held the exchange with Rosen that led to his alleged solicitation. A spokesperson for the proactive child exploitation unit assured the press that its officers don't "make overtures" but are only there to monitor activity and catch "bad guys."

Rosen appeared in the D.C. Superior Court one day after his arrest, where he waived extradition to Virginia. He was held without bond and later transferred to the Fairfax County jail. Meanwhile, officials obtained a search warrant that allowed them to search Rosen's phone records looking for evidence.

There is no doubt that cybercrimes against minors are a serious problem and that society benefits from the services of law enforcement initiatives like Fairfax County's Child Exploitation Unit. However, we need to be careful that officers are not overstepping their bounds, entrapping merely curious Internet users or building overzealous cases.
What can you do to respond to cybercrime charges? Call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to speak with an experienced Miami cybercrime defense lawyer about your options.

March 16, 2015

California Seeks to Tighten Cyberporn Laws

Sacramento legislators have proposed two new measures, Senate Bill 676 and Assembly Bill 1310, that would make it easier to prosecute people who engage in "revenge porn." The Senate bill would classify any posting of a recognizable revenge porn image as a new crime, while the Assembly bill gives law enforcement agents the authority to obtain a search warrant whenever they seize an alleged revenge porn image.

Revenge porn -- the posting of explicit images online in retaliation for a breakup -- is a real problem that has destroyed thousands of lives. It is especially serious when the victims are minors.

California is already at the forefront in recognizing and prosecuting this offense. In February, 2015, Kevin Bollaert was convicted of multiple charges of extortion and identity theft for disseminating revenge porn, and Hunter Moore agreed to plead guilty of computer hacking and identity theft for operating a revenge porn website.

These new bills, however, may be the wrong direction to take. Assembly Bill 1310 in particular raises uneasy questions about the Fourth Amendment. It is easy to image a scenario in which evidence of other crimes could be legally obtained through the search for revenge porn. In some cases, the defendant could conceivably be innocent of disseminating revenge porn but still be found guilty of crimes discovered during the search.

Cracking down on clear cases of revenge porn is the right thing to do. But broadening the scope of the law to fight these offenses could potentially backfire, leading to the erosion of our Constitutional protections and the destruction of even more innocent lives.
Do you need help responding to federal cybercrime or solicitation charges? Call an experience Miami cybercrimes attorney with Seltzer Law, P.A. today to schedule a free consultation. Call anytime at 1-888-THE-DEFENSE (1-888-843-3333).

March 11, 2015

In 2 International Child Pornography Cases, German Politician Gets Slap on the Wrist, While Killer Gets 10 Years in Prison

Downloading, viewing, and creating child pornography creates scandal throughout the world. Most countries have laws against child pornography, but sentencing structures vary. Two recent cases in the international media involve a Dutch engineer and a German politician.

In Germany, former politician Sebastian Edathy recently confessed to downloading child pornography on his laptop at work and in book and CD form. Investigators found Edathy’s connection to child pornography while investigating a Canadian company accused of distribution. The German politician’s name appeared in their client records.

Edathy owes the court $5,600 for his crime. More importantly, the incident spurred change in German laws regarding child pornography. Now, no one can create child pornography for the purpose of dissemination in that country. The changes also include an extension to the statute of limitations for many sex crimes.

Meanwhile, Dutch engineer Vincent Tabak killed his neighbor, Joanna Yeates, in 2010. His sentence for the sexually motivated crime includes a 20-year prison term. Recently, a new case regarding his possession of 145 pieces of child pornography concluded. England classifies child pornography in 3 different levels, with category A as the most serious. Tabak’s collection had 6 category A pieces. The majority, however, ranked in category C – the least serious.

Tabak faces 10 years for his child pornography crimes, served concurrently with his murder sentence. His name will remain on a sexual offense registry for 10 years, and he can no longer work with children. Prosecutors aggressively pursued the charges to protect the public in the future.

When facing cybercrimes like child pornography, you may feel like you’ve reached the end of the road. The media often tells the stories of successfully prosecuted cases like these two international claims. They rarely champion those who successfully fight wrongful accusations. Cybercrime cases feature complexities that defense attorneys who constantly monitor changing laws understand. Don’t lose hope if you face an investigation into cybercrimes. Defense attorneys investigate the whole story, which often includes exonerating information.

Do you need help responding to federal cybercrime or solicitation charges? Call an experience Miami cybercrimes attorney with Seltzer Law, P.A. today to schedule a free consultation. Call anytime at 1-888-THE-DEFENSE (1-888-843-3333).

March 2, 2015

Crackdowns on Internet Pornography Leave the Wrongly Accused with Worries about the Future

Viewing pornography online does not constitute criminal behavior. However, when activities break terms of service and use, violate another’s privacy, or portray minors in a sexual context, online activity can become a cybercrime.

According to 2015 studies by Covenant Eyes, pornography accounts for 1 in 5 mobile searches. 1 out of every 8 online searches include pornographic material. These statistics suggest that an astonishing number of people who use the internet face the possibility that they could one day stand accused of pornographic cybercrimes.

Recently, Google and Reddit announced changes to the pornography rules on their sites. Google reversed its original decision to ban the sharing of pornographic material on its Blogger site. Instead, it plans to work on enforcing current policies. Reddit, meanwhile, instituted changes that will go into effect on March 10th and focus on preventing the sharing of pornographic material that has not been approved by the subject. Reddit has encountered a widespread problem with “revenge porn.” Revenge porn is pornographic content created for private use, and then disseminated by one party with the intent to cause pain.

The media reports of crackdowns on internet pornography every day, and wrongful accusations are common. Let’s say that you’ve been accused of a cybercrime that includes sexually explicit behavior. You may find yourself staring into the abyss of consequences with no viable recourse.

Wrongful accusations can destroy a person’s credibility and trustworthiness overnight. You may experience feelings of isolation and despair. Occasionally, people face allegations because of accidents. You may not know the difference between legally and illegally distributed content.

To protect yourself, avoid viewing content that portrays children, animal, or violent behavior. Illegal postings may also come through non-traditional forums like Blogger and Reddit. Be careful when using non-company sites for viewing, and be aware that laws vary at the state level.

Contact a cybercrime defense attorney if you stumbled across illegal content and got in trouble for doing so. You don’t have to face an intense investigation alone, and clearing your name can help you get your life back.

What can you do to respond to cybercrime charges? Call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to speak with an experienced Miami cybercrime defense lawyer about your options.

February 26, 2015

Handling Accusations in the Midst of an Increasing Cybercrime Epidemic

Cybercrime presents unique challenges to the legal system, both for alleged offenders and for law enforcement. The laws and regulations regarding certain crimes are often difficult to navigate, especially given the fast pace of web technology changes. Innocent individuals charged with cybercrimes face immediate loss of trust and reputation, making day-to-day life difficult.

No company is immune to the threat of cybercrime. The media commonly reports on large security breaches, but small companies must also implement proactive measures to prevent cybercrime. Many small and medium sized businesses do not implement the type of security measures needed to protect against everyday threats.

As the cost of cybercrime breaches continues to rise, law enforcement officials often complain that “their hands are tied,” and investigators often resort to unfair or even illegal tactics to gain an edge.

Cybercrime accusations can turn your world upside down in an instant. Securing the data for exoneration requires a deep understanding of relevant technology and laws. Facing charges often leaves individuals emotionally, financially, and physically drained.

Individuals on both sides of the cybercrime debate acknowledge that cyberattacks leave a costly and destructive wake. There may not be an easy solution. IT and other technology personnel often face unfair allegations when companies don’t know who else to accuse. Follow these guidelines if you find yourself facing erroneous cybercrime charges:

1. Back up your personal systems and secure any data that can be used to exonerate you.

2. Seek legal advice early on to understand and prepare for the future. An attorney can also help you determine whether a new regulation or law was accidentally breached during the normal course of work.

3. Talk to individuals willing to testify on your behalf. Many cybercrime cases feature circumstantial evidence, and it is helpful to secure witnesses who can defend your character profile.

4. Be careful when speaking to authorities. Only relate the facts during an investigation. Phrases may be taken out of context if your case goes to court.

What can you do to respond to cybercrime charges? Call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to speak with an experienced Miami cybercrime defense lawyer about your options.

February 16, 2015

11 Arrested in 3 Cases of Online Sex Solicitation of Minors

Three separate cases involving the online solicitation of minors are currently in the court system in Amarillo, Texas, and in Louisa County, Virginia. Undercover police operations in both states were involved in discovering the offenses.

A large undercover operation in Texas yielded the arrests of nine individuals who will face 3rd degree felony charges for their alleged actions. The male suspects range in age from 20 to 44. Convicted suspects may face up to 10 years in state prison, and they will be required to register as sex offenders. The case is part of a larger crackdown targeting sex related offenses and human trafficking in Texas.

Officials are also handling two distinct cases in central Virginia as part of undercover operations targeted at sex offenders. Police discovered the illegal solicitations after posing online as a young female. Johnathan Schnyer, a 54-year-old male, was an active member of a community church. He faces one felony charge.

Ray Lester has also been charged with the solicitation of a minor. He is 28 years old, and authorities found him with a semi-automatic weapon when they arrested him. Lester was previously a county dispatcher and a volunteer fireman in his communities. He was arrested while allegedly waiting to meet a 14-year-old for sex.

All 11 individuals face charges because of suspicious online activities. Anyone arrested for sexual solicitation, particularly of a minor, may face stigma and life altering consequences. The accusation makes regaining previous quality of life difficult. Legal counsel specializing in sex related crimes can improve your chances of exoneration and potentially reverse the reputation damaging process.

These cases feature young to middle aged males who allegedly used a passive internet approach to commit crimes against young minors. Undercover police operations often use technologically advanced tools to target these offenders and catch them in illegal acts.

Do you need help responding to federal cybercrime or solicitation charges? Call an experience Miami cybercrimes attorney with Seltzer Law, P.A. today to schedule a free consultation. Call anytime at 1-888-THE-DEFENSE (1-888-843-3333).

February 11, 2015

Solicitation Charges Against High School Teacher Shock Small Connecticut Town

If you or someone you love faces charges of soliciting a minor for sex or engaging in cybercrime activity, this heartbreaking case out of Connecticut may resonate with you.

A former student has filed a lawsuit against a local high school Spanish teacher for sexual harassment in the small town of Simsbury. The student wants $15,000 in damages. The teacher, Mark Cohan, who has been suspended since July 9, 2014, faces several disturbing allegations of misconduct and criminal behavior, according to the local paper, the Hartford Courant.

An ongoing investigation led to Cohan’s arrest on July 30, when authorities “charged [Cohan] with disorderly conduct and second-degree sexual harassment,” according to the Courant. The media has not named the student filing the suit, due to the nature of the allegations. Michael Reilly, an attorney representing the student, told reporters: “Mark Cohan abused his position of trust as a teacher at Simsbury High School to stalk, intimidate, exploit, [and] sexually harass [the youth].”

The lawsuit includes allegations that Cohan used a “friend” status on Facebook to send overtly sexual messages to male students. The student also accuses the teacher of sending him excessive messages, as well as texting, calling, and making him stay after school. Cohan allegedly used several inappropriate tactics with the student, including having him sleep over and drink hard liquor. The student says that, after he slept over at his teacher’s house, he awoke without a clear memory of the night before, with vomit all over him and his zipper down.

Stories like these can be devastating for victims and can spark understandable public ire. But what happens when those wrongly charged with sexual misconduct and cybercrimes find themselves having to defend against compelling (but ultimately wrong or baseless or invented) stories? Those who are inaccurately charged may face stigma and have difficulty securing employment, even if they succeed in getting exonerated.

Florida has particularly tough sex crimes laws; if convicted of similar charges, you will need to register on a national sex offender registration list, and you may face a battery of other punishments, including jail time.

If you face an investigation, or if you’ve been charged with a sex crime you didn’t commit, seek the advice of an attorney as soon as possible.

Do you need help responding to federal cybercrime or solicitation charges? Call an experienced Miami cybercrimes attorney with Seltzer Law, P.A. today to schedule a free consultation. Call anytime at 1-888-THE-DEFENSE (1-888-843-3333).

February 2, 2015

Child Pornography Cases Roil Pennsylvania and the Vatican

Two notable child pornography cases grabbed news headlines over the last several days. One involves a middle-aged man, David Michael Gruel, who stands accused of 8 felony counts of sexual abuse of children. The second hails all the way from Vatican City, where officials are reviewing two cases of child pornography.

In Pennsylvania, Fox 43 reports that State Troopers discovered that Gruel allegedly shared images of child pornography online. Troopers searched his home and say they seized a computer that contained images and videos depicting child pornography. Gruel now faces seven counts of child pornography along with one count of committing a crime through technology.

Meanwhile, half a world away, Vatican City’s chief prosecutor discovered two child pornography cases within the city’s walls last year. One case came to light through computer access; the second case’s details have not been released.

It’s been over a decade since the Catholic Church was publically roiled by allegations that priests had been engaging in child sex abuse on a mass scale. Those allegations – and all the bad publicity that accompanied them – helped spur reform within the Church. Pope Francis, meanwhile, is taking a zero tolerance policy regarding these latest changes. Reuters reports that Pope Francis personally approved the Vatican City arrests to send a strong message that everyone in he Catholic Church – even the highest ranking Church officials – must be accountable for their actions. Police arrested former Archbishop Wesolowski last year on charges that he paid for sex with children; he allegedly is also involved in one of these recent cases.

Is there a worldwide problem with respect to the viewing and dissemination of child pornography? Statistically speaking, most people accused of child pornography and child sex abuse are men, but pornography and solicitation defendants are surprisingly diverse.

In both cases we’ve discussed, the defendants stand accused of using the internet to access and view child pornography, reflecting the fact that the internet is the main way child pornography is distributed today.

If you have been falsely accused of viewing, storing or distributing child pornography on your computer, you understand how potentially damaging the charges may be. To protect your name, your freedom and your reputation, get in touch with a qualified Miami cybercrime defense attorney at Seltzer Law, P.A. immediately at 1-888-THE-DEFENSE (1-888-843-3333) for a free and confidential consultation.

January 28, 2015

Psychologist, Lisa Damour, on Talking About Pornography with Teenagers

Teens who aren’t taught about the ramifications of viewing certain kinds of pornography can get themselves in serious trouble that even an experienced Florida sex crime defense attorney can’t easily untangle. As a parent, you can take preemptive action to avert catastrophy. The simple act of talking to your teen can prevent him or her from committing an actionable online offense.

Psychologist Lisa Damour helps parents manage the complex and often embarrassing task of discussing pornography with their teens. She points that that while pornography fulfills fantasies, the pornographic community can be exploitative and dark.

Pornography has been at the center of sexual health debates for some time now. Some therapists warn that future generations may have a difficult time reconciling sexuality and emotional connections because of the vicarious nature of pornography. However, since the onset of widespread image and video pornography, teenage pregnancy has plummeted. The number of sexual partners reported by the average teenager has also fallen. Finally, the number of virgins graduating from high school has increased. Is it a cause and effect relationship or merely a correlation?

Every parent must make important decisions to safeguard a child’s wellbeing, including informing him about sexual health, boundaries, and appropriate online behavior.

How can we, as parents, do a better job of discussing pornography with teens?

Talking openly about what content is normal and what is considered too graphic encourages positive decision making and lowers the chance of extreme content exposure. A parent can offer guidance, but should avoid imposing strict measures regarding a teen’s sexuality.

It is not wise to ignore the need for communication because of awkwardness. Admitting the fact that the discussion is awkward for both child and parent may provide common ground for the conversation. Remember that an awkward conversation today could prevent detrimental consequences in the future.

Call a Miami cybercrime defense attorney with Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to get effective, compassionate assistance with your challenging and scary charges. We’re available for consultations 24/7.

January 19, 2015

Prince Andrew Faces Sex Offender Allegations: Tied to Disgraced Financier, Jeffrey Epstein

Allegations of sexual abuse involving minors can torch careers, destroy reputations and lead to jail time and other horrendous punishments… even if you’re a privileged Prince.

To wit, consider that the Duke of York, Prince Andrew of England, faces a public relations nightmare (and potential legal morass) thanks to his affiliation with Jeffrey Epstein, a wealthy but disgraced financier from New York. Epstein palled around with notables like President Bill Clinton and Donald Trump prior to his arrest in 2006 on sex crime charges and other offenses.

Reports suggest that Prince Andrew had frequented Epstein’s home during the last decade and potentially received massages and sexual favors from women who had frequented Epstein’s estate. A lawsuit filed in Southern District of Florida in 2008 for $15 million alleged that the financier had developed “a sexual preference and obsession for underage minor girls… [he] gained access to primarily economically disadvantaged minor girls in his home and sexually assaulted these girls.”

One girl in particular – known to the world now as ‘Jane Doe #3’ – allegedly had been sexually involved with the Duke of York on a Caribbean Island orgy. Per a court document: “Epstein instructed Jane Doe #3 that she was to give the Prince whatever he demanded and required Jane Doe #3 to report back to him on the details of the sexual abuse.” This so-called “sex slave” allegedly spent time with the Duke of York between 1999 and 2002.

In 2011, Epstein spent 13 months in prison for procuring prostitutes. After being released in 2011, Epstein spent time with Prince Andrew in New York’s Central Park. Paparazzi clipped pictures of the two of them together, leading the Daily Telegraph (one of England’s biggest newspapers) to write “What Was the Duke of York Thinking?”

Whether or not the allegations against Prince Andrews stand up to scrutiny, the story has a powerful moral: accusations (true or not or somewhere in between) of sexual misconduct with minors can ruin lives, lead to widespread disgrace and create years of persistent legal trouble.

If you or someone you know needs help defending against Florida sex crime charges, call the team here at Seltzer Law, PA, at 1-888-THE DEFENSE (1-888-843-3333) for a free consultation.

January 14, 2015

Victims Sue Lottery-Winning Florida Sex Offender, After He Wins $3 Million

Timothy Poole, a convicted Florida sex offender, made international headlines in December after he won a $3 million prize in the Florida scratch-off lottery. Now the two victims of Poole’s abuse – who were 9-years-old and 5-years-old back in 1996, when the abuse occurred – are suing the lottery winner for a share of the $2.2 million that he’ll be taking home as part of his lump-sum payment arrangement.

The Florida lottery immediately took Poole’s picture off their website when the agency discovered his criminal history (he pled guilty in 2001, served 3 years in jail, and now works at a taxi cab company), saying, “we chose not to draw additional attention to this particular winner.” Even though Poole accepted a plea deal, he has maintained his innocence in the case.

Florida has no statute of limitations barring actions victims of sexual assault and battery (under the age of 16) from suing their assailants for damages. Per Jason Recksiedler and Mark NeJame’s attorney: “we are not attempting to get [Poole] any additional prison time… he has served his time to society, but he has not served his dues for the alleged massive damage caused to these children.”

Poole had been forced to register as a sex offender, but WKMG reports that he skipped out of several sessions of his mandatory counseling program. The two young men hope to freeze Poole’s fortune before he can “squander, hide, or otherwise dispose of assets.”

The story has gained incredible amounts of attention, not just here in Florida but also across the country, because so many people hold sex offenders in low esteem. It galls their conscience to learn that someone accused of sex crimes might actually come into good fortune. This sentiment -- at the heart of the story -- illustrates that offenders need to do a tremendous amount of work just to obtain fair treatment.

Fortunately, you can get excellent counsel here at Seltzer Law, PA. Call us for adept, insightful and compassionate legal help now at 1-888-THE-DEFENSE (1-888-843-3333) for a free consultation with a cybercrime defense lawyer.

January 5, 2015

Viewing Child Pornography on the Internet Is Now Legal in New York [For Real]

As someone who stands accused of violating federal or Florida sex crime laws for viewing or possessing child pornography – or as a friend or family member of someone who stands accused – you may be appalled and terrified by the potential punishments for the alleged offense. Penalties can include massive amounts of jail time as well as destruction of your personal reputation, fines and fees, and inclusion in sex offender registries.

A new ruling out of the New York Court of Appeals offers those accused (at least in New York state) a legal mechanism to avoid these awful punishments. Senior Judge, Carmen Ciparick, writing for majority, declared that: “The purposeful viewing of child pornography on the Internet is now legal in New York.” Judge Ciparick had been weighing in on the case of James D. Kent, a teacher at Marist College arrested in 2009 for possessing 100+ child pornographic images on his computer in the cache of his browser.

Professor Kent denied having intentionally downloaded those images; he brought his computer into a store when it began running slowly, due to what he believed had been “viruses.” Judge Ciparick and her colleagues in majority tried to determine whether the pornographic images downloaded to the browser’s cache indicated intent to “possess” said images. She wrote, “Merely viewing web images of child pornography does not, absent other proof, constitute either possession or procurement within the meaning of our penal law.”

Federal law doesn’t explicitly discuss browser caches. In the past, prosecutors have generally been unable to use just that browser cache evidence to procure convictions. Although it is illegal in New York (and in Florida) to “create, possess, distribute, or promote or facilitate child pornography,” Ciparick noted that “some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen… to hold otherwise, would extend the reach of [New York law] to areas that our legislature has not deemed criminal."

The general point is this: defendants who are innocent of serious computer crimes may be able to develop stiff and robust defenses. To facilitate your defense, contact the experienced federal sex crime defense attorneys here at Seltzer, PA at 1-888-THE-DEFENSE (1-888-843-3333) for a free consultation.

December 31, 2014

The Perils of an Undercover Sex Sting – Inside Florida’s “Operation Wrong Destination”

Fifteen men are headed to state prison in Raiford after being convicted of various Florida sex crimes thanks to Operation Wrong Destination, according to JacksonvilleNews.com. Operation Wrong Destination, a five-day undercover sting, took place in Green Grove Springs and allegedly uncovered that these men had been “traveling to meet a minor to do unlawful acts.” Prosecutors convicted the men of soliciting a child for sex acts and “unlawful use of a two-way communications device.”

Undercover detectives posed as children and advertised on Craigslist, asking to arrange meetings for sex acts. The fifteen men involved, one of whom was sentenced as a “youthful offender,” now face sentences ranging from “community control” to ten years in prison.

Many people charged with sex crimes stand falsely accused; these people may still have time to fight their charges. While our Miami cybercrime lawyers in no way condone the illegal use of pornography or solicitation, we want to protect people from false accusations, which can often occur in cases where the majority of evidence comes from undercover stings. Consider these facts about the dangers of undercover stings.

Stings May Not Provide Concrete Evidence

Evidence found in a sting may not be concrete enough to rightfully convict someone. This is particularly true in cybercrime cases, which hinge on deciphering and proving essential data regarding the downloading, watching, storing and sharing of electronic media.

By Their Nature, Stings are Setups

Undercover stings are set up to prove suspects are guilty. In many cases, the individuals caught in the dragnet are guilty of breaking the law, but sometimes a sting can backfire on an innocent person. Investigators can ask questions in ways that lead suspects to accidentally self-incriminate; they can also violate ethical rules (and even the law itself) to net arrests to meet quotas.

Stings Can Be Overly (and Even Illegally) Invasive

An innocent person can often defend against undercover sting related charges by citing privacy violations. If detectives violated search rules, unlawfully seized property or acted in a way that strayed from department protocol, you can challenge the case and get the charges dropped.

To protect your name, your freedom and your reputation, get in touch with a qualified Florida cybercrime defense attorney at Seltzer Law, P.A. immediately at 1-888-THE-DEFENSE (1-888-843-3333) for a free and confidential consultation.

December 22, 2014

A Different Illness: Why Cybercrime Defendants Often Don’t Get the Help They Need

Our Miami cybercrime attorneys want to spotlight a problem that's often ignored by the medical and criminal justice communities - the problem of how to help people who have compulsive and intrusive thoughts that could stimulate them to violate federal cybercrime laws.

Most people know how to prevent common illnesses - get vaccinations, go to the doctor, take medication, and rest. However, the majority of people don't know or believe mental illness is a sickness, as well. Mentally ill people are often unwilling or unable to get the help they need;; as a tragic result, some of these people commit crimes or wind up in situations where they're accused of crimes.

A Tragic Stabbing

Maria Garcia Pellon, ex-wife of former basketball star Matthew White, allegedly stabbed her husband after she caught him "watching porn." The alleged crime occurred on February 10, 2013, after Pellon discovered her husband watching pornography, "particularly child pornography."

Pellon's family and friends testified that the accused had a long history of mental illness. Beginning in 2001, Pellon received several psychiatric diagnoses including bipolar disorder, schizoaffective disorder, and paranoia. She also regularly claimed terrorists were after her, the government was spying on her, and the Chinese had hacked her phone. Pellon was hospitalized after a suicide attempt in 2007. Her attorney, Tom Bergstrom, took jurors "on a journey through mental illness" during her trial and questioned whether she knew what she did was wrong.

The judge in Maria Pellon's case did rule that she has "a mental disorder," causing many to wonder why she didn't obtain the help she needed. In fact, Maria Pellon did attend counseling and take medications, yet she continued exhibiting mentally unhealthy behaviors. Some of the reasons people like Pellon do not get the help they need include the following:


Mentally ill people often don't get help because they don't want to be seen as "crazy." Accepting a diagnosis is particularly difficult for older people who grew up in eras that did not easily accept mental illness as illness, and instead brushed it off as "hysteria." Mentally ill people also often fear that their friends and family will hate them if they admit their struggles.

The Chemical Straitjacket

Dr. Phil McGraw of the Dr. Phil Show often refers to constant medicating as a "chemical straitjacket" in which pills are used to solve every conceivable problem. Medication has its place, but many mentally ill people wind up overmedicated, or they use medication absent any other modality, such as talk therapy. The side effects of certain medications can be unpleasant and can include metabolic problems as well as ancillary psychological issues.

Giving Up

Many mentally ill people might say something like, "I've tried to get help and it doesn't work." They then give up on treatment, and their illness worsens. However, if the person has the appropriate support, he or she can continue seeking effective treatment to get well and manage.

What can you do to respond to cybercrime charges? Call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) to speak with an experienced Miami cybercrime defense lawyer about your options.

December 17, 2014

The Rest of the Story: What Most People Don’t Know about Pornography Investigations

Pornography cases are often seen in the media as “open and shut” propositions: if a person stands accused of a cybercrime, then he or she should be punished. Those accused of cybercrimes involving children are often maligned more than those accused of other crimes, because many people find such acts highly disturbing. However, the information made public in such cases may not be fully accurate or complete.

Even if a suspect did engage in wrongdoing, the charges may suggest a more serious crime than what actually occurred. Our Miami cybercrime law team has seen this happen frequently and would like to educate our readers about the complexities and nuances of these cases. To that end, let’s examine two recent news items.

North New Jersey Man Accused

According to the North Jersey News website, thirty-year-old Thomas Bachalis of Newark was arrested on December 4, 2014, and charged with distributing child pornography using his computer. Officers of the Passaic County Sheriff’s Office searched Bachalis’ home in September 2013 and found “digital evidence depicting child sexual abuse, including material [involving] prepubescent minors.” Earlier searches conducted in August 2013 resulted in an officer downloading thirty-two pornographic images from an IP address connected to Bachalis’ residence. If convicted, Bachalis could face a minimum five years in prison and a $250,000 fine.

Northwest Georgia Man Accused

Pornography accusations also abound in northwest Georgia. Stephen Michael Hipple was recently sentenced to twenty-five years in prison for “aggravated sodomy,” possessing and distributing child pornography, and using a child younger than twelve to take pornographic photographs. Hipple sent and received at least one pornographic picture with his cell phone circa July 1, 2014.

What the Media Doesn’t Say

Unfortunately, news stories like these are often summarized as quickly as possible by the media, sometimes missing or omitting important details that could partially or completely exonerate the accused. Cybercrime investigations are often complicated for one or more of the following reasons:

• Lack of evidence. One or two pictures are generally not enough to convict someone of severe pornography charges, but a few pictures are often all that are cited on a complaint.

• Misinterpretation of evidence. This can occur when the suspect did in fact download pornography, but not as much as the charges suggest. It can also occur if the police enter more than one type of evidence – for example, if a search warrant specified only data from a computer but officers entered data from a phone into the case.

• Definition disagreements. What exactly constitutes child pornography and violations of Florida and federal cybercrime law? Arguments over these definitions can have profound ramifications for defendants.

Do you need help responding to federal cybercrime or solicitation charges? Call an experienced Miami cybercrimes attorney with Seltzer Law P.A. Today to schedule a free consultation. Call anytime at 1-888-THE-DEFENSE (1-888-843-3333)

December 8, 2014

Federal Cybercrime Lawyer Reports on Two Divergent (But Equally Disturbing) Cases

Whether you stand accused of charges of soliciting a minor or violating federal cybercrimes law, you probably feel nervous about your future, scared about the legal implications and confused about how to protect your rights and reputation. You are not alone.

Every week, many men and women in the United States and beyond find themselves facing severe legal penalties for violating these laws. Today, we’re going to talk about two big stories along those lines in the news. The first concerns 58-year-old Phuc Kieu, a Vietnamese immigrant in Florida who allegedly tried to rob, assault and rape a 20-year-old male after Kieu viewed pornography in his vehicle. According to reports from the New York Daily News, Kieu had been hanging out in his Honda Civic, watching homosexual pornography on a portable DVD player, when he grabbed a 21-year-old male off the street, stole his backpack (which contained $220 in cash), and tried to sexually assault him. The young man eventually escaped and shouted “rapist!” and led police to arrest Kieu.

Meanwhile, in another disturbing case here in Florida, a man accused of “Nationwide Sextortion” faces a 105 year prison sentence. According to news reports, 31-year-old Lucas Chansler had been found with 80,000+ pornographic images on his computer. He allegedly targeted 350+ girls between 2007 and 2010. The St. John’s County man later pled guilty to nine counts of producing pornography -- each count came with a penalty of a $250,000 fine and 15 to 30 years in prison.

Chansler admitted to contacting girls in 26 states through various types of social media, including Facebook. He then pretended to be a younger male and enticed the women to share pornographic videos of themselves. He frequently sent images of a younger male masturbating to convince the girls that he was also young. Once in possession of these videos, he then extorted the girls (who typically ranged from 13 to 18 years old) and said that he would release the videos unless they provided more sexual images or videos for him. All told, authorities said Chansler took advantage of 103 victims who were under the age of legal consent.

The allegations against Chansler obviously are disturbing, but most people arrested and charged with sex crimes do not go to the length of extorting their victims. If you or someone you love faces similar or serious charges, please contact a Florida cybercrime defense lawyer with Seltzer Law, PA at 1-888-THE-DEFENSE (1-888-843-3333) for a confidential and free consultation.

December 3, 2014

UK Bans a Laundry List of Sexual Acts from Online Movies – Implications for Miami Cybercrime Defense

As any respectable federal cybercrime attorney can tell you, the line between what’s legal and illegal with respect to viewing online materials can be blurrier than many people realize.

In fact, both leading ethicists and attorneys frequently (and often hotly) debate where to draw the line between what people should be permitted to watch (with appropriate warnings) and what should be banned from the airways (and/or from the Internet). They also argue over when watchers (and intermediaries) should be punished for participating in the pornography production/viewing process.

In light of that, let’s a look at a peculiar government action that has stirred a vocal public debate over free speech. The UK’s Department of Culture, Media & Sports, (DCMS) just introduced new and stringent restrictions on what types of sexual acts can be included in online videos. Under the aegis of banning materials as “harmful to minors,” the DCMS banned the inclusion of 10 different sexual acts, including strangulation, aggressive whipping, and other acts to make the rules for online pornography identical to the rules currently in place that the UK has for hard copy DVD movies.

DCMS said the legislation "provides the same level of protection to the online world that exists on the high street in relation to the sale of physical DVDs… In a converging media world, these provisions must be coherent, and the BBFC classification regime is a tried and tested system of what content is regarded as harmful for minors.”

However, the DCMS move is not without its critics.

For instance, per the Independent (a UK newspaper), erotic film producer, Erika Lust, said “with this legislation, the UK is in danger of flinging itself back to an age where porn is simply the boring, unrealistic, male fantasy of bimbos eagerly pleasing men as if it’s their duty, where women are submissive and lack ownership of their sexuality. Women in the industry will now fear the loss of their livelihoods as well as their sexual independence.”

The point of bringing up this kerfuffle in the UK is that both the law and social mores regarding what constitutes cybercriminal activity can be rather grey. If you’ve found yourself on the wrong side of that law, you may need the assistance of an experienced Miami cybercrime lawyer to protect your freedom and ensure your rights. Call the team here at Seltzer, PA at 1-888-THE-DEFENSE (1-888-843-3333) right now. We are available 24/7 for a free and confidential consultation.

November 24, 2014

A More Humane Approach to Handling the Problem of Florida Sex Crime Recidivism

As we discussed in our last blog post, commissioners in the State of Florida have asked the Florida legislature to pass a law that would require all Florida sex criminals, past and present, to wear GPS devices indefinitely, so that law enforcement agencies could track their whereabouts.

The ultimate purpose of this proposal is noble. Who doesn’t want to prevent recidivists from harming children and other vulnerable individuals? However, the proposed legal ideas would not only obviously threaten the civil rights of people, but it could also create major costs for them and for the legal system.

Perhaps it would be better and more productive to have a discussion about the core issue: how can we prevent recidivism? The idea that handing out more penalties -- and more intense penalties -- will somehow prevent the problem of recidivism is probably pretty naive. After all, there are already tremendous disincentives for people to violate Florida cyber crime and sex crime laws, including incredible prison sentences.

As the inimitable Will Rogers once said, if you find yourself in a hole, stop digging.

The fact is that punishing people with ever more draconian penalties is probably unlikely to move the needle in terms of what we all really want – to reduce recidivism. It makes a lot more sense to deal with the source of the problem – to better understand what exactly drives people to commit sex crimes again and again. With better science, we can formulate better therapies and legal tools to keep our society safe.

For instance, unfortunately, right now, people who commit sex crimes are considered persona non-grata by almost all of society. Many people tend to think of such offenders as innately “bad.” But if we understood what drives people to engage in these kinds of behaviors -- and had more honest conversations about the psychology of these crimes – perhaps we could make better strides.

Call the team here at Seltzer Law, P.A. 1-888-THE-DEFENSE (888-843-3333) for a free and confidential consultation about your potential Florida cyber crime defense options now.

November 19, 2014

Florida Legislature Urged to Vote on Bill That Would Require Lifetime GPS Monitoring For Florida Sex Crime Offenders

Florida county representatives have asked the Florida State Legislature to mandate that people convicted of sex offenses in Florida be forced to wear GPS monitors for life.

Even if you committed an offense years or decades ago – and you’ve been a model citizen ever since – the Miami-Dade Legislative Item File Number 142535 would still force you to wear a device. The motion was passed by a vote of 10 to 1, with two commissioners absent, and the official title says it all: “Resolution urging the Florida legislature to require sexual predators and sexual offenders to wear electronic monitoring devices for the remainder for the natural lives.”

The Board of County Commissioners worries about the high “recidivism rate” for people who’ve been convicted of sex crimes; they also cited the fact that a Florida Legislature-Office of Program Policy Analysis and Governmental Accountability report written in 2012 said that many sheriff’s offices struggled to find “sexual predators and sexual offenders… listed at transient residences.”

The members of the commission believe that better monitoring of these convicts could let police know instantly if someone violated the law and entered a park, school, nursery facility or other place where children congregate. They noted that similar types of laws have been passed in nearly dozen states, including California, Missouri, Maryland and Rhode Island.

The passion that the Board has for protecting the well-being of children is obviously understandable. We have strong needs to protect people who are young and vulnerable from those who would cause harm. On the other hand, this draconian proposal would create an incredible burden for people whose lives have already been thrown into chaos and whose movements are already under severe restriction.

Are such restrictions morally fair or even Constitutional?

What about the civil liberties of the men or women who would spend the rest of their lives monitored in this fashion? Rather than more punitive laws, why don’t we try to reduce recidivism by using more humane approaches, like providing better, more compassionate psychological care for people drawn to committing sex offences?

If you or someone you love is worried about your legal rights as a convicted (or accused) Florida cyber crime or sex offender, call Seltzer Law, P.A. at 1-888-THE-DEFENSE (888-843-3333) today for a confidential consultation.

November 10, 2014

Can Authorities Really Prove That You Engaged in Florida Cybercrime Activity?

Perhaps police arrested you on charges of possessing or distributing pornography in Florida after conducting a thorough investigation into your computer use. Or maybe police recently busted someone you love for allegedly soliciting a minor for sexual relations.

In either case, you understand the dire legal consequences of a conviction.

However, a key element of the American judicial system is that, in criminal cases, prosecutors must prove their cases beyond a reasonable doubt. Defendants in pornography cases can sow reasonable doubt in the minds of jurors by challenging evidence that the prosecution submits. In certain types of criminal cases, evidence presented is straight-forward and easy to understand. “This is the gun the suspect had.”

But when you’re dealing with evidence that’s less tangible -- such as electronic media, digital files, software, and computer code -- it can be a lot harder to establish what exactly happened, who did what, when, and how. For instance:

• Did you really illegally obtain an explicit digital photograph of an underage person?
• How can you be sure that authorities did not doctor images?
• What if you “accidentally” downloaded pornographic files to your computer without intending to… or without even knowing that pictures ended up on your hard drive?

Whether you’re computer savvy and you did commit a crime (or believe that you did)… or you’re the opposite of computer savvy and insist that you’re completely innocent of any criminal wrongdoing, you deserve intelligent counsel to help you navigate your next steps and make smart decisions. Call a qualified and experienced Florida cybercrime defense lawyer at Seltzer Law, PA, to speak with an attorney today about your defense options. We are available any time of day, 24/7, at 1-888-THE-DEFENSE (1-888-843-3333) to provide a free, completely confidential consultation about your rights.

November 5, 2014

Coast to Coast -- in North Carolina and Alaska -- Men Busted on Child Pornography Charges

As voters across the land recently weighed in on issues ranging from choosing Senators to raising the minimum wage to reviewing medical malpractice limits, few if any politicians (and voters) paid much heed to issues like federal cybercrime and solicitation.

These issues are just not on most people’s radars.

But if you have been arrested for such crimes -- or if you know someone who has been -- you obviously are deeply aware that such crimes can be punished with substantial jail time and forced inclusion in sex offender registries.

In separate cases, police arrested two men in Juno, Alaska and North Carolina for pornography crimes over Election Day week. On Tuesday, the Juno Police Department arrested Scott R. Parker, a 40-year-old, on 40 child pornography charges, including 39 counts of possession and one count of distribution. Authorities took him to the Lemon Creek Correctional Center. All 40 charges are felonies.

Meanwhile, that same week, police obtained a search warrant and arrested an Asheboro, North Carolina man, Corey Scott Daniel. The Internet Crimes against Children Task Force allegedly found multiple computers at Daniel’s home, including a file that contained child pornography. They took Daniel to Randolph County Jail and held him under $50,000 bond. He faces a count of second degree sexual exploitation of a child.

The charges against these two men are obviously incredibly serious. They could face decades (or more) of jail time, depending on the state laws they violated and other factors.

If you or somebody you love stands accused of similar crimes, you may be confused and scared about what to do and almost paralyzed by indecision. Failing to act can have negative consequences for your defense. Evidence that could exonerate you, for instance, could be lost or destroyed. Witnesses who might be able to provide helpful testimony may forget what they saw or heard.

Contact an experienced Florida cybercrime defense attorney with Seltzer Law, PA, immediately to schedule a confidential, thorough and free consultation. Call us at 1-888-THE-DEFENSE (1-888-843-3333), any time of day or night, for compassionate and strategic assistance.

October 27, 2014

Investigation of Florida Sex Crime Sting Operations Changes the Way Police Operate

Florida cybercrime and solicitation charges are incredibly serious; if you are convicted, you can face many years behind bars, the destruction of your personal reputation and business, and untold damage to your self-esteem and important relationships in your life.

That’s why when 10News (in Tampa) recently investigated local police sex sting operations, the entire state paid attention. This journalistic sleuthing may have done some good: the news reports appear to have changed how police now conduct sex sting operations.

We reported on some of the methodological problems of these stings in a recent blog post. For instance, investigators allegedly deleted relevant emails, in violation of Florida State Law -- a crime that could technically be prosecuted as a first degree misdemeanor. 10News just reported that “a sting conducted by the Pinellas County Sheriff’s Office and Clearwater Police Department last weekend netted just 11 arrests, down significantly from 30 to 40 arrests most central Florida stings were netting in recent years." The investigators believe “the drop is likely the result of increased attention on the officers' behavior, prompting them to stop boosting arrest totals by bending the rules.”

The investigators also noted “another noticeable change in the most recent Pinellas County operation was how few young adults were targeted. In a drastic shift from previous Florida "Predator"-inspired stings, none of the men arrested were under 28 years old.”

Sheriff Gualtieri, who had been targeted and criticized by the 10News team, seemed to be happy with the results: “The effort from detectives was the same, and we're getting [fewer arrests], so... it’s a good sign… I don't think we were doing anything wrong to begin with.”

Despite these salutary changes -- at least in the immediate wake of the investigation -- it’s highly likely that these sting operations causes multiple instances of injustice. If you or someone you care about got caught up in the dragnet and stands falsely accused of pornography or sexual solicitation of minor charges, the Seltzer Law, PA team can aggressively and effectively help you fight back. Call us immediately to schedule a consultation – 1-888-THE DEFENSE (1-888-843-3333)

October 22, 2014

Police Officers Involved in Florida Sex Sting Investigations Have Been Deleting Records

As someone who stands falsely accused of a Florida sex crime, like solicitation of a minor for sex or child pornography, you are outraged and terrified by the charges.

Or perhaps you are a friend or family member of someone who has been charged with sex crimes. This person claims to be innocent, but you're not sure what to believe or whom to believe.

A new report from 10News out in Tampa suggests that police officers involved in sex sting operations “routinely delete emails and other records that Florida law requires them to retain.” Per the 10News report, three separate law enforcement agencies in the Sunshine State admitted they have not saved emails, despite a Florida law that mandates that investigators retain all emails connected with an investigation so that such information “is available when and where it is needed, in an organized and efficient fashion, and in an appropriate environment.”

The 10News team reported on these controversial stings, which seek to arrest and charge men searching online for sexual encounters with minors. They call them “controversial” because they say officers have been artificially boosting their arrest totals. Civil rights activists, many law enforcement personnel, and others in legal community have criticized these stings for targeting men who were not criminals and who were very unlikely to commit criminal behavior.

When Gannett, the parent company of WTSP-TV, asked for information, “many agencies still wouldn't turn documents over because they claimed that the potential targets [who number in hundreds] ignored the advances and did the right thing… were still 'under investigation.'"

These agencies may have actually violated state law. The 10News report quoted Florida First Amendment Foundation’s Barbara Petersen saying “an intentional violation of the public records law – including the destruction of public record emails – is a first degree misdemeanor."

It's curious: In attempting to turn non-criminals into subjects of criminal investigation, these officers may have actually broken law… and become criminals themselves.

For help structuring an effective, smart defense to false charges that you have committed a Florida cybercrime, such as pornography or solicitation, call the team here at Seltzer Law, PA immediately for a free consultation at 1-888-THE DEFENSE (1-888-843-3333).

October 13, 2014

Federal Pornography: A Federal Crime and Apparently a Quite Common One

If you’ve been arrested on federal child pornography charges in Florida (or elsewhere), you obviously understand that you are in an incredibly serious situation. You might face punishments ranging from lengthy amounts of jail time to ostracism from friends and family. If the charges against you aren’t true or are exaggerated, you are also likely panicked about how you can prove your innocence and make sure that justice is served.

The topic of federal pornography has been getting tons of media attention recently, thanks to representative Mark Meadows of North Carolina, who just introduced a bill that would prohibit federal employees from looking at pornography on the job. You might have been under the impression that looking at pornography at work was already a big “no-no” for federal government employees, but Meadows asserts that law enforcement has not been enforcing the rules prohibiting such behavior.

We blogged several months ago about a Environmental Protection Agency (EPA) official – a very high up bureaucrat – whom authorities alleged kept 7,000 files of pornography files on his computer. He may have spent six or more hours every day at work engaged with that pornography. The pornography he viewed was not child pornography, however. Apparently, he hasn’t even been fired yet: he is just technically “on leave.”

According to the investigative news source, Mic, pornography consumption may be rampant among federal government employees. Earlier this year, a Federal Communications Commission worker got in trouble for spending eight hours every week looking at pornography on the job, claiming that “he was bored.” Meanwhile, a Treasury Department official checked out over 13,000 porn images in a month-and-a-half at work. Per the Mic investigation, employees at the Minerals Management Service, the Department of Justice, The U.S. Senate, and The U.S. Securities and Exchange Commission all extensively looked at pornography at work. A 2009 report from The Washington Times found that “one senior National Science Foundation executive spent at least 331 days looking at pornography on his government computer and chatting online with nude or partially clothed women without being detected.”

As someone who faces serious federal child pornography charges – particularly if you’re innocent – you may feel furious about the double standard. Why do some people get punished for pornography crimes, while other people don’t? Rather than rue your fate or shake your fist at the system, get clear about your options to protect your freedom and dignity. Call the team here at Seltzer Law, PA, at 1-888-THE DEFENSE (1-888-843-3333) for a free and confidential consultation about your federal pornography defense. We're available 24 hours a day, seven days a week.

October 8, 2014

Major Phoenix Child Pornography Sting Yields Two Suspects

If you're currently under investigation for cybercrime-related charges in Florida, you may or may not be familiar with cybercrime sting operations in your city or state.

Authorities design sting initiatives to identify and apprehend individuals who participate in illegal activities online. In Phoenix, Arizona, a joint effort between the Phoenix Police Department and the Arizona Internet Crimes against Children Task Force recently arrested two men on charges of sexual exploitation of a minor.

Early on September 11, detectives apprehended Andres Pena, a 33-year-old who allegedly possessed multiple videos and images of child pornography. Later that day, they took another man, David Ray, into custody after examining his work and personal computers.

Both Ray and Pena currently face 10 counts of sexual exploitation of a minor.

How Florida Cybercrime Sting Operations Work

In the state of Florida, authorities often employ sting operations to catch individuals engaged in unlawful activities online. These efforts include several components:

• Collaboration. The combined resources of local, county, and state police – as well as national organizations, such as the Internet Crimes against Children Task Force – provide high-tech capabilities and staffing to find potential internet criminals.

• Posting ads. Law enforcement officers posing as underage children – or adults offering the services of children – engage with suspects on dating sites and other forums.

• Arranging meet-ups. Undercover officers attempt to meet suspects at predetermined locations, where authorities can arrest the individuals.

Cybercrime sting operations do not always abide by the law, and the evidence collected may not be admissible in court. For instance, authorities sometimes abuse their power; defendants victimized by such efforts can decry this “entrapment” and use evidence of the abuse to win back their freedom. Although these investigatory efforts undoubtedly help police bring legitimate criminals to justice, they may also result in false accusations.

Do you believe you have been unfairly targeted by a cybercrime sting operation? The qualified Florida cybercrime attorneys at Seltzer Law, P.A. can help. Call us today at 1-888-THE-DEFENSE (1-888-843-3333) to schedule your free consultation and take your first step towards protecting your rights.

September 29, 2014

What Does Apple’s New Privacy Policy Mean for Florida Cybercrime Defense?

One of the ways authorities identify potential cybercrimes in Florida is by accessing their mobile devices, such as smartphones and tablets. However, a recent development at Apple will prevent law enforcement – and Apple itself – from getting into suspects’ iOS 8 devices.

This recent revelation, which Apple announced along with its new privacy policy, indicates the company will no longer be able to “unlock” users’ phones by overriding their passwords. They have accomplished this feat by changing the encryption they employ when a user chooses a password. Any recordings, emails, images, or videos on a device are now available only to those correctly entering this code.

Apple’s strengthened stance on security comes in the wake of a mass celebrity nude photo leak as well as accusations from former NSA contractor Edward Snowden regarding government spying. The company aims to prove their commitment to customers’ privacy and absolve themselves of the ability to cooperate with authorities regarding criminal cases.

What This Development Could Mean for Cybercrime Defense

For users of the iPhone 6 (or any device operating on iOS8), this new policy presents significant implications for the privacy and security of digital information. Important considerations include:

• More difficult device searches. Going forward, authorities cannot view or access passcode-protected material on Apple devices, even with a search warrant.

• Thwarted surveillance. Agencies attempting to monitor an individual’s online activities can no longer do so on iOS devices.

• Passcode importance. Revealing your passcode to another person, writing it down, or choosing an easy-to-guess passcode reduces the efficacy of Apple’s security measures.

Fighting cybercrime charges can be a frightening prospect, but an experienced Florida cybercrime defense attorney can help you build a strong case. At Seltzer Law P.A, we can use our extensive knowledge of state, federal, and case law to defend your rights. Contact us at 1-888-THE-DEFENSE (1-888-843-3333) to begin your journey back towards freedom.

September 24, 2014

Former Grand Rapids Pharmacy VP Faces Drug, Child Pornography Charges

Fighting an erroneous Florida cybercrime case can be difficult enough. When additional charges enter the mix, the result is often a longer case and stiffer penalties.

Richard Michael Clarke, a former executive at Kentwood Pharmacy in Grand Rapids, currently faces charges in a complex case of this nature. On September 15, Clarke pled guilty to possessing child pornography. He also faces charges of participating in a “drug-repackaging scheme” that allegedly involved 16 other employees at the pharmacy.

According to court records, Clarke supplied “controlled substances” to a teenager of whom he had been creating explicit pornographic images. The drugs came from surpluses at foster homes and nursing homes, which he allegedly repackaged after those facilities returned them to the pharmacy. Kim Duron Mulder, the pharmacy’s former CEO, also faces charges in the case.

Clarke pled guilty to charges of child pornography possession and conspiracy to commit healthcare fraud. A conviction could result in up to 20 years in prison (10 years for each crime).

How Additional Charges Can Complicate a Cybercrime Case

Under Florida state and federal law, child pornography crimes are among the most severely regarded and punished. A conviction for such offenses alone can result in significant prison time, sex offender registration, and loss of one’s reputation. However, when cybercrime defendants also face charges for other offenses, the ramifications can be profound and scary:

• Longer sentences. Judges consider sentence lengths based on the guidelines for each separate crime. Therefore, a compound conviction often means a compound sentence.

• Larger fines. The more charges a suspect faces, the more fines they are likely to accumulate.

• Longer court cases.
The length of time from initial booking to judgment and sentencing takes longer with more complex cases, often meaning more time in jail and greater suffering for defendants and their families.

If in addition to Florida cybercrime charges, you face multiple counts for other alleged crimes, a skilled defense attorney can vindicate you and ensure your freedom. Call the Seltzer Law, P.A. team today at 1-888-THE-DEFENSE (1-888-843-3333) to discuss your case in a confidential, free consultation. We're available 24/7 to talk!

September 15, 2014

Los Angeles Deputy City Attorney’s Child Pornography Arrest

Believe it or not, many people who get arrested and accused of cybercrimes in Florida have no idea that they've committed illegal actions until the police arrive to take them to jail. Such arrests can shock whole families and communities.

But what happens when someone who understands cybercrime laws intimately gets arrested for such offenses? The defense usually becomes much more difficult. In that context, let's consider the arrest last week of a deputy Los Angeles City attorney on serious pornography charges.

On Thursday, September 4, the Los Angeles Police Department arrested Christopher Richard Garcia on suspicion of child pornography distribution. The police action followed a 10-month investigation, during which Garcia remained on administrative leave from his position. Authorities had identified potentially incriminating content on Garcia’s computer, including illicit images and other evidence of child exploitation, which prompted the investigation.

Garcia posted a $40,000 bail, and he's currently awaiting trial. In the meantime, however, his professional reputation as a law officer has likely already suffered a severe blow. Even if he clears the charges and proves that they were unfounded, he may struggle to reclaim a normal life and career.

How Do Cybercrime Arrests Happen to Those Who Should Know Better?

Individuals in professions such as Garcia’s obviously can commit cybercrimes. But just because someone knows and understands the law doesn’t necessarily mean he or she cannot accidentally carry out illegal acts. Here are three situations in which an innocent person (even a police officer or investigator on the cybercrime beat) could get in trouble with the law:

• Family photos.
An innocent photo of a young relative could become incriminating evidence in some circumstances. (For instance, a person who texts a "cute" nude baby picture or picture of a young relative can get in trouble, even if he or she had zero intention of sharing the picture for prurient reasons.)

• Botched investigatory searches. People who attempt to identify and apprehend cybercriminals can be mistaken as the very individuals they seek to bring to justice.

• Mislabeled downloads.
People who download torrents or other media run the risk of receiving unwanted material, for which they can become legally responsible.

Regardless of what got you into your current situation, if you currently face cybercrime charges, you understand the dire consequences of a conviction. These can include imprisonment, permanent sex offender status, and the loss of support from colleagues, friends and family.

The experienced Florida cybercrime defense attorneys at Seltzer Law, PA can help. Contact us today online, or call 1-888-THE-DEFENSE (1-888-843-3333), to begin your journey back towards freedom.

September 10, 2014

Reddit Cracks Down on Underage Photos

Individuals who face faulty cybercrime charges in Florida may soon have a lot of company, thanks to social media sites like Reddit.

Websites like Reddit have been coming down harder on users who are not in compliance with their posting rules; the implications both for web users and cybercrime defendants could be huge.

Following a recent mass hacking of celebrity smartphones on Reddit -- and the resulting backlash -- the popular forum quickly reacted to reports that some of the individuals pictured on its boards were under 18 when their photos were taken. Although the hackers responsible for these “leaks” had already committed crimes by stealing the photos, they may also now face child pornography dissemination charges.

Seemingly Innocuous Activities Can Get You into Trouble Online

Whether they realize they're committing crimes or not, people who use websites to consume explicit material can be punished with serious jail time, fines and fees, and strict probation terms. Potentially incriminating online behaviors can include:

• Uploading “hacked” photos.
Hackers who obtain and post pornographic photos against their owners’ consent break the law, and prosecutors can hit them with a litany of charges, such as identity theft and wire fraud.

• Downloading images of very young individuals. An increasing number of minors are uploading explicit photos, and it’s not always evident how old they were at the time the photos were taken. When in doubt, do not download dubious photos or videos.

• Sharing pornographic photos or videos or other multimedia content of underage individuals. Again, use good judgment, and avoid passing along these types of files.

In the United States, cybercrimes involving underage individuals represent serious offenses. Under federal law, a conviction of charges of possessing or distributing such images can result in prison time, sex offender registration, and the loss of one’s personal and professional reputation.

At Seltzer Law, our Florida cybercrime defense attorneys understand the laws related to your case, and we can fight to help you prove your innocence. Contact us today to begin your defense, or call us at 1-888-THE-DEFENSE (1-888-843-3333).

September 1, 2014

School District Suspends Teacher Pending Child Pornography Investigation

Regardless of your occupation, Florida child pornography charges are a frightening prospect – especially if you have been falsely accused. In Buffalo Grove, IL, a popular middle school teacher recently discovered how swift and harsh the penalties of such allegations can be.

Meridian Middle School teacher John C. Vastis, 51, was charged August 28 in federal court with multiple child pornography offenses, including soliciting lewd videos and photos from an underage boy, known simply as “Minor A.”

The criminal complaint alleges Vastis communicated via Skype and text with Minor A, requesting the teenager send him explicit photos and videos. Authorities seized a computer and cell phone, allegedly containing these images. The charges, if proven, could result in a prison sentence of up to 15 years.

Pending investigation, Vastis remains on investigatory leave from Meridian Middle School. School officials have not yet determined whether he will be paid during his absence.

What Are the Potential Consequences of a Child Pornography Conviction?

Individuals like Vastis often face immediate and devastating circumstances due to cybercrime allegations such as these. With the permanency of conviction, one can expect consequences such as:

. A child pornography conviction often leads to prolonged periods of time behind bars.

Loss of reputation. The damage to one’s reputation can be irreparable and begins the moment a suspect’s arrest becomes public. Friends, family, and neighbors often shun cybercrime convicts, even after they have served their time.

Job loss. Many employers remain unwilling to hire a person who has served time for child pornography charges.

If erroneous child pornography charges threaten to destroy the life you have worked so hard to achieve, don’t despair. Turn to the qualified Florida cybercrime attorneys at Seltzer Law, P.A. We understand the applicable state and federal laws in theory and in practice. We can work towards helping you retain your freedom, reputation, and future.

Call the Seltzer Law, P.A. team today at 1-888-THE-DEFENSE (888-843-3333) to discuss your legal options.

August 27, 2014

California Teacher, Pennsylvania Man Arrested for Child Pornography

Communities and the falsely accused alike experience significant shock and dismay due to cybercrime charges in Florida or elsewhere. Today, parents in Wilkes-Barre, Pennsylvania, and Danville, California, are reeling from child pornography arrests as the beginning of the school year approaches.

In Wilkes-Barre, 40-year-old Scott Laine Savage was arrested two separate times and arraigned for 627 counts of child pornography, as well as 8 counts of dissemination of explicit images of children, one count of child sexual exploitation, and one count of endangering child welfare.

Savage reportedly admitted to the crimes, which included downloading illicit images and photos of children on his mobile phone, as well as taping and creating still images of a young relative. When Google detected this content in an email he attempted to send, they deleted his account.

Similarly devastating is the case of Mitchell Wolf, a 58-year-old middle school math teacher and soccer coach arrested on Friday, August 22, for possessing child pornography on his personal computers. Wolf’s behavior while employed at Diablo Vista Middle School since 2002 prompted none of his coworkers or students to suspect such activity.

Although Wolf has not claimed innocence or admitted guilt thus far, he is currently being held on $1 million bail at the Martinez Detention Facility. The case is currently under investigation, and charges have not yet been filed.

As cybercrimes units employ more resources and increasingly sophisticated methods of locating child pornography offenders, the number of arrests is likely to increase. Individuals convicted of such crimes can expect significant lengths of prison time, as well as lasting damage to their reputations, careers, and personal lives.

The severe consequences of child pornography convictions make it imperative for the falsely accused to seek the assistance of a Florida cybercrimes attorney. The experienced professionals at Seltzer Law, P.A. understand the complexities of state and federal laws and will help you fight to preserve your freedom and good name. Contact us today at 1-888-THE-DEFENSE (888-843-3333) to schedule a free consultation.

August 18, 2014

Polk County Cybercrime Detection: “Sting” Vs. Entrapment (Are Overzealous Cybercrime Officers Targeting Innocent Adults?)

Facing arrest for a cybercrime in Florida is a serious matter, and it becomes worse when the accused is completely innocent. A recent sting operation in Polk County may have placed numerous individuals in this situation.

Polk County officers have been working hard to detect cybercrimes involving underage children. However, in their zeal to bring criminals to justice, they have engaged in behaviors possibly amounting to entrapment. Arrest affidavits in several cases include scenarios such as:

• Bait and switch. Police officers posing as adults on popular dating sites develop relationships with law-abiding men, then tell them they are actually underage. When the target of the operation tries to cut ties with the undercover officer, the latter attempts to persuade him to continue the relationship.

• Fake trafficking. Undercover officers occasionally pretend to be parents, offering their children to potential suitors. Whether the target shows interest in the child or not, he may be arrested for talking with the “parent.”

• Enticement.
Despite the target’s seeming lack of interest in sexual activity with a minor, the undercover officer continued to direct the conversation towards that topic.

As a result of these tactics, numerous men have experienced arrest and exposure to negative public attention, including having their mug shots included in press conferences regarding “sexual predators.” Charges in many of these men’s cases have since been cleared.

No conscientious police officer would knowingly target and arrest an innocent individual. However, in their quest to search out true cyber criminals, Polk County officials may have inadvertently done exactly this.

When internet crimes involve illicit activity with underage children, the consequences are often dire and lifelong. Prison time, sex offender registration, and job loss represent only a few of the potential penalties resulting from a conviction.

If you face charges due to a law enforcement entrapment operation, a Florida cybercrime attorney at Seltzer Law, P.A. can help. Contact us today at 1-888-THE-DEFENSE (888-843-3333) to begin clearing your name.

August 13, 2014

Is Pornography Like a Drug to People With Sexual Compulsions?

Among individuals accused of pornography related cybercrimes in Florida and across the United States, many misconceptions exist. Suspects are often labeled as sex or pornography “addicts,” but these terms may not describe the behaviors to which they refer as accurately as people might think.

Does sex addiction have the same effects on the brain as drug addiction? Recent studies suggest it does, but experts advise against drawing faulty conclusions prematurely based on this evidence.

About 4 percent of adults exhibit compulsive sexual behaviors, including obsessive thoughts, feelings, and physical acts. However, the medical community has much to learn about what causes these impulses and what effects they have on individuals.

In a recent University of Cambridge trial, researchers found similarities between the brain scans of individuals with sexual impulse control problems and those of drug addicts. The study observed the brain activity of nineteen male patients with compulsive sexual behaviors against that of nineteen healthy volunteers.

Researchers used functional magnetic resonance imaging (fMRI) to measure subjects’ brain activity using blood oxygen level dependent (BOLD) signals. In the tests, the brains of patients experiencing compulsive sexual behavior displayed comparatively more activity in three regions:

Dorsal anterior cingulate.
This region generates connections between cravings and rewards.

Ventral striatum. This section helps individuals process “reward and motivation” signals.

Amygdala. This area of the brain processes the meanings of emotions and events.

Similar reactions occurred in drug addicts exposed to drug-related stimuli.

These weren’t the only correlations scientists found between drug addiction and compulsive sexual behavior. In our next post, we will explore the behavioral aspects of the University’s research and discuss what this study means for better understanding what makes habitual porn users tick.

If you have been accused of a cybercrime involving pornography, you may feel as though society or law enforcement have unfairly labeled you. David Seltzer, an experienced Florida cybercrime attorney, can help you build a strong legal case to preserve your freedom and restore your good name. Contact Seltzer Law today at 1 888-THE-DEFENSE (888-843-3333) for a free consultation regarding your defense.

August 4, 2014

Disney Employee Responds to Child Sex Allegations

Unfounded allegations of cybercrimes involving children can be devastating and can ruin the lives of innocent people. Florida residents facing such allegations might identify with the recent case of a Disney employee accused of soliciting a 14-year-old girl for sex. The case has caused significant hardship to the 49-year-old Orlando man, who has suffered serious consequences following his arrest.

Robert Kingsolver, a service repair supervisor at the Magic Kingdom, was arrested late last week after detectives said he arranged to meet an undercover officer posing as a 14-year-old girl. Upon his arrest, Kingsolver admitted he set up the meeting, but insisted he was concerned about the girl’s behavior and only agreed to meet the girl to keep her out of harm’s way, according to media reports.

Kingsolver entered a not guilty plea to the solicitation charge and is free on bond, but he is a virtual prisoner inside his Orlando home. He is unable to work and can rarely leave the house because he is prohibited from having any contact with children. Kingsolver, whose children staunchly support him, told CNN his life is ruined because of the allegations. He is one of 35 Disney employees snared since 2006 in police stings aimed at combating child pornography and exploitation.

The case against Kingsolver is just one example of how even an accusation of a crime related to child exploitation or child pornography can be devastating. If you or someone you love has been falsely accused of cybercrimes such as these, it is imperative to contact a Florida cybercrimes attorney for an aggressive defense. Cybercrime lawyer David Seltzer has years of experience and can help guide you through this difficult time.

Seltzer Law, P.A. is available to take your call 24 hours a day, 7 days a week. Don’t fight cybercrime accusations alone. Call 1 888-THE-DEFENSE (888-843-3333) for your free legal consultation today.

July 30, 2014

Breaking News from U.S. Sentencing Commission Good News for Offenders

Individuals serving sentences for cybercrimes in Florida will likely be interested in a recent development out of Washington, D.C., which may predict a change in how courts enforce sentencing guidelines.

The U.S. Sentencing Commission released a statement on July 18 indicating retroactive reduced sentencing guidelines for individuals convicted of drug trafficking. According to this news release, those currently incarcerated for such crimes will become eligible for reduced sentences as early as November 2015.

This new development began in April 2014, when the U.S. Sentencing Commission voted to decrease the “base offense levels” specified by the Drug Quantity Table, regardless of the type of drug. Since the decision, new defendants have been subject to the amended guidelines, often resulting in shorter sentences than those convicted prior to the change.

To eliminate or reduce this discrepancy, the Commission determined courts should apply the new guidelines to individuals who have already been convicted and begin issuing reduced sentences by November 1, 2015. Judges will review each case to determine whether an early release would pose a hazard to the public, or whether other circumstances might prevent an inmate from receiving a reduced sentence.

Not only will this initiative provide much-awaited clemency for prisoners, but it will also reduce severe crowding in prisons. The delayed implementation will allow authorities to arrange for adequate supervision and transitional services for each inmate.

This new development reflects a shift in the U.S. criminal justice system that will likely spread to other criminal areas. By allowing those currently incarcerated to enjoy reduced sentencing guidelines along with new defendants, the Commission has contributed to a fairer, more efficient, and less crowded prison system.

If you currently face Florida cybercrime charges, you are likely concerned about potential prison time. With the quality legal services of Seltzer Law, you will benefit from our years of experience helping clients get excellent results. For a free consultation regarding your case, contact us today at 1-888-THE-DEFENSE (888-843-3333).

July 21, 2014

Teen in Virginia Sexting Case Accuses Authorities of Exploitation

In our last post, we introduced the story of a Manassas County, Virginia, teen accused of child pornography after he sent an explicit video to his 15-year-old girlfriend. As this strange case continues to unfold, numerous questions remain, including:

Was the act the 17-year-old committed really a crime if his girlfriend “precipitated” it with a “sext?”

Were the police within their rights to forcibly obtain a photo of the underage suspect’s erect penis?

Whose version of events is more accurate – that of the authorities, or that of the defense?

The complex circumstances surrounding this case may seem bizarre, but they are becoming more common as internet and smartphone users increasingly exchange explicit photos and videos. Recent cases have popped up all over the world in which individuals engage in virtual behaviors they may not realize are subject to cybercrime laws, including those regarding child pornography.

When using phones and computers to communicate, the best policy is to avoid any behavior that might be construed as illegal or become widely disseminated. Although individuals may believe a consensual relationship shields them from potential charges, complex laws govern the distribution of materials depicting nudity or sex acts. Protect yourself and your potential recipients from prosecution by refraining from sharing these images.

Similar to the teen in the Virginia sexting case, if you have been unfairly accused of a child pornography offense, you may feel mistreated and dehumanized by law enforcement officials. A Florida cybercrimes attorney with extensive knowledge of state and national laws can help you understand and assert your rights.

Cybercrimes lawyer David Seltzer has spent years working with defendants in complex cases regarding child pornography and other web-related charges. He works tirelessly to help clients wage strong defenses and avoid unwarranted punishments such as prison sentences, fines, and sex offender registration.

To set up your free consultation with Seltzer Law, contact us today at 1 888-THE-DEFENSE (888-843-3333).

July 16, 2014

Bizarre Virginia Teenage Sexting Case Raises Questions about Police Behavior

Florida residents who face unfounded child pornography charges may sympathize with the case of a Virginia teenager whose recent arrest raised significant questions about the lengths to which law enforcement officials may go to obtain a conviction.

The story involves a young couple – a 15-year-old girl and 17-year-old boy – living in Virginia. The girl sent a “sext” to her boyfriend, to which he allegedly responded with an explicit video. When the girl’s mother discovered the video, she went to the police.

Manassas County police arrested the boy and took pictures of his genitals for evidence. His lawyer, Jessica Harben Foster, says Commonwealth Prince William County assistant attorney also pressured the boy to plead guilty. If he did not do so, Foster claims, police would have issued a warrant requiring the boy to provide a photo of his erect penis.

How would authorities accomplish such a task? According to Foster, the police would take the boy to the hospital, “give him a shot” to produce an erection, and obtain the photographs. The boy refused to plead guilty, and the court issued the search warrant.

Carlos Flores Laboy, the guardian of the accused, expressed outrage at the seeming hypocrisy of the Manassas County police. In their attempt to enforce a statute that protects children from sexual exploitation, Laboy asserts, law enforcement officials are engaging in exploitative behavior themselves.

The Commonwealth’s attorney, Paul Ebert, disputes the defense’s claims regarding how the police handled the case. Ongoing investigations and an upcoming court date will likely provide additional insight.

In our next post, we will discuss the precedent that exists for cases such as these, as well as their implications for individuals in consenting relationships.

Sexting, video messages, and other seemingly innocuous activities can spell trouble, regardless of whether the recipient is willing to receive them. If you are facing cybercrime charges in Florida, call Seltzer Law today at 1 888-THE-DEFENSE (888-843-3333) to begin your legal defense.

July 7, 2014

Columbus Medical Community Shocked by Pediatric Cancer Doctor’s Child Pornography Conviction

A once-renowned Columbus pediatric cancer physician will serve one year and one day in federal prison after pleading guilty to child pornography charges. Christopher Pelloski, 40, had been using his personal computer, as well as an Ohio State University laptop, to access videos and photos inappropriately depicting children.

Although Pelloski had been engaging in these activities since 2007, authorities did not apprehend him until last summer. Investigators located 85 images and 2 videos as evidence against the doctor, who admitted his crimes upon his arrest.

The case has caused significant turmoil within Pelloski’s family and within the Columbus medical community, in which Pelloski worked for years treating children with cancer. Although no evidence indicated he harmed any of his patients, he acknowledged the fear and pain his actions caused to these children and their families.

Pelloski has lost his license to practice medicine, but he hopes to work in clinical research and advocate against child pornography in the future. He must also pay $10,000 in fines, register as a sex offender, and remain under federal supervision for five years after leaving prison. His internet use will also be restricted.

In both Florida and Ohio, accessing or viewing online pornographic images of children represents a serious crime that can change lives forever. In addition to legal consequences, such as prison sentences and fines, convicted individuals often lose their jobs, families, and reputations.

If you have been falsely accused of cybercrimes related to child pornography, contact a Florida cybercrimes attorney as soon as possible to preserve your freedom and character. Cybercrime lawyer David Seltzer thoroughly understands the laws related to your case, and he can help you form a strong defense to get your life back.

Seltzer Law, P.A. is here 24 hours a day, 7 days a week. Call us today at 1 888-THE-DEFENSE (888-843-3333) for your free legal consultation.

July 2, 2014

Catholic Priest Pleads Guilty to Possessing over 1500 Child Pornographic Images

If you face Florida cybercrime charges, like possession of child pornography or solicitation, you may feel pretty trapped and scared about your future.

Odds are, however, that your case will get far less media attention than the case of Father Stanislaus Hogan, a Jesuit priest over in the UK, who collected 1,555 child pornographic images in his room at Saint Ignatius' College in Adelaide.

All told, the children in these publications ranged in age from 16-years-old to 3-months-old, and the 69-year-old allegedly compiled this trove over decades. Some of videos and magazines dated all the way back to the 1970s.

At a sentencing hearing, Hogan “made clear his intention to apply to be released from his vows.” One case observer said that Hogan had struggled all his life to try to reconcile his sexual proclivities with his line of work. He also confessed to having problems with alcohol – which his psychologist said stemmed from his inability to process his sexual impulses.

Approximately 70% of the images in his collection did not involve sexual activity, although they did involve nudity. Some images and videos, however, were highly explicit. He’s due to be sentenced in August.

Hogan’s tragic story is, tragically, a common one. People who want to watch child pornography often don’t understand where their impulses come from and don’t know how to control them. With proper counseling and intervention, people can get a handle on these impulses and stop them from wrecking their lives or at least from doing more damage than they’ve already done.

If you or someone you love stands accused of these kinds of charges, a Florida cybercrime attorney with Seltzer Law, PA, can help you put together an effective defense. Call us now at 1 888-THE-DEFENSE (888-843-3333) for a free consultation.

June 23, 2014

New Law Criminalizes Child Pornography in Japan: Part 2

In our last post, we detailed the new legislation passed in Japan, making the possession of child pornography illegal. The most recent in a series of gradual changes noted by cybercrime defense attorneys, the law illustrates a gradual and welcome transformation to a culture that has been historically permissive of child exploitation.

However, no law can change the behavior of an entire nation overnight, and many stakeholders remain who continue to advocate for sexual depictions of children in various forms. In addition, many potentially exploitative practices remain legal and leave the door open for potential predators to find gratification.

The Loopholes

For instance, animated child pornography sources such as anime, manga, and computer-simulated video games are not covered under the new law. Although regulations prohibiting the sale of such materials to minors have been more heavily enforced in recent years, adults may still produce and possess them.

According to publishers, illustrations of underage children engaging in sexual acts don’t exploit real children. Artists, they claim, have a right to “freedom of expression,” and banning animated child porn would infringe on those rights. However, proponents of these items fail to account for the possible consequences of keeping them on the market.

Another remaining source of child exploitation in Japan is “borderline child pornography,” which pictures young girls in skimpy outfits and striking suggestive poses. Referred to as “junior idol,” these books and DVDs are still legal and sold at bookstores and convenience stores nationwide.

The junior idol genre is part of a larger culture that sexualizes underage girls, including celebrities such as pop group AKB48. Members as young as 13 often engage in suggestive behavior in their videos and commercial appearances, and their song lyrics contain some sexually provocative content.

Will Change Occur?

Considering the remaining cultural challenges and limitations of the new law, implementation may take a long time. For the next year, those in possession of incriminating materials will receive a “grace period” to allow time for disposal. After that, tough evidence requirements to obtain a search warrant may continue to hinder enforcement.

However, any progress in the war against child pornography is good news, and we applaud Japan’s latest step towards eradicating the exploitation of their most vulnerable individuals.

If you are facing false accusations of child pornography related offenses, a Florida cybercrime defense attorney can help you clear your name. Contact us today at (888) 843-3333.

June 18, 2014

New Law Criminalizes Child Pornography in Japan: Part 1

On June 4, the House of Representatives in Tokyo passed much-awaited legislation making the possession of child pornography illegal. It may come as a shock to many readers that it took so long for the country to pass such a law, though cybercrime defense attorneys have been in the know on this fact for years. Japan has long held the dubious distinction of being the only developed country that hadn’t yet banned child porn.

Japan: A Different Attitude

To understand this phenomenon, one must account for cultural considerations. Japan has been historically tolerant towards recreational sexual exploitation of children, even more so than that of adults. A July 2012 arrest of four Kyoto men for purchasing kiddie porn was the first such occasion since World War II.

Creating anti-child pornography legislature presented many challenges and strong resistance from various parties. Because Japan produces and consumes more child pornography than any other country, it represents a significant part of the economy and culture for its creators and users. An estimated 10 percent of men own or watch child pornography, and 80 percent of internet child porn originates in Japan.

The fight against child pornography began in 1999, when creation and distribution were criminalized. It continued in Kyoto in October 2011, when a new ordinance created fines and possible jail time for offenders. Finally, the Liberal Democratic Party introduced the current bill, which will impose a million-yen fine or a year in prison for those caught possessing such materials.

Opposition to Needed Change

Opponents of the law included the Japan Federation of Bar Associations, as well as the anime and publishing industries – and, of course, the consumers themselves, who may not have been as willing to identify themselves. Although the new law does not eliminate materials such as manga, anime, and computer-generated images depicting children engaging in sexual acts, creators of such materials fear the legislation will lead to future restrictions on their activities.

The Future of Child Porn in Japan

The recently passed law is a significant step towards the complete eradication of child pornography in Japan. However, resistant populations and an entrenched culture of exploitation will likely present difficulties during its implementation. Our next post will discuss the remaining challenges facing Japanese anti-child pornography initiatives.

If you are facing false accusations of child pornography related offenses, a Florida cybercrime defense attorney can help you clear your name. Contact Seltzer Law today at (888) 843-3333.

June 4, 2014

Returning to “Life As Usual” After Fighting Back Against Florida Child Pornography or Solicitation Charges -- Part 1

For the past several weeks and months, this blog has focused intensely on child pornography and solicitation defense. Why? We believe that these defendants are vastly underserved. There are almost no resources online (or elsewhere) to help them understand their problems.

Other criminal defendants enjoy a wealth of compassion from many sources. Even people charged with committing violent crimes, such as assault, rape and murder enjoy some degree of compassion from society. But people charged with certain computer pornography charges find themselves persona non grata. This almost universal lack of compassion is shameful.

Sure, many people find these charges viscerally offensive and disgusting. But why can't we have a more accurate, mindful conversation about what causes people to commit these crimes and what can be done for offenders, other than just punishing them brutally?

The situation can be brutal for people falsely accused of child pornography or cybercrime charges. Such accusations can torpedo careers, end relationships and lead to suicidal depression in the accused.

Bearing all that in mind, in today’s post and at least one that will follow, we are going to talk in depth about what someone falsely accused can do to repair damage to relationships, career and self-esteem. Today, we will address a fundamental issue – an issue that, if not solved, may make it difficult, if not impossible, for you to address the other more “downstream” problems. And that issue is this: if you wait too long to address your cybercrime charges -- to get legal assistance -- your defense can become much harder, maybe even impossible. Reasons people delay getting help can include:

• Fear of confronting the scary reality of potentially spending decades behind bars;
• Confusion about whom to trust and how to find an attorney who has a track record to assist and who will be willing to take the case;
• A lack of self-esteem and self-confidence precipitated (or in some cases even preceded) by the arrest that leads to a general sense of torpor;
• A lack of time and energy to pick up the phone caused by all the legal commotion.

Breaking out of this inertia is actually quite hard and requires no small amount of willpower. In some ways, it’s like melting ice. Before you can even raise the temperature of ice one degree, you first must overcome what is known as the “heat of enthalpy” -- this is the energy it takes to transform ice from solid state to liquid state. Likewise, before you can make progress on your case, you first need to overcome your resistance to getting legal assistance. We are here to help. Whenever you are ready, pick up the phone and call Seltzer Law, PA at 1-888-THE-DEFENSE (888-843-3333) to speak with us about your Florida cybercrime defense.

May 26, 2014

Has Someone You Love Been Arrested on Horrific Charges, Like Florida Child Pornography Or Solicitation? [What Can You Do?]

Maybe investigators just knocked at your door and arrested your husband on charges of internet pornography crime or solicitation. Or maybe you just received news that a close friend from high school or a family member has come under investigation for similarly disturbing cybercrimes.

Even though you love the person and care about him or her, you are also deeply disturbed by the allegations and confused about how to relate to the situation. Unfortunately, there are no simple answers. Right now, you may be riding conflicting emotions. On the one hand, you care about the person and want to believe the best. On the other hand, you may be so outraged or sickened by what has been alleged that you cannot access your more compassionate emotions.

First off, appreciate that you're taking time to think through and work through these feelings. Also, know that you are not the first person blindsided by these problems.

Before you have critical conversations with the person who stands accused, consider going through the following exercise, so that you can speak coherently and compassionately.

Rather than impulsively discussing the accusations with the friend or loved one, take time to collect your thoughts and think through how you want any conversation to proceed. Prepare for the conversation, almost like you might prepare for a job interview or for a pivotal conversation with a new client. Really think through:

• What could go wrong;
• What you could say that could cause hurt feelings;
• How you might react to revelations that the person tells you;
• How you need to be during the conversation. (For instance, you might want to make sure that you're rested, well fed and safe during the conversation.)
• After you talk with the person, schedule time with a therapist or close friend to discuss what happened, so you don’t have to process the events yourself.
• You might also want to record your thoughts in a journal – before, during, and after any key conversations.
• Think through the logistics of your household. For instance, if your husband might stay in jail indefinitely, while the accusations get sorted out, you may need to make alternative arrangements regarding child care, your work, etc.

Withhold judgment, and make sure that all the facts get heard. People accused of cybercrimes – particularly pornographic crimes – often wind up isolated, even from friends or family members. The allegations may be false, or the truth may be much less alarming than authorities have suggested. Withhold judgments for now, seek to understand and support your own needs (and the needs of your family), and get support.

Turn to the team here at Seltzer Law, PA, at 1-888-THE-DEFENSE (888-843-3333) for 24 hour assistance with Florida cybercrime defense. Our team has the resources, experience and sensitivity to help you and your family get through this troubling time.

May 21, 2014

3 Lessons about Your Florida Pornography Case You Can Learn from the Movie “Don Jon”

Authorities recently arrested you on serious Florida child pornography charges or charges of solicitation. You're scrambling to figure out:

• What you can do to build your defense;
• How you can communicate your needs and concerns to friends and loved ones;
• How you can understand and control the root problem driving you to engage in compulsive, destructive behavior, so that, once you fix your legal problems, you can stay out of trouble.

In this post, we're going to take a look at these challenges through the lens of a recent indie movie, Jason Gordon Levitt’s “Don Jon.”

In the movie, Gordon, who wrote, acted and directed the script, plays a young “player” who struggles with a crippling addiction to internet pornography. His pornography habits tend towards the mainstream, but nevertheless they prove very problematic. For instance, they wreak major havoc on his budding relationship with a beautiful young woman, played by Scarlett Johansson. (Spoiler alert: at some point in the movie, Jon’s pornographic habit devastates the relationship.)

So what can this movie teach you about how to think about your situation?

Lesson No. 1: Compulsive internet pornographic habits are far more common than many people realize.

Not everyone uses pornography as compulsively as Gordon’s character in the movie does. But many people spend a lot of time and money online, using pornography, and these compulsive habits can lead to destruction of relationships, lost productivity, depression and sometimes even financial problems.

Lesson No. 2: You can’t expect other people to understand.

People arrested on Florida cybercrime or pornography charges often yearn for other people to understand that they are not “monsters” -- that they are struggling to control impulses that they don’t truly understand. They would appreciate some modicum of empathy from coworkers, family members and society. But they often don’t get that. This rejection leads them to feel more isolated. Here's the cold reality: many people in society just don’t understand the compulsion to use pornography and won’t even try to understand.

Lesson No. 3: Without help, you might never overcome your obstacles.

Another spoiler alert: when Gordon’s character finally has an epiphany about how to manage his pornography addiction, it doesn’t come from within -- he gets insight from another person who has deep understanding of his issues, and that insight helps him normalize his behavior.

To that end, rather than trying to struggle through your defense by yourself, get in touch with an experienced Florida cybercrime defense lawyer here at Seltzer Law, PA, at 1-888-THE-DEFENSE (888-843-3333) to understand your rights, obligations, and possible avenues to clear your name. Call or email now for a free consultation.

May 12, 2014

Two Disturbing Child Pornography Arrests: What Will Happen to These Men?

If you or someone you love has been arrested for Florida child pornography or solicitation charges, you may feel incredibly isolated and scared, not only because of the potential jail time and other punishments but also because of the humiliation and uncertainty.

It's useful not only to understand the law and your defense options but also to ground yourself in the realities of being a defendant. What will happen to you? What will happen to your job and your family? Etc.

To that end, let’s take a quick review of two big child pornography cases in the news recently. The first happened in Summerville, Massachusetts, where 5th grade teacher, Josh Wairi, was arrested on some very serious child pornography charges. The 27-year-old taught in public schools in Summerville as well as in nearby Cambridge. Per investigators, Wairi uploaded many videos and images of children being sexually exploited and then shared those videos with people via the web. He also allegedly admitted to investigators that he had videotaped children changing clothes in school locker rooms. He allegedly also had “hundreds” of images and videos on his computer.

Investigators' suspicions were aroused last July, when American Online (AOL) alerted investigators about suspected child pornography and his computer, and investigators linked to his IP address. After searching his apartment, they found “many photographs of children” as well as multiple computers, cameras, and a Disney themed shower curtain. He had also been advertising babysitting services on Craigslist.

Meanwhile, 29-year-old Robert Lamar Starling was arrested for producing and uploading child pornography on the web, according to U.S. attorney, A Lee Bentley, III. This Florida child pornography case is one of the biggest such busts of the year – Startling allegedly told authorities that he had made multiple pornographic videos with prepubescent children and that he had collected 7,000 such videos and 5,000 still images. The Jacksonville Sheriff’s Office along with the Florida Department of Law Enforcement, Columbia Sheriff’s Office, Suwannee County Sheriff’s office and the FBI all worked together on the investigation.

Both Wairi and Starling could face many years behind bars. Starling, for instance, could be locked away for over 30 years. The team here at Seltzer Law, PA is dedicated to providing a fair and ethical defense for people facing Florida cybercrime charges. Call us now at 1-888-THE-DEFENSE or (888-843-3333) for a confidential and free assessment of your case.

May 7, 2014

29-Year-Old Arrested for Florida Child Pornography Charges in St. Augustine – Hit with 20 Counts of Possession

Authorities recently arrested Joseph David Richardson on Florida child pornography charges, including 20 counts of possession of child pornography.

According to reports, the man has been linked with other crimes -- he also allegedly exposed himself to an 11-year-old girl in his neighborhood. Cybercrime detectives have been investigating and surveying Richardson for months.

According to ActionNews – a local Florida station – Richardson was convicted of criminal behavior in the past in his home state of Louisiana. In 2002, for instance, authorities arrested him and charged him with indecent behavior with a juvenile.

In January, an 11-year-old who missed the bus got a ride with a man in a silver SUV -- the car matches the description Richardson’s car. The girl alleges that the man committed a lewd act in front of her, before dropping her off in front of on at elementary school. Sgt. Catherine Payne told authorities: “we need help from the public to determine his location and state of mind at that time. Any clear information to help guide us on this investigation, we are looking for… we haven’t determined if this is a child abduction or kidnapping or anything. We need more information: this information could be information that ties him to the incident or clears his name."

In addition, police in Jacksonville Beach say that Richardson was implicated in a separate January 2013 incident, in which he allegedly exposed himself on First Street while riding a bike. At the time, there was not enough evidence to charge him, and his case was dismissed.

It’s easy to assume from the news report that Richardson is guilty and that he should be locked up. However, it’s vitally important to let due process play itself out.

Stories about cybercrimes and lewd conduct affect us vividly, so people often make snap judgments about who should be to blame and what the punishment should be. However, if you end up having to defend against such charges, you may struggle mightily against this inertia and prejudgment. It's hard not only to get a fair hearing in the media but also to get fair treatment even among friends, relatives and associates.

To begin to construct an effective, smart defense of your Florida cybercrime charges -- be they possession of pornography, fraud, hacking or other complex charges -- call the team here at Seltzer Law, PA today at 1-888-THE-DEFENSE (888-843-3333). We can provide a compassionate and fair assessment of your defense possibilities.

April 28, 2014

Two Major Convictions in Separate Child Pornography Cases: Man Gets 9 Years, Woman Gets 5 Years

If you've been arrested for child pornography or computer crimes in Florida, you know that you might face very intense penalties, such as years of jail time.

Last week, authorities handed down two separate decisions in child pornography cases -- one in North Dakota, one in Illinois -- that you might find instructional, as you contemplate your legal future and challenges.

Suspicions Stoked by Peer-to-Peer File Sharing Lead to 9 Year Sentence

In Fargo, North Dakota, a U.S. District Court sentenced 34-year-old Aaron Olson to 9 years behind bars, after Olson was convicted of receiving and possessing child pornography. After obtaining a search warrant to search his home, investigators found 37 DVDs that, all told, held 300+ pornographic videos featuring children. On top of the 9-year jail sentence, Olson faces a $200 assessment (to be paid to the Crime Victims’ Fund) and faces 7 years of supervised release.

Investigators became suspicious of Olson, after authorities identified his North Dakota computer as part of a peer-to-peer sharing network that appeared to be sharing pornography.

Mom Convicted of Abusing Her Own Child

Meanwhile, out in Southern Illinois, 45-year-old Monique Leonard received a 5-year sentence, after she pled guilty to two charges of child pornography. Prosecutors originally had asked for sexual assault charges as well, but they dropped those. Authorities arrested her in 2011 for actions that she allegedly committed in 2009 in connection with Stephen Demink, a man who is serving life in prison, after being convicted of manipulating multiple mothers to exploit their children and engage in sexual acts with them.

Leonard’s case made headlines back in 2001, when she sought to suppress a confession to investigators. Stacy Kinter, a special agent for the Illinois State Police, said that she and two other agents had interviewed Leonard, who confessed to chatting online with Demink, who allegedly manipulated her into performing sexual acts with her children, including masturbation and penetration. Leonard’s attorneys argued that the mother did not know what she was doing when she waved her Fifth Amendment Rights and incriminated herself to investigators.

Both of these cases are very sad. They illustrate the tremendous complexities of pornography crime cases. If you stand accused of a Florida computer crime, the team here at Seltzer Law, PA, would be happy to speak with you about your case in confidence. Call us now at 1-888-THE-DEFENSE (888-843-3333) to schedule a consultation with us.

April 14, 2014

London’s Financial District’s Cybercrime “War Games”: What Can They Teach Us About Building a Cybercrime Defense?

Here's a curious story that speaks to the issue of Florida cybercrime defense.

In late 2013, authorities in the UK put together a series of “war games” in London’s financial district designed to test the capacity of the city’s big businesses, banks, and insurance companies to manage a cyber attack.

The games were fictional -- there were no real assets at stake. However, many big agencies and companies demonstrated sophisticated plans to defend against cybercrime. Stunningly, though, UK authorities found that not a single participant in the war games contacted the police!

An article in the Financial Times about the games -- code-named “Waking Shark 2” -- asked a probing question: “how is online and computer crime policed and, moreover, how should it be?”

This is an important question not only for companies that want to protect their assets but also for defendants who stand accused of committing cybercrimes. What protocols should be followed? What laws should be applied, when, and under what circumstances?

The reality is that the online world is still a turbulent “wild west” of sorts, legally speaking. Consider what Scotland Yard detective, Adriane Cully, observed about Operation Waking Shark 2: “many of the participants … had little or no understanding of when criminal offenses were being committed.”

Think about that. These are some of the most sophisticated organizations in one of the world’s most urbane cities (London) that had access to enormous technical know-how. Yet even these entities “had little or no understanding of when cyber offenses were being created.”

If that's the case, how and when are “normal people” supposed to understand when and how they might be violating cybercrime law?

This is not just a theoretical question. As this blog reported last month, the U.S. Congress wants to expand the purview and powers of prosecutors in cybercrime cases. Soon, “attempted hackers” might face the prospect of massive jail sentences and other big penalties. In other words, even if a hacker doesn’t change a single line of code or cause any disruption or monetary damage, he or she could face years (maybe even decades) behind bars.

The Financial Times article on the cybercrime games makes an interesting observation: “the problem is that, for many organizations, cybercrime still seems so intangible … a bank suffering physical robbery, for example, has a site from which money is stolen and the staff there who is responsible specifically for the security of that site. Doing nothing is not really option. An attack against the whole organization though -- particularly an organization as large as a bank -- is just far harder to feel or care about, if the relative impact is far smaller, even if the same – or more – money is stolen in absolute terms."

Curiously, the protagonists in the movie “Office Space” used a similar line of moral reasoning to defend their (fictitious) decision to shave pennies off of millions of bank transactions to collect millions in proceeds.

So where does this all leave us? More specifically, where does that leave you, if you’ve been charged with a cybercrime in Florida or elsewhere?

Even if you have sophisticated, technical knowledge of computers, odds are that you lack an equally sophisticated understanding of applicable law. Fortunately, you can turn to the team here at Seltzer Law, PA, for a detailed, ethical, and systematic assistance with your case. Call us now at 1-888-THE-DEFENSE (888-843-3333) for a free consultation.

April 9, 2014

Attorney General Eric Holder Wants Companies to Disclose Cybercrime Activity to Customers Faster

United States Attorney General, Eric Holder, has asked Congress to create a national standard to compel businesses to tell customers and law enforcement about cybercrime data breaches.

In a recent video address, Holder invoked data breaches at stores like Target, Neiman Marcus, and Michaels; these breaches compromised the personal data of tens of millions of Americans.

Holder wrote: “these crimes are becoming all too common… although Justice Department officials are working closely with the FBI and prosecutors across the country to bring cyber criminals to justice, it’s time for leaders in Washington to provide the tools that we need to do even more by requiring businesses to notify consumers and law enforcement in the wake of significant data breaches.”

Current federal laws do require hospitals and banks to tell patients and consumers about cybercrime-related data beaches; however, retailers do NOT have to comply with a federal standard.

The National Retail Federation, unsurprisingly, likes Holder's idea. The association wrote to Congress back in January that “a Preemptive Federal Breach Notification Law would allow retailers to focus their resources on complying with one single law and enable consumers to know their rights regardless of where they live.”

The Attorney General and the National Retail Federation aren’t the only ones concerned about the threat of cybercrime. President Obama recently remarked that cybercrime constitutes “one of the gravest national security dangers the United States faces.” The Department of Homeland Security recently created a program designed to help companies determine their vulnerability and protect themselves against computer crimes. Department of Homeland Security Secretary, Jeh Johnson, said "it boils down to this… in cyber security, the more systems we secure, the more secure we all are… a vulnerability in one place can cause a problem in many other places.”

On the one hand, these cries of alarm come from a place of good intentions. No one wants to have his or her data pilfered and exposed. No one wants to go through the awful rigmarole of recovering from identify theft. No company wants to deal with recovering from a cyberattack.

That being said, we have concerns about the specifics. If authorities expand prosecutorial powers, intensify punishments and expand the scope of anti-cybercrime laws, who or what will correct against overreach?

Also, while it’s important to be mindful of threats, we need to ground our thinking and actions in reality. The National Cyber Investigative Join Task Force reports that cyberattacks have only been “isolated schemes” thus far. FBI attorney Steve Chabinsky admitted that “all the government's knowledge [taken] together… demonstrates there is no evidence of coordinated effort – whether by criminal groups or nation states – to harm the U.S. economy [via cyberattack].”

This doesn’t mean that there might not be – or that authorities might be overlooking something.

However, it raises a big question: are we reacting to an actual threat or just a fear of a threat?

The point is this: authorities everywhere are in a state of extreme hypervigilance against cybercrime. So if you or someone you love stands accused of Florida computer crime charges, you may need to create a strategic, thorough defense strategy. Call the team here at Seltzer Law, PA, at 1-888-THE-DEFENSE (888-843-3333) for a free consultation about your defense.

March 26, 2014

State of Florida v. Espinoza and State of Florida v. Reid: First Florida State Prosecutions in Bitcoin Money Laundering Cases

Big breaking Florida cybercrime news: On February 6th, police arrested two South Florida men, 30-year-old Michel Espinoza and 29-year-old Pascal Reid, for allegedly engaging in a money laundering scheme using the new online currency, Bitcoin. Both men are being held in jails in Miami-Dade County.

Florida State Attorney, Katherine Fernandez Rundle, told the media “the use of Bitcoins in the transactions is a new technological flourish on a very old crime… [these] arrests may be the first state prosecutions involving the use of bitcons in money laundering operations.”

Bitcoin -- Promising Currency with a Sullied Reputation

In October 2013, authorities arrested Ross William Ulbricht, the operator of the Silk Road website, which international dealers used to purchase and sell narcotics and other illegal goods. Prosecutors in New York say that there is “voluminous” evidence linking the 29-year-old Ulbricht to an astonishing array of crimes, including narcotics trafficking, money laundering conspiracy, operating a criminal business, hacking, and commissioning six murders for hire to shield his business. If convicted, Ulbricht could face life behind bars.

How Reid and Espinoza Got Caught for Their (Alleged) Bitcoin Crimes

Undercover officers in Miami sought out individuals engaged in high volume Bitcoin activity to try to sniff out fraud. In December 2013 and January 2014, an officer involved in this operation teamed up with a secret service agent to purchase thousands of dollars’ worth of Bitcoins from Espinoza and Reid in different transactions. Both men had set up shop on a website called localBitcoins.com; they allegedly had amassed a small fortune in Bitcoins by engaging in arbitrage (i.e. selling Bitcoins for a profit and then repeating the process) as well as for allegedly engaging in money laundering activities and purchasing stolen credit cards.

Espinoza had gone under the online aegis MichelHack; Reid used the aegis Proy33. MichelHack had over 100 confirmed Bitcoin trades.

An agent arranged a meeting with MichelHack, face to face, and paid $1000 for a single Bitcoin (Basically, the coin’s value plus a 17% conversion fee). The agent said he told Espinoza that he planned to use the Bitcoin to buy stolen credit cards. After that transaction -- designed to build trust -- Espinoza agreed to a much bigger deal – buying $30,000 worth of Bitcoins. When he met with investigators to complete that transaction, authorities arrested him.

How will the cases of State of Florida v. Espinoza and State of Florida v. Reid turn out? Obviously, it’s way too early to say. But the results could have profound implications for cybercrime law in Florida and beyond. If you need help with your computer crime case, talk to the team here at Seltzer Law, PA at 1-888-THE-DEFENSE (888-843-3333) for a free, confidential consultation.

March 12, 2014

British Agency’s Program, “Optic Nerve,” Raises Questions about Cybercrime, Privacy, and Life in the Modern Age

Some crazy Florida cybercrime stories sound contrived – almost made up.

But this one is real.

According to reports from The Guardian, a British spy agency collected millions of still images from Yahoo! webcam chats, during an operation known as “Optic Nerve.” A leaked document from the notorious Edward Snowden (the famous NSA contractor who absconded to Russia with a trove of U.S. national security documents) revealed Optic Nerve, which the British developed to test facial recognition software technology. Starting in 2008, the "GCHC" Agency spied on “unselected” Yahoo! webcam users and snapped millions of pictures at intervals of five minutes. These people had done nothing wrong, and they were suspected of nothing – i.e. there were random people using Yahoo! webcam, including American citizens.

The Optic Nerve program created an oddball challenge for GHHQ technicians. Per a Snowden-leaked document: “unfortunately, it would appear that a surprising number of people use webcam conversations to show intimate parts of their body to the other person … also, the fact that Yahoo! software allows more than one person to view webcam streams without necessarily sending a typical stream means that it appears sometimes to be used for broadcasting pornography.”

Astonishingly, up to 11% of all the images vacuumed up by the GHHQ were, in some fashion, pornographic.

Yahoo! representatives expressed intense outrage over the revelation. Yahoo! has been incredibly outspoken about its frustrations with the NSA's surveillance activities. A company spokesperson told the Guardian “we were not aware of, nor would we condone this reported activity… this report, if true, represents a whole new level of violation of our users’ privacy that is completely unacceptable … we are committed to preserving our users’ trust and security and continue our efforts to expand encryption across all of our services.”

Here’s what’s really interesting. Imagine if a random person or a group unaffiliated individuals began using Yahoo’s webcam service to download millions of pictures from unsuspecting people. Would that activity be legal? Would it be sanctioned, morally speaking?

Obviously, governments and spy agencies are (and should be) allowed to play by slightly different rules. However, the case highlights just how interconnected the world is in the cyberage and how privacy can easily be violated.

Fortunately, it’s not up to you to try to fix our fluid, dysfunctional online world. However, if you do face a charge like hacking, fraud, or any other Florida computer crime, you want build an aggressive and articulate defense. Trust the team here at Seltzer Law, PA, to help you with that big task. Call us now at 1-888-THE-DEFENSE (888-843-3333) for a free consultation now.

February 26, 2014

The Odd World of Cybercrime Blogger, Brian Krebs (and Implications of His Work for Your Defense)

Cybercrime affects everyone who uses the Internet in our interconnected world. Blogger Brian Krebs has been striving to increase public awareness about internet crimes. What can his efforts teach us about security in the online world… and about how to defend against hacking, fraud or other cybercrime charges?

Brian Krebs and "Krebs on Security"

Brian Krebs writes the blog “Krebs on Security,” which covers stories about criminals who steal information, create malicious software, and circulate spam. He became interested in the topic after falling prey to numerous instances of computer viruses and identity theft. Originally trained as a journalist, Krebs has since become one of America’s leading experts on online threats, and authorities regularly turn to him for guidance and advice.

Cybercrime against Target

One of Mr. Krebs’ biggest achievements was uncovering a cyberscam that placed over one third of Americans’ financial information at risk. Krebs discovered numerous fake purchases at Target, Neiman Marcus, and many other businesses. Uncovering this scam garnered him a lot of attention from America’s security forces. It also drew the ire of cybercriminals, who now regularly harass, threaten, and attempt to make deals with him.

Defending People Accused of Cybercrime

There is no doubt that Mr. Krebs does important work shining light on dangerous, illegal activities. However, entrapment, sting operations, and a criminal justice system that is often bereft of both compassion and common sense can cause awful problems for innocent people. And while we appreciate and respect Mr. Krebs' efforts to make our country safer, we also need more stringent protections for individuals accused of cybercrime.

A lawyer who understands the complex nature of computer crime charges can be an innocent person’s best defense against unfair prosecution and incarceration.

Connect today with the team at Seltzer Law, P.A. for thorough, ethical and step-by-step assistance constructing your Florida cybercrime defense. Call 1-888-THE-DEFENSE (888-843-3333) to get powerful insight and a free consultation about your charges.

February 12, 2014

Washington Post Article Worries That “A Wave of Serious Cybercrime” Is Imminent

As someone recently arrested on a cybercrime charge in Florida, you're probably worried about your future, your defense options, and what will happen to your assets and your career.

The government, meanwhile, is terrified of YOU.

According to a recent Washington Post article, “Target Breach Could Represent Leading Edge of Wave of Serious Cybercrime,” the government believes that many retailers may be at significantly elevated risk of cybercrime. Why? The Washington Post's writers describe the problem: “as hackers become increasingly skilled with breaching the nation’s integrated payment systems … traditional defenses, such as installing antivirus software and monitoring accounts for unusual activity have offered little resistance.”

Experts say that malevolent criminal gangs from Eastern Europe and the former Soviet Republics can now purchase hacking kits online and/or break into servers and wireless networks. In the wake of the Target breach, the FBI says that nearly two-dozen other companies have also been hacked, and an untold number of shoppers have had their personal data and credit card information stolen.

A recent Ponemon Institute study found that cybercrime cost businesses in the United States $11.5 million in 2012. That might not sound like much, in the big scheme of things, but that number was up 26% from 2011 numbers. Authorities worry that successful cyber-heists may motivate copycat crimes. As Carnegie Mellon University’s Nicolas Christin put it: “you are going to see more and more people trying [cyber-heists]… if you saw your neighbor win the lottery, even if you weren’t interested in the lottery before, you may go out and buy a ticket.”

The Post also quoted that Christopher Soghoian of the ACLU, who pinpointed the root of the problem: “our decades-old payment system was not designed with cyber security in mind … times have changed. Data breaches now occur on a weekly basis… [causing] consumers [to] become victims of fraud and identify theft.”

What is it going to take to fix the system?

Authorities believe that safekeeping American data will require a variety of strategies, including:

• Pricy upgrades to software and hardware;
• The use of something called “end-to-end encryption,” which can protect data during the entire course of its throughput;
• The creation and widespread use of better credit card technology that will add data to an embedded chip as opposed to magnetic strips on the backs of cards;
• The use of secure independent networks for highly sensitive data.

On the one hand, these heightened security risks and the vulnerability of business networks are clearly cause for alarm. On the other hand, it is possible that the Federal Government may get too jumpy and aggressive and develop a “witch-hunt like” mentality in going after alleged cyber-criminals. In addition to worrying about the security of America’s data, we also need to worry about the following:

• Could a “prosecution-happy” government unfairly accuse and convict people of cybercrimes?
• Will people convicted of much more serious and aggressive crimes (such as rape, murder, burglary, vehicular homicide, et cetera) get off with more lenient sentences than attempted hackers? Is that fair?
• Will aggressive investigations and draconian legal measures actually protect businesses and consumers? Or will they just make people feel safer (without actually improving safety)?

Battle back against your charges by connecting with an experienced Florida cybercrime defense lawyer with David Seltzer, P.A. Please call us now at 1-888-THE-DEFENSE (888-843-3333). Attorney Seltzer focuses intensely on cybercrime defense, and he keeps up to date on the latest developments in the field – legally, culturally, and technologically. He can help you create a sound defense.

January 29, 2014

Paroline v. United States: Fascinating, Sad Debate Over How Much a Man Should Pay a Victim of Pornography

The U.S. Supreme Court recently heard arguments in a fascinating cybercrime case, Paroline v. United States, that concerns how much money a person should pay a victim of pornography.

The victim in this case -- an anonymous woman known by the court as Amy Unknown -- had been raped as a girl by her uncle, who then disseminated pictures of the assault on the web, where the assault was viewed by thousands of people. The awful rape and its aftermath caused serious emotional problems for Amy, and a Court decided that she suffered $3.4 million in damages. Authorities ultimately arrested and convicted the uncle – and forced him to serve time in prison – but he only paid $6,000 in restitution.

So how was Amy supposed to collect the rest of her damages?

Enter Doyle Randall Paroline, a Texas man who pled guilty five years ago to charges of possession of 300 images of child pornography. Among those images were two pictures of Amy. The justice system convicted Paroline of child pornography possession and sentenced him to jail. But how much money – out of the $3.4 million owed to Amy – should Paroline himself have to pay? According to the U.S. Court of Appeals, Paroline should be on the hook for all of it, or, in the court’s words: “the full amount of the victim’s losses.”

Twenty years ago, Congress clarified that victims of pornography should be able to collect restitution from people who have viewed pornography. The main issue in Paroline v. United States is: how much, if any, of the $3.4 million owed to Amy should be paid by Paroline?

Some legal scholars, such as Paul Cassell of the University of Utah, interpret Congress’s intent to mean that victims in crimes such as sex offenses, domestic violence and pornography should get “full restitution as quickly and effectively as possible.” By this logic, the first defendant in such cases should be on the hook for as much as possible. In other words, victims should not have to hunt down defendant after defendant to collect the full amount owed.

Case in point: there have already been 182 defendants in the case of Amy Unknown, and they've collectively paid $1.75 million to her – still far short of the total money owed. Plus, the hunt for justice, so far, has taken nearly five years.

Paroline’s lawyers argued that their client should not have to pay anything, since the government has no way of proving that his viewing of the two images caused suffering. In other words, since so many people looked at the images, Paroline’s contribution to the suffering would have been diluted. Justice Elena Kagan disagreed, citing the following logic: “if only one person viewed the pornography, that person would be responsible for the entire damages, but if a thousand people viewed the pornography, and the harm was that much greater, nobody would be on the hook for the restitution? How could that possibly make sense?”

Justice John Roberts Jr., however, worried that apportioning so much financial burden on the first defendant in a case like this would lead to lopsided justice: it would be unfair to the first person in line and overly lenient on the 400th or 401st defendant.

University of Utah legal scholar, Cassell, pointed out in an analysis that Congress was not concerned about how restitution should be divided among defendants. Rather, Congress’s intent was to make sure that victims of child pornography crimes, domestic violence, etc., get paid early and with minimal drama. Cassell said “if there was a wealthy defendant who was unhappy with the share he had been ordered to pay, he could simply try to find other wealthy defendants out there and interplead them in some kind of case … [such a scenario would] lead to litigation concerns, but Congress wanted those burdens on guilty criminals rather than on innocent victims.”

In this situation, no one debated whether Paroline committed the crime of possession of child pornography. However, as Justice Antonin Scalia said: “he is guilty, he is guilty of the crime… but to sock him for all of her psychiatric costs and everything else because he had two pictures of her? Congress couldn’t have intended that."

Fortunately, you don’t have to parse such complicated matters of law yourself. If you or someone you love stands accused of a Florida cybercrime, connect with David Seltzer, P.A. today to explore your rights and defense options at 1-888-THE-DEFENSE (888-843-3333), or email us anytime, 24/7 for a free and confidential consultation.

January 15, 2014

Tobechi Onwuhara, Ringleader of Massive Cybercrime Syndicate, Gets 5 Years and 10 Months in Jail

34-year-old Tobechi Onwuhara, a Nigerian native who recently pled guilty to charges of leading a conspiracy to commit computer fraud, money laundering, and bank fraud, will serve 5 years and 10 months behind bars. Onwuhara and his associates were convicted of stealing nearly $100 million in home equity lines of credit.

Before U.S. District Court Judge, Claude Hilton, issued the sentence, Onwuhara publicly apologized to victims: “I’d like to take responsibility for my actions… I’d like to ask the court to give me an opportunity to go out and be a father to my child.”

The Court formally charged Onwuhara -- along with 8 other Nigerian associates -- with conspiracy to commit bank fraud back in August, 2008. Police captured the other members of the syndicate, but Onwuhara escaped the country before authorities could find him.

Australian forces finally captured him in their country in 2012 and returned him to the United States for trial. According to the FBI, Onwuhara and the other members of the alleged conspiracy (Obinna Orji, Henry Oubilo, Abel Nnapue, Precious Matthews, Brandy Anderson, Daniel Orjinta, Ezenwa Onyedebelu, and Paula Gipson) embarked on a sophisticated, rigorous, international program that targeted account holders with large amounts of money in home equity line of credit (HELOC) accounts.

The conspirators obtained and verified information about victims and their account balances, and then used that knowledge to dupe financial institutions into transferring funds to other accounts overseas. The conspirators then drew down cash from these accounts.

Onwuhara et al used prepaid cell phones, caller ID spoofing technology, and other tools and tactics to carry off the operation.

The criminal process lasted from 2006 to 2008; some victims included members of the State Department Credit Union and the U.S. Senate Federal Credit Union.

After pleading guilty, Onwuhara could have faced nearly six decades behind bars along with a fine of $1,705,000. However, the Judge opted for a more lenient path, possibly because Onwuhara promised to make full restitution to the victims and return jewelry he had bought with proceeds from the crimes. Federal rules do allow judges to reduce sentences, if/when defendants cooperate.

Lessons for Your Florida Cybercrime Defense?

1. When charged with a crime like Florida computer fraud, do not dodge authorities and flee to another country.

Onwuhara was very fortunate that he only ended up with 5-year, 10-month prison sentence. Under different circumstances -- especially considering that he fled the country -- a judge could have given someone like Onwuhara a much longer jail sentence.

2. An aggressive defense is a must.

Do not assume that prosecutors will go easy on you, just because this was your first offense or because you've demonstrated remorse and a desire to "make things right." Prepare aggressively and thoroughly to counter the charges.

3. Avoid “reinventing the wheel” with respect to your defense.

If you haven’t yet retained counsel for your Florida cybercrime defense, connect with the team here at Seltzer Law, PA at 1-888-THE-DEFENSE (1-888-843-3333) for a thorough, confidential, and strategic case evaluation. We’re available 24/7 to discuss your case, put you at ease and help you rebuild your life.

December 30, 2013

Eleventh Circuit Rejects Fairness and Cruelty Challenges to Enticement Sentence – U.S. v. Lecuyer

In the “court of public opinion,” there’s an argument to be made that very long sentences for certain cyber crimes are unreasonable and unfair. Crimes that involve no live children—such as child pornography possession and attempting to entice a “minor” who was really an adult police officer—often carry longer sentences than serious crimes of violence. Unfortunately for defendants, arguments against them often fail when they get to the appellate level. That was the case for Colt Lecuyer, the defendant in U.S. v. Lecuyer. Lecuyer was convicted of attempting to entice a minor to have sex and sentenced to the mandatory minimum of 10 years in prison. He argued that the sentence was unconstitutional in several ways, including cruel and unusual punishment and violations of his due process rights. The Eleventh U.S. Circuit Court of Appeals upheld the sentence.

The opinion did not give the details of Lecuyer’s offense and arrest, except to say that the minor in question was 13 (or believed by Lecuyer to be 13). He was sentenced on one count of attempting to entice a minor to have sex. His appeal argued first that the 10-year sentence is cruel and unusual, in violation of the Eighth Amendment prohibition on such sentences. He next argued that the mandatory minimum sentence violates the Constitution’s separation of powers doctrine, because it does not permit the judicial discretion required by the criminal code. Finally, he argued that the mandatory minimum violates his substantive due process rights by depriving the sentencing court of a chance to meaningfully consider factors that might mitigate the sentence.

The Eleventh Circuit accepted none of these arguments. An Eighth Amendment challenge requires a very high bar, the court noted: the challenger must show that the sentence is grossly disproportionate to the crime. Generally speaking, a sentence within statutory limits is constitutional; the U.S. Supreme Court has found only one adult sentence unconstitutional under the Eighth Amendment. In this case, the court said, Lecuyer didn’t show adequate evidence that a 10-year sentence is grossly disproportionate to the crime of attempting to entice a minor to have sex. On the separation of powers question, the Eleventh said it has consistently rejected such arguments against mandatory minimum sentences. Because that precedent is binding, the argument is foreclosed. And the court rejected Lecuyer’s Fifth Amendment argument, saying Lecuyer has failed to show that the mandatory minimum statute doesn’t have a rational basis. It affirmed the sentence.

It’s disappointing but not surprising that precedent forecloses these arguments against mandatory minimum sentences. Defendants (and judges) have been raising arguments against mandatory minimums for decades, arguing that they take away judges’ discretion and unnecessarily warehouse huge numbers of people in prison for decades. In fact, there are movements on both sides of the political spectrum to rethink mandatory minimums and whether they benefit society. Unfortunately, until legislatures get the courage to reconsider them, or a Supreme Court majority rules against them, mandatory minimums will continue to be an important consideration for people accused of attempting to entice a minor and other crimes.

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December 16, 2013

Fifth Circuit Sends Request for Return of Confiscated Property Back to Trial Court – U.S. v. Bacon

Defendants arrested for child pornography crimes are generally too worried about the long criminal sentences imposed for these crimes to think about property forfeiture. But in addition to serving time in prison, defendants may also see their property confiscated by police agencies. This is perfectly legal, despite what many observers might think. But defendants are free to challenge the confiscation of their property, which is what Welles D. Bacon did in U.S. v. Bacon. Bacon was convicted of one count of child pornography possession in 2009, when police seized computer equipment and media storage from his home. Only some of this contained child pornography, so Bacon filed a motion in 2012 for the return of the property that did not contain child porn. The district court denied him, but the Fifth U.S. Circuit Court of Appeals reversed, saying Bacon could possess media that was not Internet-enabled.

Bacon’s property was seized on Feb. 6, 2009. The property included two laptops, two external hard drives, six memory sticks, five USB flash drives, one digital recorder, 42 CDs and 13 VHS cassettes. One of the hard drives and two or three of the flash drives were found to contain child pornography. Welles was charged with five counts of child pornography possession, and later pleaded guilty to one count as part of a plea deal. The district court sentenced Bacon to 10 years in prison and a lifetime of supervised release that included special conditions. One such condition was a prohibition against Bacon possessing Internet-capable software on any electronic storage media, without advance written approval from the probation office. Three years later, Bacon moved to return the property without any child pornography on it. The government responded by noting that at least some of it had been destroyed after Bacon failed to contest forfeiture, and the district court denied the motion, chiding Bacon for wanting the equipment that facilitated his crime.

Because the property was destroyed, the Fifth Circuit treated the request as a civil action seeking damages for the destruction of the property. Both parties relied on the wrong sections of the law, the court noted, but that doesn’t end Bacon’s claim; it noted that if Bacon had been permitted to amend his claim, he could have made a claim under Bivens v. Six Unknown Named Agents for wrongful confiscation and destruction of his property. Because he is a pro se litigant, the court deferred to him under prior circuit cases and treated his claim as a Bivens claim. Under that standard, the court said, the computers were properly forfeited because the government had sent him a letter about them. But the other equipment was not mentioned in that letter, the Fifth said, so Bacon did not get due process of law. As a result, it ruled, the trial judge should not have dismissed the request. It doesn’t matter that Bacon is forbidden from owning “Internet capable software” stored on electronic media, the court noted; he is still free to possess the media without such software. It sent the case back for further proceedings on compensation for the destroyed media.

The Fifth Circuit was kind to Bacon because he was representing himself in this request. As the opinion shows, criminal forfeiture is complicated, and people who represent themselves can quickly find themselves in over their heads. This court was sympathetic—perhaps because the destruction of private property by the state is the stuff of nightmares—but courts are often not sympathetic to self-represented people if they feel their time is being wasted. That’s especially true for people who are fighting child pornography charges, because there’s not much public sympathy for people accused of those crimes, sometimes even before the charge is proven. That’s why it’s very important for those accused to get help from an experienced cyber crime defense attorney who knows their rights and how to enforce them.

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December 2, 2013

Search of Prisoner’s Contraband Cell Phone Was Legal Despite Delay, Court Rules – U.S. v. Huart

Prisoners have rights in the United States—but they still have fewer rights than free people. That lesson was reinforced by the Seventh U.S. Circuit Court of Appeals in United States v. Huart, in which Jeremy Huart’s challenge to a search of his room and cell phone was denied. Huart was living at a halfway house at the time of the search, after a conviction on child pornography charges. The staff member who found his phone found child pornography on the phone, allowing the FBI to get a search warrant for the phone. The phone wasn’t fully searched until after the warrant expired, however, due to problems getting around its password protection. In his new trial, Huart argued that the evidence should be suppressed as illegal. The Wisconsin district court disagreed, and the Seventh Circuit affirmed that ruling.

Huart pleaded guilty to his original child pornography possession charges, leading to a sentence of 65 months in prison. He served prison time from 2008 to 2011, when he was transferred to a halfway house. The rules said that all incoming prisoners’ belongings will be searched and inventoried; new possessions should be reported for addition to the inventory; and prisoners were subject to random searches. Huart was not allowed to have a cell phone. During a random search, a staff member found a phone on Huart’s bed; it contained 214 images, including many of child pornography. It was turned over to the FBI, which got a search warrant saying the search was to be done by Dec. 15, 2011.

Unfortunately, the phone was password-protected, and had to be sent to FBI headquarters to be unlocked, so the search was not conducted until Feb. 14, 2012. Huart moved to suppress the evidence because of the late search, but the district judge found that Huart had no reasonable expectation of privacy at the halfway house, and that the search was properly conducted. Huart reserved his right to appeal but pleaded guilty.

The Seventh Circuit upheld the district court’s ruling, reaching only the expectation of privacy issue. To win a Fourth Amendment argument, the court noted, Huart had to show that he exhibited an actual expectation of privacy, and that that expectation was reasonable. But as a prisoner, the court said, Huart could not have had a reasonable expectation of privacy. This is well-established as to conventional prisoners, the court said. Huart argued that residents in a halfway house should be treated more like probationers, but the Seventh said his situation was closer to that of someone still in custody—since he was still in custody. Furthermore, the court said, the rules of this halfway house expressly limited Huart’s privacy by requiring him to report new belongings and submit to random searches. Thus, the search was legal in any case, the court said. In a footnote, it added that a warrant is executed when the material is seized, so Huart’s second argument would also fail.

People fighting cyber crime charges frequently raise Fourth Amendment arguments, because these cases are often built around the mere existence of prohibited material in the defendant’s possession. A successful challenge to a search can prevent prosecutors from using the evidence found in that search, after which the case falls apart. As this case shows, this kind of argument is less effective in a situation where the defendant can’t expect much privacy—which, in addition to a prison, could include students in a school, people who share their computers, and other situations where common sense suggests limited privacy. And defendants may have other stumbling blocks to avoid, including police claims that they agreed to a search or spoke to police voluntarily. An experienced defense attorney can help you sort out how these rules apply to your situation and make your best possible case.

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November 18, 2013

Eighth Circuit Finds Sufficient Evidence in Multiple-User Child Pornography Case – U.S. v. Landsdown

In child pornography crimes involving a shared household computer, the defendant often argues that prosecutors haven’t proven that he or she was the one who downloaded the material. In my experience as a defense attorney specializing in cyber crimes, prosecutors often respond by attempting to do just that: showing that the defendant was the only one home when the material was downloaded, for example, or that another household member didn’t have access to the software used to download it. But in United States v. Landsdown, the Eighth U.S. Circuit Court of Appeals didn’t cite any arguments in this vein when it upheld the conviction of Ronnie Landsdown. Rather, the court said a reasonable jury could have chosen to believe prosecutors’ version of the story, over Landsdown’s arguments.

Ronnie Landsdown shared a house in western Missouri with five other people and a houseguest. Police noticed that an IP address in Landsdown’s name was sharing child pornography. After getting a warrant, they searched the house and found pornography on a laptop and a desktop computer. Housemate David Guy Hicks admitted to downloading the pornography on the laptop but not the desktop. The desktop was used by all six roommates and the guest, was not password protected and was located in a common area of the house. Landsdown owned the computer, fixed it when broken, paid for the Internet connection and created the user account used to download the pornography. He did not install the software used to download it. Three other roommates denied downloading it; two others had individual user accounts or folders. Prosecutors charged Landsdown with receiving the child pornography, and a jury eventually convicted him and sentenced him to five years in prison.

On appeal, Landsdown argued that the court should have granted his motion for judgment of acquittal because the evidence was insufficient to prove knowing receipt. The Eighth Circuit disagreed. Under a deferential review standard, it found that a rational jury could have decided that the evidence pointed to Landsdown. He owned the computer and the Internet connection, the Eighth Circuit noted. Furthermore, the appeals court said, Landsdown was nonchalant when one of his roommates told him there was child pornography on the computer; he allegedly shrugged it off and said he’d look into it later. Because everyone in the house denied downloading the pornography, the Eighth said, the jury as trier of fact could reasonably conclude that the prosecution’s testimony was more credible than Landsdown’s. With that, it affirmed the district court.

This decision is surprising for its brevity—it’s three pages long—as well as for its lack of direct evidence connecting Landsdown to the crime. The Eighth Circuit is, of course, right that juries are entitled to a lot of deference. Juries hear witness testimony in person; appeals judges can work only from whatever written record this produces. But where there’s nothing on the record to support a jury’s decision, an appeals court can and should reverse the jury. American courts require that the accused be proven guilty beyond a reasonable doubt; in this case, the charge was knowingly receiving child pornography. Yet the strongest pieces evidence against the defendant are the denials of his housemates—all of which are just as self-interested as his denial—and the fact that he paid the Internet bills. More should be required to send a person to prison for five years and brand him for life as a sex offender.

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November 6, 2013

Defendant Must Be Resentenced After Improper Sentencing Enhancement – U.S. v. McManus

Though the U.S. Sentencing Guidelines are now advisory rather than absolute, they’re still an important guide to federal district courts as they sentence people convicted of crimes. And if the sentencing range calculated under those Guidelines is calculated incorrectly, it’s an error that is not harmless. The Fourth U.S. Circuit Court of Appeals recently concluded that in U.S. v. McManus, a case in which the court had already departed downward from the defendant’s Guidelines range. William McManus of North Carolina pleaded guilty to possession of child pornography, with a sentence enhancement for distributing the pornography for receipt or expectation of something of value. Because he didn’t do this, the Fourth said, his sentence should be recalculated.

McManus was caught in possession of child pornography by an FBI agent who downloaded the material via a file-sharing program called GigaTribe. The agent gave McManus nothing in exchange for the material, and no evidence shows that McManus shared the material with anyone else. Nonetheless, at the sentencing hearing, the district court applied a five-level sentence enhancement to McManus’s base offense level. The enhancement was for distributing child pornography for the receipt, or expectation of receipt, of a thing of value” other than money. No evidence shows that McManus expected or received anything of value from sharing the files, however. With the enhancement, McManus had a sentencing range of 135 to 168 months; however, the statutory maximum was only 120 months. The district court departed further downward to 72 months, based largely on the lack of seriousness of the offense.

McManus nonetheless appealed, arguing that he should have received a two-level simple distribution enhancement rather than the five-level enhancement. What qualifies as distributing with expectation of a thing of value is a matter of first impression in the Fourth Circuit, the court noted. But the text is plain: the prosecution must show that the defendant distributed the material for a thing of value, or expecting a thing of value, other than money. The Fourth found no such evidence. It rejected the government’s argument that McManus had to have expected gain because GigaTribe sharing is reciprocal; giving the FBI agent access to his shared folder would have given him access to the agent’s. This improperly creates a per se rule, the court noted. Though McManus ended up with a sentence below the range created by removing the improper enhancement, the Fourth said, it’s not clear that the district court wouldn’t have decided differently, so it sent the case back for resentencing.

I’m pleased to see that this defendant will get a chance at another sentence, which I hope will more closely reflect his actual conduct. Though sentencing errors can be “harmless,” the Fourth Circuit decided that this was not harmless because it didn’t want to second-guess the district judge. That judge’s decision to depart downward from the high mandatory minimum is itself welcome news. The U.S. Sentencing Commission has criticized sentences for child pornography crimes as inflated by sentence enhancements like these; as a result, a majority of district courts depart downward when they sentence defendants. Unfortunately, it’s not clear that Congress will ever have the courage to make the recommended changes.

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October 22, 2013

Third Circuit Affirms New Sentence for Shipping Child Pornography and False Statements- U.S. v. Ward

Federal authorities have a lot of tools at their disposal when it comes to child pornography crimes. Even when criminal conduct takes place in another country, the defendant can still be charged criminally for related acts in the United States. In United States v. Ward, Lawrence Ward of Pennsylvania was charged with shipping child pornography in interstate commerce, making false statements to federal officers, and attempting to induce a minor to engage in sexual conduct, via online communications. Ward was originally caught in possession of child pornography when he returned from a trip to Brazil. It was later discovered that he was having sex with two minors in that country and emailing them to request pictures of specific sex acts; he attempted to help one get a U.S. tourist visa. The Third U.S. Circuit Court of Appeals affirmed his sentence.

Ward was originally arrested at Dulles International Airport; he was eventually convicted in the Eastern District of Virginia for possession of child pornography. A search of his office at the Wharton School of Business (where he was a professor emeritus) found photos and videos of Ward having sex with the Brazilian minors J.D. and R.D. His email showed messages to the minors asking them to perform specific sex acts, including acts with men chosen by Ward, and that Ward was paying J.D.’s family. Earlier that year, Ward had also attempted to get J.D. a visa to the U.S., and incorrectly told officials J.D.’s family was rich and he was therefore a low risk for overstaying his visa. This resulted in charges in Pennsylvania as well: two charges of transporting child pornography, one count of false statements to a federal official, and two of inducing a minor to engage in sexually explicit conduct.

Ward eventually pleaded guilty in both jurisdictions, receiving 15 years in Virginia and 25 in Pennsylvania. On a prior appeal, the Third Circuit sent the case back for resentencing because the judge didn’t impose a separate sentence for each count of the indictment. During the appeal, Ward maintained contact with the Brazilian minors and broke prison rules. At resentencing the district court required Ward to take an oath if he wished to make a statement. His new sentence was still 25 years, but increased his fine from $100,000 to $250,000 and also imposed an order to avoid contact with anyone under 18.

On his new appeal, Ward raised seven issues, none of which impressed the Third Circuit. He first argued that the Federal Rules of Criminal Procedure give him the right to deliver an unsworn statement. This was a novel question and one of first impression, the Third Circuit said, but it ultimately concluded there is no such right. The increase of the fine was not revenge against Ward for seeking resentencing, the Third said, in part because it was a correction from the prior appeal. There was sufficient evidence to show a pattern of prohibited sexual conduct, the court noted; thus, it was reasonable to enhance his Guidelines level. There was a sufficiently detailed explanation for the district court’s very high sentence, the Third ruled, and the court did not fail to take into account mitigating factors like Ward’s age. The 25-year sentence was not substantively unreasonable, the court added, and Ward lacks standing to challenge the lack of a restitution order.

Though the Third Circuit didn’t spend much time on it, I’d like to pull out one of the issues in the appeal: the substantive reasonableness of a 25-year prison sentence given Ward’s age and health. The opinion doesn’t seem to specify his age, but it did note that he was a professor emeritus (a position for people at or near retirement) and that he had been diagnosed with leukemia. The Third Circuit said, “the fact that Ward may die in prison does not mean his sentence is unreasonable.” That may be true, legally speaking, but it’s very sad. In light of cases like this, it’s worth asking what the goal of these very long sentences in child sex crimes is. Keeping people in prison until they die may serve the goal of protecting society, but it also seems a lot like revenge. That’s an unsavory and inappropriate goal for our justice system.

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October 7, 2013

Ninth Circuit Upholds Child Pornography Search Consented to By Defendant’s Wife – U.S. v. Tosti

I’ve posted recently about the importance of Fourth Amendment challenges in investigations of child pornography crimes. Because mere possession of the material is a crime, all the authorities have to do is find the material. This leaves defendants without a lot of options for a defense, unless they can find something wrong with the search that led to the discovery of the illegal images. Unfortunately for the defendant in U.S. v. Tosti, courts will generally agree that a search is legal if the police got consent from a member of the defendant’s household—including, in this case, an estranged wife. Donald Thomas Tosti was caught in possession of child pornography by computer repair people and then by his estranged wife, both of whom called the police. The Ninth Circuit upheld both searches as constitutional.

Tosti took his computer for repairs at a CompUSA store in 2005. There, a technician found pornographic images with children and called the police. On the basis of the computer images, the police got and executed a search warrant for Tosti’s home. For reasons not clear to the Ninth Circuit, however, nothing more on the case happened until 2009. At that time, Tosti asked his then-estranged wife Annette Tosti to look for some financial documents in their home office, and Annette Tosti found more child pornography. She turned that material and some hard drives over to the FBI, and signed a document attesting that she had full access to anything in the house. Tosti was charged with possession of child pornography and found guilty after a bench trial. He was ultimately sentenced to 96 months (eight years) in prison, a downward departure from his range (108-135 months), due in part to his age (76) and large number of health problems.

On appeal, Tosti argued first that the warrantless searches of the computer and his home were illegal. The Ninth disagreed. Because Tosti brought his computer to CompUSA and agreed that employees would be looking at its contents in order to repair it, the court said, he had waived any expectation of privacy that he might otherwise have had. As a result, the Ninth said, the police did not really “search” the computer; he had already agreed to give up his privacy. Tosti also argued that Annette Tosti had no actual or apparent authority to agree to the search of his home. The district court concluded that she had apparent authority, and the Ninth agreed. When more than one person has common authority over a property, the court said, either’s consent is adequate for a search. And the police found no reason to doubt that Annette had the authority, since there were no passwords or locks or other controls keeping her out of the office and computers. Finally, the Ninth rejected Tosti’s argument that his sentence was substantively unreasonable given his age and health; the court did consider those factors and gave him a below-Guidelines sentence.

It’s not clear whether Annette Tosti was the “then-estranged” wife because the couple has reconciled or because they have since divorced. Either way, this case serves as a reminder that marriage creates shared rights and responsibilities that can work out badly when the relationship turns sour and they’re still legally joined. If the couple is fighting, this power to consent could turn the police and the criminal justice system into a tool for revenge by giving one spouse the ability to have the other accused of a serious cyber crime. —which may be unrelated to the reason they’re fighting. Even simple child pornography possession is a serious crime; Tosti’s eight-year sentence is actually a slight downward departure from the 9-12 year sentence he might otherwise have served. With so much at stake, defendants should make sure the people they live with understand their feelings about police searches and consent.

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September 30, 2013

Second Circuit Rules Sentence Too Low in Child Pornography Distribution Case – U.S. v. Reingold

I am a firm believer that the federal sentences for child pornography possession and distribution are inflated, and I’m not the only one. As I’ve noted here many times, the U.S. Sentencing Commission put out a report recommending significant changes to the sentencing guidelines for these crimes, because of beliefs that they create sentences that are too long for some situations and too short for others. So I was not that surprised to see an opinion concerning a radical downward departure from the sentencing guidelines for a defendant from New York. Corey Reingold was sentenced to two and a half years in federal prison for one count of distributing child pornography. This was half of the mandatory minimum, noted the Second U.S. Circuit Court of Appeals in U.S. v. Reingold, and also disregarded certain sentence enhancements. It sent the case back for resentencing.

Reingold pleaded guilty to one count of distributing child pornography, after FBI identified him as a sharer of child porn on a file-sharing network. Reingold was 19 and still living at home in Queens. During the pendency of the case, Reingold admitted to also having had sexual contact with his half sister, who was between 8 and 11 during the incidents. His mandatory minimum was five years in prison, or 60 months; his Guidelines range was 168 to 210 months, based on sentence enhancements for type and number of images, use of a computer, distribution method not contemplated by the Guidelines, and a pattern of abusing his sister. However, the district court rejected some of these enhancements as unwarranted. The resulting range was 63-78 months in prison. The court then departed downward to 30 months, saying the longer term was longer than necessary to achieve federal objectives, and the mandatory minimum would be cruel and unusual punishment considering Reingold’s age and the passivity of his crime.

The prosecution appealed and the Second Circuit agreed that the case should be sent back for a new sentence. It first agreed that the mandatory minimum was not a violation of the Eighth Amendment. Under Supreme Court precedent, a punishment is cruel and unusual when it’s grossly disproportionate to the crime. But reversal is very rare under this standard, the Second said. The offense here is very serious, the Second said; child pornography creates a permanent record of a rape that can itself be traumatic. Nor is the sentence grossly disproportionate, the court said, because consuming child porn feeds the market for creating it, and because many federal crimes carry five-year sentences for first offenders. The court also rejected the judge’s stated reasons for ignoring the sentence enhancements. It was irrelevant that Reingold’s pattern of abusing his sister took place while he was a minor or that they were far apart, the court said; the use of a computer enhancement is not “double counting”; the distribution enhancement is not “double counting” even when the base charge was already distribution; and it doesn’t matter what Reingold’s primary purpose for distributing the material was. It remanded the case for resentencing and instructed the court to use the mandatory minimum.

I sympathize with the intentions of the district court judge in this case. This case is not a bad example of why the Sentencing Guidelines for child pornography crimes need to be reformed. The fact that defendants can be charged with distributing child pornography and then have their sentences enhanced for distributing child pornography does seem like double-counting; the court may have taken that argument more seriously if it hadn’t disagreed so strongly about the rest of the case. And as the Sentencing Commission noted in arguing for the abolition of the use of a computer sentence enhancement, almost every child pornography case is now a cyber crime; the enhancement is meaningless. And as a criminal lawyer, I have strong reservations about mandatory minimum sentences, which substitute broad, politically charged decisions for judicial discretion.

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September 24, 2013

Ninth Circuit Orders New Sentence in Case of Compelled Confession During Sex Offender Treatment – U.S. v. Bahr

One of the most basic constitutional rights invoked in criminal law is the right not to be compelled to testify against oneself. The Fifth Amendment to the U.S. Constitution says defendants in criminal cases have the right to “remain silent”; that’s the basis for the Miranda warning police officers read on television. (And, if they’re doing it right, also in real life.) But that right doesn’t just mean the right to stubbornly refuse to answer; it also means the right not to have testimony compelled through other means. In United States v. Bahr, the Ninth U.S. Circuit Court of Appeals found that testimony compelled during sex offender treatment violated the rights of Richard Roosevelt Bahr, Jr. Bahr was required to complete sex offender treatment after an arrest for rape in Oregon. During the course of the treatment, he admitted to sexual contact with minors, giving rise to a new conviction and a 20-year prison sentence.

Bahr’s rape conviction came in 2003. After he was released into supervision, he was required to complete sex offender treatment, including a polygraph test requiring him to disclose his entire sexual history. He was required to follow all of the program’s rules as part of his supervised release. During the polygraph, he revealed that he’d had sex with six minors when he himself was a minor, and seven minors after becoming an adult. In a workbook for the program, Bahr said he had sexually abused 18 children. Bahr was later caught in possession of child pornography. As part of the pre-sentencing report, the prosecutors included the admissions made in the sex offender treatment program. Bahr objected to this unsuccessfully. He was sentenced to two 20-year prison sentences, to run concurrently.

Bahr appealed the sentence, and the Ninth U.S. Circuit Court of Appeals reversed. The treatment disclosures were compulsory, the court said. Thus, using them at sentencing violated Bahr’s right not to incriminate himself. The U.S. Supreme Court has ruled that the Fifth Amendment right against self-incrimination includes the sentencing phase of trials, as well as separate criminal trials. Bahr didn’t need to invoke his Fifth Amendment rights, the court said; the right should be self-executing. Making the treatment mandatory created a threat of future prosecution. And Bahr was required to complete the program, the court said; because it was part of his supervised release, refusing to answer questions could have landed him back in prison. Thus, his confessions were compelled and inadmissible and the court should not have considered them. The Ninth Circuit vacated the sentence and remanded, with instructions for the district court to consider whether Bahr’s testimony was admissible and whether to alter the pre-sentencing report.

This is an issue that may arise again and again, as defendants charged with serious sex crimes are released and required to complete sex offender classes. Bahr, like anyone who is subject to post-release supervision, truly had limited rights when he took the classes; failure to complete the classes, or lack of cooperation during them, could have sent him back to prison. That’s why I believe the Ninth Circuit was right to make the “testimony” from Bahr’s class inadmissible. Indeed, making sex offender treatment admissible evidence might stymie the psychological treatment that is the ostensible goal of these classes.

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September 16, 2013

Second Circuit Rules Joint and Several Liability Inappropriate in Child Porn Restitution Case – U.S. v. Lundquist

I’ve written several blog posts about the thorny moral and legal issues involved in restitution for child pornography victims. In these cases, people who were unwillingly featured in child pornography ask for financial restitution—but not from the original molesters who took and distributed the images. Rather, they seek restitution from people who were caught in possession of the images, for the psychological harm caused by knowing the pornography is out there. One such person goes by “Amy” in court documents. Amy was the victim requesting restitution in U.S. v. Lundquist, a decision of the Second U.S. Circuit Court of Appeals. That court decided that Lundquist can be required to pay restitution, but said he cannot be required to pay restitution for harms he could not have caused, and holding him jointly and severally liable with people not before the district court.

Avery Lundquist was caught in possession of child pornography, pleaded guilty to receiving and possessing it, and sentenced to 210 months in prison. Among the images was one of Amy. Starting at the age of four, Amy was repeatedly raped by her uncle, who took pictures. The uncle was eventually caught, prosecuted and imprisoned, but the pictures became very widely disseminated. Amy receives notice of every such case because of a federal law requiring it, and her psychological expert believes knowing the pictures are out there triggers her trauma anew each time. Her attorney requested restitution from Lundquist, including a recent psychological report on Amy, as well as an older economic report, as evidence. The district court denied Lundquist’s request for a hearing and ultimately ordered $3,381,159 in restitution, but found that Lundquist shared the responsibility with 112 other defendants caught with Amy’s images and held him jointly and severally liable with them.

Lundquist appealed only the restitution order. In an earlier case, U.S. v. Aumais, the Second Circuit had held that Amy and similarly situated people are victims within the meaning of the Violence Against Women Act, but held that there must be proximate cause between the defendant’s behavior and the victim’s losses. The Aumais court found no proximate causation because Amy’s losses were documented before Aumais was arrested—but in this case, Amy updated her psychological evaluation after Lundquist’s arrest. This showing of a general relationship between Lundquist’s offense and Amy’s losses is adequate, the court said, and Lundquist had an adequate opportunity to present his case even without a hearing. But the district court erred in the “arduous task” of calculating the right amount, the Second added, because it divided Amy’s total losses by the number of people caught in possession of her images. Some of that harm was caused by Amy’s uncle, the Second said, and Lundquist could not have caused any harm prior to his offense. Thus, the number to be divided should be smaller, the court said.

Finally, the appeals court reversed on joint and several liability, saying the VAWA doesn’t authorize it unless the other responsible individuals are before the same court. And this approach contravenes the proximate cause requirement, the Second said, because the evidence shows Lundquist didn’t cause all of Amy’s losses. Thus, it vacated in part and remanded for a new calculation.

Part of the problem with restitution requests like this for child pornography crimes is that the law isn’t designed to do this job. Restitution under the VAWA is written in a way that envisions direct harm to the victim from the defendant’s actions. The harm that Amy has suffered is real, but it’s indirect, which is one reason why courts have had such trouble agreeing on how exactly the law should handle it. Similarly, the writers of the restitution statute didn’t envision joint and several liability among people who don’t know each other and are not prosecuted together. That makes it difficult for courts to legally impose it even though, as the Second suggested, it would be an elegant solution. Partly for these reasons, I would prefer a requirement for the victim to show a specific relationship between his or her harm and the actions causing the defendant’s cyber crime charges.

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September 9, 2013

Child Porn Defendant Received Adequate Warning About Acting as Own Lawyer – U.S. v. Eads

The U.S. Supreme Court ruled 50 years ago that people who are too poor to afford a criminal defense attorney should be appointed one at the expense of the government. That ruling was based on the unfortunate fact that it’s very difficult to succeed when you act as your own lawyer to defend yourself from criminal charges. Court cases are complex and require a specialized expertise that it’s difficult to acquire by studying law in your spare time. Even though courts give self-represented people some extra patience and sometimes extra chances, it’s very easy to miss an important deadline or misunderstand a rule and lose the case before he judge can even hear the merits. That’s why I was saddened but not disappointed to see an appeal from a pro se defendant rejected in United States v. Eads, a case out of the Seventh U.S. Circuit Court of Appeals.

Christopher Eads of Indianapolis was caught sharing child pornography through a peer-to-peer file-sharing program scanned by the local police. They got a warrant and searched his home, ultimately recovering 6,937 images and more than thirty minutes of video. His wife told police that he claimed to be an undercover FBI agent who had to download child porn for work. From a jail telephone, Eads asked his wife to recant her statements and say a former houseguest had set him up. These acts formed the basis for charges for possessing and distributing child pornography; and witness tampering. Eads decided six days before trial to represent himself, triggering a hearing at which he was asked if he was sure and warned about the potential consequences. He went ahead, argued that the houseguest was responsible for the images, and was convicted on all counts. At trial, the jury saw photos and videos from his collection, over his objection, even though he’d already stipulated that they were child pornography.

On appeal, Eads argued that he should not have been permitted to represent himself. The Seventh Circuit rejected this argument, saying there was no indication that he had been coerced, was impaired in any way, or was unaware of the potential dangers of self-representation. He next argued that the child pornography shown to the jury was unnecessary, because he had already stipulated that they were child pornography, and inflammatory. Neither party expressly asked for the judge to review the images beforehand, but the Seventh found that he or she should have. It further agreed with Eads that the judge should have given more than a “bare-bones” explanation of why the material was admitted. However, the court said, the error was harmless because the images had value aside from being inflammatory. In particular, it cited one image that had text over it requesting sex with a child and listing Eads’s email address. And Eads would likely have been convicted anyway, the court said, because the evidence of his guilt was clear. Rejecting his other arguments, the court affirmed his conviction and sentence.

Eads was sentenced to 40 years in prison, which is not quite a life sentence for a 26-year-old defendant, but not far. Unfortunately, that’s not uncommon in child pornography crimes. That’s why it is absolutely vital to get the help of an experienced defense attorney when you face charges as serious as these. Though nothing is for sure, an experienced attorney may have been able to keep the jury from being shown the child pornography, which surely was inflammatory; the opinion noted that some jurors cried after seeing it. A lawyer could possibly also have convinced Eads that the evidence was too great for a trial, then negotiated a plea agreement considerably better than the 40 years Eads will now serve. At Seltzer Law, P.A., we have represented many defendants accused of serious cyber crimes and vigorously defend each case.

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September 3, 2013

Appeals Court Agrees Craigslist Posting Specific Enough for Criminal Threat Charges – U.S. v. Stock

I was interested to read a recent case about how specific a defendant must be in his or her speech to “make a threat” under federal criminal law. This issue came up in United States v. Stock, a case from the Third U.S. Circuit Court of Appeals involving an alleged threat posted to Craigslist. Adrian Peter Stock didn’t argue that his posting was protected by the First Amendment; rather, he said that the statement wasn’t criminal in any case because it didn’t express any intention to inflict injury. As a result, he argued, the statement couldn’t possibly be unprotected criminal speech. The Pittsburgh-area federal district court denied Stock’s motion to dismiss, ruling that a reasonable jury could interpret the statement as a threat. The Third Circuit agreed after a lengthy analysis.

Stock was indicted in 2011 for making a Craigslist posting saying:

i went home loaded in my truck and spend the past 3 hours looking for this douche with the expressed intent of crushing him in that little piece of shit under cover gray impala hooking up my tow chains and dragging his stupid ass down to creek hills and just drowning him in the falls. but alas i can’t fine that bastard anywhere . . . i really wish he would die, just like the rest of these stupid fucking asshole cops. so J.K.P. if you read this i hope you burn in hell. i only wish i could have been the one to send you there.

He moved to dismiss the indictment for failure to state an offense. The district court denied the motion after a hearing, and Stock then agreed to a plea deal giving him one year and one day in prison, but that preserved his right to pursue this appeal.

The Third Circuit started by agreeing with the district court that an analysis of how the threat statute treats time is necessary. That is, must a “threat” specifically communicate intent to injure now or in the future? The district court concluded that it must, and the Third Circuit ultimately agreed, relying on past statutory language and the term’s ordinary meaning. But the appeals court went on to also agree that a reasonable jury could conclude that Stock’s statement was a threat in the prospective sense. A reasonable person could believe that Stock had actually engaged in the past conduct he described in the posting (driving around looking for an alleged police officer). But this could also be circumstantial evidence of intent to commit future injury, the court said. Furthermore, it found the expressions of resignation near the end did not necessarily communicate that Stock had given up the job, particularly since his posting clearly still wished the officer ill. Thus, the Third found that a reasonable jury could convict Stock.

Laws that criminalize threats run the risk of violating the First Amendment. Stock expressly decided not to rely on the Constitution in his appeal, but I believe the issue is important for anyone charged with a crime for making threats or other speech-related conduct, such as cyberstalking. Every American citizen and resident has the right to clear laws, so we can understand what conduct is illegal before we’re dragged into court. Criminalizing online speech runs the risk of violating that right, particularly when the speech lacks the specificity of a “threat” as ordinary people understand that term. Unfortunately, because Stock ultimately agreed to a plea bargain, it’s not clear whether a reasonable jury really would have agreed.

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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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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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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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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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July 29, 2013

State May Charge Defendant With Enticement of a Minor After Federal Charges Dropped – State v. Canton

Recently, I’ve written on this blog about double jeopardy issues in cyber crime cases. The U.S. Constitution forbids prosecutors from convicting someone of two crimes for the same conduct, which has led to challenges under the duplicative federal child pornography statutes. But interestingly, there is no double jeopardy prohibition against charging a defendant with the same crime in both federal and state courts, as the defendant found out in State of Utah v. Canton. Reinaldo Canton originally faced federal charges for attempting to entice a minor, but they were dropped. Less than two months later, the state of Utah brought charges against Canton for the same conduct. Canton challenged this under the two-year statute of limitations, but the Utah Supreme Court ultimately agreed with the trial court that the deadline should be lifted while Canton was out of the state.

Canton, a New Mexico resident, became entangled with Utah law enforcement when he started communicating with a “fifteen-year-old girl” online. The girl was actually an undercover federal agent, and Canton was arrested when he came to a prearranged meeting place expecting sex. He originally faced federal charges for attempted coercion and enticement of a minor for sex. A Utah federal magistrate permitted Canton to return home to New Mexico and travel to Utah for court proceedings. During this time, however, Canton suffered heart problem requiring surgery. He argued that he was too sick to continue traveling back and forth to Utah and moved to dismiss. The magistrate granted the dismissal without prejudice. About six weeks later, the state of Utah charged Canton with enticement of a minor. This was more than two years after the actual conduct, so Canton moved to dismiss under the two-year statute of limitations. The trial court denied this, finding that the statute was tolled because Canton had been out of state.

Canton ultimately entered a conditional guilty plea and filed this appeal. He argued to the Utah Supreme Court that he was not truly out of state during the federal case because he maintained a legal presence by continuing to travel to Utah, and was under the state’s sovereign authority. Alternatively, he also argued that tolling the deadline would violate the Utah state constitution’s uniform operation of laws provision. The high court ultimately found for the prosecution. Parsing the statute very carefully, it found that “out of the state” refers to physical presence in common speech, and is not a legal term of art. Nor is the statute unconstitutional, the court said. The uniform operations rule operates like the Equal Protection Clause, the court noted, and Canton has not demonstrated an equal protection problem. No apparent fundamental right is affected, the court said, and no suspect classification is being made. It upheld the trial court.

Criminal statutes of limitations—the deadlines by which prosecutors must bring charges—can be “tolled,” or suspended, when the circumstances warrant. In this case, the Utah high court found that physical absence from the state is enough to suspend that deadline, even though Canton’s whereabouts were well known. The real reason the state didn’t charge him was, of course, the parallel federal proceeding that ultimately was dismissed. Because I defend clients in both federal and state solicitation of a minor cases, I’d like to note that state-law charges are not necessarily less serious than federal charges, although people may perceive them that way. Either charge has very heavy penalties attached, including long prison sentences as well as the collateral consequence of being a registered sex offender.

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July 23, 2013

Conviction for Both Receipt and Possession of Child Pornography Was Not Prejudicial – U.S. v. Teague

One of the problems with the child pornography sentencing guidelines is the unnecessary multiplicity of ways to penalize the same conduct. As the Sentencing Commission noted, prosecutors have some discretion to bring charges for receipt of child pornography or possession, because possession is a lesser included offense of receipt and has a lower sentencing range. But sometimes, prosecutors bring both charges and the court doesn’t adequately sort it out, leading to a potential double jeopardy problem for the defendant. That was the claim in U.S. v. Teague, an appeal by Danny Teague of California. The Ninth U.S. Circuit Court of Appeals ultimately ruled that while the district court made a mistake, the error didn’t affect Teague’s rights.

Detectives found Teague downloading child porn on LimeWire. A search warrant turned up child pornography on his laptop, and also a briefcase full of CDs with child porn on them. The laptop files on Teague’s hard drive included 20 images and 11 movies downloaded in 2005. The CD files included 760 images of child porn saved to the CDs in 2002 and 2003. He was charged with receipt or distribution of child porn, and possession of child pornography. His indictment included both the computer files and the CDs in the possession charge. He was ultimately convicted by a jury and sentenced to 230 months in prison on the receipt charge and 120 months on the possession charge, running concurrently.

On appeal, Teague argued that he is being penalized twice for the same conduct because possession is a lesser included offense of receipt. The Ninth Circuit started by noting that the receipt charge was clearly based on the files found on Teague’s computer. Thus, in order for his appeal to stand, the court said, the possession charge also needs to be based on them. It’s not clear that the jury convicted Teague of possession for both the CDs and the computer files, the court said; the jury was not instructed on the double jeopardy issue. Thus, it is possible “in theory” that the jury could have convicted on both counts based solely on the computer files, the court said, giving rise to a double jeopardy problem. Thus, it agreed that the district court erred. But the error didn’t affect Teague’s substantial rights, the court said, because there’s no reasonable probability that the jury wouldn’t have convicted him if properly instructed. The overwhelming evidence shows that Teague possessed both types of file, the court said, and thus the error was not prejudicial.

This case shows how important the prosecution’s choice of charges can be. Because possession is a lesser included charge of receipt—you cannot receive a thing without possessing it—prosecutors could have charged him with just possession and still adequately described the conduct Teague was charged with. This would have carried the lower 120-month sentence—which is still 10 years in prison—without exposing him to the much higher 230-month receipt sentence. The Sentencing Commission report said whether prosecutors bring receipt charges often depends on the circumstances, and this creates a disparity between defendants charged with similar cyber crimes. As a defense attorney, I agree with the Commission that this is not desirable, and hope Congress has the courage to address it.

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July 15, 2013

Court Was Correct to Enhance Child Pornography Sentence With Prior Statutory Rape Conviction – U.S. v. Barker

In all parts of criminal law, having a prior conviction is bad news if you are facing a new criminal charge. In child pornography possession cases, a prior conviction can cause a dramatic change in the defendant’s likely prison time. There is no mandatory minimum for child pornography possession alone, but a prior conviction for any of several offenses bumps the mandatory minimum up to 10 years. It also doubles the statutory maximum to 20 years. And because it’s almost inevitable that possessors will also be eligible for a receipt charge or a sentence enhancement for using a computer, the sentence often gets even longer. The mandatory minimum came into play in U.S. v. Barker, in which Richard Barker of Vermont challenged the use of a prior statutory rape conviction to enhance his child pornography possession sentence. He was unsuccessful.

Barker’s prior conviction was in 2002 in Vermont state court, for statutory rape of a minor under the age of 16. Barker was 56 when convicted on that charge, and remained on probation when indicted for possession and distribution of child pornography. Details of that offense weren’t included in the opinion. Barker ultimately pleaded guilty to one count of possession. Prosecutors calculated his sentence range by including the statutory rape charge as a prior offense, but Barker argued against this, saying Vermont’s statute was not for “abusive sexual conduct” because it didn’t require a significant age disparity. Based on a 2012 Second Circuit case, the district court used a modified categorical approach to conclude that Barker was wrong, because there had been a significant age disparity in his prior case. It imposed the mandatory 10-year minimum.

The Second Circuit upheld the sentence, though it ruled that the district court should have used a categorical approach to determining whether the Vermont law triggered the mandatory minimum. To get the sentence enhancement, the offender must have been convicted of an offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact involving a minor.” By applying the modified categorical approach, the district court used the charging document in Barker’s prior case. But the Second Circuit had ruled shortly after Barker’s sentencing hat courts should use a categorical approach in his situation, and the U.S. Supreme Court later affirmed this approach. However, Barker fared no better under the categorical approach, the Second ruled. Considering the offense generically, without the details of Barker’s case, it concluded that the law relates to sexual abuse of a minor. This is adequate to trigger the mandatory minimum, the court said; contradictory federal laws do not apply.

Mandatory minimums don’t just apply to cyber crimes or sex crimes, but they’re particularly devastating in child porn cases, because the sentences for child pornography possession and related crimes are already very high. Congress has repeatedly raised them over the past two decades, which triggered a recent report from the U.S. Sentencing Commission suggesting significant modifications. It has also triggered disobedience from a few federal judges who have declined to issue long sentences in cases of simple possession. Though the sentencing guidelines are advisory, they retain so much influence on the courts that I believe a revision is vital to make child porn sentencing fair and consistent.

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July 8, 2013

Federal Judge Refuses to Sentence Child Porn Defendant to More Than One Day in Prison – U.S. v. Bistline

I was very interested to see a recent federal appellate ruling involving a trial judge who outright refused to sentence a child pornography defendant according to the U.S. Sentencing Guidelines. The Sixth U.S. Circuit Court of Appeals decided U.S. v. Bistline for the first time in January of 2012 and again June 27. Richard Bistline was caught in possession of child pornography and ultimately pleaded guilty to possession. The district court judge originally sentenced him to one day in the courthouse lockup, three days of home confinement and 10 years of supervised release. The Sixth Circuit originally agreed with the prosecution that this was a substantively unreasonable sentence; Bistline was eligible for just over six years in prison according to the Guidelines. On remand, however, the judge changed only the amount of home confinement. Saying that the sentence was still unreasonable, the Sixth Circuit remanded the sentence to a new judge.

Bistline, 67, was caught in possession of child pornography by law enforcement officers who found him sharing it on LimeWire. A month later, officers arrived at his home with a search warrant and confirmed that he had the child pornography, including 305 images and 56 videos, largely of girls under 12 being raped by adult men. He pleaded guilty. At the sentencing hearing, the district judge said he believed the Guidelines for child pornography possession “are seriously flawed” as a result of Congressional involvement. It then reviewed mitigating factors for Bisline, including several cited by the probation officer’s sentencing report: his age, his role as caretaker for his wife, two strokes he had suffered, and his lack of prior criminal convictions. The prosecution objected strenuously and asked to brief the issue, which was granted. The court ultimately didn’t change its mind.

On the first appeal, the Sixth Circuit ruled that the sentence was substantively unreasonable and remanded with orders to use the Guidelines as a starting point. On remand, the court changed only the amount of time under house arrest, repeating its concerns about the Guidelines and saying that “If I have got to send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to do it.”

On the second appeal, the Sixth Circuit agreed with prosecutors that someone else should have that chance. It faulted the district court for failing to use the Guidelines as a starting point. It further faulted the judge for failing to explain why he feels the Gudelines ranges are not helpful. He did give reasons for not liking two of the sentence enhancements Bistline was subject to, the Sixth said, but even the base offense level puts the sentence at around three years. The Sixth further disagreed with what it saw as the district judge’s belief that Bistline was not very culpable. For example, though Bistline is not a sophisticated computer user, the court noted that the software didn’t download the materials for him. And old age and poor health alone are not adequate to justify such a light sentence, the court added. It remanded for reassignment and resentencing.

I’m particularly interested in this judge’s statements on the Sentencing Guidelines for child pornography crimes, because the U.S. Sentencing Commission has recently recommended reforms to those Guidelines. Some of those reforms parallel the judge’s objections; for example, it’s recommended that Congress eliminate the sentence enhancement for using a computer, because almost all of the child pornography crimes involve a computer. And the judge’s belief that Congress has interfered too much with child pornography sentencing is widely agreed with among criminal defense attorneys like me. The U.S. Supreme Court has ruled that the Guidelines are not mandatory, but unless Congress has the courage to reform child pornography sentencing, I’m afraid reversals like this will continue.

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July 2, 2013

Civilian Prosecution After Military Non-Judicial Punishment Is Not Double Jeopardy – U.S. v. Stoltz

The United States military has its own system of justice that parallels the one we’re used to in the civilian world. However, it has some important differences, and one of those came to the surface in U.S. v. Stoltz, a decision of the Ninth U.S. Circuit Court of Appeals. Christopher Stoltz was in the Coast Guard when he was caught in possession of child pornography. His commanding officer, who controls whether and how a military service member should be punished, ultimately decided to impose non-judicial punishment. However, Stoltz was not informed of his right to reject this and opt for a court-martial instead. When he was released from the military, Stoltz was indicted for the same crime by an Alaska grand jury, but the federal district court dismissed the charges because of concerns that the prosecution may be double jeopardy. The Ninth Circuit rejected this, finding that non-judicial punishment was not jeopardy.

Stoltz was caught looking at child porn videos by a shipmate on the cutter Alex Haley, moored at Nome, Alaska. The shipmate reported it, and Stoltz ultimately admitted to possessing the material to a Coast Guard investigator. His commanders opted against a court-martial because they didn’t want to induce civilian criminal charges as well, so he was given extra duty, restriction to the ship, a reduction in rank and an $1,800 fine. Stoltz was not informed of his right to choose a court-martial. His service commitment was not renewed by the Coast Guard, though the separation was “general under honorable conditions.” Two years after his separation and four years after the incident, Stoltz was indicted in civilian federal court. Though military service members who faced non-judicial punishment routinely face civilian criminal charges without double jeopardy concerns, the judge ultimately dismissed because Stoltz was not advised of his right to go to a court-martial.

On the appeal from prosecutors, the Ninth Circuit reversed. It first assumed without deciding that a vessel exception to the right to choose a court-martial did not apply. Whether it did or not, the court said, dismissal was not warranted. The Double Jeopardy Clause of the Fifth Amendment says no one may be twice put in jeopardy for the same offense. But under case law, the Ninth said, jeopardy applies only after a jury is empaneled, or in a bench trial, after the court starts to hear evidence. In non-judicial punishments, as both sides agreed, the proceedings are non-criminal. Thus, Stoltz has never been previously charged with this possession crime or any other, the court said, and there is no double jeopardy. Stoltz further argued that there was a due process concern in the NJP from not advising him of his rights, but the Ninth said the NJP was not sufficiently connected to the current criminal proceeding for this to be an impediment, and in any case his remedy would be to apply to a military board for correction.

Stoltz must be feeling rather cheated by this decision. His commander decided on non-judicial punishment expressly to avoid a parallel civilian proceeding for child pornography crimes, but choosing a court-martial instead would have precluded any such proceeding. It’s true that Stoltz can appeal to a military board to “correct” his service record, but the damage is done—his career in the Coast Guard is over. This may not be considered jeopardy, legally speaking, but I’m sure it feels like punishment to Stoltz. Most military crimes are not prosecuted in the civilian world if the military has already taken care of them; the fact that this one was may show how seriously the authorities take cyber crimes involving children. That’s why it’s vital to call an experienced attorney as soon as possible after you’re charged, no matter what system of justice is bringing the charges.

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June 26, 2013

Eighth Circuit Upholds Admission of Child Porn Videos Despite Stipulation Offer – U.S. v. Worthey

Child pornography crimes arouse strong feelings in jurors, which is not to the advantage of defendants. Prosecutors know that, and because their job is to get a conviction, they take advantage of it during trial. In U.S. v. Worthey, a defendant convicted of child pornography possession and receipt offered to stipulate that the material he was caught possessing was child pornography, in order to prevent prosecutors from actually showing the material to the jury. The prosecutors admitted the evidence anyway, over the objections of Dustin Worthey. Worthey appealed that decision and several others to the Eighth U.S. Circuit Court of Appeals after his conviction, but the Eighth Circuit ruled against him, finding no prejudice resulted from showing child pornography videos to the jury.

The Arkansas State Police found Worthey after investigating an IP address suspected of trading child pornography online. After tracing the IP address to Worthey’s home, they obtained a search warrant. Worthey let them in and verbally admitted to downloading child pornography. They found child pornography on Worthey’s laptop, in folders connected to a file-sharing software service. He was charged with both possession of child pornography and receipt. Prior to trial, Worthey moved for a change of venue for convenience reasons; this was denied. He also objected to the government’s plans to play a few seconds from each of four videos found in his possession, and offered to stipulate that they were child pornography instead. The district court ruled against him without viewing the clips. After a trial, two unsuccessful motions for a judgment of acquittal, and the revelation that Worthey had sexually abused his stepchildren, he was sentenced to 180 months in prison.

The Eighth Circuit first addressed the change of venue issue. Worthey argued that the district court failed to sufficiently weigh the two-hour commute required by the Little Rock venue. But the Eighth found that the court adequately weighed this against security factors, and in any case, there was no prejudice resulting from the decision. It next ruled that the evidence was sufficient to convict Worthey. The strong circumstantial evidence—the fact that it was Worthey’s laptop where the porn was found—and Worthey’s verbal confession were sufficient to establish that he was the person who downloaded and saved it, and he knew what it was. Finally, Worthey argued that the district court should have excluded the videos from evidence in favor of his stipulation. A 2006 Eighth Circuit panel decided otherwise, the court said, so this argument is foreclosed. Furthermore, it said, the prior case established that videos are not unfairly prejudicial. The Eighth therefore did not analyze whether the stipulation was an adequate substitute before upholding the evidence’s admission.

Interestingly, the Eighth Circuit noted in passing that it might find the district judge’s choice not to even watch the videos “suspect.” It also referred in passing to a case in which a sister circuit ruled the other way on the same issue. The defendant in U.S. v. Cunningham got a new trial because the Third Circuit found that admission of videos was prejudicial. In that case as well as this one, the trial judge did not bother to review the videos before admitting them. In my opinion as a cyber crime attorney, it’s clear that showing child pornography to the jury is inflammatory. The Eighth didn’t dispute this, though it found that it wasn’t unfairly inflammatory. But since the goal is to show that they are illegal, and the defendant is willing to stipulate that, why take the risk—or put the jury through it?

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June 18, 2013

Ninth Circuit Affirms Denial of Motion to Suppress Child Porn Evidence on iPod – U.S. v. Needham

In Dougherty v. City of Covina, the Ninth U.S. Circuit Court of Appeals agreed with a suburban Los Angeles man that an accusation of molestation alone was not sufficient evidence to legalize a search of his home for child pornography. The same logic was present in the Ninth Circuit’s new decision in U.S. v. Needham, although the court ultimately permitted prosecutors to use the evidence they found. In this case, Nicholas Needham of Orange County triggered the police’s interest when he was accused of child molestation. Officers asked for a search warrant for Needham’s home, asserting that individuals with a sexual interest in children often have child pornography. Needham moved to suppress it, arguing this was insufficient for probable cause. The district court denied his motion, and a divided Ninth Circuit affirmed that ruling.

In June of 2010, a five-year-old boy told his mother that a man had touched the boy’s penis in the men’s room at a mall. The boy pointed out Needham, who left; police tracked him down through credit card records. Needham was a registered sex offender who had been charged with continuous sexual abuse of a child under 14, and for possession of obscene matter, when he was 16. The detective then asked for a search warrant, saying that based on her training and experience, and Needham’s past and current accusations, she believed he was likely to possess child pornography. No facts were included about whether Needham even owned a computer, much less used it for illegal purposes. In the ensuing search, however, police found child porn on Needham’s iPod, leading to indictment for possession of child pornography. His suppression motion argued that the warrant was not supported by probable cause and that no good-faith exception applied. The district court disagreed.

The Ninth Circuit upheld that ruling, but with much internal disagreement. The district court applied a good faith exception to the requirement that warrants be supported by probable cause. Suppression may still be appropriate if the police did not rely on it in good faith—if the warrant was so lacking in indications of probable cause that it was unreasonable to rely on it. Noting that this analysis in criminal cases is the same as the analysis for qualified immunity in civil cases, the Ninth concluded that its decision in Dougherty controlled the outcome. There, the court granted qualified immunity to officers with a similar warrant that conjectured about what an accused molester might have had, even though they agreed that the warrant had no probable cause. Later cases made it clear that the warrant’s logic does not support a probable cause finding, but the panel found itself bound. A concurrence by Judge Berzon would have suppressed if not for Dougherty, and another by Judge Tallman would have found probable cause if not for Dougherty.

The concurrence by Judge Berzon said a three-judge panel may not overturn precedent, which makes me suspect this case is headed for an en banc rehearing. In fact, an en banc rehearing would also help the Ninth Circuit bring Dougherty in line with the cases since then that have rejected the “child molesters all possess child pornography” line of reasoning. In my experience as a cyber crime defense lawyer, in fact, these two crimes do not necessarily lead to one another. Possession is a passive act and does not involve direct contact with children. People charged with simple possession of child pornography often argue, in fact, that they should be shown mercy because they have never hurt a child. I look forward to an en banc opinion from the Ninth, which could bring it into line with several sister circuits.

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June 11, 2013

Court Reverses Dismissal of Case Based on Lack of Real Victim in Online Sex Sting – Georgia v. Grube

I write here fairly often about undercover online operations in which police officers pretend to be underage girls in order to lure adults who want to have sex with children. The courts have consistently ruled that this is not illegal entrapment and that the resulting criminal charges—usually including attempted enticement of a minor—is valid even though no actual minor was involved in the attempted crime. So I was interested to see the Georgia Supreme Court’s ruling in Georgia v. Grube, in which it reversed two lower courts that found Timothy Grube’s indictment didn’t adequately identify the victim. Grube was charged with attempted child molestation after arranging to meet “Tiffany,” a purported 14-year-old girl, for sex. Tiffany was, of course, a sheriff’s deputy.

Grube, then 27, responded to an online posting by “Tiffany” saying that she was looking for something fun to do over a holiday weekend. Grube exchanged emails with the deputy and ultimately arranged to meet Tiffany for sex, and was picked up by police at the rendezvous point. He was charged in Georgia state court with attempted child molestation, attempted aggravated child molestation and computer pornography charges. But the trial court ruled that the indictment was deficient because it failed to identify the victim of the crimes charged. The state filed a second indictment with specific references to “Tiffany, a person he believed to be a 14-year-old girl,” but the trial court agreed with Grube’s demurrer that it still failed to identify a victim. The state took it to the Court of Appeals, which affirmed dismissal of the indictment.

The Georgia Supreme Court took up the case and ultimately reversed. Past Georgia cases say that an indictment is sufficient if it contains the elements of the offense to be charged, appraises the defendant of what charges he must defend against, and accurately shows whether, if applicable, he can plead previous acquittal or conviction. The state argued that using the name Tiffany is sufficient in this case because that’s the only name by which Grube knew the victim. The high court found that incomplete names are adequate in this case. Including the name of the undercover officer does not improve a defendant’s ability to understand the charges against him, the court said. This follows past cases allowing the use of an alias, nickname or false name in indictments, the court noted, and is distinguishable from a 2000 case with similar facts, in which the indictment failed to note that there was no actual child.

I am not surprised to see this decision. As I noted above, the courts have been consistent in ruling that criminal child enticement charges are valid even when the “children” in question are undercover officers pretending to be children online. States generally want their criminal justice system to work even when someone involved in a crime is unknown or has an alias, so there are usually past cases dealing with issues similar to the ones here—though these online child enticement cases themselves, like all cyber crimes, are of course relatively new. Importantly, however, the Georgia high court didn’t reach the issue of whether a crime with an entirely fictional victim should be a crime. Though courts have largely declined to find a problem with this, it’s worth asking whether anyone is hurt in a situation like Gruber’s.

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June 4, 2013

Eighth Circuit Rejects Appeal Challenging Interstate Commerce Aspect of CP Conviction – U.S. v. Johnson

Federal child pornography penalties are generally considered more severe than those of the states. Unfortunately for defendants, nearly every child pornography crime is a federal case because the vast majority of child pornography crimes involve the Internet, which puts them into interstate commerce. (This is also why the U.S. Sentencing Commission has recommended striking the sentence enhancement for using a computer to commit a child pornography crime.) And even when the Internet is not involved, using computer equipment can still bring the case into interstate commerce, because the vast majority of it is manufactured overseas. That fact was fatal to the appellant’s case in United States v. Johnson, a decision from the Eighth U.S. Circuit Court of Appeals.

Delmarcus Johnson had consensual sex with his 17-year-old girlfriend at a motel in Minneapolis. The girlfriend was above the age of consent in Minnesota, so the sex was legal. But because Johnson also videotaped the sex, he was indicted for possession of child pornography. Representing himself but with standby counsel, he initially pleaded guilty to the one count. In his plea agreement, he agreed that the image was stored on materials shipped in interstate commerce. At the ensuing hearing, Johnson agreed with the prosecutor that the camera was produced outside Minnesota. He later moved to withdraw his plea, arguing, among other things, that there was nothing in the record showing that the video was produced using materials that moved in interstate commerce. This motion was denied and he was sentenced to three years in prison.

On appeal, Johnson renewed his argument that the record didn’t show production using materials that had moved in interstate commerce, meaning that the district court violated the Federal Rules of Criminal Procedure and abused its discretion by denying his motion to withdraw. He noted that he had agreed only that the video was “stored” in interstate commerce, not “produced,” as the statute required. But the Eighth Circuit disagreed, finding that Johnson’s statements at the plea hearing support a finding that he produced the video on the camera. For example, Johnson agreed that he had videotaped the sex, and that the camera he used to do it had been manufactured outside Minnesota. For this reason, the appeals court concluded that no FRCP error occurred, and that there was no abuse of discretion in the district court’s refusal to let him withdraw his plea.

Though the Eighth may be right that there was no reason to let Johnson withdraw his guilty plea, the fact that this case was prosecuted in the first place disappoints me as a cyber crime defense attorney. The federal child pornography possession statute was written to protect children and younger teens from predators. This was not the situation described by the court’s opinion; the sexual encounter was consensual and even lawful. It’s only because he took a video that Johnson is currently in prison. To make matters worse, Johnson will be a convicted felon after his release from prison and probably required to register as a sex offender under SORNA, which will substantially limit his future opportunities. With the stakes so very high, I strongly recommend that people in his position hire an experienced attorney.

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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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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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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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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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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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April 23, 2013

Eighth Circuit Upholds Transporting a Minor Conviction for Man Who Financed Runaway – United States v. Goodwin

It is a federal crime to transport a minor with the intent to engage in sexual activity. Most people might imagine this to involve kidnapping a child or enticing a child over the Internet to meet an older adult for sex. But in United States v. Goodwin, the minor in question was 17 years old and the “transportation” was financial support provided to help her run away. Rodney Goodwin of Texas struck up an online relationship with J.B., who said she was abused and unhappy living with her grandparents in North Dakota. But when Goodwin tried to finance J.B.’s attempt to run away to him in Texas, she failed to get out of North Dakota and Goodwin was prosecuted for attempting to transport a minor. Goodwin argued to the Eighth U.S. Circuit Court of Appeals that the evidence was insufficient to show that he “transported” her or that he financed the trip for sexual purposes, but the Eighth Circuit upheld his conviction.

Goodwin, whose age was not given, met J.B. online when she was sixteen. Many of their messages and phone calls were sexual, and J.B. also told Goodwin she was being abused in the home she shared with her grandparents. On her seventeenth birthday, Goodwin wrote to J.B. that they could be together in 364.25 days. But she said he was impatient, and they started planning for her to run away to meet him in Dallas. Goodwin provided information to J.B. about the Bismarck bus schedule and told her to buy a prepaid phone card and a debit card he could fund. On the appointed day, she tried to run away, but ultimately decided to go home. It’s not clear how Goodwin was found out, but in later interviews with authorities, both parties testified that they intended to have a sexual relationship. Goodwin was ultimately convicted of attempting to transport a minor and sentenced to 121 months in prison.

Goodwin first argued on appeal that his conduct didn’t show enough intent to transport J.B., because he gave her money only to pay for a bus ticket. But the Eighth Circuit said caselaw says “transporting” includes causing people to be transported, by financing and making their plans, as well as physically transporting them. Thus, the evidence was sufficient for his conviction. Goodwin next argued that he didn’t transport J.B. with intent to have sex with her, but to remove her from an abusive household. But according to past cases, the court said, sexual activity need not be the dominant purpose of the trip as long as it is one of the purposes and not incidental. Both parties testified that they intended to have a sexual relationship, the court noted, so Goodwin could have committed the crime of sex with a minor, and that was sufficient to uphold the verdict even though the child porn charges the prosecution suggested were not borne out by the evidence. Their sexual relationship would have been legal in Texas, the court noted, but North Dakota law criminalizes out-of-state solicitation of North Dakota minors. Finally, it upheld the jury instructions as not plainly erroneous despite including descriptions of crimes he did not commit.

I am disappointed that the Eighth Circuit didn’t go into more detail about whether Goodwin’s relationship with J.B. was coercive or not. Transporting a minor for sexual activity is illegal because society wants to protect young people from predators. But because J.B. was 17—nearly an adult—it’s possible that she could have had a healthy adult relationship with Goodwin, rather than an exploitive one. The apparent attempt by prosecutors to charge Goodwin with child pornography crimes reinforces the idea that they were reaching for ways to criminalize behavior that might have been lawful if they had just waited a year. In Florida, we have graduated statutory rape laws that stop prosecutions when the sexual activity was between people of roughly similar ages, even when one party was a few years older than the other. In Texas, apparently, the planned sexual relationship would have been legal. It’s worth asking whether Goodwin was sentenced to 10 years in prison solely because North Dakota is more restrictive.

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April 17, 2013

Seventh Circuit Vacates CP Sentence Based on Enhancement for Distribution – United States v. Robinson

Last week, I wrote here about a child pornography distribution defendant who unsuccessfully argued that keeping the pornography in the “shared” folder of his peer-to-peer file-sharing program couldn’t support a charge of distribution. So I was interested to see a newer case in which the Seventh U.S. Circuit Court of Appeals did accept an argument that sharing material through file-sharing software’s default behavior did not support distribution. In United States v. Robinson, Larry Robinson of southern Illinois was convicted of possession, but had his Sentencing Guidelines level enhanced for distribution, which he contested. The district court sentenced him to a within-guidelines sentence for distribution, but the Seventh Circuit, in an opinion that includes several screenshots, vacated the sentence and sent it back for resentencing according to what Robinson knew or probably knew about distribution.

As with many Seventh Circuit opinions, this one is short on factual history. Robinson was convicted, after a jury trial, of possessing child pornography. His Guidelines sentence was raised 15 levels from the base offense level, and two of those levels were for an enhancement for distributing the pornography. (He had not been charged with the separate offense of distributing child pornography.) This would have resulted in a sentence of 135 to 168 months, but that placed Robinson’s sentence above the statutory maximum of 120 months; the judge ultimately sentenced him to the lowest Guidelines sentence without the two-level enhancement, which was 108 months, followed by 10 years of supervised release. Robinson argued at trial and on appeal that the two-level increase should not apply to his actions, saying he didn’t know other people could view the materials he downloaded.

The Seventh Circuit found that this argument deserved further investigation. The guidelines say “distribution” can include “posting material… on a website for public viewing.” In this case, Robinson downloaded the material through the file-sharing programs FrostWire and LimeWire, which by default put downloaded material in a “shared” folder that other users can access. Prosecutors argued that the guideline doesn’t require Robinson to know that the material can be accessed by others, but the Seventh Circuit disagreed. In so doing, it agreed with a 2010 Eighth Circuit decision, United States v. Durham, which found that the defendant must be found to have known or recklessly failed to discover that the material could be seen by others. This also expressly disagreed with the Tenth Circuit’s decision in United States v. Ray. The Seventh further noted that trial evidence suggested Robinson, 61, is “barely computer literate,” and that the software doesn’t make it explicit what is shared. Because the sentencing range could have influenced the judge’s sentencing decision, the court said, Robinson is entitled to a new sentencing hearing, taking into account evidence about what he knew about sharing.

Judging by this opinion, the issue of distribution via file-sharing is the subject of a small split between the circuits. I believe the Seventh’s standard is the right one: the defendant must know or probably know that the material is being shared in order to be convicted of distribution or have a sentence enhanced for distribution. Because I frequently defend people accused of serious cyber crimes, I’m eager to see whether it’s resolved by a Supreme Court case or by action from the Sentencing Commission. The Commission has recently been examining issues related to child pornography crimes and urged action by Congress. This could create a quicker resolution to the issue—if Congress acts. Unfortunately, the fear of political consequences for being seen as “soft” on child pornography has kept Congress from enacting other common-sense reforms, and this could go the same way.

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April 8, 2013

Appeals Court Upholds Distribution of Child Porn Conviction for Sharing on LimeWire – U.S. v. Richardson

Defendants accused of distributing child pornography face more serious charges than those accused of possession alone. That’s why many defendants are disappointed to discover that appeals courts routinely uphold distribution charges against people who shared child pornography via a file-sharing program, even when they didn’t actively distribute it or even know that the file-sharing was on. That was the case in United States v. Richardson, in which the Fifth U.S. Circuit Court of Appeals upheld a distribution conviction against Bennie Richardson IV of Texas. Richardson argued unsuccessfully that he didn’t distribute child pornography by keeping it in the “shared” folder attached to the peer-to-peer file-sharing software LimeWire. He also unsuccessfully challenged a sentence enhancement for using a computer in committing this crime.

Richardson was caught sharing child pornography by a Houston-area police officer looking for illegal materials on LimeWire. The police followed up with a search warrant for Richardson’s home, where they found him actively downloading adult pornography via LimeWire. LimeWire downloads files by default into a “shared” folder, though users can download files elsewhere; anything in the shared folder can be downloaded by others. Richardson told police he knew he was sharing the materials in the shared folder, that he knew common child porn search terms and that the computer was only used by him. He and prosecutors ultimately agreed to stipulate certain facts and hold a bench trial solely on the issue of whether Richardson’s behavior constituted distribution. He was ultimately convicted of both possession and distribution and sentenced to a total of 151 months in prison.

On appeal, Richardson argued that his conduct did not amount to distribution, because the plain meaning of distribution is delivery. He did not take active steps to transfer possession of the child pornography, he argued; rather, he downloaded the materials and permitted them to stay in the shared folder. This, he argued, is more like leaving magazines around than delivering magazines to a specific address. The Fifth disagreed. It has already ruled several times that peer-to-peer file sharing can constitute distribution for Sentencing Guidelines purposes, it said. Furthermore, it was persuaded by its sister circuits’ rulings on the issue, citing with approval a Tenth Circuit case with a similar fact pattern and argument on appeal. That opinion concluded that making the material available is adequate evidence of distribution, and the Fifth Circuit agreed. It went on to reject Richardson’s argument that a sentence enhancement for use of a computer was double-counting because the underlying crime also involved a computer, saying there’s nothing in the statute that prevents double-counting.

The “use of a computer” enhancement may soon be abandoned, regardless of whether it is correctly applied in this situation. As defendants, judges, prosecutors and cyber crime attorneys like me know very well, almost all child pornography crimes nowadays are committed via computer. This sentence enhancement may have made sense when it was written, but it is now so redundant that the U.S. Sentencing Commission’s recent report on reforming child porn sentencing has called for its elimination, saying it inflates sentences unnecessarily. While file-sharing software wasn’t addressed in the Commission’s report, I believe that issue could benefit from some updating or clarification as well. Most courts have ruled that experienced, knowledgeable users are distributing if they use the shared folder, but the rules should make it clear that people should not be prosecuted if they don’t understand how file-sharing works.

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April 3, 2013

Eighth Circuit Upholds Order Separating Child Porn Offender From His Kids – U.S. v. Hobbs

I was saddened to read a case recently in which a court was permitted to order a child pornography possession defendant separated from his children. In United States v. Hobbs, Todd Hobbs of Nebraska pleaded guilty to possession of child pornography. He was sentenced to five years in prison—a relatively light sentence for this crime—but also five years of supervised release. Among the conditions of that release: Hobbs will not be permitted to live with or contact any children under the age of 18, and he may not possess any “material that is sexually stimulating or sexually oriented.” The Eighth U.S. Circuit Court of Appeals ruled that the trial court did not abuse its discretion with the order, because the restrictions at issue affected constitutional rights but are not sweeping.

Police officers in Lincoln, Nebraska found Hobbs sharing child pornography online. They obtained a search warrant and ultimately found more than 20,000 images, including videos, in Hobbs’s collection. Hobbs admitted to collecting it for more than seven years. After an arraignment, Hobbs was granted pretrial release, but on the condition that he not drink alcohol, as well as attending counseling for a pornography addiction. He was caught drinking by a probation officer on Valentine’s Day, which led to the revocation of the supervised release. In the interim, he took a plea deal involving a guilty plea to one count of child pornography possession. The district court granted a downward variance on prison time, in part because of Hobbs’s alcoholism, but imposed five years of supervised release with the disputed conditions. Hobbs’s counsel objected, saying he should be able to live with his own children—two of whom will still be minors after his release—but the judge disagreed, in part because of the alcoholism.

The Eighth Circuit noted that Hobbs has a good relationship with both boys, that his psychological evaluation put him at low risk of molesting a child, and that the Due Process clause protects the parent-child relationship. Nonetheless, the Eighth Circuit said it has upheld this type of restriction repeatedly. The court agreed that if the sole focus of its analysis were on the risk of future sex offense, it would see no need to restrict Hobbs from living with his children without a probation officer’s okay. But because Hobbs’s probation officer found he was dangerous when drinking, and because Hobbs didn’t stop drinking despite the pretrial release restriction, the court found that the special condition was not an abuse of discretion. If Hobbs is able to stop drinking and kick his pornography addiction, the court said, his probation officer “will doubtless approve his living with his family.” It noted that the probation officer should decide quickly whether Hobbs can live with his family directly after release from prison, and advocated for him to do so.

As a cyber crime defense attorney, I’m used to stringent conditions of supervised release for child pornography offenders. The Eighth upheld the constitutionality of the condition preventing Hobbs from having pornography, and I’ve seen similar conditions upheld. But it’s very sad that the court agreed to separate Hobbs from his children. The court made it clear that its only concern is the defendant’s alcoholism and the bad behavior it apparently leads to; there was no concern that Hobbs might molest his kids. Furthermore, ex-child porn offenders have a very, very difficult time finding housing even when they are allowed to live with relatives. For that reason, I think a better result would have given Hobbs a chance to be released straight to his family’s home, rather than creating a situation where he would have to jump through bureaucratic hoops first.

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March 26, 2013

Eighth Circuit Dismisses Appeal by Non-Party Child Pornography Victim - In re Vicky

Because I keep a close watch on child pornography possession cases, I've written here many times before about court-ordered financial restitution for child pornography victims. This is not unlike court orders for theft defendants to pay back what they stole, except that in the case of child pornography, the victim is asking for restitution from people caught in possession of the porn--not the person responsible for making the porn. This has created a very mixed bag of decisions from the appeals courts, which disagree about whether the law permits the victims to request restitution. The split was furthered in In re Vicky, a decision by the Eighth U.S. Circuit Court of Appeals that dismissed the victim's appeal for lack of standing and also required a showing of proximate cause before making a financial reward. A dissent disagreed about the proximate cause requirement.

The underlying case is United States v. Robert Fast, in which Fast pleaded guilty to receiving and distributing child pornography. Fast's prior appeal was rejected in May of 2012. Before his sentencing, the child pornography victim who goes by "Vicky"--who routinely requests restitution in cases where the defendant was caught with "her" images--sought $952,759.81 in restitution. This is the total amount of damages she claims, minus restitution already paid. The district court agreed with Vicky that she does not need to show that Fast proximately caused her losses, and awarded $19,863.84 in restitution. On appeal, however, prosecutors agreed with Fast that proximate cause is required, and the district court awarded $3,333 on remand, calculating damages from the time Fast started possessing the pornography. Vicky filed a direct appeal of the remand award.

Fast and the prosecutors both moved to dismiss Vicky's appeal for lack of standing, and the Eighth Circuit majority agreed. The Crime Victims Rights Act, on which the restitution award is based, does not grant party status to victims, the court noted, even though Vicky correctly argued that it granted her rights. Nor was Vicky successful in her motion to intervene. And none of the cases she cites in which a nonparty was granted permission to intervene involve a request to alter the defendant's sentence. Vicky may still proceed by mandamus, the Eighth said. Indeed, the CVRA requires this, and the Eighth found sister circuits that have decided otherwise unpersuasive. Applying traditional mandamus standards, then, the Eighth found that the CVRA language at issue in the case imposed a proximate cause requirement on all of the categories of loss that Vicky was claiming--not just the final "catchall" provision. (This creates a split with several sister circuits.) In addition, the court found that the CVRA does not require an award of the full amount Vicky was seeking; Fast did not clearly cause all of Vicky's losses, and a joint and several liability ruling is not contemplated by the statute. Thus, it upheld the $3,333 award.

Though the Eighth upheld the award, this ruling is still a partial victory for Fast and any other defendant accused of contributing to a child pornography victim's losses. Though it's clear that people like Vicky have been victimized and probably suffer very serious problems, it's less clear that people like Fast are responsible for that. This decision turned on a question of the law, but many people (including judges) would agree that the underlying question of the possessor's responsibility needs an answer. Unfortunately, both the ethical questions and the legal questions require Congressional intervention, and the emotional nature of child pornography crimes makes the issue politically risky. As a cyber crime defense attorney, I hope the issue can be resolved fairly before these splits grow too much.

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March 18, 2013

Blogger Argues That Sentencing for Child Porn Crimes Should Be Presumed Unreasonable

I’ve been writing here for the past few weeks about the new U.S. Sentencing Commission report suggesting substantial modifications to the way child pornography crimes are sentenced in the United States. The report calls for sweeping changes because, it says, the way the crimes are currently sentenced results in unreasonably high sentences for some offenders and unreasonably low sentences for others. The report details all the reasons for this in a total of 468 pages, and notes that because of the uneven sentencing scheme, judges and sometimes even prosecutors manipulate the outcomes in individual cases to reduce sentences—resulting in disparate sentences for similar crimes. So I was interested to see that a well-known legal blog suggested that the report should create a presumption of unreasonableness when child porn cases go to appeals courts.

The Sentencing Law and Policy Blog is authored by Professor Douglas Berman of Ohio State’s law school. Berman, who focuses his studies on sentencing, is referring to a rule that many federal appeals courts have adopted when reviewing appeals of sentencing decisions. The “presumption of reasonableness” rule says that appeals courts may presume any sentence that is within the U.S. Sentencing Guidelines is reasonable, although the defendant challenging the sentence may rebut that presumption. Not every appeals court has this rule. Berman is critical of the rule, which he says makes sentences “functionally immune” from review in the circuits that have adopted it. He notes that in the eight years since this rule was adopted, no circuit that has adopted it has found a sentence substantively unreasonable.

Berman believes the report on child pornography sentencing shows that Guidelines sentences in this area of the law are actually unreasonable. He points to passages from the report saying that the current Guidelines result in sentences that are too long for some offenders and not long enough for others. From my previous reading of the report—and my professional experience defending cyber crimes—I know a lot of sentence enhancements come under fire for inflating sentences unnecessarily. Possibly as a result, different judges give widely varying sentences for the same crimes, and prosecutors may even change their charging behavior. Berman argues that this shows the guidelines are “broken”—they don’t ensure “just, effective and proportionate punishment.” Because of that, he would like circuits with the presumption of reasonableness rule to drop it with child porn sentencing appeals.

As a criminal defense attorney who works with many child pornography possession defendants, I would also like some judicial recognition that the Guidelines are broken. In fact, if the Sentencing Commission’s report is to be believed, a lot of federal district courts do already recognize this. But it’s the appeals courts Berman is addressing, and they may not see the problems with the Guidelines because they are somewhat divorced from the facts of criminal cases; appeals courts are concerned with applying the law. That’s their job, but it means they may not see the problem with simply declaring a sentence substantively reasonable if it stays within the Guidelines. As Berman argued, when the evidence is clear that the Guidelines don’t work well, it may be time to reconsider.

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March 12, 2013

Department of Justice Endorses Recommendations for Changing Child Porn Sentencing

I wrote here last week about the exciting new report by the United States Sentencing Commission, calling for substantial changes to the way child pornography crimes are sentenced in this country. The report essentially says that child pornography sentencing doesn’t work well in this country, because the law is written in a way that gives too much weight to some factors and not enough weight to others, resulting in overly harsh sentences for some and too much lenience for others. I strongly agree; in my role as a cyber crime defense lawyer, I’ve seen plenty of sentences that were faithful to the Sentencing Guidelines but nonetheless wrong for the crime and the circumstances. But I was extremely interested to see that the Justice Department—the department for federal prosecutors—agrees to some extent with the recommendations.

The Justice Department sent a letter March 5 to the Sentencing Commission, thanking it for the opportunity to comment and agreeing with several of its recommendations. In particular, it agreed with the Commission’s recommendation that the current Specific Office Characteristics for section 2G2.2 of the Guidelines be changed. Section 2G2.2 describes sentencing recommendations for child pornography offenses other than production—possession, receipt, transmission and distribution. The Guideline divides offenders into possession only; receipt with no intent to distribute; and receipt with intent, or transmission or distribution. It also has six sentence enhancements for things like the ages of the children, the violence in the images, the number of images, whether there was distribution, whether there was a “pattern of activity” involving sexual abuse of minors and whether a computer was used.

The Commission’s report found that four of those six sentence enhancements now apply to a typical non-production child porn offender. That is, courts are routinely adding the sentence enhancements to the crime because they are very common characteristics of the crime. This has helped contribute to much higher sentences for non-production offenders: the average was 50 months in 2004 and 95 months in 2010. It has also contributed to judges’ habit of departing downward from the Guidelines. The Justice Department recommended that new sentence enhancements take into account how the pornography was acquired; how long the offender has been collecting and the care that went into the collection; how the offender escapes detection; and whether the offender participates in an online community. It recommended that the “use of a computer” enhancement be abandoned and that the number of images that qualify for an enhancement be increased to reflect the ease of collecting images online.

I cannot agree strongly enough with those last two recommendations. As I noted last week, the current Guidelines were written before the Internet was in nearly every American home. As a result, people are being sent to prison for longer than their conduct warrants because of the sentence enhancements written for a pre-Internet era, when collecting required much more dedication and risk. I am also cautiously optimistic about the Department’s proposed new sentence enhancements, as long as they are implemented in a way that distinguishes between casual and hard-core child porn users. And an enhancement for previous contact sex offenses might improve matters if it helps clarify what conduct should qualify. I look forward to hearing more in the coming months about whether Congress takes these recommendations to heart.

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March 5, 2013

U.S. Sentencing Commission Recommends Major Changes to Penalties for Child Pornography

Because I regularly defend clients accused of serious child pornography crimes, I was excited to see that the U.S. Sentencing Commission has come out with an important new recommendation for how these crimes should be sentenced. Its 468-page report has a host of recommendations to Congress for how child pornography sentencing could be changed to make sentences more consistent, distinguish between dangerous and non-dangerous offenders, and reduce unnecessarily severe sentences. Perhaps most interestingly for criminal defense attorneys like me, the commission recommended reducing the statutory mandatory minimum for receipt and possession of child pornography.

The Sentencing Commission’s study grew out of an increasing judicial recognition that the law doesn’t adequately address how child pornography crimes are carried out. As the Associated Press reported Feb. 27, 84 percent of sentences for producers of child pornography were within guidelines range in 2004, the year before the U.S. Supreme Court ruled that the Sentencing Guidelines are only advisory. In 2011, only half the sentences for the same crime were within the Guidelines range. This suggests that some federal judges are uncomfortable with the Guidelines range, and indeed, some have directly said they are too harsh. The Sentencing Commission suggested that Congress address this by aligning sentences for the crimes of receipt and possession, consider lifting the mandatory minimum for receipt, and revise the Guidelines as they relate to collection of child pornography.

Another major point made in the Commission’s report is that the Guidelines should better distinguish between offenders with different levels of dangerousness to society. In offenses that are not production of child pornography, the report says, the Guidelines should be revised to account for whether the offender has ever directly harmed a child, because current enhancements don’t always take into account known past sex offenses. It also says the current Guideline calling for a sentence enhancement for 10 or more images (a graduated table whose highest enhancement is for more than 600 images) results in overly severe sentences sometimes, and calls for number-of-images enhancements that reflect how offenders actually operate. Similarly, it calls for discarding the enhancement for using a computer, and replacing it with enhancements for involvement in an online child pornography community.

There’s much more to this exciting new report, and as a cyber crime defense lawyer, I’m looking forward to delving into it in the coming weeks. For people who may be facing these charges, and their loved ones, it’s important to realize that the Sentencing Commission has only limited power to implement the changes it calls for. While the Commission is free to change guidelines it made, only Congress can change laws created by Congress. As a result, the new recommendations won’t be made a reality unless Congress agrees to them. And unfortunately, Congress has a history of wanting to look tough on child pornography offenders—indeed, that’s what created the sentencing problems the Commission is trying to address. I hope the current Congress takes the Commission’s recommendations to heart.

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February 25, 2013

Kansas Court Sends Back Child Pornography Case Based on Violation of Plea Deal – State v. Peterson

Because I defend serious cyber crimes charges across the United States, I was interested to see a recent decision sending a Kansas child pornography case back to trial court because of a prosecutor’s mistake. In State v. Peterson, Robert Peterson of Kansas was charged with attempted sexual exploitation of a child in connection with child pornography found on his computer. He was sentenced to about four and a half years in prison, with lifetime supervision after his release. His appeal contested the lifetime supervision and the proof of aggravating factors, as well as comments by the prosecutor that he claimed violated his plea agreement. The Kansas Supreme Court agreed on this last count and sent the case back without considering the other two arguments.

In return for a no-contest plea, the prosecutors in Peterson’s case agreed to bring his two counts of sexual exploitation of a child down to one count of attempted sexual exploitation. The agreement required the state to not object to Peterson’s request for a dispositional departure to probation only, and to stay silent at sentencing unless there were misstatements of fact. At his second sentencing hearing, he brought in a psychologist, Robert Barnett, to testify that Peterson was a good candidate for probation. Barnett was cross-examined by a prosecutor who had not handled Peterson’s plea agreement; the questions revealed that Peterson had lied about how he found the child pornography. Further questioning revealed that Peterson had not told Barnett about three of the five molestation accusations made against Peterson in the 1990s, the ages of the accusers, or that 617 pictures of child pornography were on the computer.

Peterson’s attorney objected to no avail, and made comments after the cross-examination that amounted to an accusation of violating the plea deal. The prosecutor’s statement in response said, in relevant part, that Peterson “wasn’t being honest” and “cannot or will not address his looking at child pornography.” Without focusing explicitly on that statement, the Kansas Court of Appeals ruled that the statements were legal because they corrected misstatements.

The Kansas Supreme Court disagreed. Unlike in the case the appeals court focused on, Peterson’s plea bargain expressly required silence at sentencing, and there was no agreed-upon sentence. No previous Kansas case addressed a plea agreement to stay silent, but various other states’ cases have held that breaking a silence agreement is a material breach, except when necessary to ensure the court has all relevant information at sentencing. In this case, the court found that the questions were appropriate, since Barnett’s incomplete and inaccurate information could have given the court the wrong impressions of the facts. However, it found the prosecutor “went too far” with her statement that Peterson couldn’t or wouldn’t address his child porn problem. Thus, it remanded the case for re-sentencing in front of a different judge, according to the terms of the agreement.

As a criminal defense attorney, I strongly agree that prosecutors should hold to their plea agreements. The high court noted that plea agreements are treated as contracts, and courts are not inclined to break contracts without a good reason why. In this case, the prosecutor could have gotten away with pushing the limits if she had confined her remarks to correcting the apparent untruths Peterson had told the psychologist—but the conclusions she suggested were not mere corrections of untruths. Defendants make plea agreements in part to avoid trials and features of trials such as cross-examination and closing arguments. If the prosecution is permitted to prosecute, the defense should be able to defend—which is not permitted after a plea agreement. In child pornography cases, where the defendant is accused of a crime that most juries won’t find sympathetic, this can be very important.

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February 20, 2013

Momentum Grows for U.S. Sentencing Commission to Revise Child Porn Guidelines

Because I routinely defend serious sex crimes, I’ve kept a close eye on the legal profession’s internal debate about sentencing for child pornography crimes. Child pornography crimes—possession, receipt, distribution and production—are some of the crimes that most commonly end up in the appeals courts, and that’s partly because of the very long sentences they carry. Child pornography possession in particular has come under fire as over-penalized, relative to the harm to society and chance of re-offending. A study by the United States Sentencing Commission found that of all crimes, judges are most likely to depart downward from the sentencing guidelines for child pornography. Partly as a result, the Sentencing Commission held a hearing last year to take public input on the possible changes.

When handing down harsh sentences for child pornography possessors, some courts have have reasoned that child pornography possession makes a person more likely to rape a flesh-and-blood child, making it wise to take that person out of society. But critics of the current sentencing regime argue that studies don’t show that child pornography possession correlates with contact crimes against children. Indeed, many federal judges now agree; 71 percent told the Sentencing Commission that the mandatory minimum sentence for receipt of child pornography is too high. The Commission has also found that even though the Guidelines sentences for child porn offenses have risen, the sentences themselves that remained flat. That is, judges in the post-U.S. v. Booker era have increasingly refused to apply the Guidelines. When they do, however, child pornography offenders can receive more time in prison than someone who committed a crime of violence.

A large part of the problem is that even a downward departure may not fit the crime, depending on the circumstances. The Guidelines sentence for first-offense, no-contact child pornography possession is a minimum of 10 years in prison, largely thanks to the input of Congress. According to the Boston Bar Journal, Congress has repeatedly raised the base offense level and mandatory minimum for child porn offenses, often despite Sentencing Commission recommendations to lower them. Congress also is responsible for a sentence enhancement for use of the Internet, which was in 1995; computers are now involved in virtually all such crimes, making the enhancement meaningless yet highly punitive. Another now-meaningless enhancement is for having 10 or more images; the Internet permits offenders to collect that many with no trouble.

The Commission is taking public comments on the Guidelines for child porn offenses; it hasn’t set a date for the resulting recommendations to Congress. Unfortunately, it’s not clear that Congress will receive these recommendations any more enthusiastically than they did in previous years. The same political problem remains: no politician wants to be viewed as “soft” on child molesters. Proportional sentences are not “soft” and child pornography possessors are not necessarily molesters, but these distinctions may not matter to politicians if they believe they won’t matter to voters. Congress had the political courage to change crack cocaine sentencing; perhaps now is the time it will do the same with child pornography.

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February 19, 2013

U.S. Sentencing Commission to Decide on Modifications to Child Pornography Sentencing

Because I frequently represent clients charged with child pornography offenses, I was extremely interested to see that the U.S. Sentencing Commission is taking public comments on possible revisions to sentencing for child pornography crimes. The Sentencing Commission is the body that makes recommendations on sentencing and guides federal courts in interpreting sentencing guidelines. Last February, the commission held a public hearing on updating the guidelines for child pornography crimes. Importantly, one of the reasons it did so was because of its own findings that federal judges depart downward from the guidelines 43 percent of the time—as opposed to 18 percent of the time in all criminal cases. The Commission has not set a date for making recommendations, but it’s taking public comments right now.

One such draft comment argues that the guidelines currently call for draconian sentences for first-time offenders who had no in-person sexual contact with minors. Because the sentences are disproportionate to the crime and don’t protect children, the comment says, they violate the Eighth Amendment prohibition on cruel and unusual punishment. It pointed to studies suggesting that consuming child pornography, by itself, is not a risk factor for hands-on sex offenses. Another study compared child pornography offenders to offenders who were in trouble for having sexual contact with minors, and found no contact sex crimes and much lower rates of supervised release violations. As a result, it argued, “sentences are based on moral outrage and unsubstantiated fears regarding recidivism.” It called for much lower sentences for non-contact offenders and a clearer distinction between those offenders and those who create child porn.

In making its argument, the draft cites widespread judicial opposition to the child pornography guidelines. The Sentencing Commission’s own study found that 71 percent of federal judges believe mandatory minimums for child pornography possession are too high. In a recent report on sentencing after U.S. v. Booker, the Commission noted that even though the guidelines for non-contact child porn offenses (including receipt and transmission as well as possession) have increased, actual sentencing has stayed flat—suggesting that judges frequently depart downward from the guidelines. That’s confirmed by the Commission’s finding that judges depart downward in child pornography cases 43 percent of the time. Even prosecutors see problems with the guidelines; the Department of Justice testified to the Commission last year that some current aggravating conduct is too common to be considered an aggravator, while other aggravating conduct is ignored.

I strongly agree. Observers of child pornography sentencing have realized for years that the current guidelines haven’t kept up with technology. For example, using a computer is an aggravating factor—but almost all child pornography offenses now involve a computer. This results in inflated sentences. Another problem is that child pornography offenders are a convenient political whipping boy, which is part of the reason why the Sentencing Commission notes that the guidelines sentences tripled over about 15 years. The Commission’s job is to make recommendations to Congress about sentencing for criminal offenses—and if its recommendations are in line with this draft comment, I hope Congress listens.

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February 12, 2013

Eleventh Circuit Rejects Enticement Appeal Arguing No Minor Was Actually Involved – U.S. v. Slaughter

As unfair as it may sound, it’s well established by now that convictions for attempted enticement of a minor are sound even when the “minor” was made up by a police officer. That’s true in Florida courts as well as federal courts, both of which have rejected arguments that a police action creating a fictional minor is a form of entrapment. So I was disappointed but not surprised to see a decision from the Eleventh U.S. Circuit Court of Appeals, rejecting an argument that conduct involving an actual minor is required for a conviction for the related crime of commission of a felony involving a minor while required to register as a sex offender. Chester Ray Slaughter of Georgia was charged with that crime as well as attempted enticement of a minor, in U.S. v. Slaughter. The Eleventh Circuit also rejected his attempt to suppress statements made to police.

Slaughter found a purported 14-year-old named Hanna on the Casual Encounters section of Craigslist. “Hanna,” who was really an FBI officer, said she would trade “fun” to an adult who would buy beer for her and a friend. Slaughter and the agent exchanged emails over nine days, in which Slaughter acknowledged that sexual contact would be illegal but planned it anyway. On the day of the meeting, officers tackled Slaughter as soon as he answered his motel room door, then handcuffed him and searched it. At the police station, Slaughter signed a Miranda waiver and agreed to a video interrogation, in which he admitted to the crime and provided passwords to both email accounts he had used. Before trial, the court threw out the motel room search but denied a motion to suppress Slaughter’s statements. After conviction, Slaughter appealed the denial of his motion to suppress; the denial of a request to split the two counts into separate trials; and argued that the sex offender registration crime required the involvement of an actual minor.

On the suppression motion, the Eleventh Circuit concluded that the statement was not tainted by the illegal motel room search, noting that the Supreme Court has upheld the use of statements made outside the scene of the illegal search. On the severance of the charges, Slaughter argued that his requirement to register as a sex offender, an element of count two, was prejudicial to presumption of innocence in count one. The Eleventh conceded that this was prejudicial, but since the court had also heard substantial evidence of his intention to have sex with the “girls,” it concluded that there was no abuse of discretion. Finally, the Eleventh rejected the “actual minor” argument, but declined to reach the issue of whether a minor truly is required. Because the underlying attempted enticement statute is an attempt crime, the court said, it was sufficient to support the conviction.

In criminal law, it is accepted that “attempt” crimes are generally penalized as if the defendant had succeeded at the crime. After all, the reasoning goes, it’s usually not the defendant’s fault that he or she didn’t succeed at completing the crime. That logic underlies the reason why attempting to entice a minor online can be applied even when the minor was a full-grown police officer. In my experience, arguments that a minor was required usually fail, in part because of this and in part because defendants accused of attempting to seduce an underage teen or child are just not very popular. Nonetheless, every defendant has the right to a strong defense—and when they’re accused of this kind of crime, defendants are well advised to get one from an experienced attorney.

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February 5, 2013

Conviction Upheld For Defendant Who Didn’t Realize Transporting Child Porn Is Illegal – U.S. v. Dean

In my work as a cyber crime defense lawyer, I occasionally represent defendants who were unpleasantly surprised by criminal charges for an act they thought was perfectly legal. Such defendants are often disappointed to learn that ignorance of the law is not a defense. That was the message of the Seventh U.S. Circuit Court of Appeals decision in U.S. v. Dean. John Karl Dean flew from Chicago to Ottawa with a laptop he knew contained hundreds of files containing child pornography. Dean served 21 months in a Canadian prison for the offense and then was prosecuted again in the United States, receiving 87 months in prison. Dean’s appeal argued that he didn’t knowingly break the law because he didn’t realize it existed, but the Seventh Circuit found that this was not a defense.

Dean’s laptop had more than 14,000 still images and 700 videos of child pornography when he got on an airplane on August 20, 2009. It’s unclear whether Canadian police found the pornography in Customs or after he left the airport, but in any case, he was convicted in Canada of possession of child pornography. After he completed his Canadian sentence, U.S. law enforcement took custody of Dean and charged him with transportation of child pornography. He pleaded guilty, and at the plea hearing, acknowledged that he knew the material was on the computer and knew it was pornography when he took the computer on his flight. However, he maintained that he didn’t knowingly break the law. The district court, saying Guidelines sentences are too severe, started with a below-guidelines sentence of 108 months and subtracted his Canadian prison time, ultimately sentencing Dean to 87 months plus lifetime supervised release.

The Seventh Circuit first dispensed with Dean’s argument that he never admitted to knowing that transporting child pornography was against the law. This argument was foreclosed by his guilty plea, the court said, and he didn’t challenge the voluntariness of the plea in his brief, waiving the argument. Furthermore, the court said, Dean’s arguments must fail on the merits because he admitted in court to knowingly transporting child pornography. Ignorance of the law is not a defense; the “knowingly” in the statute refers to knowing transportation, not knowing the transportation is illegal. The court also rejected Dean’s argument against his sentence, which was that the base offense level for his sentence is higher than the base offense level for more serious crimes. This is both irrelevant and in some cases untrue, the court said. And while the district judge feels the base offense level is too high, the court said, longer sentences have been found reasonable.

While the Seventh Circuit rejected the sentence reasonableness argument Dean made, it did note in a footnote that the Guidelines substantially increase child pornography sentences by requiring enhancements for several circumstances that are in virtually all child pornography cases. This includes use of a computer, high number of images and distributing using file-sharing, which is considered a thing of value by most circuits. This is the basis for the feeling by some judges, including the district court in this case, that the Guidelines result in too-high sentences. This case makes the comparison even easier, because Dean served an apparently full child pornography possession sentence in Canada that was only 21 months, for conduct that could easily have gotten him 10 years in prison in the United States. I believe the Guidelines are ripe for an overhaul, and I look forward to a revision by the U.S. Sentencing Commission.

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January 28, 2013

Seventh Circuit Overturns Indiana Law Prohibiting Internet Use by Sex Offenders –Doe v. Marion County Prosecutor

Because I frequently defend cyber crime charges involving sex offender registration, I was interested to see a recent Seventh Circuit opinion declaring an Indiana sex offender restriction unconstitutional. Doe v. Prosecutor, Marion County was a challenge by an anonymous Indiana sex offender to a law forbidding him and others like him from using social networking, chat and instant messaging services that allow use by minors. Doe alleged this was so broad that it violated the First Amendment rights of Indiana sex offenders. The district court dismissed the lawsuit, but the Seventh U.S. Circuit Court of Appeals reversed, finding that the law is content-neutral but too broad, forbidding a lot of speech that has nothing to do with improper contact with minors.

The Indiana law targets sex offenders convicted of certain crimes and not under any form of supervised release. All other offenders are forbidden by the law from knowingly using a social networking website, an instant messaging program or a chat room program that they know permits use by minors. The law doesn’t exclude covered sex offenders based on age of victim, time since the crime or the manner of the crime. It does exempt violators from prosecution if they ceased using the service as soon as they realized minors were permitted. Doe was convicted of two counts of child exploitation in Marion County in 2000 and released in 2003. His federal lawsuit alleged that the Indiana law violates his First Amendment rights. The district court certified a class of sex offenders to whom the law applies. But after a bench trial, it upheld the law, saying the law serves a significant state interest, leaves Doe ample other ways to communicate and is narrowly tailored.

On appeal, the Seventh Circuit found that the law is not narrowly tailored, so it fails an important constitutionality test. The state of Indiana certainly has an interest in protecting children from improper sexual communications, the court said, but the law burdens more speech than necessary to achieve that goal. The Seventh looked to U.S. Supreme Court cases involving complete bans, noting that the court has generally upheld bans on speech when the speech activity itself—such as signs cluttering public spaces—is the problem. By contrast, ordinances prohibiting handing out handbills were found too broad because the underlying problem, littering, could instead be handled by enforcing littering laws. Similarly, Indiana may prevent improper communications with minors by enforcing laws against online solicitation of minors or more narrowly tailoring an online communications law. The Constitution permits some over-inclusiveness if necessary to make the law work, the Seventh said, but this law goes outside those boundaries.

This decision no doubt upset many Indiana prosecutors and legislators, but I believe it’s an important affirmation of First Amendment rights, even for people that prosecutors don’t like. There’s a trend toward harsher and harsher post-prison restrictions on sex offenders. While it’s understandable that the public is concerned about protecting children, many of these laws are very broad. In addition to bans on online communications, like this one, restrictions on where sex offenders may live are increasingly under fire because they make it difficult to find any home. Sex offender registration can also lead to further criminal charges. All of this can ultimately hurt society by making it harder for offenders to establish new, clean lives.

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January 22, 2013

Eighth Circuit Upholds Use of 10-Year-Old Child Assault Conviction in CP Sentencing – U.S. v. Cover

One problem for people accused of very serious child pornography offenses is the many ways their sentences can be enhanced. Federal laws include many conditions that can trigger sentence enhancements and mandatory minimum sentences, which include enhancement for the way the crime was carried out as well as for prior convictions, the age of any child involved and more. In United States v. Cover, Robert Cover pleaded guilty to possession of child pornography, but reserved the right to appeal the use of a 10-year-old prior conviction to require a 10-year mandatory minimum prison sentence. The prior conviction was under a Nebraska statute prohibiting “sexual assault of a child,” and the Eighth U.S. Circuit Court of Appeals upheld its use in sentencing.

Cover was convicted in 1998 for “subject[ing] another person fourteen years of age or younger to sexual contact.” “Sexual contact” includes both clothed and unclothed touching of either party’s private areas. In 2011, law enforcement authorities learned that Cover had been accessing a child pornography website that had recently been shut down by the government. They executed a search warrant and found child pornography on his computer. Cover agreed to plead guilty, but argued that his 1998 conviction should not serve to trigger the mandatory minimum. The mandatory minimum is required under federal law if the defendant has a prior state conviction “relating to aggravated sexual abuse, sexual abuse or abusive sexual conduct involving a minor.” The district court found that the Nebraska crime meets that definition and sentenced Cover to a decade in prison.

Cover’s appeal included challenges to the application of the mandatory minimum, the calculations of his Guidelines range, and the reasonableness of his sentence. The Eighth Circuit rejected all of his arguments, starting with the mandatory minimum argument. Cover argued that the Nebraska statute criminalizes conduct that doesn’t meet the definition of “sexual abuse,” as the mandatory minimum requires, requiring federal courts to look at the facts of the conviction—and that the record doesn’t contain enough facts, in part because his plea was not an admission of guilt. A prior case from this circuit held that conviction for an attempted sexual assault was adequate to trigger the sentence enhancement; the enhancement doesn’t require actual harm or physical touching. Similarly, the Eighth held that any conviction under the same Nebraska statute is sufficient. It then rejected Cover’s remaining arguments, noting that he expressly waived appeal of other matters.

Appeal waivers are a common problem in child sex crime appeals, which is why I strongly recommend that defendants get the advice of an experienced attorney, before they enter a plea they might regret later. The underlying charges are very serious, which is another reason why defendants should protect themselves by hiring an experienced attorney to fight them. The 10-year mandatory minimum was no doubt a useful way for politicians to look “tough on crime,” but as this opinion shows, it doesn’t distinguish well between underlying convictions that are proven in court and convictions in which the defendant didn’t even stipulate to his own guilt. Judges can often exercise their discretion when these kinds of distinctions arise, but because child pornography crimes are so emotional, that discretion can work to the defendant’s disadvantage.

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January 15, 2013

In Undercover Operation, Central Florida Authorities Arrest 50 for Attempted Sex With Minors

Fifty people were arrested in Central Florida over the past weeks for arranging what they thought was sex with a minor.
According to news reports, sixteen law enforcement agencies worked together to target people who might commit child sex crimes in Seminole County. The law enforcement agencies posed online as minors or as parents of minors, ultimately arranging for the targets to meet the “minor” at a house in Seminole County where they expected to have sex. The supposed minors were as young as 11. Instead, of course, the targets were arrested;
Fox News says all will be charged with traveling to meet a minor for sex and soliciting a minor for sex. When and if they are released on bond from Seminole County Jail, all will have orders not to contact minors.

News reports say the suspects were located through online chat and classified Web advertisements. From Jan. 6 onward, law enforcement officers spent hours chatting with the suspects online and on the phone. The undercover officers led the suspects to believe that they were arranging sex with minors, but sent only clothed photos. However, a sheriff's deputy said they frequently received graphic child pornography in return—which may fuel further charges of child pornography possession. The defendants include an English teacher at New Smyrna Beach High School and a science teacher at Ocoee High School in Orange County, as well as a translator with the Orange County schools and a janitor in the Seminole County schools. Law enforcement will investigate whether any of those arrested had inappropriate contact with actual minors.

In my experience, regardless of whether further investigation turns up any crimes, these defendants are all in serious trouble. The news reports say that one of the teachers has already resigned, and the other school employees will have to either resign or be fired, given their no-contact-with-minors requirements. In fact, anyone who has been arrested for a sex crime involving minors can expect to have his or her reputation shattered, regardless of how true the allegations are. Even people who were later acquitted of the crime are often fired from their jobs and shunned by other members of the community. And of course, the charges these defendants face carry long prison sentences and other harsh penalties, like sex offender registration. Because of all of this, it's absolutely vital for these defendants to get experienced legal representation as soon as possible.

At Seltzer Law, P.A., we focus our practice on defending people accused of serious crimes involving computers, technology and the Internet. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor with the Miami-Dade State's Attorney's office. Now, he uses that experience to help defendants get the best deal possible when they're facing serious cyber crime charges. Our attorneys understand how prosecutors build their cases, and that means we know where to look for weaknesses, particularly in a cyber crime context. We look at all of the aspects of the case, including unusual technological aspects, to find possible weaknesses that can help us break down the case and have charges reduced or dismissed. Based in Miami, we represent clients across Florida and the United States. And because we know police agencies don't stop making arrests when business hours end, we answer the phone 24 hours a day and seven days a week.

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January 8, 2013

Fourth Circuit Rules Enticement of Minor Appeal Barred as Well as Meritless - U.S. v. Fugit

Federal law specifies that adults may not use the Internet (or other means) to attempt to persuade a minor to engage in "illegal sexual activity." This most often is used in cases where an adult attempts to have sex with a minor, but in United States v. Fugit, the defendant raised an interesting argument: that asking an underage girl to masturbate is not an illegal sexual activity. That was the basis for an actual innocence claim raised by Timothy Andrew Fugit, who was convicted in Virginia of attempting to entice a minor as well as child pornography distribution. Fugit argued that the district court erred in applying the attempted enticement law to his behavior, but the Fourth U.S. Circuit Court of Appeals disagreed.

Fugit was prosecuted for two incidents in late 2005. In both, he posed online as a young girl named Kimberly and got into sexual conversations with girls of 10 and 11. In both cases, he followed up by calling the girls on the phone and, posing as Kimberly's father, engaged in an "inappropriate sexual conversation." This included sex-related questions and suggestions as well as asking one of the girls to take her clothes off and masturbate. This behavior was construed by prosecutors as violating a Virginia law against taking indecent liberties with children. Fugit pleaded guilty to a count of enticement and a count of CP distribution, yielding a sentence of 310 months in prison. He unsuccessfully appealed his sentence. Later, he filed for post-conviction relief, arguing among other things that his stipulated conduct did not meet the definition of illegal sexual activity.

That issue formed the basis of Fugit's appeal, but to no avail. The Fourth Circuit started by noting that the justice system has an interest in the finality of convictions, and Fugit had a high standard to meet to overturn his conviction. It went on to find that his claim was both procedurally barred and meritless. Because Fugit didn't make his statutory argument in his original case, he must be able to demonstrate either actual innocence or cause for the default and prejudice arising from it. Fugit stipulated that he did break the Virginia law, but argued that his behavior nonetheless did not meet the federal definition of "sexual activity" because it required interpersonal sexual conduct. Using a plain-language definition, the court found that sexual activity need not involve interpersonal physical contact. Furthermore, it said, this interpretation is consistent with Congress's intent to stop "psychological sexualization of children." Thus, the court ruled that he was not actually innocent, meaning his claim was barred and his argument would fail on the merits anyway.

In its opinion, the Fourth Circuit noted that the Seventh Circuit has ruled otherwise. In 2011's U.S. v. Taylor, that court found that "sexual activity" is synonymous with "sexual act," and thus involves not only contact but contact with specific body parts. Because there's a split in the circuits, this issue may well arise again. One way to consider this question is to consider whether behavior like Fugit's is, or should be, penalized as seriously as actual physical sex with a minor. Though Virginia law, at least, makes it clear that neither type of behavior is permitted, Congress's language leaves the door open for a variety of behaviors to be interpreted as the same child sex crime -- attempted enticement of a minor. Given the very high sentences assessed for such a crime, defendants and society both may benefit from distinguishing between types of behavior.

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January 4, 2013

International Investigation Nets 245 Adults Suspected of Child Porn and Sexual Abuse Crimes

CNN reported today that an international team of investigators has arrested a total of 245 people accused of serious online sex crimes involving minors. Led by Immigration and Customs Enforcement, Operation Sunflower also removed 44 children from abusive situations and identified 79 others who were victims of past abuse or not exploited in the home. All but 23 of the suspects were living in the United States, the article reported, and some were already registered sex offenders. The operation was conducted in November and December.

Named for a Kansas road sign that helped identify an abuse victim, Operation Sunflower sought to arrest people for exploiting children and creating, transmitting or possessing child pornography. Of the children identified by the operation, some are now adults, but five others were under age 3 and nine were between 4 and 6. Authorities did not reveal the countries of those perpetrators and victims outside the United States, in order to not disturb ongoing efforts by partners in other countries. In a news conference, ICE director John Morton said the agency would like the public's help with other investigations, including one whose perpetrators' photos are posted on ICE's website. That abuse, involving a girl who was about 13 at the time, took place about 11 years ago in an area believed to be Los Angeles. Within hours, one perpetrator was captured.

Because of the interstate, international nature of Internet crimes, I suspect most of those arrested will face federal criminal charges, rather than state charges. That would also be true if any of the foreign nationals arrested are brought to the U.S. for trial. Federal criminal charges are very serious, in part because child sex crimes are so politicized that Congress frequently raises the penalties despite opposition from
criminal law authorities. For that reason, anyone arrested in this operation, or for similar reasons, should seek out an experienced lawyer right away.

Based in Miami, Seltzer Law, P.A., represents clients across the United States who are accused of serious crimes involving computers and technology. If you're facing charges or believe you will be soon, don't hesitate to call us for a free, confidential consultation. You can send us an email or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).

January 2, 2013

Federal Appeals Court Upholds Use of Chat Room Evidence for Attempting to Entice a Minor - U.S. v. Grauer

Charges for attempting to entice a minor to engage in sexual activity are almost always proven by showing Internet chat, email or phone texting logs between the accused and a real or pretend minor. This evidence has been upheld in the vast majority of challenges, however. In U.S. v. Grauer, defendant Ted Grauer challenged the cross-examination of his expert witness, saying misconduct during that cross-examination deprived him of a fair trial. He also argued that there was insufficient evidence for a related child pornography conviction and a sentencing error. The Eighth U.S. Circuit Court of Appeals upheld all three.

Grauer, of Iowa, started chatting online with a purported 14-year-old girl who was actually a deputy sheriff from the Iowa Crimes Against Children Task Force. The chats quickly became sexual, and Grauer sent "Jenny" several links to pornographic images using young-looking models. They arranged to meet in Jenny's purported hometown in April of 2010. When Grauer arrived at the meeting place, of course, he was arrested. A later search of his home, with a warrant, found a laptop containing images determined to be child pornography. At trial, Grauer called an expert witness who testified that research shows that most sexual Internet chat involving "minors" is actually between two adults. During the cross-examination, the prosecution asked him about four different local cases involving actual minors before sustaining Grauer's objections. Grauer was ultimately convicted of attempted enticement and child pornography possession, and sentenced to a total of 151 months in prison.

On appeal, Grauer first challenged the line of questions in the cross-examination, saying it argued facts not in evidence and tended to inflame the jury. The Eighth Circuit disagreed. The court said the cross-examination was attempting to establish that the expert's experience was limited to cases of "pretend minors" like Grauer's. The expert "embellished his credibility with the remarkable assertion" that cases of actual minors are rare or nonexistent, the Eighth said, so an attempt to impeach him with counterexamples was not improper. Similarly, the court upheld the trial court's decision to let stand a closing argument that brought up other cases. Nor was it impermissibly inflammatory to say the jury was "the conscience of the community" and had "to see terrible things, disgusting things." It further upheld the child porn conviction, saying the government adequately established that he knew the images were on his computer. Finally, the Eighth upheld the use of a sentence enhancement for Grauer's misrepresentation of his age, name, occupation and sex life, saying they were made with intent to entice.

Like many cases involving Internet sex crimes, this case is very fact-intensive. And appeals courts are often reluctant to overrule trial courts on fact-intensive issues, because the trial court is the finder of fact; the appeals court's job is to apply the law correctly. However, I suspect a different court could have found in Grauer's favor on the issue of inflammatory comments and Grauer's misrepresentations. For example, his choice to lie about his name doesn't seem like it would be particularly helpful in enticing a minor, and the difference between aged 49 and 58 likewise seems irrelevant. Even his lies about other girlfriends may not have been helpful at seducing a 14-year-old, who could have been intimidated rather than impressed. From the language in the opinion, I wouldn't be surprised to learn that the Eighth Circuit panel finds child pornography crimes emotionally disturbing. As understandable as that may be, it's not a good basis to make important legal decisions.

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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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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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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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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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November 27, 2012

Seventh Circuit Affirms Denial of Motion of Suppress Evidence in Child Porn Case – U.S. v. Pelletier

Like all criminal defense attorneys, I frequently tell my clients to say as little as possible to the police. Even when you are not guilty and have nothing to hide, talking to the police may not benefit you because the police’s job is to make an arrest; anything you say will likely be evaluated for use as proof that you are guilty. That’s why the smartest thing to do is almost always to politely refuse to talk without your attorney present. A lawyer may still be able to help later in the case, but he or she can’t take back damaging statements made in the beginning—as the defendant found in U.S. v. Pelletier. Dominick Pelletier was at a job interview with the FBI when he admitted to possessing child pornography. His motion to later suppress that evidence failed, the Seventh U.S. Circuit Court of Appeals said, because Pelletier was not under coercion and would have been searched anyway.

At his job interview with the FBI, Pelletier signed a consent form for the polygraph test, explaining that it was voluntary. The room was unlocked and the agent doing the interview was unarmed. Pelletier failed the test. At the post-test interview, Pelletier admitted that he had pictures of naked children on his computer at home, though he said it was for research for a graduate school project; he produced a written statement to this effect. The agent invited another agent from the cyber squad to join them, leading Pelletier to believe that this was part of the job interview. In the ensuing discussion, Pelletier admitted to having child porn on his computer but refused twice to consent to a search, though he consented after learning there would soon be a search warrant. The search turned up more than 600 illegal images and he was eventually charged with possession of child pornography. At trial, he unsuccessfully moved to suppress his statements and the search, arguing that he was not Mirandized and consent was involuntary.

After a conditional guilty plea and sentencing, Pelletier repeated his arguments on appeal. The Seventh Circuit disagreed. Miranda warnings are not required when the defendant is not “in custody.” In this case, the appeals court said, the situation did not meet the high standard required to show custody because Pelletier was not held against his will. Though he may have felt it unwise to leave while being “interviewed for a job,” the court said, that’s not enough to make the situation “inherently coercive.” Furthermore, because Pelletier came to the building for a job interview, it would not be reasonable for him to feel coerced by meeting an armed agent or needing an escort to find his way out. The Seventh also dismissed Pelletier’s argument that consent to search his computer was coerced. Even assuming the consent was involuntary, the court said, the computer would have been searched anyway because the agents would have obtained a search warrant based on his statements. Thus, the court affirmed his conviction.

As I wrote above, it’s not a good idea to speak to the police, especially if you are disclosing information that may incriminate you. Though it may seem smart to explain why the information is not actually incriminating, as this case shows, it usually just gives them a reason to suspect you and search you. This is especially true in cases like child pornography crimes, because these crimes are so emotional and so harshly punished. And because they are cyber crimes, it’s vital to have an advocate who understands how the law treats technology and technological crimes.

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November 20, 2012

Sixth Circuit Upholds Jury Award Against Expert Who Created False Child Pornography – Doe v. Boland

I was very interested to see a case involving “virtual child pornography” surface in the courts recently. The issue interests me because the Supreme Court has ruled that such pornography—created without harming a child—is legally protected free speech, but Congress later passed a law making it illegal, and the court has upheld that law. In recent years, courts in different jurisdictions have come to different conclusions on whether it’s a crime to create images by superimposing children’s heads onto the bodies in adult pornography. A Florida school principal was convicted of child pornography possession for doing this with the images of kids at his school, but ultimately released on appeal. A California appeals court agreed, but the Second U.S. Circuit Court of Appeals upheld a conviction in yet another case. In Doe v. Boland, the Sixth Circuit ruled that the maker of such images can be penalized in a civil lawsuit.

Dean Boland is an attorney in Ohio who was hired as an expert to testify in a child pornography case. In attempting to show the jury that it’s possible to view child pornography without realizing it’s child pornography, he downloaded stock photos of two girls and “photoshopped” them to become pornographic. Unfortunately for Boland, his testimony came to the attention of the FBI, which searched his home and office for more pornography. Boland ultimately admitted to having violated federal law in a pre-trial diversion agreement, and published an apology in the Cleveland Bar Journal.

However, the parents of the two girls in the stock photos got wind of the situation and sued Boland under a federal law providing at least $150,000 in damages to children who suffered personal injuries from sex crimes. The district court granted summary judgment to Boland because the statutes exempt expert witnesses, but the Sixth Circuit reversed, finding no such exemption. On remand, the district court granted summary judgment to the families and awarded $300,000. Boland appealed, arguing that the girls’ situation was not addressed by the law they used; that the law criminalizing “virtual child pornography” violated the First Amendment; and that the law violates his Sixth Amendment right to counsel.

On the first issue, Boland admitted to creating the virtual pornography in violation of federal law, which uncontroversially made the girls victims. The Sixth Circuit ruled that they did indeed suffer a personal injury as a result. It found that morphed images like his are less harmful than, but do cause the same kind of harm as, conventional pornography. Indeed, the court said, Boland’s original goal was to show that real and morphed pornography are hard to distinguish, which argues that they are similarly harmful. Furthermore, the court argued, being a “victim” is indistinguishable from having suffered a “personal injury.” Nor were the girls required to show “actual damages,” the court said, because 2255 says any victim “shall be deemed to have sustained damages” of at least $150,000. The Sixth went on to reject his First Amendment argument, saying morphed images involve real children and have limited expressive value. Finally, the court rejected Boland’s right-to-counsel argument because he had already been ruled against elsewhere.

I hope to see Boland’s case appealed further, because I believe there are issues in it that merit a serious discussion. In particular, I am not sure I agree with the Sixth Circuit that victims suing under 2255 should not be required to prove damages. This ruling would drastically change tort law if it were applied to most civil cases; it should not be considered less controversial because it comes in a criminal defense law matter. I also suspect that courts might reconsider whether being a “victim” and having suffered damages are indistinguishable. Indeed, this case seems to present a situation in which a child can technically be victim of a child pornography crime without having suffered any damages. It would be interesting to see whether this highly emotional issue gets another airing before a full en banc panel of the Sixth Circuit.

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November 13, 2012

Tenth Circuit Rules Distribution Charge Applies for Use of File-Sharing Software – U.S. v. Ray

Though the underground world of online child pornography includes websites with elaborate security measures, it also includes people who swap the materials using peer-to-peer file-sharing software, the same software used to swap music and movie files. Law enforcement frequently finds people through these peer-to-peer networks, and the resulting charges often include distribution as well as possession of child pornography, because the file-sharing software typically defaults to sharing whatever was downloaded. That fact has resulted in harsher charges for many child porn defendants than they originally expected. One such recent case is U.S. v. Ray, in which the Tenth U.S. Circuit Court of Appeals upheld the sentence of Austin Alan Ray. Ray argued in vain that it wasn’t proven that he understood that he was sharing files.

Ray, of Kansas, was searched after an acquaintance told authorities he suspected Ray of molesting a child; police also suspected Ray was sending the acquaintance child pornography. Immigration and Customs Enforcement officers searched Ray’s home and found child pornography on two computers there. One had file-sharing software on it with sharing enabled. Though Ray was cleared of the original suspicions, he ended up charged with distribution and receipt of child pornography, and pleaded guilty only to receipt. Before sentencing, however, he objected to a sentence enhancement for distribution of the material, arguing there was no evidence offered that he had distributed the material or that anyone had actually downloaded it from his shared folder. The district court used the sentence enhancement, finding that the use of the file-sharing software was legally sufficient to trigger it.

After receiving a 104-month sentence, Ray appealed, arguing among other things that the enhancement was wrongly applied. The Tenth U.S. Circuit Court of Appeals rejected these arguments. Unfortunately for Ray, the Tenth Circuit had just decided in August, in U.S. v. Ramos, that the law does not require the government to prove an actual transfer of the material or even that the defendant intended to transfer it. The court distinguished that case slightly by noting that Ramos was an expert computer user, whereas Ray was not, and may not have understood what he was sharing. However, it went on to hold that the sentencing guidelines do not require defendants to know their programs are capable of distributing child pornography. The text does not impose a state of mind requirement, the court said, and sentencing guidelines don’t carry the same implied requirements as criminal laws. Thus, Ray’s argument failed and the Tenth upheld his sentence.

This is a disappointing ruling for criminal defense attorneys like me. Under the law, all defendants are legally presumed innocent until proven guilty—even defendants accused of serious cyber crimes like this one. That principle may not apply to sentencing guidelines, but its spirit should apply throughout the criminal defense world. In essence, the court here said prosecutors are not required to show that the defendant actually either distributed child pornography or had the intent to distribute child pornography; even being ignorant of the way file-sharing software works does not help the defendant. I do not believe it is too much to ask prosecutors to prove their cases, so this is a disappointing ruling—but because child pornography crimes are so emotional, it may be repeated in other courts.

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November 6, 2012

Eighth Circuit Rules Defendant Not Entitled to Shorten Sentence for Enticing a Minor – U.S. v. Hammond

As I’ve written many times in this space, the sentencing guidelines for Internet sex crimes involving children call for very harsh sentences. Defendants routinely get 10 to 20 years in prison, which is why so many end up appealing their sentences, even when they don’t appeal the underlying conviction. In United States v. Hammond, Adam Hammond of Missouri appealed his sentence for two counts of enticement of a minor, for sexual activity and for the purpose of creating child pornography. Hammond’s sentence was enhanced because the minor in his case was under the age of 12, although she told Hammond she was 13. He argued that he should have been granted a downward variance from the sentencing guidelines as a result, but the Eighth U.S. Circuit Court of Appeals disagreed.

The opinion does not go into detail about Hammond’s crime, though it says the victim was 11 years old for most of the time he was committing it. He eventually pleaded guilty to enticement of a minor for the purpose of engaging in prohibited sexual activity and enticement of a minor for the purpose of creating a visual depiction of such conduct; the reader may surmise that he attempted or achieved those acts. More importantly for the purpose of the appeal, however, Hammond believed she was 13. Because she was actually 11, the court applied a sentencing guideline enhancing the sentence when the crime involves a minor under age 12. The parties agree that this applies even when the defendant doesn’t know the minor’s true age, but Hammond argued at sentencing that his genuine belief that she was 13 should allow the court to depart downward from the sentencing guidelines. It declined to do so and sentenced him to nearly 20 years in prison.

Hammond’s appeal argued that because he believed the girl to be older, his sentence is unfairly in the same range as sentences for adults who intentionally seek out victims under the age of 12. Because he did not, he argued, he should be distinguished from those offenders and sentenced differently from them. The Eighth Circuit was not convicted. It said the trial judge adequately considered the factors it must consider to come to a reasonable conclusion, including the seriousness of the crime, the need for deterrence and the need to protect the public. In particular, the appeals court cited the judge’s statements that he saw only a small difference between 11, 12 and 13 compared to the adult Hammond. This showed that the judge adequately considered Hammond’s ignorance of the girl’s age, the court said. Thus, it upheld the district court.

As a criminal defense attorney who handles a lot of cyber crime cases, I sympathize with Hammond’s argument. Though judges may not see a lot of difference between 11 and 13, many defendants do—and more importantly, the sentencing guidelines draw an important distinction between the two ages. Furthermore, the guidelines are written in a way that doesn’t take into account what the defendant actually knew, only the calendar age, giving judges less flexibility to account for situations like this. When this was written, it likely sounded like a good way to penalize people who exploit young girls, but the result in this case doesn’t quite match the intentions.

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October 31, 2012

Orange County Sheriff’s Office Nets 31 in Online Child Predator Sting Operation

Two weeks ago, I wrote about a “sting” in Volusia County that caught 23 defendants who solicited sex with a minor through the Internet. A similar operation in Orlando was announced yesterday, resulting in the arrests of 31 defendants. According to the Orlando Sentinel, Orange County sheriff’s deputies placed ads online advertising “fun” with minors. They then impersonated the minors online, luring the defendants to a home in the county, where the defendants were promptly arrested. Named Operation Spiderweb 2, the effort was part of a series of such stings by local police agencies participating in Florida’s Internet Crimes Against Children Task Force, including the Volusia County operation. The first Operation Spiderweb took place at about the same time last year, also in Orange County.

According to deputies, all of the 31 people arrested are men, and most live in Central Florida. They were found when they answered advertisements and talked to deputies posing as minors who solicited sex with the defendants. One defendant was Aremio Solis, who answered an advertisement saying a 13-year-old girl was “liberated and interested in learning more.” The advertisement was purportedly placed by the girl’s stepfather, and said he was “an open naturalist looking for outside fun.” Like other defendants, Solis contacted the sheriff’s deputies via email; he followed up via text message, then traveled to the house in late October. There, he was immediately arrested. According to the newspaper, Solis told the deputies that he had a problem and that he’d seen “weird things” when he served in Iraq.

Solis also told deputies that he felt his life was over. In my experience defending clients against sex crimes charges, a serious enough charge could prove him partially right by putting him in prison for a long time. Soliciting sex from a minor online is a felony, as is traveling to meet a minor for sex. Depending on the facts of each case, defendants may face additional penalties for things like sending pornography to someone they believed was a minor, unlawful use of a two-way device, and more. Because this was an undercover operation whose goal was to catch and prosecute people, the deputies will certainly have kept all of the messages between them and the defendants, to be used as evidence of their intent to have sex with minors. And despite what some defendants may think, courts have ruled that it is not entrapment for officers to solicit others to commit a crime and then prosecute them.

That’s why, if you have been accused of soliciting a minor online, or any similar online sex crime, it’s absolutely vital to get the help of an experienced attorney. Though these prosecutions are all in Florida, this kind of crime also ends up in federal court, and the penalties for federal sex crimes involving children are at least as onerous as Florida’s. Depending on the circumstances, defendants may face years or even decades in prison. By hiring an attorney as early as possible in the process, defendants can ensure that their rights are protected from the beginning of the case. This can be absolutely vital, because many defendants don’t realize they have the right to stay silent during an initial police interrogation. Seltzer Law, P.A., has represented several defendants caught in this type of sting, and we strongly recommend that defendants talk to us or another law firm as soon as they know they are under suspicion.

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October 31, 2012

Second Circuit Rejects Child Pornography Appeal Arguing Defendant Requested a Lawyer – U.S. v. Oehne

I advise anyone accused of a crime not to talk to the police without a lawyer. Nothing good can come of talking to the police; even if you are not guilty, what you say can still be used to build a case against you. By far the best thing to do when being interrogated by police is to request a criminal defense attorney and then stop talking. A defendant who didn’t make that request clearly enough was unsuccessful in his appeal in United States v. Oehne. William Oehne of Connecticut pleaded guilty to production and distribution of child pornography for taking pictures of his sexual abuse of the daughter of a former girlfriend. Oehne argued that his statements to police and the fruits of a search of his home should be suppressed because he had said he had an attorney, but the Second U.S. Circuit Court of Appeals found this was not a sufficient request for counsel.

The girl, called MV for “minor victim,” told authorities in Connecticut about the abuse in 2009, and they contacted law enforcement in Virginia, where Oehne was then living. Oehne had a pending case against him at that time for abuse of another girl. Two officers watched Oehne’s home, then detained him when he left so agents could secure the house pending a warrant. Oehne said MV’s mother had called him, so one officer started reading him his rights. Oehne said he had a lawyer for his pending Virginia case. The officer then finished reading his rights, with Oehne confirming line by line that he understood it but not signing it; the officer said this was because he was handcuffed. After being released from detention, Oehne consented to a search of his house, vehicle and a shed, in writing and orally. He chitchatted with the officers as they searched. An FBI agent later read Oehne his rights again, with Oehne signing; Oehne made admissions orally and later in writing, although he attempted to downplay the seriousness of his actions.

Oehne ultimately pleaded guilty to two counts of production of child pornography and one count of distribution. On appeal, he argued that the district court should not have admitted any of the statements or evidence that came after he said he had an attorney and didn’t sign the rights form, saying this constituted an invocation of his Fifth Amendment rights. The Second Circuit disagreed. To invoke the Miranda right to counsel, defendants must make an unambiguous request for an attorney to deal with police interrogation. Similarly, a request to invoke the right to remain silent must be unambiguous. Thus, Oehne’s mention that he had a lawyer in the Virginia case did not constitute a request for counsel in the unrelated Connecticut case. Nor did Oehne unambiguously ask to remain silent, the court said; he never made such a statement, failed to sign the first form only because he couldn’t, did sign the second form and voluntarily discussed his case with the officers, thus waiving his rights. And because the court rejected that argument, it also rejected arguments against the search of the house. Thus, the appeals court upheld the admission of the evidence.

As an attorney who frequently defends people accused of child pornography crimes, I strongly recommend anyone in Oehne’s position to learn from his mistakes and clearly invoke their right to counsel. Because police officers’ job is to find criminals, talking to them just gives them more opportunities to find criminal conduct in your behavior. I’m also interested in the fact that Oehne was sentenced to 540 months, or 45 years, in prison. This is a very long sentence, but it’s still above the maximum for his crimes—because the sentencing guidelines lay down very tough sentences for these crimes. Furthermore, the Second Circuit found that this sentence was not unreasonable, given the seriousness of Oehne’s crimes; the pictures happen to be widely traded in the underground child pornography world. That’s another reason it’s absolutely vital to have an attorney by your side if you’re accused of a serious cyber crime.

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October 23, 2012

First Circuit Rules Evidence of Interstate Child Pornography Crime Was Not Hearsay – U.S. v. Acevedo-Maldonado

Criminal defense law gives defendants several important civil rights, in an effort to prevent false convictions. One of them is the right not to have evidence presented against you by hearsay, which means testimony that is secondhand. That is, the person testifying must be testifying as to events seen firsthand; merely reporting on what others said is hearsay. Hearsay is not admissible in court because it violates the defendant’s right to confront his or her accuser under the Sixth Amendment. In United States v. Acevedo-Maldonado, Joseph Acevedo-Maldonado challenged the evidence that he had shipped child pornography across state or national lines as hearsay; the evidence derived from labels on a hard drive and webcam. The First U.S. Circuit Court of Appeals ultimately decided this was not hearsay.

Acevedo was convicted of producing, and aiding and abetting in the production of, materials showing a minor engaged in sexually explicit conduct. Police in Utuado, Puerto Rico, searched his home and his mother’s home for computer equipment and found a webcam; they later found his computer at his sister’s home. Immigration and Customs Enforcement later examined the seized equipment and found five videos on the hard drive that were produced by the webcam; all five showed an adult male, later alleged to be Acevedo, having sex with a young girl. At trial, forensic experts for the government testified that the hard drive and webcam were made overseas (in Korea and China, respectively). Acevedo moved at the end of trial for a judgment of acquittal, arguing that the only evidence of this being an interstate crime was the labels showing the overseas manufacture of the webcam and hard drive. This, he said, was hearsay and thus inadmissible, meaning the interstate aspect of the crime was not proven. The district court denied the motion.

After his conviction and sentencing to 25 years in prison, Acevedo appealed. He argued that the witnesses testifying that the equipment was foreign-made was hearsay because it was based solely on the labels on the equipment. Because Acevedo failed to object to the testimony at the time it was made, the First Circuit reviewed only for plain error. Unfortunately for Acevedo, the court concluded that his own briefs “doom” his argument by acknowledging that the testimony came in part from the witnesses’ expertise. Furthermore, the appeals court said, it is clear from the record that one witness had the training and experience to testify as to their origins without relying on the labels. Because that witness could have relied on his own expertise, the court said, there was no need to determine whether it was incorrect to rely on the labels to establish the interstate nature of the crime. The prosecution’s failure to ask the witnesses about the basis of his opinion did not make the conviction reversible, the court concluded. Thus, it affirmed the district court.

This case is interesting because very few defendants challenge the interstate or international aspect of federal child pornography production crimes; most cases are pretty clear because they involve distributing it over the Internet. In this case, it appears that the crime was only federal because the equipment used to commit it was shipped internationally. This may not be what most defendants think of when they think of international crimes (after all, the vast majority of computer equipment is manufactured overseas), but it’s another signal that defendants accused of serious cyber crimes can expect to be prosecuted federally if federal prosecutors are interested in taking the case. Though federal law is considered harsher, a state-law prosecution is not considered a cakewalk; you also face long sentences for a Florida state conviction for child pornography crimes.

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October 19, 2012

23 Arrested in Volusia County for Attempting to Seduce Minors Through the Internet

A sting operation in Volusia County, in central Florida, has resulted in 23 arrests of defendants accused of attempting to entice minors online. As a criminal defense attorney, I was interested to see an article in the Daytona Times outlining how authorities conducted the operation. According to the article, Operation Volusia Broad Band involved undercover law enforcement officers posing as minors under 14, or their guardians, in online chat rooms. The officers waited for the discussion to turn to sex with the fictional minors, then set up meetings at a “decoy house” in Ormond Beach. The house was wired with cameras and audio recorders to capture evidence that the defendants had traveled there for sex with minors.

The article says defendants were charged with using a computer to seduce a minor or to solicit a parent or guardian for sex with a minor; traveling to meet a minor for sex; and unlawful use of a two-way device. All three charges are felonies, meaning the 23 defendants face substantial amounts of time in Florida state prisons. Anyone facing these kinds of charges needs the help of an experienced criminal defense attorney right away, to minimize the serious effects of a criminal conviction on their lives, their finances and their families.

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October 15, 2012

Third Circuit Remands Case for Consideration of Unreasonable Sentence Argument – U.S. v. Begin

Sentences for sex crimes involving children have become a kind of political football. Because there’s strong public sentiment against this kind of defendant, political candidates who want to do something popular and seemingly tough on crime frequently propose legislation that would increase sentencing. The result, as some have noted, is a sentencing scheme that sometimes hands down longer sentences for people who attempt to seduce a minor online than for people who actually succeed in having unlawful sex with a minor. That situation was the basis for the Third U.S. Circuit Court of Appeals decision in United States v. Begin. Michael Eugene Begin successfully argued that his sentence for online solicitation of a minor should be reconsidered because it was above the maximum for actual statutory rape.

In 2010, a mother contacted the FBI about sexual messages her 14-year-old daughter received through MySpace. “Mike” said he was a 20-year-old Marine sniper; both the girl and the FBI agent who assumed her online identity told him she was 14. Nonetheless, he continued sending the sexually explicit messages, as well as a picture of his penis. He agreed to meet the “girl” in western Pennsylvania, and of course met FBI agents instead. After his arrest, he admitted his intention to have sex with her. He was charged with attempting to solicit a minor via Internet and phone. Due to several previous convictions, Begin had a high sentence range under the sentencing guidelines. However, the government argued for an upward departure because of several other incidents without convictions; Begin argued for a downward departure based on the disparity between the guidelines range and the actual maximum for statutory rape. The court ultimately departed upward by 30 months, for a total sentence of 20 years.

Begin appealed only the reasonableness of his sentence, arguing that the district court failed to take into account or rule on his arguments. The Third Circuit started its analysis by ruling that there was no merit to his argument that there was a disparity between the state sentence for statutory rape and the federal sentence for soliciting a minor. However, it did find some colorable legal merit in his arguments on federal-federal disparity. An appropriate sentence should take into account sentences for similar offenses, in order to prevent unwarranted disparities. In this case, the appeals court said, the district court failed to consider the issue; it merely recited that it had considered the need to avoid unwarranted sentencing disparities. The Third emphasized that colorable merit is not the same as actual merit; it suggested that Begin’s choice to bring a knife and handcuffs to the meeting may make him more than a run-of-the-mill statutory rapist. But because the record showed no attempt to consider his arguments, it remanded with orders to do so.

As a criminal attorney with substantial experience in cyber crimes defense, I appreciate that the appeals court took this argument seriously. While Begin may well be a candidate for an upward departure, the district court owes it to him (and defendants like him) to seriously consider arguments with some legal merit. Perhaps even more importantly, the justice system should consider whether there’s a problem when the sentence for an attempted crime is substantially higher than the sentence for a completed version of the same crime. A dissent in this case argued that statutory rape is unlike online enticement of a minor because statutory rape includes consensual encounters with an age disparity, but I do not agree. Both statutes criminalize conduct that would be legal for consenting adults; it is only our belief that minors cannot consent that makes these acts illegal.

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October 11, 2012

Ninth Circuit Remands Child Pornography Distribution Case for Discovery Problems – U.S. v. Budziak

People accused of distributing child pornography online are frequently discovered through an online file-sharing program. These “peer to peer” file-sharing networks permit individuals to connect to one another’s computers directly, without going through a central server, making them attractive to people who have something to hide—but for the same reason, they are frequently searched by law enforcement officers. In United States v. Budziak, Max Budziak was found via the file-sharing program LimeWire and later convicted of child pornography possession and distribution. His appeal included an argument that the court should have required sharing of the software during discovery, and the Ninth U.S. Circuit Court of Appeals agreed.

Two different federal agents found Budziak through online file-sharing in early June of 2007. In the ensuing July 14 search of Budziak’s home, FBI agents seized and searched Budziak’s computer and found child pornography and LimeWire on the hard drive. The files associated with LimeWire suggested that Budziak had not changed the default behavior of LimeWire, which is to share files in certain folders. After his indictment, Budziak moved to suppress the search evidence, saying it contained false statements and material omissions about LimeWire, but the district court dismissed without prejudice, explaining the difference between the publicly available LimeWire (which pieces together files from many users) and the special software the FBI uses (which takes an entire file from one user). The court invited Budziak to file a discovery motion if he wished to examine the FBI software, and Budziak did so—but the district court denied each motion, and later denied a renewed motion to suppress. After his jury trial and conviction, Budziak appealed.

The Ninth Circuit ultimately agreed that Budziak should have been permitted to discover the FBI software, though it disagreed with several other arguments he made on appeal. After dispensing with arguments on insufficient evidence, alleged juror misconduct and erroneous jury instructions, the Ninth did find error in the discovery denials, saying the software was material to Budziak’s defense. His requests identified defenses that the information would help him develop and were not vague, the court said. The government contended that the logs it did provide the defense showed that the information would not help Budziak, but Budziak’s expert testified otherwise—and defendants should not have to take the government’s word when preparing a defense, the court said. It found that the discovery denials were an abuse of discretion and sent the case back to trial court, not for a retrial, but for a determination of whether the requested materials could have changed the outcome of the trial.

Interestingly, the Ninth also ruled in this case that evidence of distribution of child pornography is sufficient when the defendant shared files online knowing that other people could download them, and then at least one person did download them. That was an issue of first impression in the Ninth Circuit, but it has already been settled in the same way in the First, Eighth and Tenth Circuits. This means the accused may not defend themselves by showing that they did not actively transfer the files; a showing of passive transfer is enough. However, the court did leave the door open for a defense to criminal charges arguing that the defendant did not know the material was shared, which may be of interest to defendants who are less familiar with computers.

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October 1, 2012

Sixth Circuit Denies New Trial to Child Porn Defendant Who Never Got Clear List of Charges – U.S. v. Tillotson

One of the most basic jobs of a criminal defense attorney is understanding the charges and evidence against them. In my work defending clients from child pornography charges, it’s important to know how many charges my client will face, what kind of charges they are, and what evidence they’re based on. While prosecutors don’t have to disclose all of their evidence, they are required to be specific enough about their charges to permit the defendant to mount a defense. The defendant in United States v. Tillotson, a case from the Sixth U.S. Circuit Court of Appeals, argued that he should get a new trial because his indictment was not specific enough. Jeff Tillotson was convicted of knowingly possessing, distributing and advertising child pornography; that conviction stood after the Sixth Circuit rejected his appeal.

Investigators traced an Internet file server advertising child pornography to Tillotson’s address. On his computers, they found four complete child porn videos as well as many other incomplete or corrupted files that either contained child pornography or had names suggesting child pornography. An expert’s report noted 166 illegal photos and videos recovered from Tillotson’s external hard drive, but left blank an area on the form where he was asked to list files containing “actual visual depictions” of child porn. He moved for a bill of particulars, saying the lack of specificity hampered his defense. The motion was denied and so was an appeal. At trial, the prosecution’s expert said the incomplete files did contain child pornography; Tillotson moved for a mistrial, saying this was an unfair surprise because the indictment listed only four videos found on his computer. This was denied, as was a post-trial motion for a new trial. Tillotson was sentenced to 204 months in prison.

On appeal, Tillotson argues that the district court should have granted his request for particulars or his motion for a new trial. The Sixth Circuit rejected both arguments. On the bill of particulars motion, the Sixth noted that Tillotson cannot win an appeal unless he can show that he suffered an unfair surprise or other prejudice at trial. It found that standard was not met in this case. The indictment said he was being accused of possessing, advertising and distributing child pornography, and the discovery materials included the forensic report, copies of the hard drives at issue and an invitation to view the files. Furthermore, there was no surprise in the expert’s testimony because the forensic report noted 166 total photos and videos, even though none were listed as “actual visual depictions of child pornography.” For the same reasons, the appeals court rejected Tillotson’s arguments for a new trial or a mistrial, finding that the government committed no intentional or inadvertent misconduct.

As a criminal defense lawyer specializing in cyber crimes defense, I sympathize with Tillotson’s arguments. His indictment did not list the 166 partial or corrupt files as containing child pornography. A reasonable person might assume the government did not believe those files were provably illegal, and thus did not plan to bring them up at trial. However, as this case shows, assumptions are dangerous in criminal cases. In my practice, I prefer to find out as many things for certain as I can, and plan carefully for what I think the prosecution might do. In predicting prosecutors’ moves, it helps that I am a former cyber crimes prosecutor for the Miami-Dade State’s Attorney’s office, giving me insight into how prosecutors build serious cases involving child pornography crimes.

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September 27, 2012

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

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

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

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

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

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September 20, 2012

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

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

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

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

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

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September 10, 2012

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

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

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

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

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

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September 5, 2012

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

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

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

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

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

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

Many of these questions remain up in the air.

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

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

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

August 29, 2012

Absolutely Horrific Florida Cyber Crime Allegations – International Network of Men Accused of Raping 19-Day Old, among Other Unspeakable Acts

If you’ve been arrested for a cyber crime in Florida or some other crime, like vandalism or burglary, you may recognize that you’ve committed bad and potentially horrific actions.

But odds are that what you did pales in comparison to the allegations against 43 men in Florida and around the world who've been netted in international operation, code named Holitna. These men stand accused of passing around very explicit and deranged child pornography – including pictures of dead children – and also of committing practically unspeakable acts of barbarism, such as the rape of a 19 day-old baby. (That’s right – "day")

Investigators managed to connect the dots on the horror show by tracking down a stuffed bunny that had been seen in the picture of one of the kids photographed being abused. Like a Ruth Goldberg trap unfurling, investigators leveraged this clue to “work backwards” and unravel the international child pornography network. Normally, this blog likes to recount aspects of cases or arrests to flush out the story. But the allegations against these men are actually so disturbing that it’s unstomachable to talk about them in detail.

What you might learn if you’ve recently been arrested for a crime in Florida…

Not all criminal defendants are equal – not by long shot.

Even if you did something wrong – violated the rule of law or at least moral or ethical code – the law still affords you a panolpy of rights; and you can also use your arrest (and possible conviction) as a wake-up call or even as a guide to help you improve your life, make reparations or amends, and generally become a better human being.

Unfortunately, many people around you – even those who are close to you – may not understand what you’ve been going through and may rush to judgment. This can be particularly painful if you are innocent of the charges or if the charges are trumped up or overinflated and don’t paint the full picture.

What’s past is past.

You need to figure out how to effectively, compassionately, and methodically deal not only with the charges against you but also with all the other “stuff” that the arrest and threat of jail have surfaced for you. The team here at Seltzer Law, PA, can get you on the right track. Call us any time of day or night for a free consultation at 1-888-843-3333 (1-888-THE-DEFENSE).

August 13, 2012

Have You Recently Been Accused of a Florida Computer Crime? Watch Out – It Could Be The Reveton Virus At Work!

There is a vicious type of “drive-by” virus going around that may lead you to believe that you’ve committed a Florida computer crime.

The FBI and the Internet Crime Complaint Center (IC3) are on the case, but many unsuspecting people in Florida and elsewhere are still being conned out of money and potentially and unwittingly putting their credit card information and other personal information assets at risk.

According to FBI reports, the so-called Reveton ransomware locks up users’ computers and then intimidates computer owners by accusing them of committing a violation of federal computer law. The virus then orders the user to pay a fine through special card service.

Similar types of ransomware and malware abound out there, but they usually behave in more sneaky fashion. For instance, you might not notice that you’ve contracted malware -- it can essentially hatch and wreak havoc on your computer (and your nerves) days or even weeks later.

The Reveton ransomware, however, is about as subtle as the grunts of an Olympic shot putter.

It hits the computer immediately. Once computer locks up, a message comes on saying that you’ve violated federal computer law -- possibly with respect to child pornography.

Reveton has been operating since 2011 via a malware platform known as Citadel. Despite IC3 warnings, the malware has spread both here in the United States and internationally.

The Internet Crime Compliant Center tells virus victims to avoid paying the alleged fine. Instead, you should contact a trustworthy IT professional at your office/organization or go to a respectable company, such as F-Secure, for a detailed help on what to do to extract the virus from your computer.

What if you or someone you care about stands accused of a Florida computer crime?

Defending against a cyber crime charge can be even more complicated than defending against the consequences of being victimized by such a crime. Even if your operation was controlled -- you knew everyone involved and kept meticulous records -- criminal enterprises have a curious way of spiraling well beyond their scope. You can thus potentially get you into far more trouble than you realized you could.

For instance, say you trusted an operative to extract Social Security numbers or login information from users online. That operative went onto commit other crimes while working under your aegis. In this case, you could face charges based on his/her ancillary activities, even if you didn’t know about them or support them.

Likewise, you may not be fully aware of how many laws you violated -- or what the consequences might be for violating those laws -- even if you did know that you were engaging in something illegal or, at the very least, ethically dicey.

Getting organized for your defense

The team here at Seltzer Law, PA, can help you understand your Florida criminal charges and prepare you effectively and strategically for your legal challenges. Connect with us at 1-888-THE-DEFENSE (1-888-843-3333), any time of day or night, for a compassionate and thorough free consultation.

August 8, 2012

Florida Cyber Crime News Alert: Court of Appeals Rejects Text Messaging Argument in Case of State V. Cassano; Defendant Will Serve 19 Years in Prison

Whether you committed a violent crime or cyber crime in Florida, you might be able to leverage an array of defense arguments to clear your name or at least get a more lenient punishment.

But understand that, even if the evidence connecting to you to the crime is only circumstantial, you can still be convicted, if the evidence proves your guilt beyond a reasonable doubt. Consider, for example, the case of State v. Cassano, in which an Ohio Court of Appeals recently rejected to hear an appeal to overturn a conviction of “four counts of felonious assault, two counts of aggravated robbery, and two counts of having a weapon while under disability.”

Adam Cassano and codefendant Gerrell Glenn were charged with robbing several victims and shooting two of them, one in the neck. The victim survived but could not identify Cassano directly as the shooter. To build their case, prosecutors used compelling circumstantial evidence. A critical element of the circumstantial case was the “nature of text messages” passed between Glenn and Cassano prior to, during, and after the shootings.

Without getting into too many details, the text messages established pretty compelling evidence that the recipient of the messages got directed to the parking lot where the robbery occurred. For instance, one message on Cassano’s phone was “we are on our way.”

In appeal, Cassano argued that prosecutors should not have been allowed to build a case that the defendant had received Glenn’s text messages. The Court of Appeals said that, while the texts “did not directly identify Cassano…the circumstantial evidence allowed the court to infer reasonably that Cassano was in possession of the telephone at the time of robbery.”

Furthermore, the Court of Appeals said that "even if the trial judge had taken exception to the hearsay rule in error, this would not have been necessarily relevant because the implications of any error would not have helped Cassano’s defense." Ultimately, the court rejected the text messaging argument as well as the other appellate arguments and affirmed Cassano’s 19-year prison sentence.

Potential lessons for your Florida cyber crime defense

The arguments governing what evidence can be admitted, when, and how can be profoundly complicated – and often require a deep knowledge of Florida law and relevant case history. Both the nature and structure of the defense that your Florida cyber crime attorney develops can have a major influence on whether you will achieve your goals… or whether you wind up facing heartbreak at trial and a long jail sentence.

The team here at the Seltzer Law, PA, has the tenacity, knowledge, and knowhow to develop your cyber crime defense strategy. Connect with the team today at 1-888-THE-DEFENSE (1-888-843-3333) for confidential help, any time of day or night.

August 1, 2012

There Will Be No Case of Florida v. Samuel Williams: 71-Year-Old Shot Two Men Perpetrating a Crime in a Florida Internet Café

It started off as a routine Florida crime. Two teenagers, Duwayne Henderson and Davis Dawkins, stormed into the Palms Internet Cafe in Ocala last Friday with a gun and a baseball bat. One of the 19-year-olds told the patrons “None of you [expletives] move!” and then smashed a $1,200 computer screen with the baseball bat.

Most of the patrons froze. But not 71-year-old Samuel Williams.

Surveillance footage reveals that Williams leapt to his feet, accessed a .380-caliber handgun that he had concealed on his person, and fired at the teenagers. He hit both of them (not fatally), causing them to abandon their robbery attempt and flee in panic out the front door. Fortunately, no patrons were hurt during the commission of the crime.

Henderson and Dawkins were arrested shortly thereafter and hit with charges of attempted armed robbery with a firearm in Florida and felony criminal mischief. Dawkins posted a $11,000 bond and was released from jail. As of this report, Henderson remained in jail due to the fact that he had failed to post a $31,000 bond.

One witness, Mary Beach, praised Williams for his fast action: “I think he is wonderful. If he would haven’t been there, there could have been some innocent people shot…I heard pop, pop; then pop pop pop, all at once.”

Williams had a concealed weapons permit, which in Florida allows someone to engage in deadly force if he or she has a reason to believe that someone will be seriously injured or killed – as long as that person is not committing a crime and is allowed to be in the vicinity.

An official from the state attorney’s office said as much: “Based on what I have seen what I know at this time, I don’t anticipate filing any charges [against Williams].”

Henderson and Dawkins might not be so lucky.

If convicted of attempted armed robbery and felony criminal mischief, both teenagers could spend several years behind bars, be stripped forever of their right to vote in elections, and suffer numerous indirect consequences of their behavior.

If either teenager had a prior criminal record, the situation could be even more complicated.

What should you do, if you or someone you love has been accused of a serious Florida crime, like robbery or attempted robbery?

Investigating your case – and constructing an appropriate defense – can be a delicate business. Even subtle mistakes made in preparation can drastically complicate your legal situation. Connect immediately with the Seltzer Law, PA, team, by calling us toll-free at 1-888-THE-DEFENSE (888-843-3333), any time, 24/7, to get answers to your urgent questions and to begin a strategic path to your defense.

July 25, 2012

Florida Computer Crime News Update -- Nigerian Accused of Illegal Email Scheme Will Serve 151 months: The Curious Case of U.S. v. Diamreyan

If you or a loved one has been accused of a computer crime in Florida or elsewhere, odds are that your actions (or alleged actions) involved many people from around world – whom you may never have met in person.

Computer crimes are often global in their scale. They're thus complicated not only logistically but also legally. Consider, for instance, the case of Okpako Mike Diamreyan, who was recently convicted of violating wire fraud laws (18 US Code 1342 and 1343) and hit with a sentence of 151 months behind bars. That roughly translates to nearly 13 years in jail.

The defendant allegedly managed and participated in a long running Nigerian email scam, in which he and coconspirators persuaded victims via email to send money to him in exchange for the promise of additional money later – or sometimes prizes or other valuable assets. After being indicted on November 23, 2009, the defendant successfully appealed his case in 2011. The charges were dismissed because he "objected that the government had presented certain protected testimony from his spouse to the grand jury, in violation of his spousal privilege."

Diamreyan, who married a woman he met on the internet in 2003 and moved to Boston shortly thereafter, used the email address “milkymyx@yahoo.com” for a decade to fish for victims and plan and execute what the government called a “large scale, Nigerian fraud scheme.” But his successful appeal was not long-lived. Immediately after the reversal, the government brought a second case against Diamreyan on three counts, leveraging evidence of wire transfers and a telephone call made by victims in Connecticut and elsewhere.

The government argued that Diamreyan and his coconspirators sent emails to victims promising millions of dollars to anyone who would assist third parties, foreign dignitaries, etc. Diamreyan’s scheme caught the attention of the global media in the early 2000s. His and other so-called “Nigerian email scams” gave birth to a diverse array of strange and creative computer crimes.

Diamreyan ultimately lost his second appeal. Since the judge found that he managed/supervised the criminal activity, extra points were added to his U.S. sentencing guideline score. This "boost" elevated his sentencing score to level 34, which mandates a punishment of 151 to 188 months in jail.

What can Diamreyan’s story teach you, if you've been accused of a computer crime in Florida?

Whether you collaborated with dozens of other people overseas in an elaborate scheme, or you simply got arrested for trying to hack into a corporate or private website, the time to develop your defense is now. Look to the experienced lawyers at Seltzer Law, PA, for timely, crucial guidance. Call now for a free consultation: 1-888-THE-DEFENSE (1-888-843-3333).

July 16, 2012

Miami Cyber Crime News: Could “Predictive Policing” Algorithm Alter Police Approach in Miami? And What of the 4th Amendment?

The battle over how to thwart cyber crimes in Miami and other U.S. cities has reached a fever pitch. For decades, police and investigators have been locked in a Cyber Crime Arms Race, if you will, against hackers, spammers, and other criminals.

Each side constantly tests the other’s tactics and strategies. It’s like an ongoing, three-dimensional, high complex game of high stakes chess.

A new weapon has entered into the fray.

It's called the "predictive policing" algorithm. A computer generated system, called CompStat, alerts law enforcement officers to investigate potential crime scenes before criminal acts even occur! The system uses past and present data to identify potential criminal hot spots. Thusfar, the algorithm has been a roaring success in places like Santa Cruz, California and Los Angeles – enough to inspire Time Magazine to call predictive policing one of the top inventions of 2011.

The Florida cyber crime defense attorneys at Seltzer Law, PA, have mixed feelings about the initiative. On the one hand, everyone wants our streets to be safer. On the other hand, the predictive policing scheme raises 4th Amendment questions.

The 4th Amendment, as you likely recall from civics class, says that police cannot engage in illegal searches and seizures.

In that context, consider this hypothetical. Say a police officer learns about a potential burglary in a neighborhood, thanks to CompStat or some other computer algorithm. The officer then stops a man carrying a piece of luggage, finds that he's carrying drugs and weapons, and arrests him.

Was that stop Constitutional or not? If the luggage had not been suspicious -- and the officer had no reason to suspect criminal activity, but for the silicon intuition of CompStat -- well, then we might just have a 4th Amendment issue.

People who live in "hot spot" areas, as designated by systems like CompStat, might see their civil liberties infringed upon. So far, no Fourth Amendment cases have stemmed from this policing innovation. But analysts who are deeply familiar with law enforcement’s processes and procedures suggest that such cases could arise.

Andrew Ferguson, a law professor at the University of the District of Columbia, noted the LAPD’s success with predictive policing but warned, “there are real pressures to expand this nationally and see it succeed… I think it’s an important innovation. But like any innovation, it’s not foolproof, and looking closely at the data is important to ensure it doesn’t harm the civil liberties of the people living in those areas.”

Miami Cyber Crime Defense

Whether you’ve been arrested for hacking into a corporate bureaucracy, stealing money from online bank accounts, or phishing or spamming in Florida or elsewhere, the Seltzer Law, PA team is here to provide an aggressive, sympathetic defense for you.

Even small scale cyber crimes have funny ways of evolving into highly complex legal debates. If you want to avoid punishments like jail time, loss of a professional license, massive fines, extradition, etc., you need a team on your side that has experienced with Florida cyber criminal defense. Get in touch with us immediately, any time of day or night, by calling our hotline: 1-888-THE-DEFENSE (888-843-3333).

July 9, 2012

Miami Computer Crime News Alert: Will Today Be a "Day of Doom" for DNSChanger Malware?

The Florida cyber crime team here at Seltzer Law, PA, is always on the lookout for important breaking computer crime news. Here's today's hot cybercrime news: the FBI suspects that thousands upon thousands of web users in the United States could be cast into the digital dark ages, thanks to the indirect impact of DNSChanger Malware. The FBI believes that 200,000 users abroad and 64,000 computer users in the U.S. may lose service today, in spite of nearly ubiquitous precautions doled out by Facebook, Google, various ISPs, and news commentators.

DNS Changer Malware: As Clever As It Is Nefarious

Last year, 500,000+ infected machines were redirected to sites that the attackers prepared. The goal? To cash in on referral fees and affiliate commissions. They succeeded, big time, to the tune of around $14 million. But the malware doesn’t just redirect web browsers. It stops machines from downloading anti-virus updates and corrective operating system repairs.

FBI traced the malware attack to Eastern Europe, seized 100 servers used in the operation, and charged 7 men with spearheading the scheme. Without getting into the nitty-gritty technical details about how the FBI plans to shut down the operation… the Bureau will need to pull the plug on the internet systems consortium replacement servers today.

The Bottom Line

If your machine had been infected with the malware, you may have trouble accessing certain websites today.

The shutdown will have a wide impact. It will affect two government agencies and over 10% of the Fortune 500 companies.

So 6 Estonians and 1 Russian nearly shut down the Internet. What can this DNSChanger situation tell us about Florida cyber crime. More specifically, how should it inform your potential defense, if you face similar charges in Florida or elsewhere?

The first lesson – and this is a theme that we've reinforced in multiple recent blog posts – is that computer crimes have a way of sparking massive, international impact, even when no such impact had been intended. That 7 men working internationally could cause the commotion they did illustrates the fragility of our computer networks and highlights how closely we're all connected.

The scope of the crime that you committed (or allegedly committed) may subject you to intense penalties, including substantial jail time and massive fees, even if you only “intended” to do something small and minor.

For instance, say one of your associates – whom you never even met face to face – committed additional criminal activities, while working for you. For instance, maybe he completed a drug deal, hurt someone in an armed robbery, et cetera. If that happened, you could wind-up paying dearly for your association in terms of a massively enhanced sentence and other unpleasantness.

The team here at the Seltzer Law, PA, can help you put up a defense and protect your freedom. We have extensive experience with complex computer crime cases in Florida and beyond. We're happy to provide a free consultation to you, any time of day or night.

Call our hotline now at 1 888-THE DEFENSE (888-843-3333).

July 4, 2012

Florida Cyber Crime News: Lessons from Utah’s Massive Data Breach

If you’ve been accused of committing a cyber crime in Florida, odds are that what you did pales in comparison to what some Romanian hackers recently did to the entire State of Utah.

In case you haven’t been tracking the big news… computer criminals from Eastern Europe hacked into Utah’s Department of Health website on March 30 and stole massive amounts of personal data, including many people’s Social Security Numbers. The Utah Department of Technology Services was relatively slow to identify the extent of the problem. On April 4, the Department told the Salt Lake City Tribune that “a few” SSNs had been accessed and 24,000 Medicaid claims stolen. Five days later, after getting clearer on the scope of the problem, Utah’s technology gurus figured out that 780,000 people (!) had had their Medicaid claims accessed – and 280,000 Utahans had had their Social Security Numbers compromised.

This massive act of hacktivism was ultimately traced back to a single default password. Utah's total population is only 2.8 million people; that means that 1 in every 10 Utah residents had their Social Security Number compromised by this breach.

Very serious stuff.

In the wake of all the drama, Utah’s Governor, Gary Herbert, announced the resignation of the Director of the State’s Department of Technology Services on May 15. Utah has also now instituted a draconian new anti-identity theft system called The Identity Theft Reporting Information System (IRIS).

Implications for Your Florida Computer Crime Defense

Perhaps you got arrested after hacking into a Florida government or corporate website and causing havoc. Or maybe you’re being investigated for committing bank fraud or online identity theft in conjunction with a ring of people from Miami and around the globe.

No matter what you did, the Utah situation can be instructive for you.

The big takeaway is this: seemingly small computer crimes can easily spiral out of control and cause way more damage than you intended. For instance, perhaps you broke into some online accounts to siphon money to pay for a vacation in the Cayman Islands or something. You wanted the situation to be contained. But perhaps one of your associates got a little “creative” and engaged in other illegal acts while working under your aegis. And perhaps those acts involved drug crimes or even violent crimes. As a result of your association with that person, you now might face hugely escalated charges, such as multiple felony counts, which could land you in jail for years.

Alternatively, perhaps you intended to do minor damage to a corporation that you didn’t like – an act of “hacktivism,” if you will – but your cyber vandalism got out of control, and you ended up costing the company tens of millions of dollars by accident.

What Should You Do Now?

It’s too late to put the genie back in the bottle. But you still can take effective defensive action. Learn about your rights and responsibilities as a Miami cyber crime defendant here at the Seltzer Law, PA website, or call us any time of day or night for an immediate, free and confidential consultation at 1-888-THE-DEFENSE (888-453-3333).

July 2, 2012

US Supreme Court’s Decision on Juvenile Life Sentences Could Impact 360 Florida Criminal Convictions

The United States Supreme Court has been in the news a lot recently – and not just for Obamacare. In a recent ruling, SCOTUS ruled that it’s unconstitutional for juvenile criminal offenders in Florida (and elsewhere) to be sentenced to life imprisonment without parole… even for murder and other extremely serious crimes.

The Supreme Court issued a similar decision back in 2010, banning life sentences for juveniles convicted for non-homicides (e.g. robbery, rape, etc). This latest decision has the potential to cause the reopening of 360+ Florida criminal cases. Florida prosecutor and state representative Michael Weinstein (R-Jacksonville) had this to say: “Judges [in Florida] are in a box…because if they sentence the way our statutes require them to, the Supreme Court has said that's unconstitutional. If they sentence the way the Supreme Court wants them to, it violates the statutes."

Do note that the SCOTUS ruling still empowers Florida judges to hand out life without parole sentences to juvenile murderers… it's just that the defendant’s juvenile status must now be considered during sentencing.

Whether or not this ruling has any bearing on your upcoming Florida criminal case, understand the general principal here: Florida criminal law is in a constant state of evolution. The law is a living body of rules, influenced by multiple and diverse entities, including the United States and Florida Supreme Courts as well as the Florida legislature.

To protect your rights, you may need extensive and deeply informed legal counsel.

The Seltzer Law, PA, team is standing by, 24/7, to help you and your family understand what your charges mean and what you might be able to do to minimize your chances of punishment and maximize your chances of rehabilitation. Get a free consultation now by calling us at 1-888-THE-DEFENSE (1-888-453-3333).

June 25, 2012

Elias et al v. Florida: 14 Indicted in Florida Cyber Crime Banking Scheme

Many Florida cyber crime schemes are intricately structured, complex events.

Earlier this week, 24 year-old Ibrahin Elias and 13 other people were indicted for creating and executing a scheme to steal money from people’s web-based savings and checking accounts. The U.S. attorney for Florida's Southern District and the FBI’s Miami Field Office jointly announced the indictment in Miami and painted a picture of a crafty criminal conspiracy.

Per the allegations, Elias obtained personal information from bank customers, including SSNs, birthdays, etc, to log into their banks online. After accessing the system, Elias moved money from the victims’ account to the accounts of accomplices; he also ordered checks to liquidate their assets. Other defendants who’ve been indicted include Dalbert Hernandez, Victor Batista, Roger Lores, Dayan Galarraga, and Dalmis Gonzalez; they all allegedly collected the stolen funds. And some defendants even recruited others to participate in the bank fraud.

Elias was hit with the slew of counts in violation of Title 18 of the United States Code, including:

• Conspiracy to commit bank fraud
• Substantive bank fraud (16 counts)
• Aggravated identity theft (3 counts)
• Destruction of evidence (one count)

The other 13 defendants were also hit with a variety of counts, depending on the nature of their complicity and responsibility. One defendant, Galarraga, remains at large.

Lessons for Florida Cyber Crime Defendants?

Since Elias’s case is still in its early stages, we can’t comment extensively about the implications for your defense, if you or someone you care about has been charged with a Florida cyber crime. On the other hand, we can extrapolate critical principles to guide you going forward:

1. When you operate a complex Florida cyber crime syndicate, you can easily lose control.

Even if you work alone, and you are incredibly careful about managing the potential trail of evidence, you cannot understand or anticipate all the tools investigators can and will use against you. Likewise, if you bring other people into your online "business," you can’t control what those people will do, what they’ll tell investigators, what other crimes they might commit while working under your aegis, etc.

2. Cyber crime counts have a way of “stacking up.”

Consider the charges that Elias faces – 16 counts alone of substantive bank fraud. The more complicated your computer crime, the longer its duration, and the more “moving parts,” the higher the likelihood that you will face multiple counts.

3. Even if you committed an egregious, complicated, and very damaging Florida computer crime, you might be surprised at the defensive options at your disposal.

This point must be underscored. Yes, you may have violated the law, consistently, and damaged an institution or otherwise harmed people. But with strategic guidance from a Florida cyber crime defense lawyer at Seltzer Law, PA, you can approach your situation from a better, clearer, and more success oriented perspective.

Attorney Seltzer and his team are happy to talk to you about your defensive resources at any time of day or night. Call us at 1-888-THE-DEFENSE – 1-888-843-3333. Or get in touch with us online immediately for a free confidential consultation.

June 18, 2012

Can Your Facebook Or Twitter Handle Be Used Against You If You Committed a Crime in Florida? State V. Benedict Holds Clues…

If you’ve recently been arrested and accused of committing a criminal act in Florida, and your character has been called into question, can prosecutors use your social media login info – your “handle” on Facebook, Twitter, LinkedIn, etc – to question your character?

This intriguing question was recently explored in the appellate case of Connecticut v. Benedict. Even though the Connecticut Court of Appeals just handed down a ruling, the case involved a debate over a MySpace login handle. That gives you some idea of how slow the legal process can sometimes move in criminal cases!

The case concerned a substitute teacher and athletic coach at a Litchfield, Connecticut high school, who allegedly sexually assaulted a 17-year old senior girl in January or February 2007. Several months later, the young woman went to state police to complain about what happened with her teacher. Benedict was subsequently arrested and hit with three counts of sexual assault. A jury trial resulted in a conviction and a one-year jail sentence to be suspended after 90 days.

Benedict took his case to the Court of Appeals. The ensuing debate may help you make sense of your Florida cyber crime charges. Benedict argued that the trial judge unfairly let the prosecution question him and the people he called as character witnesses about his MySpace login name, smoothcriminal77.

In retrospect, smoothcriminal77 was probably not an ideal login name! Prosecutors seized on the obvious implications to try to depict the defendant as a person with a criminal mentality.

During the appeal, Benedict cited a Connecticut Code of Evidence statute that says that evidence of a defendant’s character trait should not be admitted with respect to “proving that person acted in conformity with the character trait on a particular occasion with certain exceptions.”

The prosecutor said that, since the Benedict’s login was “smoothcriminal” -- and since Benedict had called several character witnesses “to say what a good person he is” -- then it was fair game to use his login handle to refute his testimony.

The Court of Appeals disagreed.

They reversed Benedict’s conviction and set a new trial based on the fact that “despite the state's attempt to identify an attenuated connection between his login identification of “smoothcriminal77” and the crime that he allegedly committed, we conclude that the login identification does not specifically relate to the trait for which the character evidence was permissible.”

The Court of Appeals said that the state “abused its discretion” in questioning the witnesses.

If you need help developing an articulate and strategic defense to a Florida cyber crime charge, the team here at Seltzer Law, PA, can provide a free, no nonsense consultation, any time of day or night. Call us immediately for help at 1-888-THE DEFENSE (888-843-3333).

June 11, 2012

Major Florida Computer Fraud Decision: How Broadly Should the Computer Fraud and Abuse Act (CFAA) Be Interpreted? Ninth Circuit Surprises in United States v. Nosal

If you face charges under the Computer Fraud and Abuse Act (CFAA), you may want to pay close attention to an en banc decision just handed down by the Ninth Circuit in the case United States v. Nosal. At the very least, be sure that your Florida cyber crime attorney is up to speed with respect to its ramifications.

The case centers on accusations that an employee stole information from his employer and then used that stolen data to develop a competing business. The named defendant and his fellow conspirators allegedly used access to a special company computer to defraud their employer and then profit from that collection of data.

But the case's ramifications have become far broader and potentially momentous. The legal debate – and its consequences – may ultimately have ramifications for the scope of the CFAA.

The majority decision disagreed with the sister courts’ interpretation of the CFAA. Wrote Judge Kozinski: “These courts looked only at the culpable behavior of the defendants… and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of 'exceeds authorized access.'"

Kozinski argued that the courts should have construed a criminal statute like the CFAA more narrowly. An overly broad interpretation could lead to downright Orwellian consequences. In Kozinski's words, such an outcome could lead to “minor dalliances…[becoming] federal crimes. While it’s unlikely that you will be prosecuted for watching Reason.tv on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI.”

In general, Kozinski and the other judges in the majority felt that, if Congress meant to make the scope of criminal liability broader, lawmakers would have made that point more explicitly.

The dissent lashed back that Kozinski et al were attacking straw men: “Ridiculing scenarios not remotely presented by this case…[the majority invoked] far-fetched hypotheticals involving in neither theft nor intentional fraudulent conduct, but innocuous violations of office policy.”

This case is sure to heat up and excite legal scholars and Florida cyber crime lawyers. Many watchers believe the case could wind up on the docket of Supreme Court of the United States.

Of course, if you or someone you love faces a Florida cyber crime charge, you are likely less concerned with esoteric legal opinions and far more worried about what might happen to you or your family if you are convicted. Connect today for a free and comprehensive consultation with the skilled team here at the Seltzer Law, P.A. Call 1-888-THE-DEFENSE today.

June 4, 2012

Florida Cyber Crime News: Bashaw v. Johnson Voyeuristic Lawyer Countersues Employees He Allegedly Peeped on -- Computer Fraud and Abuse Act Claim Dismissed

If you've been accused of a Florida cyber crime, you likely need to understand the nuts and bolts of the Computer Fraud and Abuse Act (CFAA), the main federal computer crime statute, also known as 18 U.S. Code 1030.

Bashaw v. Johnson, a colorful case out of Kansas, illustrates how the CFAA can apply… even in unusual circumstances.

According to news reports, Jeremiah Johnson, a personal lawyer who practices in Kansas, allegedly had been secretly videotaping his female employees' legs and undergarments using his iPad and iPhone. The plaintiffs allege that Johnson set up his iPod using an application called Cam-u-flage -- a well-known spy camera app -- and then surreptitiously placed the device under the desks of his female employees. Johnson was also said to have told the women to wear skirts and high heels to the office. After one of the employees discovered the hidden camera under her desk, she quickly found the photos and deleted them.

She and her coworkers then proceeded to sue Johnson for $75,000 in damages -- each!

Johnson, however, happened upon a curious legal strategy.

He countersued the women, claiming that they had violated the Computer Fraud and Abuse Act by accessing his devices and deleting data from them. According to section 1030(g) of the CFAA, a "person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages."

The loss has to be pretty substantial, though. To claim damages per the CFAA, you need to hit a threshold of $5,000. That is, a claimant must show that the loss or damage that occurred was worth at least $5,000. Johnson failed to show this loss, according to the judge, who also said "[Johnson] does not allege or identify any investigative or response costs incurred as a result of the alleged CFAA violation and he does not allege any lost revenues or other losses incurred due to any interruption in service."

Also, curiously (or perhaps not so curiously, given the allegations), Johnson failed to identify the nature of the supposedly valuable data that had been erased.

The counterclaim's dismissal notwithstanding, Johnson could still try again with a different CFAA claim, but he must figure out how to deal with the discrepancies the judge pointed out.

If you're dealing with CFAA charges as a Florida cyber crime defendant…

If you are a defendant in a CFAA case, you could face a battery of scary outcomes, which could result in financial loss and the devastation of your professional reputation.
Fortunately, the well respected team at Seltzer Law, P.A., has developed powerful processes and great relationships to help criminal defendants battle back and protect their freedom. Attorney Seltzer has a deep familiarity with the CFAA and other critical federal and Florida cyber crime laws.

Find out more online, or call us any time, 24/7, on our toll free hotline: 1-888-THE DEFENSE (888-843-3333).

May 25, 2012

Could Cyber Crime in Florida (and Beyond) Soon Be FBI's #1 Priority?

The Federal Bureau of Investigation has set its sites on stopping cyber crime in Florida and beyond. In March, FBI Director Robert Mueller announced that cyber crime is now the Bureau's third most important priority, just behind counterintelligence and counterterrorism.

David West, a supervisor for the FBI based in Georgia, summarized the rationale for the intensified focus: "[the cybercrime industry] did not exist in the way it does today 20 years ago and, with respect to businesses, the direct impact of cybercrime is in the billions of dollars."

Increasingly Diverse Battlegrounds

The types of cyber crimes, as well as the motivations behind these acts, are diversifying at a rapid and alarming rate. As we have moved into the "Web 2.0" era, we've witnessed something of an arms race between criminals and law enforcement.

Back in the "Wild West" days of the internet, cybercriminals often worked as jacks-of-all-trades. Today, however, there is simply too much technology -- too many options -- to master. Thus, both perpetrators and those who work to neutralize cybercrime have developed more specific, niche-like strategies. What this means is that fewer and fewer people -- even at the expert level -- deeply understand what's happening on a granular level.

What to Do If You've Been Arrested for Cyber Crime in Florida

Whether you hacked into a south Florida bank's security system; or you and several international partners got arrested for a complex phishing scam, you're probably feeling pretty scared. You could, indeed, face jail time, massive fees, probation, forced remuneration to victims, and more. If convicted of a felony cyber crime, you could serve over a year in jail and lose important rights, such as the right to vote in elections.

Constructing a Powerful Legal Defense

There are no "cookie-cutter defenses" to cyber crime charges. To build your strategy, your Florida criminal lawyer will need to consider a variety of factors, such as:

• The jurisdiction in which you're charged;
• The nature and scope of the damage done;
• All the laws and case histories that might be applicable;
• Whether you have a past history of crime;
• Whether you committed additional crimes during the commission of the cyber crime.

If you've been arrested, do not delay getting appropriate legal help immediately. Seltzer Law, P.A., is a well-known and respected cyber crime defense law firm. Call us toll-free at 1-888-THE-DEFENSE (888-843-3333), or connect with us online for a free and confidential consultation.

May 21, 2012

Online Sexual Predator Sting Lands 30+ In Jail

In an online sexual predator sting that will likely go down in Florida history, 31 suspects have been arrested and are now facing the possible penalties of a sex crime conviction in Sarasota County. A group of undercover detectives in the county posed as minors on an online sex site, dutifully fulfilling their mission as part of Operation Intercept, a sting mission designed to catch and apprehend sex crime offenders in the state of Florida.

As the first of its kind, the Sarasota County sting operation included police officers from Venice, Manatee, North Port, and of course, Sarasota. State prosecutors were also said to be involved in the mission, as well as Homeland Security and the Florida Department of Law Enforcement, all of which actively participated in the sting efforts to uncover those believed to be sex offenders in the state.

Officers that participated in the sting have stated that their behaviors included posing as young girls and boys – sometimes even the parents of minors, offering up their children for sexual acts – in order to unobtrusively converse with the defendants who unknowingly believed they were speaking to the same set of minors with whom they normally engaged. However, this was far from the case, and now suspects aged 22 to 62 are facing serious criminal charges that could cost them their future livelihoods.

As of now, officers are indicating that more arrests are still possible as some suspects never actually showed up to the scene of the crime as they were expected to. Already, the local sheriff’s office has initiated the forfeiture process of ceasing the vehicles of the suspects under question, and this is only the first of a whole host of other consequences that will likely be incurred by those convicted of charges for sex with a minor.

You too could be facing allegations of this nature if your behaviors are misinterpreted as sexually explicit in any way. Even if the sexual conduct in which you engaged was done so consensually, if it occurred between one adult and another minor then the act will be considered criminal in nature and punishable as such. Your best way to go about protecting yourself from the potential consequences of a conviction of this nature is to enlist the services of a criminal defense lawyer in Miami.

Under the direction of an experienced criminal attorney at Seltzer Law, PA you can get the aggressive help you need to effectively defend your case in or out of the court room. Available 24/7 to represent your needs, there is no better firm to help you in your legal endeavors than that of the Seltzer firm. Do not wait contact the firm today, toll-free, for more information about how you can be helped by an associate at the office.

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May 14, 2012

New York State Appeals Court Rules Viewing Child Pornography Is Not Possessing It – People v. Kent

A bit more than a year ago, I wrote here as a cyber crime criminal defense attorney about an interesting appeals court case in Oregon. That state’s Supreme Court ultimately decided that merely viewing child pornography online is not a state crime; the viewer must save, print or pay for the file to be convicted of possessing it within the meaning of the law. This is true even when the computer automatically saves the files to the cache of the web browser, which keeps a copy of recently viewed material. That ruling stirred up controversy in Oregon, of course, where legislators have at least attempted to pass a bill criminalizing viewing the pornography. So I was extremely interested to see a similar ruling out of the New York State Court of Appeals in People v. Kent.

James D. Kent was a professor at Marist College in Poughkeepsie, N.Y., when he brought his computer in to the college’s tech support department for help with malfunctions. A student employee scanning for viruses found a folder full of sexually provocative pictures of underage girls. Kent told college administrators he didn’t know about the images, but the college turned over the hard drive to local police, who found even more sexually explicit child pornography in a separate folder; in the web browser’s cache; and in the “trash” space waiting to be overwritten. Kent was ultimately convicted of 134 counts of child pornography possession and two counts of promoting a sexual performance by a child, for procuring a website and a video. He was sentenced to one to three years in prison.

Kent’s appeal was first rejected by the trial court’s appellate division, which ruled in part that files stored in a cache are not sufficient by themselves to prove knowing possession or procurement. However, that court found the other circumstances sufficient to prove that Kent’s procurement was knowing.

He appealed again and had more luck with the New York State Court of Appeals, which reversed the convictions for certain files found in the computer’s cache. New York made child pornography promotion illegal in 1977, before the Internet changed how this material is usually distributed. That law makes it a crime to knowingly acquire child pornography for any purpose, but Kent argued that accessing and displaying the images does not meet the statute’s definition of procurement. If the defendant doesn’t know the files are being cached, the court wrote, he or she cannot knowingly acquire or possess them within the meaning of the law. In so ruling, the appeals court followed federal law and the laws of some states, which have held that to be convicted for cached images, defendants must be provably aware that the images would be cached. Viewing is also illegal under federal law, the court noted, but not under New York law. Thus, while it found Kent’s possession charges valid, it reversed as to the procurement charges and ruled that prosecutors must prove defendants know of the files in the cache to convict for possession.

As a child pornography criminal defense lawyer, I’m pleased to see this ruling. As with the Oregon case, this one appears to turn on the wording of the state law, which takes into account only possession, not transient viewing online. This is distinct from federal law and the laws of many other states, including Florida, where courts have expressly found that files in a cache are sufficient to support a possession charge. This split may be resolved by state legislators simply changing the law to permit a conviction for viewing, but as a child pornography possession defense attorney, I’d also be interested in seeing it resolved in the U.S. Supreme Court, if appropriate. Prosecutors undoubtedly hate the idea that defendants can go free on what they see as a technicality, but as New York and Oregon have recognized, the law does not permit convictions for things that were never actually criminalized.

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May 7, 2012

Seventh Circuit Permits Court Appointed Lawyer to Withdraw From ‘Frivolous’ Appeal – U.S. v. Konczak

As a child pornography possession defense attorney, I frequently tell my clients about their options on appeal. If you’ve never come into contact with the criminal justice system before, you might not know that appeals are requests to a higher court to review the decisions of a lower court, usually the court that heard a trial. Though appeals are often handled by different lawyers from those who handle trials, there are things attorneys can do at trial that lay the groundwork for a successful appeal. Trial attorneys can also give defendants their opinions about the chances of success on appeal, which may help defendants decide whether to pursue one. In United States v. Konczak, however, defendant Chad Konczak apparently disagreed with his court-appointed defense lawyer about whether there was any merit to his appeal of his child porn conviction.

Konczak was a student at a community college in Mattoon, Ill. when campus police officers caught him in the act of using library computers to download sexually explicit pictures of underage girls. He was arrested and ultimately pleaded guilty to charges of using an “Internet website” to view child pornography. He received a within-guidelines sentence of 45 months in prison, but then decided to appeal. His court-appointed attorney, who was not named in the decision, asked to withdraw from the case, saying all possible arguments Konczak could make on appeal would be frivolous. Konczak opposed the motion, and the Seventh U.S. Circuit Court of Appeals took up the issue of whether the lawyer should be permitted to withdraw.

The court reviewed all possible arguments identified by the defendant’s and attorney’s briefs on appeal, starting with the legality of the guilty plea. It started by taking the attorney to task for failing to document whether the plea had been discussed with Konczak. Attorneys should not explore this kind of argument without discussing the issue with the client and ensuring that the client really wants to withdraw the guilty plea, the court said. However, the issue is moot, it went on to say, because it was satisfied from the record that no basis for a challenge exists — there was nothing in the transcript or the plea colloquy suggesting problems. The Seventh next agreed with the lawyer that the record showed no basis for a challenge to the sentence. A within-guidelines sentence is presumptively reasonable, it said, and nothing in the record supports an exception. Konczak argued that the trial court failed to take into account that most of his Internet use was legal, but the appeals court noted that this doesn’t support an inference that the court confused legal and illegal images. Thus, it granted the attorney’s request to withdraw and dismissed the appeal.

This case illustrates a problem for criminal defendants like Konczak: It’s difficult to make a good argument on appeal without the help of an experienced attorney. Unless you have legal training, it’s easy to miss deadlines, get confused about the legal arguments or otherwise make mistakes that an experienced cyber crime criminal defense lawyer like me would not. While it’s unusual for a court-appointed lawyer to withdraw, plenty of defendants have the more common legal problem of not being able to afford an attorney. This is a shame, because sometimes, appeals conducted without a lawyer are lost for procedural reasons that have nothing to do with the merits of the case. My job as a child pornography criminal defense attorney includes understanding the process and procedures, so nothing stops the court from considering the strengths of the legal arguments.

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April 30, 2012

Texas High Court Upholds Child Pornography Conviction Because Jury’s Findings Were Reasonable – Wise v. State

As a child pornography criminal defense attorney, I know that child porn possession cases frequently end up in appeals. However, those cases are usually appealed for their sentences, or for the way the evidence was required. It’s rare to see a child porn case challenged on the sufficiency of the evidence itself, but that was the situation in Wise v. State, a Texas Court of Criminal Appeals case that upheld a trial-court conviction, but overturned an appeals court ruling in favor of Jeffrey Shane Wise. Authorities found ten deleted images of child pornography on Wise’s computer, and he was convicted in Wichita County on ten counts of possession. The court of appeals reversed, finding that the trial court hadn’t adequately considered alternative explanations, but the Court of Criminal Appeals reversed again, finding that this was the wrong standard of review.

Wise was prosecuted on the child porn counts along with counts of sexual assault of a child and sexual indecency with a child relating to acts with an employee and his stepdaughter, plus another count of child porn possession for a photo of the employee on his camera. The ten images were found on the “free space” of his computer, meaning they had been deleted but remained on the hard drive while waiting to be overwritten by new files. He was convicted of everything in the same trial, but only the deleted child pornography was at issue on appeal. The Second Court of Appeals reversed those convictions, saying the evidence was not sufficient to support them. In support, the majority in that court said it was possible for the images to have gotten onto the hard drive without Wise seeing or accessing them. Under Texas law, a defendant cannot be convicted of child porn possession unless he “knowingly and intentionally” possesses it. A dissent argued that this majority applied the wrong legal standard, and prosecutors made the same argument on appeal.

The Court of Criminal Appeals ultimately agreed, restoring Wise’s convictions. Texas courts have rarely considered knowing possession with regard to files that had been deleted and exist only in the computer’s “free space,” but analyzing courts around the country, the Court of Criminal Appeals ruled that such cases should be analyzed on a case-by-case basis. In this case, the record shows Wise did not have the skills to recover the deleted files, so the court said his guilt depended on whether he’d had access to and control over the files before deletion. The appeals court correctly rejected Wise’s argument that a virus could have put the images there, the high court said, but incorrectly credited his suggestion that they could have come from the computer’s previous owner. This was the “reasonable hypothesis analytical construct” standard expressly rejected in a 1991 case, the higher court said. Furthermore, it said, the appeals court should have deferred to the jury and construed the case in the light most favorable to the prosecution, which showed Wise had used his computer in other ways to pursue a sexual interest in children and teens. Thus, it restored his conviction.

As a cyber crime criminal defense lawyer, I know this is a defense that is commonly used in child pornography cases. There are cases of child porn prosecutions in which the defendant truly didn’t know the material was on the hard drive. It’s difficult to convince juries and judges of this, even when the evidence for it is strong, partly because child pornography is such an emotional subject. That’s why, as a child porn possession defense attorney, I’m pleased that the Court of Criminal Appeals made it clear that Texas courts should evaluate each defendant and case individually. This way, they can take into account other charges, computer skills and similar facts relevant to whether the defendant had actual knowledge of the material and its content.

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April 18, 2012

Eighth Circuit Upholds Denial of Entrapment Instruction in Online Sex Trafficking Case – U.S. v. Cooke

As a cyber crime criminal defense attorney, I often work with defendants who have been, or feel they have been, entrapped by law enforcement in a “sting” operation. These are common in cases where the defendant is accused of trying to meet a minor for sex, and very often, the client asks me whether we can plead entrapment. Unfortunately, the answer is frequently no, because there’s a high threshold for an entrapment defense, and the courts have ruled fairly consistently that the typical undercover law enforcement operation is not entrapment. So I was interested to see another case taking on this thorny issue in United States v. Cooke, in the Eighth U.S. Circuit Court of Appeals. Louis Edward Cooke was convicted of one county of attempted sex trafficking of a minor and one count of attempting to coerce a minor into a sex act. He appealed the denial of an entrapment defense, but the court upheld it.

Cooke, of eastern Missouri, answered an ad placed online promising two sisters who would “make your dreams come true.” There were no sisters, of course; the ad was placed by police officers. In response to Cooke’s response, they sent him a “digitally morphed” image of an underage girl and quoted prices for 30 or 60 minutes with her. They ultimately exchanged 14 emails and five phone calls, during which time Cooke was told the sisters were 13 and 15 and briefly spoke to a female officer posing as the older sister. He also tried to negotiate down the price and, after officers told him the “pimp’s” car wouldn’t start, offered to jump it for a discount. After coming to the house and agreeing to pay $60 for 15 minutes with the older girl, Cooke was arrested and charged. At trial, he testified that he thought the ad was a hoax and did not intend to have sex with the girl. At trial, he unsuccessfully requested an entrapment instruction, but was denied; his sentence was 10 years in prison.

On review, the Eighth Circuit noted that defendants may have an entrapment instruction only if a reasonable jury could find entrapment from the evidence. Law enforcement must induce the crime, and the defendant must lack a predisposition for it. The court ultimately decided that this case falls short of that standard. In support of his argument, Cooke cited the phone call that officers placed to him to see if he was coming to “meet” the girl — but the Eighth Circuit said that call shouldn’t be considered in isolation. It said, Cook initiated the majority of calls and emails, repeatedly tried to determine whether he was speaking to law enforcement, sought a discount and asked for privacy when he entered the house. Thus, the court found he was predisposed to commit the crimes he was convicted of, and no entrapment instruction was required. The court also rejected Cooke’s objection to the admittance of unrelated emails, including some to an alleged 16-year-old, saying Cooke’s response (“that’s cool that ur young, but i don’t want u to narc”) was further evidence of his propensity and not hearsay.

As a federal sex crimes defense lawyer, I might also raise this objection. “That’s cool that you’re young” is not an especially lascivious response, and the news came after Cooke had corresponded several times with a young woman he knew was a college student. This makes it difficult to interpret the response as predisposition to have sex with underage girls. As for the larger issue of entrapment, courts have repeatedly ruled that the evidence must show no propensity to commit the crime — but courts are free to decide for themselves what is evidence of propensity. Thus, courts may decide the issue using evidence that other courts would not find relevant, such as the number of phone calls each party placed. As an online sex trafficking criminal defense attorney, I explain all of this in detail, with a candid discussion of options and likely outcomes, when an entrapment defense is possible.

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April 11, 2012

Seventh Circuit Finds Six-Day Delay Between Seizing Phone and Obtaining Search Warrant Reasonable – U.S. v. Burgard

As a child pornography criminal defense lawyer, I read a lot of cases in which the defendants dispute the police’s right to search their homes, cars or other property. Without a valid search, of course, law enforcement can’t prove crimes like child pornography possession because the search is their only evidence of a crime. But most courts will let a police search stand unless there is clear evidence of wrongdoing or carelessness about probable cause, so I was interested to see case in which the defendant challenged the warrant based on delays. In United States v. Burgard, the Seventh U.S. Circuit Court of Appeals ultimately rejected the argument from Joshua Burgard that the court should have suppressed evidence of child pornography on Burgar’s cell phone because the police took six days to get a warrant.

Burgard, 21 at the time, got into trouble when he showed a friend his cell phone pictures of underaged girls in sexually explicit poses, and bragged about having had sex with those girls. The friend called the police department in his southern Illinois town and reported this, and the police asked him to help stage a traffic stop that evening. At the traffic stop, Sergeant Louis Wilson confiscated the phone and entered it into evidence, but he did not go on to apply for a search warrant. Rather, he asked Detective Mark Krug in a neighboring town to help, because Krug had experience working with the FBI’s Cyber Crimes Task Force. Because of shift differences and an armed robbery in Krug’s small town, they did not obtain their warrant for six days; when they did, they promptly searched the phone and found the sexually explicit pictures. Burgard was charged with and pleaded guilty to two counts of receiving child pornography, but reserved the right to challenge the warrant delay on appeal.

The Seventh Circuit ultimately agreed with the trial court that the delay did not make the seizure of Burgard’s phone unreasonable for Fourth Amendment purposes. Interestingly, all of the parties agreed a search warrant was necessary, which is not universally true in my experience as a cyber crime defense attorney. They also agreed that the initial seizure was lawful; but police then have an obligation to search the seized property within a reasonable amount of time, and Burgard argued that the six-day delay was not reasonable. The courts have not created a bright-line test for when a delay is unreasonable, the Seventh said, but the Supreme Court has instructed courts to weigh the government interest at stake against the nature and quality of the intrusion on the individual’s rights. Using that test, it agreed that the delay was not unreasonable. Though the police did appear to have dragged their feet, the court said, that imperfection was not unreasonable. Indeed, the court found this “careful, attentive police work” laudable. Thus, it upheld the district court.

The court noted that there’s no “bright line” test for how long a delay is unreasonable, which is disappointing for me as a child pornography possession defense lawyer. While it’s laudable to balance inconvenience to the defendant (pretty large, in this case, given that his phone was gone for almost a week) with legitimate state interests, this leaves a lot of room for errors or variations among the individual courts deciding cases. While Burgard’s six-day delay was found reasonable, another case cited in this opinion found a 90-minute delay unreasonable. It’s not hard to see that this could lead to inconsistent results, particularly in cases that provoke strong emotions, such as child porn cases.

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April 4, 2012

Nebraska Supreme Court Reverses Child Pornography Conviction Because of Flaws With Warrant – State v. Sprunger

In my practice as a child pornography defense lawyer I hear, and read, about a lot of cases involving challenges to search warrants. These are attempts to get the evidence from a police search thrown out; throwing out this evidence generally destroys the case against the defendant because possession is such a simple crime. However, most of these challenges fail; courts generally uphold police actions and police judgment, and often they are not very sympathetic to the defendants to start with. So I was very interested to see a ruling that did throw out a search warrant out of the Nebraska Supreme Court. In State v. Sprunger, Benjamin Sprunger was convicted after trial of four counts of possessing child pornography, but said the evidence should not have been admitted because the warrant failed to establish probable cause.

Sprunger originally came to police attention because his IP address (the unique locator of his computer) had been used in suspected credit card fraud. After talking, Sprunger denied them a search without a warrant. When they returned with the warrant, Sprunger asked to delete some files first, but was denied. One deputy asked if there was child pornography on the computers, and after Sprunger said no, the deputy said there was nothing to worry about if Sprunger did not have child porn. A few days later, a lawyer for Sprunger called the police who took the computers and said Sprunger told him the computers had been taken to look for child pornography. Based on that statement and Sprunger’s request to delete files, the police obtained a second search warrant to look for child pornography. Ultimately, they found no evidence of the credit card fraud, but material they believed was child pornography. Sprunger moved at trial to suppress the second warrant, and while the court agreed there was no probable cause for that warrant, it found that the phone call from the attorney was enough to support a good-faith exception.

The Nebraska Supreme Court ultimately disagreed. It noted that the child pornography would not likely have been uncovered during the officers’ search for evidence of the credit card fraud, so their case depends entirely on the validity of their second search, for which the court said there was no probable cause. The deputy’s original statement about child porn was a reasonable basis for Sprunger’s and the attorney’s belief that Sprunger was under investigation for child porn, the court said. Furthermore, it said Sprunger could have requested a chance to delete files for any number of reasons, not just because the files were child porn or any other incriminating material. And a general search for evidence of any crime, without particularity, would be unconstitutional, it added. The good faith exception granted by the trial court also fails, the high court went on. The affidavit supporting the warrant was based on the same insufficient probable cause, it said. It said reasonable officer would or should have known that the only connection to child porn was created by the deputy’s comment, and thus they could not have relied on the warrant in good faith. Thus, it reversed and remanded the case.

As a cyber crime criminal defense attorney, I suspect this defendant succeeded where so many others failed because the evidence for the warrant really was extremely thin. Though official misconduct, such as racial profiling or allowing personal conflicts to affect police work, is one reason to throw out a search warrant, it’s not the only one. As this case shows, courts are willing to throw out a search warrant — and the illegally obtained fruit of the search — when the circumstances show no reasonable officer could believe there was evidence of a crime. In this case, as the high court observed, “the deputy had effectively planted the idea in Sprunger’s head,” and police knew or should have known that. As a child pornography criminal defense lawyer, I’m pleased that courts are willing to recognize this even when the alleged crime is child porn.

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March 26, 2012

Eighth Circuit Rejects Argument That Child Pornography Sentencing Guidelines Are Inflated – U.S. v. Black

As a child pornography possession defense attorney, I have a lot of sympathy for the idea that sentencing guidelines for child pornography crimes are overinflated. Indeed, so do federal judges; they depart downwardly from the child porn sentencing guidelines more often than from the guidelines for any other crime. Part of the problem is that Congress likes to make laws about child pornography because they are popular with voters, so it has passed several laws that increase sentences past the U.S. Sentencing Commission’s decisions. The problem is so clear that the Sentencing Commission held a hearing in February to discuss improvements to the guidelines. Nonetheless, an appeal based partly on the argument that the guidelines are inflated did not pass muster with the Eighth U.S. Circuit Court of Appeals in U.S. v. Black.

Scott Kinsey Black of Missouri pleaded guilty to two counts of child pornography possession after an arrest not documented in the opinion. After his guilty plea, he filed a sentencing memo arguing for a sentence of probation, given his personal history and the nature of the offense. In that memo, he argued that the child pornography sentencing guidelines often create a sentence much greater than required to serve the statutory purposes of sentencing. The court was unimpressed. It calculated a range of 78 to 97 months in prison, then departed downward to 60 months, citing Black’s lack of a criminal record, his mental health history and the need to avoid an unwarranted sentencing disparity. It also set, as a condition of Black’s release, a lifetime of supervised release in which Black will have to get written permission from his probation officer to use a computer, since he had used a computer in the crime.

Black appealed, arguing that the sentence was substantively unreasonable and failed to consider his argument that child porn sentences are overinflated. He also challenged the supervised release condition. The Eighth Circuit upheld all three decisions. Though the district courts normally address all arguments raised in sentencing memos, it said, they do not have to address them all. Black had an opportunity to bring up his overinflation argument at the sentencing hearing when the court asked if there were any other factors to consider, but did not. Failure to discuss the argument does not mean the court did not consider it, the Eighth said. It also affirmed the sentence as substantively reasonable. Sentences within guidelines are presumed reasonable, the court said, and this one actually departed downward. Failure to depart still further is not an abuse of discretion, the Eighth said. Finally, it found no plain error in the Internet restriction, finding in general that such restrictions are not an abuse of discretion when they are not total bans and evidence shows use of a file-sharing program.

This last decision is interesting to me as a cyber crime criminal defense lawyer, because computers and the Internet are now a fact of modern life. Such a ban would require a probation officer to grant Black written permission to do almost any job, including something like waiting tables at a restaurant that uses a computerized system to place food orders. This could make it even harder for Black to get a job and move on with his life after prison, reducing his ability to rehabilitate. Punitive measures frequently appeal to the public and to politicians trying to appease the public, but it’s best for everyone if the defendant has a real chance of rejoining society. That includes clients represented by child pornography criminal defense attorneys like me.

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March 19, 2012

Defendant May Not Be Convicted for Both Receipt and Possession, Eighth Circuit Rules – U.S. v. Huether

In child pornography cases, appeals usually focus on sentences rather than whether the crime was proven. In my opinion as a child pornography criminal defense attorney, that’s at least in part because sentences in child porn cases are very high (even unreasonably high), but proof is not usually an issue. I’ve written here several times about the legality of sentencing a defendant for receipt and possession of the same materials, which is generally not permitted by appeals courts because one is a lesser included offense of the other, making it illegal double jeopardy to penalize the defendant for both. That was one of the decisions made by the Eighth U.S. Circuit Court of Appeals in United States v. Huether. The court upheld the evidence used to convict Ray Leon Huether of North Dakota, but sent the case back to trial court to vacate one of Huether’s convictions for possession or receipt.

Huether came to the attention of authorities when his former girlfriend, identified as CT, told the Minot police he had sexually abused her daughter. Huether had moved to Fargo, but maintained a residence in Minot, where the Minot police found substantial amounts of child pornography. Officers then searched his residence in Fargo, waking him at 7:45 a.m. and obtaining his consent to the search. One officer asked Huether to answer some questions but said he was free to leave; Huether answered for about two hours, some of which was taped. He was not read his Miranda rights, but at the end of the interview and search, he was arrested. He was ultimately indicted in federal court on charges of receipt of child pornography and possession of child pornography. Huether unsuccessfully challenged the statements he made to the officers, but was convicted on both counts and sentenced to a total of 30 years in prison. (That sentence was to run consecutively with a state-court sentence of 30 years for gross sexual imposition.)

On appeal, Huether made two main claims: The district court should not have allowed evidence obtained from his non-Mirandized interview with police; and convictions for both receipt and possession violate the Fifth Amendment right to be free of double jeopardy. The Eighth Circuit disagreed with the first assertion, but found merit in the second. Miranda warnings are required when a suspect is in custody, and the Eighth found that Huether was not officially or constructively in custody when he gave his interview in Fargo. Huether was advised he could leave at least twice during the interview, he answered voluntarily and the police did not dominate or strong-arm him. On the double jeopardy issue, however, the court found that it’s undisputed that possession is a lesser included offense of receipt. If prosecutors charge both, the jury must be told that it can only convict on one, the Eighth said — particularly when, as here, there’s nothing explaining which charges pertain to which images. Thus, the court remanded the case to trial court to vacate one of the two sentences.

As a cyber crime criminal defense lawyer, I’ve seen at least two other recent decisions involving double jeopardy for a defendant charged with both receipt and possession of child pornography. As the Eighth Circuit notes, possession must be included in the offense of receipt; after all, you can’t receive something without then possessing it. The court also noted that in this case, the mistake substantially affects Huether’s rights, since he was servng a total of 60 years between the state and federal convictions. Vacating one conviction will take 10 to 20 years off that total, which is a substantial change, but still makes it possible that Huether will die in prison. As a child pornography criminal defense attorney, I commonly see sentences this long, because of the highly politicized nature of child porn cases.

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March 12, 2012

Seventh Circuit Rules Police May Use Cell Phones Without Warrant to Determine Numbers – U.S. v. Flores-Lopez

As a cyber crime criminal defense attorney, I occasionally write here about whether police need a warrant to search a suspect’s cell phone. As a rule, police may search physical papers they happen to find in the defendant’s possession without a warrant when the search is “incident to a lawful arrest.” However, that rule was made before the rapid advancements in mobile technology that enabled many people to carry around miniature computers as phones. As a result, an arrestee may now be caught with a mobile phone that contains the equivalent of thousands of pages of data, making it unclear whether the search is incident to the arrest or indeed even necessary. In U.S. v. Flores-Lopez, the Seventh U.S. Circuit Court of Appeals skirted the issue, finding that police did not search the phone belonging to Abel Flores-Lopez when they used it long enough to determine his phone number.

Flores-Lopez had arranged to sell methamphetamine to a reseller, Alberto Santana-Cabrera, who in turn had planned to sell it to a customer secretly acting as a police informant. That customer was wearing a wire when he met with Santana-Cabrera, so the police got to overhear a phone conversation the two dealers had in which they agreed to make the sale at a garage. Authorities were waiting at the garage and arrested Flores-Lopez outside, after which they seized his cell phone. At the scene, they searched his phone for its telephone number, which they used to subpoena three months of his call history. The police did not obtain a warrant before looking through the phone for this information. That evidence was used at trial, where he was eventually convicted of drug crimes the majority did not specify and sentenced to 10 years in prison. Flores-Lopez appealed, arguing that the evidence was tainted by an unlawful, warrantless search.

The Seventh Circuit ultimately disagreed, finding no warrant was necessary because the officers did not truly search the phone. In an opinion laden with hypotheticals and metaphors, it suggested that cell phones and computers are not “containers” as the Supreme Court has understood them, in part because the potential for invasion of privacy is greater. Warrantless searches may still be legal when justified by the need to disarm or recover evidence before it can be destroyed, the court said, though neither was a serious issue in this case. However, it did find that the invasion of privacy from going into the phone only long enough to locate the number was so minimal as to not infringe the Fourth Amendment. And co-conspirators could theoretically have wiped the phone remotely, said the Seventh, and powering off the phone may not solve that problem. While this danger is remote, it balances with the minimal invasion of privacy from retrieving only the phone number, the court said. Thus, it upheld the inclusion of the call record evidence.

Challenging illegal searches is a common part of my job as a drug crimes defense lawyer, because drug crimes are often uncovered during searches. That’s in part because mere possession of drugs rises to the level of a crime in the United States, regardless of the defendant’s actions or intoxication, but also because police officers sometimes bend the rules in order to get an arrest. When they do, all of the resulting evidence is tainted by the illegal search and should be thrown out, as Flores-Lopez argued in this case. And if the evidence is on a phone or computer, as is more and more likely these days, it may be genuinely unclear whether the search was justified. An experienced cyber crime defense attorney can help you understand what’s legal and what’s vulnerable to a challenge.

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March 5, 2012

Defendant Who Filmed Kids Showering Not Entitled to Downward Departure From CP Sentence – U.S. v. Klug

As a child pornography crimes defense lawyer, I was interested to read a court decision that ended with a call for better guidelines in child pornography sentencing. In United States v. Klug, the Seventh U.S. Circuit Court of Appeals upheld a long sentence for Joseph Klug, who was convicted of producing as well as possessing child pornography. Like many defendants, Klug possessed a large collection of child pornography. However, he’d also made his own by surreptitiously filming children and teens in showers, using the bathroom and changing clothes. He challenged his 384-month sentence, arguing that it was inappropriately severe given that he did not make sexual contact with the victims. The Seventh Circuit rejected this view, but one concurring judge called for improved sentencing to take such circumstances into account.

An FBI agent found Klug through a peer-to-peer file-sharing network where Klug was sharing child pornography. After agents executed a search warrant at Klug’s home, Klug confessed to possessing a large amount of child pornography. He also confessed to making secret videos of boys he supervised as an adult leader of a youth ministry on camping trips, as well as in the locker room at his gym. The surreptitious videos included a boy he’d brought back to his home using the bathroom; boys in the shower; and a boy changing clothes in a tent and masturbating. (Klug denied that this was intentional.) He then cropped out their faces before trading the videos online.

Klug was ultimately convicted of possession and production of child pornography and sentenced to 384 months in prison, below the statutory maximum. At sentencing, the judge pointed to victim impact statements he’d seen in the past, which testified about the long-term harm done to child pornography victims from knowing their images are online. The judge also expressed concern about Klug’s propensity to molest.

Klug appealed his sentence, arguing that a sentence as high as his should be reserved for those who produce videos with explicit sexual activity involving children. The videos he produced didn’t show adults exploiting children, which Klug argued should reduce his sentence. The Seventh Circuit rejected that argument. The sentence is already below guidelines, the court noted, allowing the court to presume it is reasonable. Furthermore, the court disagreed that the lack of explicit sexual conduct means the videos did not harm the victims. By circulating the videos online, the court said, Klug gave them a basically permanent existence, with a potential for endless replication. The harm this can do has been recognized by both the courts and Congress. That the facial features were removed is irrelevant, the Seventh said; bodies can be identified. Finally, it ruled that any disparity between Klug’s sentence and that of a producer of explicit material was not an unwarranted disparity. Judge Cudahy concurred with a call for more guidance in sentencing to account for performers as victims and any connection to child exploitation.

As a cyber crime criminal defense attorney, I strongly agree. In fact, the U.S. Sentencing Commission is currently in the process of examining whether child pornography sentencing is adequate and fair, a concern shared by both prosecutors and defense attorneys. Defense attorneys point to the very high sentences these crimes receive under the guidelines, which are often enhanced by sentence enhancements that are a routine part of the crime. Prosecutors and victim advocates would like better distinctions between types of crimes, so defendants can be charged according to what actually occurred. And federal judges, who depart from child porn sentencing guidelines more than for any other crime, would like flexibility. It’s not clear whether the Sentencing Commission will make those changes, or whether Congress will permit them, but as a child porn possession defense lawyer, I applaud the push for better definitions and more flexibility.

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February 27, 2012

Fifth Circuit Affirms Sentence In Child Pornography Case Despite Dispute Over Intent to Send – U.S. v. Goluba

As a child pornography possession criminal defense attorney, I know my clients often come to law enforcement’s attention after an investigation or charge for a different but related crime. Because of the emotional nature of child porn investigations, some of this information can find its way into evidence even when it’s irrelevant to the charges the defendant ultimately faces, and even into the sentencing. That seemed to be the case in United States v. Goluba, in which the solicitation of a child online led law enforcement to discover child pornography in the home of David Goluba of Arlington, Texas. Goluba pleaded guilty to child pornography receipt charges. Nonetheless, for sentencing purposes, the court did not apply a sentence reduction for only possessing, with no intent to distribute, finding that his choice to send a sexually explicit photo to a ten-year-old in Minnesota supported a finding of intent to distribute.

The mother of the ten-year-old contacted local police when she discovered a sexually explicit chat with Goluba. In one exchange, he called the girl’s attention to his profile picture on the site, which showed him sitting in a chair with the tip of his erect penis visible. In a followup visit from Arlington police, Goluba, 43, admitted to the conversation, possession of child pornography, and other behaviors suggesting sexual interest in children, and a search of his home turned up roughly 31,000 images and videos of child pornography. Goluba fled but was later found and arrested, then pleaded guilty with no plea agreement. He objected to the presentencing report before sentencing, arguing that he merited a two-level decrease because his conduct was “limited to the receipt or solicitation” of child pornography. Prosecutors disagreed, saying Goluba had sent a sexually explicit image to the Minnesota girl and thus his conduct was not limited to possession. The district court agreed.

Goluba appealed to the Fifth U.S. Circuit Court of Appeals, but that court upheld the sentence, finding that his conduct was not limited to receipt of child pornography. Goluba’s argument noted that the picture he called the girl’s attention to did not depict sexual conduct by a minor, but rather, was a sexually explicit picture of himself. Thus, he said, the picture did not disqualify him from the sentence reduction under the language of the sentencing guidelines. The Fifth Circuit found that this put the emphasis on the wrong part of the guidelines. It emphasized the word “conduct” in the guidelines and found that conduct must refer to the totality of his behaviors, not just the charged offense. It cited a case finding that unindicted conduct may be considered as long as it is relevant conduct as defined by the guidelines. Nor do the sentencing guidelines require that surrounding conduct be limited to behaviors related to child pornography, the court wrote.

As a child pornography criminal defense lawyer, I suspect another court could have come to a different conclusion with the same amount of support. The court may be required to honor the caselaw allowing unindicted conduct to be considered, but it viewed the issues in a way that was least favorable to the defendant. For example, Goluba used the sexually explicit image as a profile picture, which means everyone on the site saw it; he “sent” to the girl to the same degree that he “sent” it to everyone else. In addition, the court’s finding that the sentencing guidelines don’t require surrounding conduct to be limited to child pornography conduct, but this is a very loose standard that doesn’t guide district courts on how to apply the sentencing guidelines uniformly and fairly. As a cyber crime criminal defense attorney, I hope other courts have a chance to review this issue and consider it carefully.

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February 21, 2012

Seventh Circuit Finds No Double Jeopardy for Defendant Accused of CP Possession and Receipt – U.S. v. Halliday

Not long ago, I wrote on this blog about the reversal of a conviction for a defendant convicted of both possession and receipt of the same child pornography. As a child pornography possession defense attorney, I know prosecutors often see opportunities to get heavy sentences for people in this position because CP crimes are so unpopular with the public, but in this case, the court decided the double conviction violated the Double Jeopardy Clause of the Fifth Amendment. So I was interested to see a Seventh U.S. Circuit Court of Appeals case that came to the opposite conclusion. In United States v. Halliday, the court upheld Scott Halliday’s convictions because he was charged with possession and receipt of two different videos. However, the court did send the case back for resentencing, finding that his original sentence was based on false assumptions by the judge.

Halliday was found by criminal investigators working for the state of Illinois, who found his suspected child pornography through file-sharing software. The computer was at the residence Halliday had shared with his wife and young son until recently; at the wife’s request, he moved in with his mother around the first search. After law enforcement searched and seized the computer a few months later, Halliday was questioned and eventually admitted he was likely responsible for the child pornography found there. He was indicted on two counts of receiving child pornography and one of possession. The receipt counts were for receipt on April 20, 2008 and May 27, 2008; the possession count was for possession between those two dates. The court did not instruct the jury that the same videos could not form the basis for receipt and possession convictions, but it did vote to convict on all three counts. Halliday did not object. At sentencing, the judge went above the government’s request and sentenced him to 240 months.

On appeal, the Seventh Circuit reviewed Halliday’s double jeopardy claim for plain error because he raised the issue for the first time on appeal. The court applied the Blockberger test for double jeopardy, which asks whether each count requires proof of a fact that the other does not. It acknowledged that two to three of its sister circuits have ruled that possession is a lesser included offense of receipt and therefore they cannot be charged together. However, it said, the issue is moot in this case because more than one video formed the basis for Halliday’s conviction. It dismissed Halliday’s argument that the dates on the indictment make it possible that the convictions overlap, saying evidence showed multiple downloads between the two dates. However, it found the indictment deficient and warned prosecutors and judges to be clear in future cases to avoid double jeopardy problems. The court then went on to find plain procedural error in Halliday’s sentencing, because the judge relied on an unrelated case to decide that Halliday felt the crime as “victimless,” despite Halliday having made no such statement. Because this was improper, it remanded the case for resentencing.

As a cyber crime criminal defense lawyer, I’m pleased to see that the Seventh is willing to remand a sentence that was apparently based on conjecture about Halliday’s motives rather than statements he made. As I said, child pornography crimes are unpopular, and even judges may feel strongly enough to make decisions based on assumptions or emotions rather than the record. However, it’s not entirely clear that the multiple downloads of which Halliday was accused were enough to eliminate the danger of double jeopardy, as the Seventh appeared to be saying. Though the evidence apparently included multiple download allegations, there was only one possession charge, which suggests a reference to possession of the video forming the basis for the earlier receipt charge. As a child pornography criminal defense attorney, I would prefer to see this clarified in trial court, even if that means a remand, because freedom from double jeopardy is a basic constitutional right.

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February 14, 2012

Court Finds Enticement Defendant Waived Argument About Whether Victims Were Minors – U.S. v. Zahursky

As a solicitation of a minor criminal defense attorney, I keep a close eye on issues that come up in court that might form the basis of a later appeal. While of course my goal is to keep my client from being convicted, it’s important to pay attention to potential routes of appeal because appeals courts will not hear most issues that are brought up for the first time to them; the rules require defendants to “preserve” issues by bringing them up in some form during the trial. That’s why I was interested to see a Seventh U.S. Circuit Court of Appeals decision in which that court declined to hear arguments on an important issue: whether the “minors” the defendant allegedly solicited online were truly minors. In United States v. Erik Zahursky, the court rejected a second appeal of Zahursky’s sentence, saying while the sentence enhancement at issue may not apply, he hadn’t preserved the issue for appeal.

Zahursky propositioned two alleged teenaged girls online in 2006. One was actually a Secret Service agent; the other was unknown to authorities. After the unknown girl disappeared, Zahursky arranged sex with the agent’s identity and a fictional friend, and was arrested on his way to meet them. He was eventually convicted of attempting to entice a minor to engage in sexual activity online, with sentence enhancements for “unduly influencing a minor” and for a “pseudocount,” both based on his correspondence with the unknown person. He later appealed both his conviction and his sentence enhancement for unduly influencing a minor, and was successful on the second count. In that appeal, the Seventh Circuit found that the sentence enhancement could not apply when Zahursky had never met the unknown person and it was unclear whether she was really a minor. On remand, the court recalculated his sentence from 262 months to 210. Zahursky again appealed, this time arguing that the pseudocount was inapplicable.

He was not so fortunate the second time. The Seventh Circuit explained that federal law requires courts to treat conduct with each correspondent as a separate count, but contains no attempt provision. That means the government must prove each correspondent is a real minor or a law enforcement officer. This was the basis for overturning the sentence enhancement in Zahursky’s first case. His current challenge to the other sentence enhancement rests on conduct with the same person, who still cannot be identified as a minor or officer, the court said. However, the court further said Zahursky waived this argument by failing to bring it up in his first appeal. If he had done so, the court said, it could have ordered a hearing on the evidence to decide this issue. The challenge in his first appeal was narrow, based on a section of the law with a different definition of “minor,” and could not have included the second challenge implicitly, the court said. District courts may entertain new arguments on appeal, but they are not obligated to consider anything other than what is relevant to the issues on appeal. Thus, the Seventh affirmed Zahursky’s new sentence.

This decision is a cautionary tale for enticement of a minor defense lawyers like me and our clients. The Seventh Circuit does not deny that Zahursky may be right; it simply refuses to hear what he has to say. Unfair as this may seem, the court is likely within its rights to decline to hear arguments not raised. (I also suspect, as a cyber crime criminal defense attorney, that the court sees repeat appeals as inefficient and usually a waste of time.) This is why it’s vital to make all potentially useful arguments when you have a chance, even if the court seems unreceptive.

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February 6, 2012

Eighth Circuit Upholds Conviction for Attempting to Entice a Minor Over Entrapment Argument – U.S. v. Herbst

I’m proud to announce that I’ll be appearing on TruTV’s In Session this Friday at 1 p.m. Eastern. I will be discussing the Dalia Dippolito case from here in South Florida. If you’re not familiar with this case, Dalia Dippolito was a newlywed from Boynton Beach who conspired with one of her two extramarital boyfriends to kill her husband, Michael Dippolito, allegedly for his money. She was convicted last summer and sentenced to 20 years in prison. I will give my opinion as a south Florida criminal defense attorney about the case and Dalia Dippolito’s appeal. In Session airs from 9 a.m. to 3 p.m.; I’ll be appearing at 1 p.m .

Entrapment defenses are a common issue in my work as a cyber crime criminal defense lawyer. In an entrapment defense, the defendant argues that he or she would not have committed the crime without law enforcement’s actions. Though this defense seems very applicable to cases of online solicitation of a minor, it generally fails in such cases because of the fact patterns involved (and perhaps because the court is unsympathetic to the defense). In United States v. Herbst, the Eighth U.S. Circuit Court of Appeals rejected such an argument by Randall Allen Herbst of Iowa. Herbst was convicted of attempting to entice a minor to engage in illicit sexual activities. In his appeal, he argued unsuccessfully that his right to a speedy trial was violated, he should have been able to instruct the jury on entrapment and the government failed to prove its case.

Herbst chatted online in 2010 with a law enforcement officer posing as a 13-year-old girl named Brooke. Brooke and Herbst discussed sexual topics, and arranged to meet the next day at her local community center. The next day, they talked online again and Herbst asked Brooke to call him, which was arranged with the help of a female administrative worker in the office. When Herbst arrived at the meeting place, he texted Brooke with a request to walk toward the road, and was promptly arrested when he parked. At the sheriff’s office, Herbst confessed that he’d chatted with Brooke and another false persona, but insisted at trial that he was planning only on giving Brooke a ride home. He requested an entrapment instruction, but the district court denied it, saying the evidence did not support it. After his conviction, he asked for a new trial on the grounds that he wasn’t told how long the deputy had been posing as teenaged girls in chats with him, which he said supported the entrapment defense. This was also denied.

On appeal, Herbst argued that the evidence was not sufficient to convict him; that he should have been given an entrapment instruction; and that the new evidence required a new trial. All of these arguments failed. On the evidence argument, he said prosecutors did not show he had performed a substantial step toward completing the offense of enticement of a minor, because he had not stopped at the meeting place or prepared for a sexual encounter, and had another reason to be in the area. However, the Eighth Circuit said, driving toward a meeting place meets the requirements of the offense, and Herbst also texted Brooke with instructions that would allow him to pick her up. Furthermore, it found that Herbst was not entitled to an entrapment defense because he showed a predispostion to commit the crime; he initiated sexual discussions with both false teens and suggested activities. Finally, the Eighth ruled that the disclosure of the new evidence — that Herbst had talked to the false personas two months earlier than the officers had testified at trial — was unlikely to lead to acquittal in a new trial.

As a solicitation of a minor criminal defense attorney, I warn my clients that entrapment is a difficult defense to use. As the Eighth laid out in this decision, defendants must be able to show that they had no predisposition to commit the crime, as well as that the law enforcement inducements were the main reason they did it. The predisposition issue in particular is difficult because it requires defendants to prove a negative and can be overcome by any previous history or even prior accusations of crimes involving children. Law enforcement is well aware of this, of course, and takes steps to ensure that defendants cannot use it during this kind of “sting” operation. In my work as an enticement of a minor lawyer, I consider those and other facts before I advise my clients on how to proceed.

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January 30, 2012

Federal Judge Throws Out Charges Against Man Accused of Online Solicitation of a Minor

First, I’m proud to announce that I’m now able to defend cyber crimes and other criminal charges in greater Chicago. My practice as a cyber crime criminal defense attorney has always been national, but I've made it a little more official with the new admission to practice law in the U.S. District Court for the Northern District of Illinois. This includes federal courts in greater Chicago as well as the federal courthouse in Rockford, Ill. This allows me to defend more criminal cases in Chicago, which sees a variety of cyber crime cases. In fact, just this month, greater Chicago saw a child pornography possession case ending in a plea deal with federal prosecutors.The bar admission is in addition to my admissions to practice law in the Northern, Middle and Southern Districts of Florida as well as the state of Florida and Washington, D.C.

Second, on the subject of Washington, D.C., an article about a cyber crime prosecution in that jurisdiction caught my eye. According to the National Law Journal, the D.C. federal courts have dismissed half the charges against a man accused of attempting to persuade another adult to make a child available for sex. A federal judge dismissed a charge of attempted persuasion and enticement of a minor against Ivan Nitschke, saying his actions did not constitute a crime. Left in place was a charge of traveling to engage in illicit sexual conduct. In dismissing the case, the judge said the evidence didn’t show that Nitschke ever spoke directly to the minor (who was fictitious) or attempted to indirectly persuade him to have sex through the adult he was speaking to, an undercover D.C. law enforcement officer.

Nitschke, a Canadian visiting Virginia, chatted with the detective on a website known as a dating forum for gay men. The detective was logged in under the screen name DC Perv and his profile expressly said he was into “twisted” things including young partners. He told Nitschke that he was having sex with a 12-year-old boy and would be open to a threesome after an initial one-on-one audition with just the adults. They arranged to meet inside the District of Columbia, where Nitschke was arrested as soon as he showed up. He was then indicted by a grand jury for attempted coercion and enticement of a minor — which carries a 10-year mandatory minimum prison sentence — and travel with intent to engage in illicit sex. Nitschke stipulated to all the facts alleged, but moved to dismiss the first count.

The judge ultimately agreed to dismiss the charge, finding that the undisputed facts showed no intent to persuade a minor directly or indirectly. Of course, no facts did or could prove that Nitschke attempted to persuade a minor directly, since there was no minor. The chat transcripts show that he talked only to the police detective, the court noted. Federal courts have found that a defendant may be convicted of indirectly persuading a minor when he attempts to cause the assent of the minor through an adult intermediary. A recent D.C. Circuit case had upheld a conviction in a similar case, but the judge said that majority opinion didn’t address the issue of whether the defendant had attempted to persuade an adult or a child. The judge in Nitschke’s case also found it important that he never offered money or anything else of value for the sex — he took up an invitation to join existing plans the detective supposedly had.

This is only a lower-court decision, but it’s heartening and educational for me as a solicitation of a minor defense lawyer. The judge’s order goes into some detail about previous cases involving the issue of what exactly it means to entice or persuade a minor. Only the Eleventh Circuit, our appeals court here in Florida, has ruled that persuasion of an adult is sufficient to break the law, and a subsequent panel suggested this was wrong; the other courts. At least four other courts identified in the order have required hat the communications with the adult contain some attempt to indirectly persuade the minor, such as asking the minor’s opinion or sending gifts. This fine distinction is easy to lose in child sex abuse cases, which often evoke strong feelings from juries and judges. If the D.C. Circuit gets this case, I hope as a cyber crime criminal defense attorney that it sides with the majority of its sister courts.

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January 24, 2012

Eighth Circuit Sends Back Child Porn Case Because Court May Have Considered Rehabilitation – U.S. v. Olson

As a child pornography criminal defense attorney, I know my clients frequently face very long prison sentences for child pornography crimes. This is not just because child pornography crimes are reviled in our society; many of the available sentence enhancements add considerable time and are common. As a result, it’s common to see an appeal of just the sentence for a child pornography case, even when the defendant does not contest the underlying criminal charge. In United States v. Olson, defendant Timothy James Olson of North Dakota challenged his sentence on the relatively new ground of Tapia v. United States, a U.S. Supreme Court ruling that courts may not extend prison sentences for the purpose of rehabilitation or any treatment program. The sentence was ultimately sent back to the district court for reconsideration.

Olson turned himself in to police and admitted molesting his stepdaughter for seven to eight years, starting when she was five years old. In the ensuing investigation, police discovered that Olson also had more than 2,000 digital images of child pornography. The child pornography case was prosecuted federally, with sentencing after Olson pleaded guilty in state court to continuous sexual abuse of a child and began serving 30 years in state prison. He also pleaded guilty in federal court to possession of child pornography, saying at a hearing that he had an addiction. The district court declined to apply a sentence enhancement because it would require Olson’s sentence to run concurrently with his state sentence, instead imposing a top-of-guidelines 108 months to run consecutively with the state sentence. The court expressly said it wanted Olson in the sex offender treatment available in the federal system, because he could not be trusted in the community without “meaningful treatment.”

After this sentencing, the U.S. Supreme Court decided Tapia, saying a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation,” because federal law recognizes that prison is not an appropriate means of correction. Olson appealed his sentence.

On appeal, the Eighth U.S. Circuit Court of Appeals agreed that the district court may have considered rehabilitation inappropriately when it decided its sentence. Not only did the district court expressly say it wanted Olson to have access to federal-system treatment, but it expressly rejected a sentence enhancement in order to meet that goal. This would be a direct violation of Tapia, the court said, unlike when a district court merely discusses rehabilitation. And the Supreme Court did not indicate that its decision should be merely prospective. Thus, it remanded the case for resentencing. Judge Benton dissented, arguing that Olson waived the issue by not bringing it up in district court and there was no plain error.

This issue could be helpful for defendants in a wide variety of criminal matters, but as a child pornography possession lawyer, I believe it could be particularly useful to defendants facing child porn charges. Because child pornography cases can be emotional even for judges, those judges may be particularly at risk of handing down sentences that focus on rehabilitation in violation of Tapia. If other circuits follow the lead of the Eighth and apply the ruling retroactively, this could lead to a series of resentencings for defendants given high sentences to start with. Of those, many could be sentence reductions, because Tapia expressly forbade extra prison time intended to accommodate rehab or treatment. As a cyber crime criminal defense attorney, I applaud anything that helps reduce unfairly long sentences.

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January 16, 2012

Eleventh Circuit Rules Use of File Sharing Software Does Not Qualify Alone for Sentence Enhancement – U.S. v. Vadnais

An important part of my job as a cyber crime criminal defense lawyer is protecting my clients from the consequences when the law hasn’t caught up with the way technology is used in real life. When laws are applied to situations they don’t quite fit, the defendants can face far more severe penalties than the situation warrants. For example, in United States v. Vadnais, defendant Marc Dennis Vadnais pleaded guilty to knowingly receiving child pornography. The problem was with the sentencing: the south Florida district court enhanced his sentence considerably, finding that because he used file-sharing software, his offense included distribution of child pornography for receipt, or expectation of receipt, of a thing of value.” His final sentence was 20 years in prison. On appeal, the Eleventh U.S. Circuit Court of Appeals held that mere use of file-sharing software did not justify the sentence enhancement.

Vadnais admitted at sentencing that he installed LimeWire, a file-sharing program, and used it to download child pornography. By default, the program was set to share everything he left in the downloads folder, and that’s how law enforcement found him. This made Vadnais eligible for a two-level sentence enhancement for distributing the material. He did not deny that he qualified for that sentence enhancement — but at sentencing, he argued that he did not qualify for the greater five-level sentence enhancement for distribution “for the receipt, or expectation of receipt, of a thing of value.” Caselaw has established that a thing of value can be other child pornography, and that was the allegation in the case of Vadnais. After receiving his sentence, he appealed.

The Eleventh Circuit sided with Vadnais, finding that “logic compels” a higher standard for finding distribution for value than that applied by the district court. In order to apply this enhancement, the court said, there must be direct or circumstantial evidence that the defendant reasonably believed he or she would receive something of value in exchange for sharing the files. The prosecution and the trial court did not deny this, the appeals court noted, but found evidence that Vadnais expected to receive additional child pornography because he did not turn off the file-sharing feature of the software. The Eleventh flatly rejected that argument, finding it didn’t follow from the evidence in the case or the structure of file-sharing software. Peer-to-peer file-sharing programs do not penalize users for failing to share; Vadnais would have had the same access to other people’s files regardless of whether he changed the default settings for his own. The Eleventh noted that facts may show this in other cases, but sent this case back for resentencing.

As a child pornography criminal defense attorney, I am pleased to see the Eleventh Circuit, which includes Florida, join at least two other circuits in requiring real evidence for this sentence enhancement. As the court noted, any user who shares files in a peer-to-peer program is already vulnerable to the same two-level sentence enhancement Vadnais did not dispute in this case, for mere distribution. If the Eleventh had applied the standard prosecutors requested in this case — whether the defendant turned off the default-enabled file-sharing — anyone who qualified for the lower sentence enhancement would also qualify for the higher one. This would make the distinction meaningless. As a child pornography possession defense lawyer, I do not believe that’s what the writers of the sentencing guidelines intended.

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January 9, 2012

Seltzer Law Defends Internet Users Slammed With Subpoenas for Alleged Illegal File Sharing

I’ve occasionally written here about my work as a cyber crime criminal defense attorney defending people accused of illegal file-sharing. As longtime observers of file-sharing and downloads know, the RIAA, the music industry organization, has been pursuing downloaders for some time by filing lawsuits hitting them with very steep fines for allegedly violating copyrights. The movie industry has more recently started doing the same thing, with a slew of lawsuits getting publicity last spring after judges agreed that multiple defendants can be joined in the same file-sharing lawsuit. Now, many clients are starting to come to Seltzer Law for help when they received subpoena notices from internet service providers (ISPs) like Comcast, AT&T or Verizon. These notices are often confusing because they say the ISP has not yet identified you — but it will if you don’t act.

A typical ISP notice like this one says the plaintiff — the company or organization filing the lawsuit, and its law firm — has filed a lawsuit. That lawsuit is usually in Washington, D.C., regardless of where you actually live. The notice goes on to say that you are a defendant in this lawsuit because the plaintiff has identified you as someone who illegally downloaded a movie or shared it with others. The identification is based on your IP address, a unique identification number attached to your computer or the modem you use to get online. Thus, the accusation is really saying that their records show someone using your IP address downloaded the material illegally. That IP address allowed them to trace it to the ISP, which knows which customer uses that IP address.

The ISP is a middleman that is legally required to pass on the information; it won’t defend you. However, you have the right to defend yourself in a few different ways. If you’d like to keep your name from being revealed, you can file to quash or vacate (stop) the subpoena by the date listed in the letter. This is best done with the help of an experienced cyber crime defense lawyer, because he or she is an expert and also to keep your identity secret. If you take no action — a common response to an upsetting letter, but not a good one in this case — your name will be released automatically. Waiting even longer could allow you to lose the lawsuit by default. However, you also have some defenses. In some cases, users are mis-identified by an administrative or technical mistake; in others, the computer or modem was used without permission. You may also be able to move the lawsuit if it was filed in a place where you don’t live or visit regularly.

At Seltzer Law, P.A., our cyber crime criminal defense attorneys have the technical as well as the legal skills to defend these types of cases, and we offer defense to clients across the U.S. as well as here in Miami. If you truly don’t believe you downloaded the material that’s the subject of the lawsuit, we can make sure even if the material may have been deleted or moved, then document the state of your hard drive for the court. These cases do happen. Sometimes, another person in the household used the computer; the modem may also have been used without permission by a neighbor or passer-by. Mistakes finding or recording the IP address can also cause mistakes, sometimes leading to accusations against people who don’t have the technical skills to download anything illegally. And if you would rather pay to settle the case, we negotiate aggressively to reach a reasonably sized settlement, rather than putting up with the high settlement offers that some have termed “shakedowns.”

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December 19, 2011

Sixth Circuit Rules Child Porn Sentence Not Unreasonable Despite Defendant’s Military Service – U.S. v. Riley

As a cyber crime criminal defense attorney, I was interested but not surprised to see a recent case rejecting an appeal from a defendant who asked for leniency based on his status as a military veteran. In United States v. Riley, Patrick Michael Riley of Kentucky had pleaded guilty to distributing child pornography. He was turned in by a woman he had been flirting with online, who contacted police after he suggested having sex with her and a child at the same time. At sentencing, Riley argued that a brain injury suffered during his three combat tours in Iraq and Afghanistan, combined with pain medications for other serious injuries, let to his interest in child pornography. The court rejected his plea for a downward departure and sentenced him to the minimum available under the sentencing guidelines. The Sixth Circuit affirmed.

The woman who contacted the police told them in early 2008 that he had proposed sex with a child and sent her five videos of child pornography. The police began posing as the woman online and told Riley that a 14-year-old girl had moved in to “her” home. He sent instructions for “grooming her for sexual activity,” then more videos, which he saw as instructional. He planned to meet them for sex and videotape the acts. However, police raided his home instead and seized a computer with a lot of child pornography as well as an attempt to have sex with another woman’s three-year-old. Riley ultimately pleaded guilty to two counts of distributing child pornography. In a presentencing memo, he moved for a downward departure to his sentence based a decade of service with the Army, including three tours in Iraq and Afghanistan in which he suffered repeat concussions and a broken back. A psychologist testified that his brain injury and pain medications generated his interest in child pornography, but the court denied the motion and sentenced Riley to 151 months in prison.

Riley appealed, arguing that the sentence was substantively unreasonable, arguing that a departure was appropriate because of his lack of criminal history and “beautiful” military record. The Sixth Circuit was not persuaded. The U.S. Sentencing Guidelines exist to give some uniformity to criminal sentencing, though they don’t lock judges into specific ranges. Though the Guidelines do identify military service as a possible factor in a downward departure for sentencing, the Sixth said, Congress has expressly said that child crimes and sex crimes are not to be treated like other crimes. For those, the only acceptable departures are “expressly enumerated” in Sec. 5K of the guidelines, and that section does not mention military service or a clean criminal history, the court said. The commentary to the Guidelines notes this different standard and says judges should not use downward departures to make judgments on policy. Thus, Riley’s motion was legally inappropriate and the trial court’s decision was correct, the court said.

One thing that stuck out to me about this decision, as a child pornography possession defense lawyer, was the Guidelines’ statement that judges should not substitute their policy judgments for that of Congress. This principle is how child pornography sentences have become so long that they sometimes eclipse sentences for in-person abuse of a child. Riley’s sentence is just over 12 and a half years, and it’s the lowest end of the appropriate scale for someone with no criminal record. Congress undoubtedly means well, but it’s subject to political pressures from voters who don’t understand the justice system but know that they find child sex crimes abhorrent. Thus, it’s politically easy to increase the minimum sentence, but difficult for judges to justify a departure when they encounter a case that might justify it. As a solicitation of a minor defense attorney, I believe judges should retain the discretion to show mercy when the circumstances warrant.

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December 12, 2011

Eighth Circuit Rules Child Porn Defendant Waived Double Jeopardy Claim When He Pleaded Guilty – U.S. v. Dolehide

Last summer, I blogged from my perspective as a child pornography possession defense attorney about double jeopardy. In a Sixth Circuit case, the court found a defendant could not be convicted of both possessing and receiving the same child pornography, because one offense necessarily includes the other. In that case, the court also found that the defendant cannot have waived his right to challenge the ruling by pleading guilty. That case turns out to contrast with a more recent Eighth U.S. Circuit Court of Appeals case, U.S. v. Dolehide. John Dolehide of Iowa pleaded guilty to two counts of child pornography possession, then appealed the sentence on double jeopardy grounds. The Eighth Circuit found the claim waived because it was never raised at trial.

Law enforcement identified Dolehide through his use of the file-sharing service Limewire to trade child pornography. He was ultimately charged with and pleaded guilty to two counts of possession of child pornography. After his presentencing report, Dolehide moved for a downward variance, based on factors other than double jeopardy. Rather, he argued that he had mitigating mental health problems including ADHD and Asperger’s syndrome, and would likely become a victim in the prison system. In a lengthy order, the court denied his request for a downward variance and granted the prosecution’s request for an upward variance based on evidence that Dolehide offered the pornography in expectation of a “thing of value” — other child porn. He was ultimately sentenced to 135 months in prison, and now appeals.

On appeal, Dolehide argued first that his conviction for two separate counts of child porn possession violates the Double Jeopardy Clause. The Eighth Circuit declined to consider this argument, saying it was waived because Dolehide never brought it up in lower court. The court also cited its own recent case in United States v. Stock, decided Nov. 11, in which it reasoned that Stock admitted to committing two separate crimes when he pleaded guilty to both counts. Dolehide also appealed his sentence enhancement for expectation of “a thing of value.” The commentary to the sentence enhancement expressly considers trading for more child porn a “thing of value,” the court said, and that using a file-sharing system to upload and download is evidence of expectation of a trade. Furthermore, it said, evidence shows Dolehide is too familiar with computers to claim ignorance of how file-sharing works. Thus, it affirmed the district court.

As a cyber crime criminal defense lawyer, I am very familiar with the legal principle that arguments not brought up at trial are waived on appeal. By making sure each avenue of defense is covered at trial, an experienced attorney can set clients up for a successful appeal, if necessary. As for the sentence enhancement, it appears to be written directly into the law that courts may presume defendants expect something of value from using file-sharing software to both upload and download files. You may be able to fight this with the right facts, which is why defendants facing serious criminal charges like child pornography should always get the help of an experienced child pornography criminal defense attorney. Even if you have a strong case, courts may penalize you for failing to meet statutory requirements.

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December 5, 2011

Tenth Circuit Upholds Conviction for Identity Theft and Wire Fraud Using Craigslist Scam – U.S. v. Lawrence

As a Miami hacking criminal defense lawyer, I was interested to see an appeals court decision about an Internet crime that involved theft rather than sexual exploitation. In United States v. Lawrence, the Tenth U.S. Circuit Court of Appeals upheld a conviction for a man who took part in a scheme to defraud people who had trouble paying their bills. Wallace Laverne Lawrence III was convicted at a jury trial of seven counts of wire fraud, two counts of fraud in connection with devices and one count of aggravated identity theft, with sentence enhancements for being a leader of the scheme and for obstruction of justice. He challenged the sufficiency of the evidence for every count, but the Tenth Circuit saw no problems with the evidence and upheld the convictions.

Lawrence was part of a group of people who placed ads on Craigslist and on flyers to find people who had trouble paying their bills and faced threats like utility disconnection. The group promised to pay the bills in full in exchange for a cash payment of half the amount owed, payable only after verification from creditors that the bills had been paid. The group paid the bills with credit card numbers stolen from the medical offices where Lawrence’s girlfriend, Sandra Acuna, worked. Acuna and two other women would act as couriers for the cash, and the phone numbers used were prepaid cell phones. Once the true owners of the cards discovered and reversed the charges, Lawrence and his associates would disappear. Lawrence’s seven wire fraud charges referred to Craigslist posts; the aggravated identity theft count refers to the stolen credit card numbers. He was convicted on all counts and appealed.

Lawrence’s appeal argued that the evidence for the convictions was insufficient, but the Tenth Circuit found these arguments without merit. On the wire fraud charges, Lawrence argued that there was not enough evidence to show that he personally placed the online advertisements that formed the basis of the charges. However, the Tenth said, because the charges had an alternative “aiding and abetting” theory, it was not necessary for prosecutors to show that he personally placed the ads, as long as he or a co-conspirator placed the ads. Indeed, three of them were traced to his home computer. Because those convictions were valid, the court said, Lawrence’s challenge to his aggravated identity theft charge, which must be based on an underlying felony like wire fraud, must also fail. Finally, Lawrence challenged sentence enhancements for both being a leader of the scheme and obstruction of justice — based on a recorded phone call in which Lawrence urged Acuna to lie — but the Tenth rejected both challenges, finding clear evidence for both enhancements.

As a south Florida identity theft criminal defense attorney, I’m always interested to see a criminal appeal in this area. Lawrence faced federal charges in this case, of course. Most defendants in his situation would, since even a Craigslist posting intended to sell an item in the same city is likely to use out-of-state servers, and thus be involved in interstate commerce. This is all that’s needed to trigger federal jurisdiction. But Florida defendants can also face state charges for many of the same offenses. This could include credit card fraud, offenses against computer users and offenses against intellectual property. As in this case, there is often a question about whether the person charged actually took the offending online actions — police can trace an IP address, but can rarely show that a particular person was using the computer. As a Fort Lauderdale cyber crime defense lawyer, I use these and other defenses whenever appropriate to defend my clients.

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November 28, 2011

Fourth Circuit Rules Sentence Enhancement Proper for Child Porn Defendant With Prior Battery – U.S. v. Spence

As a south Florida child porn criminal defense lawyer, I was interested to see a recent decision that seems to create a small split among federal circuit courts on an issue related to child pornography. In United States v. Spence, the Fourth U.S. Circuit Court of Appeals ruled that a prior conviction for aggravated assault and battery was enough to justify a sentence enhancement in a child pornography possession case. The court upheld a 10-year mandatory minimum sentence with the enhancement for Troy Spence of South Carolina, who pleaded guilty to one count of possession of child pornography. Spence had a previous conviction for assault and battery of a high and aggravated nature, and argued at sentencing that this did not qualify for a sentence enhancement for a prior sexual abuse of a minor conviction. The district court disagreed and the Fourth Circuit confirmed.

Spence was indicted in 2009 for one count of child pornography possession; the opinion did not make the circumstances known. He struck a plea bargain on that charge, but challenged the sentence enhancement for having a prior conviction for sexual abuse of a minor. His prior conviction is from 2003. In that case, he was convicted of an unlawful violent act resulting in injury to a female much younger than him. During the course of the injury, court documents said, he touched the victim’s genitals. Spence argued that the sentence enhancement could not apply because the elements of the aggravated assault and battery did not require a sexual act. The district court agreed, but applied a modified categorical approach to determine that the enhancement should still apply because there was a sexual assault on the record. He was sentenced to 10 years in prison and now appeals.

He had no better luck with the Fourth Circuit, which upheld the use of the sentence enhancement. It started by adopting a Fifth Circuit decision determining that the phrase “of a minor” in the sentence enhancement applies only to the enhancement for an “abusive sexual conduct conviction, not to sexual abuse or aggravated sexual abuse. It next turned to the standard used by the district court. A modified categorical approach looks not only at the elements of the offense being used for the sentence enhancement, but the facts on record for that offense. This avoids a “mini-trial” for each prior, the court said, and the Sixth, Eighth and Ninth Circuits have all adopted the two approaches. The Fourth joined them, rejecting an opposing view from the Tenth Circuit. The categorical approach doesn’t definitely say whether the sentence enhancement applies to Spence, the court said, but the modified categorical approach does. Thus, it upheld the district court.

This conviction is bad news for Spence, who is serving a mandatory minimum equal to the maximum sentence for the un-enhanced base offense. Given that he got the mandatory minimum, I would be interested as a Miami child porn criminal defense attorney to know what kind of sentence he would have received without the sentence enhancement. As the opinion notes, the majority of circuits seem to agree that the categorical and modified categorical approaches are appropriate. However, this case struck me as similar to a case with a different outcome, the Sixth Circuit’s U.S. v. Gardner. The prior conviction in that case was for sexual battery, a crime that does not require a minor victim but in this case had one. Because Gardner did not plead guilty to any facts involving abuse of a minor, the sentence enhancement was ultimately reversed. As a Fort Lauderdale cyber crime defense lawyer, I expect to see more cases addressing this unfortunately common issue.

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November 21, 2011

Eleventh Circuit Lowers Sentence for Defendant Caught Sending Child Porn to Unidentified Person – U.S. v. Fulford

Many of the cases I take as a south Florida cybercrime defense attorney stem from the defendant’s interactions with police officers online. Officers will commonly pretend to be minors, then lure defendants into sending explicit pictures of themselves, child pornography or other incriminating materials. Unfortunately for defendants, the courts have ruled that this is generally not entrapment; what matters is whether the defendant believed the officer to be a minor when the conduct took place. That idea was turned on its head in United States v. Fulford, a decision of the Eleventh U.S. Circuit Court of Appeals. That court found that an Alabama court was wrong to apply a sentence enhancement for sending child pornography to a minor in the case of David Fulford, who sent the material to an unidentified person.

Authorities prosecuted Fulford for distributing child pornography through online chat rooms. Investigators believed the recipients to be minors, but the only two recipients whose ages were known were adults not involved in law enforcement. He pleaded guilty to one count of possessing child pornography and two counts of knowingly receiving and distributing it. At a sentencing hearing, prosecutors argued for a five-level sentence enhancement for distributing the pornography to a minor, but Fulford objected that the recipient, someone claiming to be a 13-year-old named Dawn, was not provably a minor. Prosecutors argued that under Eleventh Circuit cases on different but related issues, the court could find that it was enough that Fulford believed it was a minor. The court did eventually find this over Fulford’s objections, and he appealed that decision only.

The Eleventh started with the text of the sentence enhancement, which requires the enhancement “If the offense involved… [d]istribution to a minor.” The issue was whether “Dawn,” the unknown person to whom Fulford sent the child pornography, was a minor. For the purposes of the statute, a minor is an actual minor, a law enforcement officer pretending to be a minor or a third real or fictional person represented by law enforcement as a minor. The Eleventh found that expanding this to cover unknown persons believed to be minors would impermissibly read too much into the guidelines. Even if expanding the definition would improve the guidelines, the majority said, caselaw requires it to avoid reading in any more meanings than the sentencing commission wrote into the guidelines. In its analysis, it disapproved its own decision in 2004’s United States v. Murrell for doing exactly that. Thus, it vacated Fulford’s sentence and sent the case back for further examination of whether Dawn was a minor.

This case is at the least interesting, and could even be important to my work as a Miami-Dade child pornography criminal defense lawyer. Of course, I agree that defendants should not receive sentence enhancements for offenses prosecutors cannot prove. Our system of justice requires prosecutors to prove their cases in order to avoid putting innocent people in prison; standards should not be any lower for sentence enhancements. It would be interesting to see whether other appeals courts have also taken up the issue. It’s uncommon to see a prosecution like this, because most people prosecuted for soliciting a child online actually did talk to law enforcement, and thus they fall right within the guidelines. As a Fort Lauderdale solicitation of a minor defense attorney, I suspect there would be far fewer prosecutions if officers were not permitted to entrap defendants by posing as children.

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November 14, 2011

Personal blog from a family of a child pornography defendant

I've recently found two blogs written by a mother about her son's child pornography possession case. The first blog, Oppose The Adam Walsh Act, focuses on the trial and investigation of her son. The second, Sugar for Salt, is about the family's experience with incarceration. The blogs are a chilling look at the experience from the family's point of view, and may offer some insights for other families going through similar cases.

November 14, 2011

Eighth Circuit Rules Suspect Not in Custody When He Confessed to Child Porn Crimes – U.S. v. Perrin

I often hear from clients who felt compelled to answer questions or allow searches by law enforcement officers before they were legally required to. This is a common mistake for people accused of crimes, and it’s one the police love because they can exploit it to get an easy confession or conviction. It is basically never in your best interests to talk to the police; if they believe you committed a crime, they will use everything you say to bolster that theory. That’s why your best choice is always to stay quiet until you have a Fort Lauderdale cyber crime defense attorney by your side. That could have helped the defendant in United States v. Perrin, a recent Eighth U.S. Circuit Court of Appeals case involving a child pornography possession conviction for Walter Perrin of Sioux Falls, South Dakota.

Perrin, who is of below-average intelligence and had been in special education classes, shared a home with six other people, including his mother, and multiple computers. State authorities traced child pornography downloads to the home, and federal agents got a warrant to raid the home. They stopped one resident on the way to work and had him sit in the living room with Perrin and three other people, while officers “swept” the house. An agent told the residents they were free to leave, but must stay in the living room if they stayed in the house; and that he would ask questions but no one had to answer. During questioning, Perrin showed signs of nervousness, so the agent took him into his own bedroom for private questioning. The agent did not repeat the admonition that Perrin did not have to answer questions and was free to go. A detective searched the room while they talked. The Eighth said the agent’s gun was visible, but he did not raise his voice, threaten or make promises.

Nonetheless, Perrin confessed to possessing child pornography during this interview. At trial, he moved to suppress this confession, arguing that he was in custody at the time but had not been Mirandized, as required. The trial court denied this motion and Perrin pleaded guilty, but reserved his right to appeal the suppression issue. If Perrin is right, the Eighth said, the confession must be thrown out as tainted. However, the court found that Perrin was not in custody, legally speaking, at the time. When Perrin confessed, he had been advised about ten minutes earlier that he didn’t have to answer any questions and was free to leave the house. Perrin voluntarily agreed with the agent’s request go to the bedroom, the court said. Perrin’s bedroom door was not shut and no evidence suggests the officers were blocking him from leaving. Perrin emphasized that his intelligence was below average, but the court said this was undercut by his apparent lack of problems answering the questions. Thus, it upheld his conviction.

As a south Florida child pornography criminal defense lawyer, I wonder whether another court would have looked more deeply into the issue of Perrin’s intelligence. Knowing how to answer questions is a low threshold for mental competence. The opinion notes that Perrin had been in special education all through school and had held jobs as a dishwasher and fry cook at a restaurant. Both the jobs and the schooling would have given Perrin practice in answering questions — but it’s doubtful that they taught him much about interacting with the police. The test for whether defendants were in custody is whether reasonable people in their position would have felt free to leave. As a Miami child pornography criminal defense attorney, I’d be interested in a closer examination of Perrin’s circumstances.

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November 7, 2011

Ninth Circuit Finds Child Pornography Need Not Be Self Produced to Merit Charges for Advertising – U.S. V. Williams

Much of my work as a south Florida child pornography criminal defense lawyer focuses on defending clients accused of possession of child pornography. This is the most common charge, in part because it’s genuinely more common than other child pornography crimes and in part because it’s easier for prosecutors to prove. However, federal law also defines separate crimes for distribution, advertising and other actions with child pornography, and advertising can be construed broadly. In United States v. Williams, the Ninth U.S. Circuit Court of Appeals more precisely defined the crime of advertising child pornography. John Williams of Nevada had argued that he could be convicted of advertising child pornography only if he had made the pornography in question, but the appeals court disagreed.

FBI agents found Williams online through his file-sharing activities, with which he had shared more than 5,000 illegal images. After a search of his mobile home, Williams admitted to viewing and sharing child porn online. He was indicted for possessing, distributing and advertising the distribution of child pornography. He objected only to the advertising charges, arguing that the statute only applies to people who advertise to create child pornography or advertise pornography they actually produced. The district court denied his motion, so he entered a conditional guilty plea that preserved his right to appeal the issue, and the prosecutors dropped the other charges in exchange. This appeal followed.

The sole issue the Ninth Circuit had to consider was whether the statute (18 USC § 2251(d)(1)(A)) requires defendants to personally produce the child pornography they are accused of advertising for distribution. The court decided that it does not. The plain language of the statute suggests otherwise, the court said. It requires only that the defendant “knowingly makes, prints or publishes... [any] advertisement seeking or offering to... distribute or reproduce any [child pornography].” While the statute does refer to the production of child pornography, nothing in its plain language requires a defendant to have personally produced the pornography. The issue has come up in other circuits, the appeals court noted, but all three to have considered it — the Second, Third and Eighth Circuits — have come to the same conclusion. Williams argues to the contrary based on the statute’s phrasing that the offer “involves” rather than “involved” the use of a minor, but construing the statutes this way would take away prosecutors’ ability to enforce the law in many situations. This could not be what Congress intended, the court said.

As a Miami-Dade child pornography criminal defense attorney, I am disappointed but not surprised. It’s not unusual for laws in the present tense to capture behavior that’s in the past; the statute could easily be read in the way prosecutors preferred. Furthermore, it’s the norm for courts to construe child pornography laws broadly, because our society just isn’t sympathetic to child pornography defendants. Even though child porn defendants now face some of the harshest laws in the federal criminal system, some juries and some judges make emotional decisions when confronted with upsetting cases involving child pornography. That’s why I strongly recommend that people accused of these crimes contact an experienced Fort Lauderdale child porn criminal defense lawyer as soon as they realize they will be charged.

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October 24, 2011

Seventh Circuit Reverses Conviction for Child Porn Defendant After Jury Shown Inappropriate Videos – U.S. v. Loughry

As a Miami-Dade child pornography defense attorney, part of my job is to make sure that juries are not unfairly prejudiced against my clients. This is a challenge in child pornography prosecutions, in which the crime is frequently enough to upset most jurors. However, it’s vital to distinguish between the actual charges and other conduct that he or she is not on trial for, but that may upset the jurors more. That distinction was vital in U.S. v. Loughry, a Seventh U.S. Circuit Court of Appeals decision overturning a conviction for child pornography charges. Roger Loughry was convicted of advertising and distributing child porn, and conspiracy, in his role as an administrator of a relatively soft-core child pornography website. The court said prosecutors should not have been permitted to show the jury harder-core pornography found on Loughry’s computer.

Loughry was a “co-administrator” on a website called The Cache, which specialized in pictures of the genitals of female minors. Pictures of sexual conduct or photos of males were not allowed. Loughry could control content and admit or promote users, and posted on several occasions to praise members who contributed new photos. Thus, he was charged with advertising and distributing child pornography, and conspiracy to do those things. Despite the fact that investigators found non-Cache pornography in his possession, Loughry was not charged with possession of child pornography. None of his charges were based on the non-Cache pornography. Nonetheless, prosecutors showed the non-Cache pornography at trial, over Loughry’s objection. These were harder-core videos involving the rape of prepubescent girls. The jury found him guilty on every count and sentenced him to 30 years in prison. He appealed.

The Seventh Circuit reversed, finding that the choice to show the at-home pornography was not a harmless error. Federal Rule of Civil Procedure 403 limits evidence that might unfairly prejudice the jury, Rule 414 relaxes this somewhat by allowing evidence in child molestation-related trials showing a propensity for such crimes. The Seventh clarified that Rule 414 does not require judges to routinely ignore Rule 403, but judge the risk of prejudice on a case-by-case basis. It went on to rule that because the court had an obligation to follow Rule 403, it should have reviewed the non-Cache pornography before allowing it to be shown to the jury. It further found that the court should have explained its reasoning in making its Rule 403 motion, but did not. Applying its own test, the Seventh found that the value of the evidence in this case did not outweigh the risk of prejudice. Loughry was never charged with possession, nor was the pornography similar to that on The Cache, the court said. The court accused prosecutors of “manufacturing” reasons to bring in hardcore pornography that had “a strong tendency to provoke intense disgust.” Because of this, and because the prosecution’s case was not a slam-dunk, the Seventh reversed and remanded the case.

This case is a good example of why I work hard, as a Fort Lauderdale cyber crime defense lawyer, to keep only the relevant evidence in front of juries. Loughry was on trial for conduct related to The Cache. The other pornography he had on his computer was not directly relevant to those charges, any more than it would be relevant to argue that he’s a bad driver or good at his job. However, the introduction of the irrelevant hard-core pornography evidence was likely to have affected the jury’s decisions — especially since it was apparently introduced right before jury deliberations. With a shocking, difficult-to-watch video still fresh in their memories, jurors were more likely to convict. This is why, as a south Florida child pornography defense attorney, I think at least as hard about evidence I’d prefer to exclude as I do about what to include.

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October 3, 2011

New Florida Law Addresses Teen Sexting Without Throwing Kids in Prison

As a Miami cyber crime criminal defense lawyer, I am pleased to announce that Florida is now dealing reasonably and equitably with teenagers caught “sexting.” As CNN reported Oct. 1, a new state law went into effect that day that changed the law enforcement approach to the practice, in which kids send lewd cell phone photos to one another. Prior to the change, the only law to deal with the issue was the state’s child pornography law, which was designed for adults who exploit children. This led to harsh penalties for teens caught sexting, who would be penalized even if the “child pornography” was a self-portrait. Those convicted would generally face prison time, lifelong sex offender registration and life as a convicted felon.

The new law, authored by state Rep. Joseph Abruzzo (D-Wellington), reduces this significantly. On a first offense, teenagers caught sexting don’t face any criminal charge at all. Instead, they get the equivalent of a ticket, which carries eight hours of community service or a $60 fine. On a second offense, sexting becomes a misdemeanor of the first degree, which carries up to a year in jail and a fine of up to $1,000. (In my experience as a Ford Lauderdale cyber crime criminal defense attorney, I suspect that most kids will actually face much less time in practice.) A third offense is a felony, however, with a maximum of five years in prison and a maximum fine of $5,000. For the law to apply, the defendant must be under 18 and the person in the photo must also be under 18. Teens may not be charged at al if they took reasonable steps to tell an authority figure, did not solicit the images they received or did not send the images.

This is great news for Florida teens and south Florida child pornography defense lawyers like me. Abruzzo has said the law was expressly designed to avoid making teens face lifelong consequences for actions they took while immature. This is vital, because teens are at an age when they want to experiment sexually as well as experiment with adult freedoms. Combine this with child pornography laws written for a very different situation, and the situation can be unnecessarily disastrous. While this law was needed and will do good, however, I know that other states have added an education component to their own relatively new sexting laws. This may not be necessary in every case, but I suspect that many teens caught sexting don’t realize what serious consequences there would be if they faced true child porn laws. Such an educational component could be helpful in motivating kids to keep it clean in the future.

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September 26, 2011

Tenth Circuit Upholds Sentence for Supervised Release Violations Despite Lack of Child Porn Evidence – U.S. v. Olinger

One issue that comes up in my practice as a south Florida cyber crime criminal defense attorney is supervised release for people who have already been convicted of child sex crimes. For these defendants, supervised release frequently comes with strict limitations on what they may do online, including prohibitions on viewing or possessing any kind of pornography. In a few cases, the defendant may be barred from even using the Internet, or from specific uses of the Internet. Breaking these rules can land the defendant back in prison, as the defendant discovered in United States v. Olinger. In that case, the Tenth U.S. Circuit Court of Appeals declined to overturn the sentence given to Brian Charles Olinger for three violations of the terms of his supervised release. Oliger had argued that the sentence was unfairly inflated by allegations he was never charged with and the government could not prove, as well as exceeding three times the low end of the range.

Olinger was on supervised release after serving prison time for failure to register as a sex offender. He lived with his girlfriend at a hostel where another ex-offender, Andrew Wright, lived. Probation officers came to check on Wright and learned from a hostel staff member that Wright had been using a computer belonging to Olinger’s girlfriend. Wright admitted that he had used the computer with Olinger, but told probation officers that he was not responsible for “some things” on it that could get him in trouble. Officers found 1500 pornographic images, including 200 images of child pornography. Olinger ultimately faced and admitted to only three violations of his release: going online without the consent of the probation office, possession of alcohol and association with a known felon. Pornography charges were discarded because they could not be proven; five people in total had access to the computer, and some child pornography had been downloaded at times when Olinger was working. The sentencing range was 5 to 11 months; the court ultimately sentenced Olinger to 18, saying accessing a computer with child pornography on it was “very serious” even if he hadn’t viewed it. Olinger appealed.

He had no better luck with the Tenth U.S. Circuit Court of Appeals. Olinger argued on appeal that the sentence was unreasonable because it was more than triple the minimum part of the sentencing range, and because it reflects the court’s disapproval of the child pornography on the computer, which Olinger was not charged with possessing. However, because Olinger didn’t raise objections at the time, the court said, it reviewed those decisions only for plain error. Construing his argument as an argument against the factors the court considered, the Tenth said Olinger failed to show plain error. The language of the court’s decision did not show reliance on the wrong factors, it said. Furthermore, the appeals court said the court’s statement that “using a computer upon which there was child pornography… was a very serious violation” “clearly refers to the defendant’s breach of trust in admitting a particularly serious violation of his supervised release.” Thus, it found no procedural error. It also found no error in the length of the sentence, because the circumstances of the case included Olinger’s previous flight from justice, multiple violations of the supervised release and the child pornography. Thus, the Tenth upheld all of the sentence.

This decision disappoints me as a Miami-Dade sex offender registration defense lawyer. In a trial, prosecutors are restricted in what they may tell juries because irrelevant information about past crimes, for example, could unfairly hurt the defendant. In this case, the child pornography on the computer seems to have strongly influenced the decisions of both the district court and the Tenth Circuit, even though Olinger may not have actually possessed it or known it was there. Of course, he may be fully responsible for it, but there’s no way for prosecutors to show this. In criminal trials, the standard for convicting someone is high — beyond a reasonable doubt — in part to avoid putting an innocent person in prison in situations like this. People on supervised release and parole have fewer rights, and as this case shows, they can be convicted and sent back to prison easily, even for actions that are perfectly legal for you and me. That’s why, as a Fort Lauderdale child pornography defense attorney, I work hard to keep these kinds of convictions off my clients’ records.

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September 19, 2011

Second Circuit Overturns Child Pornography Restitution Payment Order for ‘Amy’ – United States v. Aumais

I’ve written here many times before as a child pornography criminal defense lawyer about the series of child pornography restitution cases brought in federal courts by a young woman known only as “Amy.” She was the unwilling star of a series of child pornography photos taken by an uncle who molested her. Because the pictures are widely traded among child pornography fans, “Amy” is able to intervene in child pornography prosecutions that include her images, and request financial restitution for the harm the images have done to her. None of these defendants are accused of molesting Amy or making the images; the legal theory is that Amy is hurt emotionally every time someone views the images and needs restitution money to pay for therapy. Interestingly, however, the Second U.S. Circuit Court of Appeals rejected that reasoning in United States v. Aumais.

Gerald Aumais, a resident of northern New York, was caught with a large cache of child pornography in the trunk of his car while crossing the border from Canada into New York state. He pleaded guilty to transporting child pornography and possession of child pornography. The pre-sentencing report in the case identified Amy, who said she was unable to forget the sexual abuse she had suffered and lives in fear of being recognized from the pictures. She sought $3.3 million in restitution. After an evidentiary hearing, the judge awarded $48,483 for future therapy, finding that Aumais had exacerbated, not caused, Amy’s problems. Aumais appealed to the Second Circuit.

The issue of restitution in this circumstance was one of first impression in the Second Circuit. However, it found that the text of the law, which pays restitution for harm “suffered by the victim as a proximate result of the offense,” should be read as requiring a showing of proximate cause. The D.C., Third, Ninth and Eleventh Circuits have found this as well, a result that denies compensation to victims in Amy’s position; the Fifth Circuit found that “proximate result” applies only to “other losses” and awarded the restitution. In siding with the larger group of circuits, the Second rejected its district court’s reasoning that the crimes by Aumais are a substantial cause of the harm to Amy. The two had never met, and in fact, the mental health expert who evaluated Amy did so before Aumais was arrested. Thus, it was impossible for that testimony to speak to the harm this particular defendant did, the Second said. Furthermore, it noted, ordering restitution from the many viewers of Amy’s images would create joint and several liability issues requiring courts to keep track of restitution awards of different amounts and purposes.

As a cyber crime criminal defense attorney, I’m pleased that the Second joined the other circuit courts — including Florida’s home circuit, the Eleventh — in finding a requirement of proximate cause. As the opinion notes, this is a standard well-established in common law, intended to restrict defendants’ liability to liability for things they themselves have done. Amy has certainly suffered harm, but I agree with the court that the harm comes from the actions of her uncle, who created and distributed the pictures. It’s understandable that courts would like to help a victim who was too young to protect herself when an awful thing happened to her, but that should not undermine the text and meaning of the law. Restitution was intended to keep criminals from profiting from exploiting children; consumers of child pornography indirectly create demand, but they do not create supply. As a child porn possession defense lawyer, I suspect this issue will eventually make it to the Supreme Court.

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September 13, 2011

Appeals Court Upholds Search Evidence Despite Violation of Arkansas Law – U.S. v. Kelley

As a Miami-Dade child pornography criminal defense attorney, I was interested to read an appeals court decision about suppressing a search of a defendant’s home. The search of Eric Wayne Kelley’s Arkansas home was found illegal by the Arkansas Supreme Court — but, applying federal law to a different criminal charge, the Eighth U.S. Circuit Court of Appeals found that the search evidence was admissible. In United States v. Kelley, the Eighth Circuit also found that Kelley’s 20-year prison sentence was not substantively unreasonable. Kelley was convicted in Arkansas state court of rape of a minor, only to have it reversed, and then convicted in federal court of possession of child pornography.

Kelley was living in Arkansas under an assumed name because he was wanted in Texas for sexual assault of a child. U.S. Marshals tipped off the local police to Kelley’s presence and said he was believed to be spending time with a boy. He was stopped outside his home by police; there was a boy in the car matching the description given by the Marshals. He admitted his identity and was arrested. At the police station, he repeatedly asked to call his sister about a prescription for his eyes; police had reason to believe he actually intended to tell the sister to remove evidence from his home. Meanwhile, the boy (with his mother present) told police Kelley had sexually abused him and taken photographs that were likely on Kelley’s computer. In response, officers sought and obtained a search warrant authorizing them to search for child pornography after midnight that day, because the pornography was in danger of removal.

Kelley was convicted in Arkansas state court of rape. However, the Arkansas Supreme Court reversed that conviction, ruling that the evidence must be excluded from consideration because it was illegally obtained using a warrant with no factual basis for a nighttime search. He was later retried and convicted on the same charge, and sentenced to 47 years in Arkansas state prison. Federal authorities then prosecuted Kelley for possession of child pornography. He appealed his conviction and 20-year prison sentence.

On appeal, the Eighth dismissed Kelley’s argument that the Arkansas Supreme Court’s ruling should serve to suppress the evidence in federal court as well. Under federal, not state, law, the Fourth Amendment controls whether the evidence should be suppressed, the court said. While nighttime searches were banned at our nation’s founding, current federal and Arkansas rules permit them when the requesting officers disclose their intent to search at night and give good cause. In this case, the court said, the officer requesting the warrant did exactly that. Thus, the motion to suppress the evidence was properly denied. The Eighth then turned to the issue of whether Kelley’s federal sentence was unreasonable. The judge departed upward from advisory guidelines to 240 months and ordered that this sentence run consecutively with the 47-year state sentence. Kelley argued that both the departure and the consecutive sentence were substantively unreasonable, noting that he would be 73 before eligible for parole from the state sentence. The Eighth disagreed, finding that the district court carefully considered the predatory nature of the crime, Kelley’s history of running from justice and the need to protect the public.

As a Fort Lauderdale cyber crime criminal defense lawyer, I am disappointed that the Eighth spent so little time on the issue of whether the sentence was unreasonable. Kelley’s age was not given, but even for a young adult of 20, a sentence of 67 years in prison means he has a good chance of dying in prison. The offenses in this case are serious, of course, but I cannot help but wonder whether the sentencing might not have been driven by a sense that Kelley nearly “got away with it” because his rape conviction was originally overturned. This could also have been the impetus behind the child pornography prosecution itself; the rape charge was the more serious charge and was brought well before the child porn charge. Popular sentiment is strongly against defendants like Kelley, and also drives the high mandatory minimum sentences for child pornography offenses. That’s why it pays to hire a south Florida child porn criminal defense attorney as soon as you even think you could be under investigation.

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September 5, 2011

Eighth Circuit Overturns Conviction Because of Flawed Jury Instructions – U.S. v. Johnson Jr.

As a Miami-Dade child pornography defense lawyer, I have read decisions in the past that draw a fine line between the federal crime of possessing child pornography and that of receiving child pornography. Logically, a person cannot possess anything he or she has not received, so even though they are separate crimes, the defendant generally is convicted of only one. That was not the case in U.S. v. Johnson Jr., an Eighth U.S. Circuit Court of Appeals case in which the defendant challenged both his receipt conviction and the fact that he was convicted of both offenses. Randy Lee Johnson Jr. was sentenced to 135 months in prison (11 and one-quarter years) on convictions for both possessing and receiving the same prohibited images. Because the jury was erroneously instructed on the crimes, the Eighth Circuit sent it back to the district court for resentencing.

Johnson is a professional photographer who had an assistant helping him as he photographed a hockey game in Iowa in November 2008. The assistant, Dawn Gorelick, was downloading photos off camera memory cards onto Johnson’s laptop when she discovered child pornography among the photos. She found an off-duty police officer in the hockey arena and reported it. In a police interview at the arena, and after being Mirandized, Johnson told the police he had stumbled on child pornography while viewing adult pornography, but that he saves everything. Later investigation found 190 images believed to be child pornography, which Johnson said he had downloaded from the Internet. This was videotaped. However, at trial, Johnson recanted that confession, saying it was obtained under extreme stress and fear, and had no idea how the child pornography got onto his computer. He was convicted on both counts anyway.

On appeal, Johnson’s main argument was that there was insufficient evidence for his conviction for receiving child pornography, because of allegedly erroneous instructions given to the jury about federal jurisdiction. For federal jurisdiction to apply, the child pornography must have been shipped in interstate or foreign commerce or contained materials shipped in interstate or foreign commerce. Johnson denied this at trial and the government’s computer expert could not confirm it. Despite this, the jury was erroneously instructed to consider only whether the materials of the child pornography were shipped in interstate commerce — that is, the instructions left out the possibility that the pornography itself could have been shipped over state or international lines. And there was no evidence presented at trial that the components of Johnson’s computer were shipped over state lines. Under the Eighth Circuit’s own 2009 decision in U.S. v. Inman, a conviction from flawed jury instructions can still be upheld if a rational jury could still have found the defendant guilty. In this case, the Eight found that was not necessarily true; whether the child pornography came from interstate commerce was disputed at trial. Thus, it vacated the conviction for receiving child pornography and sent the possession conviction back for resentencing. Judge Smith dissented, arguing that the evidence for federal jurisdiction was overwhelming.

This decision applies to cases in the Eighth Circuit, to which Florida does not belong, so it does not apply directly to my work as a Fort Lauderdale child pornography criminal defense attorney. But because federal circuit courts usually follow one another, this decision may hold some influence with the Eleventh Circuit if a similar case arises there. Any given child pornography case may be a state case or a federal case, and the issue in Johnson’s prosecution is the main issue: whether the child pornography provably traveled over state or national borders. When it did not, it should be a state case. While the best outcome of all is having the prosecution dropped, defendants often prefer to be prosecuted at the state level because federal child pornography convictions carry harsh mandatory minimum sentences and judges have little flexibility to ignore them. This is just one of the tools I use as a south Florida cyber crime criminal defense lawyer to get clients the best possible outcome.

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August 29, 2011

Prior Conviction for Sexual Battery Should Not Enhance Sentence for Child Pornography Crime – U.S. v. Gardner

As a south Florida cyber crime criminal defense attorney, I’ve written here before about the harsh standard sentences handed down to child pornography defendants. A past conviction for a related crime can make those mandatory minimums even longer — but as the Sixth U.S. Circuit Court of Appeals found recently, the past crime must be genuinely related. In United States v. Gardner, Daniel Roy Gardner was sentenced to less than the 15-year mandatory minimum sentence for child pornography possession, because the judge was not satisfied that a previous conviction for sexual battery on his daughter applied as a sentence enhancer. Gardner was instead sentenced to nine years, and the prosecution appealed. The Sixth Circuit upheld the sentence.

Gardner was convicted in Virginia of indecent liberties with a child for acts on his daughter, Pride, who was 15 to 17 at the time of the assaults and suffered from a rare form of cancer. She died in 1998. In 2005, computer security software found child pornography on the computer Gardner used at work, and a followup visit by the FBI found 650 images and videos of child porn at Gardner’s home. A background check turned up Gardner’s Virginia conviction. However, most files were destroyed, and the existing paperwork was unclear as to whether Gardner had been convicted of sexual battery or indecent liberties with a child. This mattered because only a prior conviction for a child sex crime can trigger the higher mandatory minimum. Gardner pleaded guilty to possession of child pornography but objected to the enhancement, and the judge in that case ultimately decided there was not enough evidence to apply the enhancement. The prosecution appealed to the Sixth Circuit.

The Sixth upheld the sentence, finding that Gardner’s prior conviction did not involve sexual abuse of a minor. Under Supreme Court and Sixth Circuit precedent, it said, it was required to consider only the facts in the judicial record that the defendant agreed to (when the defendant pleads guilty). In this case, Gardner pleaded guilty to sexual battery, a Virginia crime that does not require that the victim be a minor. The indictment in that case said the minor was a child under age 18, but caselaw required the court to look only at the facts in the indictment to which Gardner actually pleaded guilty, the Sixth said. It also dismissed prosecutors’ claims that Gardner agreed to the facts in a Virginia pre-sentencing report because he failed to contest those facts. The Sixth agreed with the district court that the validity of the PSR was questionable. The PSR was inconsistent with other case documents as to both the conviction and the date; bore no official stamp and was dated before a hearing on additional facts. Because this strongly suggested it was not the final PSR to which Gardner assented, the appeals court declined to weigh it in the sentencing. Thus, it upheld the district court.

In the cases the Sixth Circuit discussed, the question is whether defendants can be sentenced later according to crimes they were charged with, or only the crimes they were convicted of. Though this may not seem like a big difference to people not involved in criminal justice, it’s very important to a Miami-Dade child pornography lawyer like me. Just because you are arrested or indicted for a crime does not mean you will be convicted of that crime. Anytime along the way, law enforcement could drop the charges or reduce them to lesser charges. A judge could dismiss the charges. Defendants can choose to plea-bargain and plead guilty to a lesser crime. And of course, defendants can be found not guilty in a court of law. Helping my clients achieve one or more of these results is my job as a Fort Lauderdale child porn defense attorney.

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August 24, 2011

Molestation Accusation Alone Cannot Support Search of Defendants Computer – Dougherty et al. v. City of Covina

Search warrants are a major part of my work as a Miami child pornography possession criminal defense attorney. Of course, my clients cannot be convicted without evidence that they actually (and knowingly) possessed child pornography, so evidence that they did possess the material must be legally obtained — and that means any search warrant in the case must be legal. That was the problem in Dougherty et al. v. City of Covina et al., a case from the Ninth Circuit finding a southern California police department had no probable cause for a search of Bruce Dougherty’s home computer. Dougherty, a sixth-grade teacher, was accused of touching a student inappropriately. On the strength of that accusation, and the officers’ past experience, the police department initiated a search of Dougherty’s home computer and other electronics.

Dougherty was accused in 2006 of touching a student’s breasts and looking at her buttocks, and further investigation turned up more allegations of inappropriate touching. The investigating officer wrote out an affidavit for a search warrant, swearing that his experience in juvenile sex crimes investigation meant he “[knew] subjects involved in this type of criminal behavior have in their possession child pornography.” The warrant permitted police to search Dougherty’s home and seize his computer, cameras and electronic media. The search took place soon after the warrant was signed on Oct. 11, 2006. Doughterty permitted the search even though the officers said they forgot to bring the warrant. The seized computers and other items were not returned until December 27, 2007. No charges were ever filed against Dougherty. He sued the City of Covina, the lead officer, Robert Bobkiewicz, and police chief Kim Raney. The trial judge dismissed the claim with prejudice, finding the police had probable cause for a warrant and Bobkiewicz had qualified immunity as an officer.

Dougherty appealed, and the Ninth Circuit vindicated him — to some extent. The Ninth found that no probable cause existed for the search warrant leading to the search of his home. Bobkiewicz’s affidavit relied only on his training and experience; it did not contain any facts connecting him with child pornography, either directly or through his status as a suspected child molester. Nor were there any such facts, the court noted; Bobkiewicz apparently did not even verify that Dougherty owned a personal computer. The Ninth further noted a split in the circuits on probable cause for a child pornography search when the defendant is accused only of molestation. The Ninth ultimately sided with the Second and Sixth Circuits, finding no probable cause, and against the Eighth. However, it went on to find that Bobkiewicz was entitled to qualified immunity because the law was unclear until this ruling, so Dougherty’s case against him remained dismissed. The Ninth also ended Dougherty’s claim against the City of Covina, saying he had never stated his claim adequately. Judge Brewster concurred in the immunity ruling but preferred the Eighth Circuit’s position on probable cause.

As a south Florida child pornography defense lawyer, I am pleased with this ruling. I agree with the Second Circuit that molesting a child is a separate crime from possessing child pornography (unless the molestation is part of producing child pornography), and thus, it is insufficient evidence to support a search warrant. Remember, all Americans have a Fourth Amendment right against unlawful search and seizure, and that means the bar for a search is justifiably high. It is unlikely that courts would support a warrant to search for child pornography based on a different separate crime, such as a firearms violation, and the Ninth Circuit’s decision says molestation should be treated the same way. However, as a Fort Lauderdale cyber crime criminal defense lawyer, I know the split in the circuits means this issue will probably wind up in the Supreme Court.

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August 15, 2011

Eleventh Circuit Upholds Sentence for Hacking Florida A&M University Online Grading System – U.S. v. Barrington

As a cyber crime criminal defense attorney in Florida, I was very interested to see an appeals court decision on the sentence of a Florida hacker. United States v. Marcus Barrington grew out of the case of three Florida A&M University students who tried to hack into their school’s grading system in order to change grades, add credits and change residency status for themselves and several friends. Barrington and his co-conspirators used keylogger software, which tracks every key pressed on a keyboard, to discover username/password combinations for people in the school registrar’s office. Barrington was ultimately charged with conspiracy to commit wire fraud using a protected computer; accessing a protected computer with intention to defraud; and three counts of aggravated identity theft. He appealed those convictions as well as his sentence of seven years in prison.

Barrington was accused of conspiring with Christopher Jacquette and Lawrence Seacrease to change information in the registrar’s office computers. After it became clear that they were under investigation, they started changing grades for students they didn’t know, but continued to change their own as well. In all, they caused more than 650 grade changes for 90 students, and the cost of the grade and residency changes totaled $137,000. Eventually, investigators obtained search warrants and found evidence including usernames and passwords of registrar employees. Jacquette and Seacrease pleaded and became government witnesses; Barrington fought the charges in court, saying he was present but otherwise not involved in the conspiracy. This was rebutted by Barrington’s own Rule 11 proffer as well as testimony from a friend whose grades he had changed. He was convicted.

On appeal, Barrington argued that testimony on his prior offline grade-changing was inadmissible; that testimony of a pending burglary charge against Jacquette should have been admitted; and that the evidence was insufficient on the identity theft counts. None of these arguments held water with the Eleventh Circuit. The prior grade-changing was also done at Florida A&M, but with physical forms rather than online; indeed, the online grade-changing was undertaken after the conspirators ran out of forms. Thus, the court said, it was fair for prosecutors to use it to show Barrington’s intent. Nor did the trial court err when it barred testimony about Jacquette’s pending burglary case, the Eleventh said, since the case was unrelated to Barrington’s prosecution and Jacquette’s testimony would not affect the likelihood of his conviction for burglary. On the identity theft counts, Barrington argued that the usernames and passwords were university property and not personally identifying information, but the appeals court disagreed. Under the relevant law, it said, a username and password is “means of identification.” After dismissing with arguments relating to sentencing, the Eleventh Circuit upheld the trial court on all counts.

As an identity theft criminal defense lawyer, I’m always interested to see a federal appeals case on counts like wire fraud and accessing a protected computer. Most hacking cases are about money — stealing credit card numbers or other protected data to sell to identity thieves. In this case, it could be argued that the hacking was a fraternity prank gone way too far, although of course, changing grades is also a kind of profit-seeking. Notably, Barrington’s seven-year sentence is much longer than the 22-month sentences of his co-conspirators, both of whom cooperated with the government. Whether to take a plea deal is a very important decision with a lot of factors involved, including what you are offered in exchange and personal relationships. But as an hacking criminal defense attorney, I would advise any defendant as young as Barrington to seriously consider a fair deal that could shave so much time from the sentence.

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August 8, 2011

Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi

When people accused of online crimes come to cyber crime criminal defense attorneys like me, one of the most common crimes they face is solicitation of a minor. Here in Florida, solicitation of a minor is the crime of using a computer network to attempt a sexual act with someone under the age of 18. Other states might call it enticement or seduction, but in general, defendants can be charged with a crime even if no actual meeting takes place. In fact, court rulings and some legislative action have made it clear that the “minor” can actually be an adult law enforcement officer posing as a minor. That was the case in State of Missouri v. Kasim Faruqi, a Missouri Supreme Court ruling upholding the conviction of a St. Louis man accused of enticing a minor. The court ruled Faruqi was not entitled to suppress the evidence from either his statements to law enforcement or the search of his work computer.

Faruqi, of suburban St. Louis, struck up an online relationship with a police officer pretending to be a 14-year-old girl named Kaitlin. Over online chat and phone calls, he quickly made it clear that he’d like to have sex with Kaitlin, even though he knew it was illegal. He eventually agreed to meet her in a park, where he was arrested instead. Detectives told him they were investigating complaints from Kaitlin’s parents, and he admitted verbally and in writing that he had chatted with a 14-year-old girl about sex and arranged to meet. He also signed a form authorizing a search of his work computer, which turned up evidence of the chats. However, at trial, he told the jury he believed Kaitlin was really an adult playing out a fantasy; and that his written statement was coerced because the interviewing officer lied about Kaitlin’s parents and told him he could go home if he confessed. He also challenged the enticement law as unconstitutionally vague, a motion that failed. He was convicted and sentenced to five years in prison.

On appeal, Faruqi argued that his statements to police were involuntary. The Missouri Supreme Court concluded that they were not. Faruqi argued that the lie about Kaitlin’s parents was a threat to sue and that inquiries about his native country were a threat of deportation. The high court found nothing in the record to show that detectives asked about Faruqi’s immigration status; questions were about customs in his native Pakistan surrounding sex with children. Nor was a lawsuit ever mentioned. Finally, the court dismissed Faruqi’s argument that the computer search was unlawful because he signed a waiver permitting it, and had a diminished expectation of privacy on his work computer in any case. Thus, the high court upheld the trial court on every count.

As an online solicitation of a minor lawyer, I’m sorry to say that this is a familiar story. The evidence-suppression arguments are a common theme when someone is accused of a crime, but Faruqi’s arguments were just not strong enough. As a general rule, police officers can lie as much as they want as long as the lie does not “offend societal notions of fairness.” It’s basically up to a judge to decide whether a lie is fair, and judges are unlikely to decide in favor of competent adults who were properly Mirandized. This is why I always, always advise potential defendants never to say a word without a solicitation of a child online attorney by their side.

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August 3, 2011

Authorities Announce Bust of International Child Pornography Ring

The federal Department of Justice announced today that it has made 52 arrests of people it says were involved in an international ring of child pornography traders. In all, 72 people are charged, but 20 are known only by their online identities and have not yet been located. All were allegedly involved in a closed online community called "Dreamboard," which was a members-only bulletin board that required members to upload child pornography to join and to gain privileges. Fifteen of the 52 arrested are accused of making their own child pornography. The Orlando Sentinel's Aug. 3 story did not name newly arrested people, but noted that the operation had already arrested 32-year-old Michael Biggs of Orlando, who pleaded guilty and is now serving 20 years in prison.

This is a sobering reminder of how seriously our society takes online child pornography. At Seltzer Law, P.A., we focus our practice on defending people accused of all kinds of cyber crimes, including child pornography crimes. If you or someone you love is in trouble, in south Florida or anywhere else in the U.S., and you'd like to talk with an experienced child pornography defense attorney, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

August 1, 2011

Seventh Circuit Rules Downward Departure Acceptable for Child Porn Defendant – U.S. v. Adams

A federal appeals ruling about a child pornography trafficking defendant caught my eye as a cyber crime criminal defense attorney. In United States v. Adams, the sole question was whether Carl Adams of central Illinois should receive a lower sentence than the range imposed by the sentencing guidelines for his crime. Adams contended that his sentence should have been even lower, but the judge was improperly influenced by a mistaken belief that child pornography defendants “suffer from an uncontrollable illness.” The government had argued for a sentence at the bottom of the sentencing guidelines, which was higher than the one Adams received. The Seventh U.S. Circuit Court of Appeals ruled that the judge did not make a mistake and let the sentence stand.

Adams was originally identified by Florida FBI agents searching for child pornography through LimeWire, an online file-sharing program. They alerted Illinois law enforcement officers, who got a search warrant and found ample child pornography on two computers belonging to Adams. He eventually pleaded guilty to using the Internet to traffic in child pornography. At his sentencing, he argued for a low sentence, citing his service in the Air Force, lack of a criminal record and steady employment, as well as studies concluding that viewing child pornography does not make the offender more likely to commit “hands-on” or “contact” offenses against minors. At the sentencing, the district judge opined that looking at child pornography is an uncontrollable illness beyond the viewer’s control, and thus he was not confident that Adams would not reoffend. He then sentenced Adams to 180 months (15 years) in prison, longer than the five years Adams requested but beneath the 210 months (18 years) requested by the government.

Adams appealed, arguing that the judge incorrectly relied on unsupported beliefs when sentencing him. The Seventh Circuit did not agree. There was no evidence in the record that the judge was making a finding of mental illness, the court said. In fact, it said, the trial judge went on to say that he was basing the sentence in large part on the need to deter other offenders who might think twice about looking at child pornography. Indeed, the Seventh noted, if the judge believed looking at child porn is an illness beyond control, it would make no sense to try deterring future offenders. And while the judge didn’t specifically address the studies Adams brought up, he was not required to do so; and he did acknowledge that Adams was unlikely to commit a “contact” offense in the future. Thus, the Seventh affirmed the 180-month sentence.

Although this decision did not go the defendant’s way, I still believe there are lessons here for child pornography criminal defense lawyers and their clients. For one thing, it’s unfortunately not unusual for prosecutors, judges and jurors to make the kinds of comments cited in this opinion. Some people are not able to separate their personal feelings from the jobs they have in the criminal justice system, and when they make comments that are judgmental or disgusted, they can subvert the trial. This would be an appropriate reason for appeal if it were the sole b