Cyber Crime Lawyer Blog

Florida Supreme Court Sends Case Back for Resentencing Using Mandatory Minimum – Dunbar v. State

Wed, 16 May 2012 09:28:42 -0500

As a Fort Lauderdale criminal defense lawyer, part of my job is to defend clients against abuses in the sentencing process as well as the criminal charges themselves. Criminal sentencing has gotten complicated, in part because of increasing numbers of laws created by political figures interested in looking “tough on crime” without care for the consequences of the laws. However, all defendants are entitled to due process of law and to generally have their rights respected by the courts – even when they have been found guilty. That’s why the Florida Supreme Court sent a case back for a new sentence in Dunbar v. State, in which the trial court forgot to orally pronounce a mandatory minimum sentence for Andre Isaiah Dunbar.

Dunbar, of Central Florida, was found guilty in 2009 of robbery with a firearm, grand theft and two counts of aggravated assault with a firearm. No details of the crime were included in the opinion, though the jury did find special circumstances that Dunbar actually possessed a firearm during the robbery and assault. At sentencing, the trial court orally pronounced a life sentence for the robbery charge. However, it failed to include the ten-year mandatory minimum sentence that is required for robbery with a firearm. The court added the mandatory minimum to its written sentencing order later, but Dunbar appealed, arguing that the mandatory minimum should be struck down because it didn’t match the oral sentence, creating two penalties for the same convictions. Dunbar appealed to the Fifth District, which declined to strike it down, finding the written sentence valid as a correction of the invalid oral sentence. For the same reason, it found no double jeopardy violation.

Because this conflicted with a 2010 decision from the Second District, the Florida Supreme Court took up the case. Ultimately, it approved of the Fifth District’s double reasoning on double jeopardy, but disagreed about the cure, sending the case back for resentencing. After noting that federal and Florida state double jeopardy protections are the same, the court outlined caselaw on corrected sentences and double jeopardy. It concluded that the imposition of a more severe corrected sentence does not violate double jeopardy unless it disrupts the defendant’s legitimate expectations of finality. In this case, Dunbar had no legitimate expectation of finality because trial courts have no discretion to vary from mandatory minimums – at least until the time to appeal has run out. However, the court agreed with Dunbar that he had a due process right to be present when the court increased the terms of his sentence. Thus, it upheld the Fifth District’s reasoning (and disapproved the Second), but remanded for resentencing with Dunbar present.

I appreciate the due process aspect of this decision, which at the very least should remind courts that defendants have the right to be present at sentencing. However, as a Miami robbery criminal defense attorney, I am less enthusiastic about the high court’s reasoning on double jeopardy. Though the result may conform to state and federal law, it may open some dangerous doors. For example, the Florida Supreme Court saw no distinction between an increase in a sentence following remand and an increase in a sentence that the court assumes on its own, as long as that’s done within the time required for an appeal. In order for a sentence to be increased on remand, of course, there must be an entire appeal, with all the due process and legal protections offered to parties on appeal. By contrast, a trial court acting on its own offers none of these. As a South Florida assault criminal defense lawyer, I believe criminal defendants’ rights should be protected and subject to court scrutiny just like everyone else’s.

New York State Appeals Court Rules Viewing Child Pornography Is Not Possessing It – People v. Kent

Mon, 14 May 2012 18:24:07 -0500

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.

North Florida Court Did Not Err in Ending Supervised Release for Domestic Violence – U.S. v. Johnson

Wed, 09 May 2012 09:09:37 -0500

Defense of domestic violence charges is a common area of practice for south Florida criminal defense lawyers like me. Domestic violence charges can be especially troublesome because they often come with extra restrictions on the defendant’s movements and legal rights, including a court order to stay away from the accuser and, often, the defendant’s own home. And if the defendant was already in legal trouble or had a family court matter pending, he or she may face further penalties for a domestic violence conviction. That was the case in United States v. Johnson, in which defendant Jyrone Jeremiah Johnson of northern Florida challenged the termination of his supervised release after a conviction for “a single incident of extreme domestic violence.” The Eleventh U.S. Circuit Court of Appeals ultimately upheld that decision.

Johnson was convicted of battering an unnamed woman over the course of several hours over an evening, in an incident that included stepping on her hair to hold her still while he punched her, then dragging her to a sink when she began to cough up blood. Among the physical evidence later found by probation officers were multiple bruises, the imprint of a tennis shoe on her chest and a potentially broken collarbone. After the assault, she sought permission to return to a halfway house where she had lived before receiving permission to live with Johnson. Johnson himself was called to a hearing to decide whether this incident justified revocation of his supervised release. He denied responsibility for the incident. The court ultimately decided that the supervised release should be revoked, which returned him to prison, saying it had no doubt that Johnson had violated the terms of his release.

Johnson appealed the revocation, but the Eleventh U.S. Circuit Court of Appeals found no reason not to affirm the district court’s decisions. It noted that at the hearing, Johnson was represented by an attorney. Neither that attorney nor Johnson himself showed signs of failing to understand, or objecting to, the proceedings, the court said. In addition, the Eleventh said the district court’s ruling was clear, particularly given the simplicity of the issue presented to it. Applying reasoning from caselaw on revocation of probation, the court ruled that the district court met its requirement under the Constitution to give Johnson a written statement explaining the reasons for revoking his supervised release, including the evidence relied on. Thus, it upheld the district court’s decision.

As a Fort Lauderdale domestic violence defense attorney, I represent people who are fighting this kind of supervised release or probation revocation hearing, as well as those who are seeking probation or supervised release for the original conviction. It’s important for defendants to realize that the time they will serve after revocation is based on the original conviction, not on the offense for which the release or probation was revoked. Thus, something as minor as DUI or possession of drug paraphernalia is enough to land the defendant in prison for a substantial number of years, even though the offense itself may carry little or no jail time. That’s one reason why it’s vital for defendants to get the help of an experienced Miami probation violation defense lawyer as soon as possible after being accused of a violation that could lead to revocation.

Seventh Circuit Permits Court Appointed Lawyer to Withdraw From ‘Frivolous’ Appeal – U.S. v. Konczak

Mon, 07 May 2012 20:10:18 -0500

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.

Eleventh Circuit Remands Marijuana Case for Reconsideration of Evidence Suppression – U.S. v. Noriega

Wed, 02 May 2012 08:25:34 -0500

As a south Florida drug possession defense lawyer, I very frequently run across disputes over the legality of search warrants. Because possession alone is enough to create a conviction on drug charges, the case is generally unsustainable without evidence from a search. And if the search was illegal, the evidence from that search should be thrown out, thanks to long-standing civil rights laws. In United States v. Noriega, the Eleventh U.S. Circuit Court of Appeals said the trial court should have considered whether evidence from a potentially illegal search would have been uncovered anyway with a legal search warrant. Jose Noriega of Alabama was convicted of possession of marijuana with intent to distribute, as well as conspiracy, after a search of his home and two associates’ homes turned up evidence of a growing operation. The appeals court sent the case back for more consideration before deciding whether to throw out the evidence.

An anonymous phone call to a drug task force in Mobile, Alabama, said there were growing operations on three properties in a community called 8 Mile. Officers got a search warrant for a property on Jib road and found a growing operation along with a surveillance system and a rifle. On the second property on Chutney Drive, they found Juan Sabino, whose car had been parked at the first property, along with Jose Noriega and Omar Huezo. Determining that the two properties were connected, and concerned that there might be someone armed inside who wished the police ill, officers swept the inside of the Chutney Drive house and found no threat or growing operation, although they found some growing equipment. They also smelled marijuana outside an outbuilding and called a judge to request an oral search warrant for the outbuilding. That building also had a growing operation, as did the third property.

Noriega and six others were charged with conspiracy to possess marijuana and possession with intent to distribute. Noriega moved to suppress the search of the Chutney Drive property, but the district court denied this, saying the search was lawful because “articulable facts” led the officers to fear for their safety. He was convicted and sentenced to 60 months plus the forfeiture of the property.

Noriega contended that the searches of both the home and the outbuilding should be thrown out as violating the Fourth Amendment, which would require courts to throw out the resulting evidence as tainted. The Eleventh Circuit ultimately decided it needed more information before it could decide whether the search was legal. While the Fourth Amendment does prohibit warrantless searches, the court said, it does permit “protective sweeps” like the one officers performed at Noriega’s home and outbuilding. And even if the protective sweep was not legal, the court said, the evidence may still be admitted if prosecutors can show that the evidence was discovered independent of the initial entry. In this case, the court said, the first step is to determine whether there was still probable cause to search Noreiga’s house and outbuilding. Considering the affidavit police submitted in support of their warrant, the appeals court found the controlling issue was whether the officers would have sought a search warrant even without sweeping the house. This is a fact that the district court should find, the Eleventh said, so it remanded the case for that determination before deciding Noriega’s appeal.

These Fourth Amendment questions are an important part of my work as a Miami-Dade narcotics defense attorney. Police are given wide leeway to search defendants’ homes and other areas if they feel threatened, but as the Eleventh noted, this has to be balanced against the defendant’s Fourth Amendment rights. Because police officers are often given more status than criminal defendants, courts don’t always make the right decision. That’s why it’s important for drug defendants to retain an experienced Fort Lauderdale criminal defense lawyer as early as possible in their cases. By challenging illegally obtained evidence, an experienced attorney may be able to stop prosecutions early, or at least preserve issues for appeal.

Texas High Court Upholds Child Pornography Conviction Because Jury’s Findings Were Reasonable – Wise v. State

Mon, 30 Apr 2012 20:26:12 -0500

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.

Florida Supreme Court Rules State May Not Appeal Criminal Sentence for Procedural Errors – State v. McMahon

Wed, 25 Apr 2012 09:11:56 -0500

One of the few advantages that criminal defendants enjoy over the much more powerful prosecution is that the prosecutors have a limited ability to appeal cases. As a result, it’s rare to see a criminal appeal from the state’s attorneys; they must have both the ability to appeal and the facts that make an appeal a good gamble. That’s why I was interested, as a Fort Lauderdale drug crimes defense lawyer, to see a Florida Supreme Court case addressing whether Florida prosecutors may appeal a sentence when the judge improperly started discussing a plea without either side bringing it up. In State v. McMahon, the court also disregarded the Habitual Felony Offender law. Finding that neither fact was enough to warrant an appeal, the Florida Supreme Court sided with the Fourth District Court of Appeal’s decision in the case and disregarded a Fifth District ruling.

John McMahon was charged with possession of cocaine, possession of drug paraphernalia and grand theft, though the opinion didn’t explain the background of those charges. In a hearing in trial court, his south Florida criminal defense attorney told the judge he hoped to resolve the case at that hearing, and that McMahon qualified for a sentence range whose bottom end was 18 months in prison. The prosecution had already put in notice that it planned to seek a habitual felony offender sentence, but the judge told McMahon’s attorney that if McMahon pleaded that day, the judge would not “habitualize” him. McMahon subsequently did plead and receive the minimum 18-month sentence. The prosecution appealed, arguing that the court should not have initiated a conversation about a plea deal but should have granted a hearing on the habitualization. Though it agreed that the plea discussion was improper, the Fourth District Court of Appeal dismissed the appeal, saying the state may not appeal a sentence unless it is illegal, and this one was legal because it fell within sentencing guidelines.

The Florida Supreme Court took up the case, finding this in conflict with a Fifth District decision, State v. Chaves-Mendez, which found an improper plea dialogue was per se reversible error. Prosecutors may appeal sentences in Florida only on the grounds that they are illegal or below the lowest permissible under the guidelines. In the end, the high court found that the improper dialogue did not make the sentence illegal. A 2000 case, State v. Warner, found that any improper judicial involvement in plea discussions would be harmless error — and thus, not make the sentence per se invalid. Thus, the Supreme Court said, Chaves-Mendez was incorrect to hold that improper judicial involvement was per se reversible error, and the Fourth District was right. Next, it ruled that the Fourth District was wrong to find the trial judge improperly initiated the plea dialogue, saying the defense counsel initiated it by saying he hoped to resolve the case that morning. It found that the court did err in not holding a habitual felony offender hearing, but ruled that this also does not make the sentence illegal and appealable.

This decision is good news for criminal defendants and Miami-Dade theft criminal defense lawyers like me. Like every court system in the country, Florida’s court system is somewhat biased toward plea deals. Pleading guilty in exchange for lowered charges or sentences avoids the expense and uncertainty of a trial, and for the courts, it also reduces the backlog of cases that threatens to delay justice. The concern with judge-led plea discussions is that judges may coerce defendants, or seem to, with their authority; the defendant may worry that he or she will be penalized for rejecting the plea deal. And of course, there are good reasons for rejecting plea deals; not every offer is a good one, which is why I always discuss the pros and cons with my clients before making a deal with prosecutors.

Seventh Circuit Twice Vacates Very-Far-Above-Guidelines Sentence for Sex With Minor – U.S. v. Bradley

Mon, 23 Apr 2012 21:12:39 -0500

As a solicitation of a minor criminal defense attorney, I work with people accused of some of the least popular crimes that exist. Of course, no crime is popular in the community, but the attitudes towards people accused of sex crimes involving children are very harsh and punitive. Sometimes, this leads judges to express their feelings in ways that are less than professional, by giving sentences even harsher than the already quite harsh sentencing guidelines require. This may have been the case in United States v. Paul Bradley, a Seventh U.S. Circuit Court of Appeals case involving a man who pleaded guilty to crossing state lines in order to have sex with a minor he met over the phone. The trial court originally sentenced Bradley, of Illinois, to 240 months of imprisonment despite a guidelines range of 57-71 months. After the Seventh sent the case back in 2010, the judge reinstated the 240 months, requiring the Seventh to act again.

Bradley is an Oregon man who met an Illinois minor named T.S. over an adult phone chatroom, which is not unlike an Internet chatroom. Police found the two of them by the side of the road in Bradley’s car, and Bradley eventually admitted he had traveled to Illinois to meet T.S. despite learning T.S. was only 15. Motel records show Bradley had been in a room with T.S. both that night and a previous night, and DNA testing showed signs of a consensual sexual encounter. (T.S., who suffered humiliation at school, in the wider community and from his father after this was revealed, maintained that he was raped and threatened, but the evidence did not back it up.) A search of Bradley’s computer turned up two child pornography images and two stories about sex with teenaged boys. He ultimately pleaded guilty to traveling across state lines to engage in sexual contact with a minor.

His presentencing report identified no reasons for an upward departure from the sentencing guidelines of 57-71 months, though the prosecution asked for an above-max sentence of 87 months. Nonetheless, the district court imposed a sentence of 240 months in prison — 20 years — with 10 years of supervised release. In its December 2010 original decision, the Seventh Circuit vacated this as unreasonable. It cited the trial court’s “unnecessarily harsh and exaggerated” statements at trial, its speculation that Bradley had had sex with a minor before and its lack of conventional justification for departing. It also asked the court to resolve discrepancies of fact in the presentence report when reconsidering. On remand to a new judge, however, the court compared Bradley’s offense to murder and drug crimes, then resentenced Bradley to 240 months and actually increased the supervised release term to life.

Bradley again appealed, arguing that the court could not justify its drastic upward departure and failed to account for sentencing factors. The Seventh again agreed. With such a drastic departure, the appeals court said, it would have expected a description of the judge’s policy differences with the guidelines, if there was one. The court’s main stated reason for departing was the nature and circumstances of the offense, but the Seventh said the court’s actual statements did little more than restate what was implicit in the offense. Thus, it’s not clear what the court felt was different about this case than any other case with the same charge. Nor do other rationales mentioned provide sufficient justification for the departure, the appeals court said, including comparisons to the mandatory minimums for drug or solicitation crimes. Finally, it agreed that the trial court failed to consider some sentencing factors. It remanded the case to district court for resentencing, again.

As a cyber crime criminal defense lawyer, I hope the district court gets the message with this remand. Judging by the record, there are significant questions of fact about Bradley’s conduct and the circumstances of the crime, but neither trial court seemed interested in investigating those facts so it could make a fair decision. Bradley may simply have been unlucky in getting two judges in a row who felt so strongly about child sex crimes, or both judges may have been influenced by local media coverage in the apparently small southern Illinois community. However, neither is a good reason for departing from the sentencing guidelines, as caselaw makes clear. In my work as a sex crimes defense attorney, I rarely see a departure of that magnitude, because it must be well supported by the circumstances.

Eighth Circuit Upholds Denial of Entrapment Instruction in Online Sex Trafficking Case – U.S. v. Cooke

Wed, 18 Apr 2012 09:07:34 -0500

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.

Federal Drug Enforcement Agents Cracking Down on Synthetic Marijuana in South Florida

Mon, 16 Apr 2012 15:04:43 -0500

As a Fort Lauderdale drug crimes criminal defense lawyer, I was very interested to see an article from the South Florida Sun-Sentinel about an apparent new push to arrest people connected with synthetic marijuana. The substance, or substances, in question are sold in convenience stores across south Florida under names like “Relaxino” and “K2,” but the federal Drug Enforcement Agency contends that they’re not legal and in violation of the federal Controlled Substances Act. A Palm Beach County man who distributes the synthetic marijuana to convenience stores was arrested April 15 after an undercover sting that provided evidence that he was selling it to retail store owners. A spokesperson for the DEA said the agency is ramping up its investigations. Under the circumstances, I suspect others involved in selling, distributing or even using these substances should be careful, even if they thought their activities were perfectly legal.

The arrest was of Joel Howard Lester, 52, a Canadian national who had been living in Boca Raton. Lester met with an agent posing as a retail store owner interested in selling the substances, and ultimately sold the agent 50 one-gram packages that were fruit-scented as well as allegedly laced with synthetic marijuana. Lester is being held without bond on charges of distributing the substances. According to the article, synthetic marijuana is made from synthetic cannabinoids that have been sprayed onto dried plants of a type not specified. Manufacturers use compounds slightly different from those that are banned in Florida in order to keep their substances legal. In response, the state reclassified some of the synthetic substances as illegal early in 2011, with a goal of getting them permanently banned.

The article was unclear on whether or why the substances are federally banned, but a similar article from the Miami Herald on April 13 suggested federal authorities are also trying to keep up with synthetic cannabis makers by banning each new substance they create. That article said the City of Sweetwater is being urged by its police department to ban synthetic cannabis. Sweetwater police officers reportedly staked out a convenience store in the city after being tipped off about unusual activity there. At the stakeout, they observed underage kids and teenagers buying the substances, which were packaged as incense, freely; because they are not tobacco, there s no age limit on buying them. However, authorities told both newspapers that they have health concerns about synthetic cannabis, with reports of heart palpitations, aggression, disorientation, seizures, panic attacks and hallucinations.

As a South Florida drug trafficking defense attorney, I see these reports as a warning sign for anyone with any connection to synthetic marijuana in south Florida. Though the DEA told the Sun-Sentinel that it’s focusing on “large actors,” the state of Florida and municipalities like Sweetwater may be more than happy to arrest users and convenience store owners or workers. All of these people could face serious drug charges for activities they thought were completely legal, and which indeed are legal or were until recently. This could include distribution or even trafficking of drugs for the sellers, and possession of drugs or drug analogues for the buyers — with potential extra penalties if they happened to share with friends. As a Miami marijuana crimes defense lawyer, I am particularly concerned because many of the possessors are reportedly teenagers, which means they could face juvenile drug crimes charges that could hurt their chances of success in college, work or the military.

Seventh Circuit Finds Six-Day Delay Between Seizing Phone and Obtaining Search Warrant Reasonable – U.S. v. Burgard

Wed, 11 Apr 2012 09:02:37 -0500

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.

DEA Announces Investigation of Florida Walgreens Suspected of Connections to ‘Pill Mills’

Mon, 09 Apr 2012 20:05:02 -0500

Here in Florida, abuse of powerful prescription drugs is an ongoing issue. Our state loses seven people per day to Oxycontin abuse alone, prompting a lot of attention from state and federal law enforcement. Prescription drug abuse even became a political issue when Gov. Rick Scott proposed repealing a law designed to track prescriptions for painkillers with high abuse potential. So as a south Florida drug crimes defense attorney, I was interested to read about a federal investigation of six Walgreens pharmacies where sales of oxycodone have jumped dramatically. According to Reuters, the DEA announced April 6 that it has issued inspection warrants for a Walgreens distribution center in Jupiter, in Palm Beach County, and six stores it serves. The move came after the DEA had already suspended licenses to distribute controlled substances at three other pharmacies.

The warrants issued by the DEA are not criminal warrants that must be scrutinized by a judge for probable cause. Rather, they are inspection warrants issued for “valid public interest.” The DEA’s filing in Central Florida federal court says the agency is investigating the top-selling six pharmacies served by the Jupiter distribution center; those are Walgreens stores in Fort Myers, Oviedo, Port Richey, Hudson and two in Fort Pierce. The DEA, which keeps track of retail pharmacies’ sales of drugs with abuse potential, did not list any Walgreens stores in its list of top Florida purchasers in 2009. In 2011, however, the agency listed 38 Walgreens stores in its top 100 purchasers. In January and February of this year, that number jumped to 53 out of the top 100. The article noted that the Fort Myers store was responsible for two-thirds of all the oxycodone purchases in its ZIP code.

The DEA said this volume of oxycodone purchasing could indicate that the pharmacy serves addicted people and the pain clinics that serve them by writing shady prescriptions. With its warrants, the agency will be permitted to examine the pharmacies’ records to determine whether any of the drugs made it to the black market. The pharmacies may operate as normal during the investigation.

As a Miami-Dade federal crimes defense lawyer, I suspect this could be bad news for anyone who is involved in illegal misuse of prescription drugs. As the article notes, the DEA has been cracking down on this type of drug because it’s responsible for so many deaths — and recently, it has focused on enforcement at pharmacies and drug wholesalers that provide the drugs. From there, it’s often easy to track prescriptions in both directions — to the end users as well as to the doctors who prescribe the drugs. As a result, everyone in the supply chain would be well advised to expect a visit from federal authorities. Even those who have done nothing illegal may be subject to probing from authorities to see whether they have anything to hide. This could include overprescribing or unnecessary prescribing among doctors; avoiding reporting and limitations rules among pharmacists; and filling too many prescriptions among patients.

At Seltzer Law, P.A., we represent clients across Florida who are accused of serious state and federal drug crimes. That includes many of the crimes at issue in this article, such as illegal use of prescription drugs and breaking federal laws about dispensing controlled substances. Our lead attorney, David Seltzer, is an experienced former prosecutor with substantial experience handling drug cases of all kinds, including prescription drug abuse cases. Our Fort Lauderdale drugs and narcotics defense attorneys know that law enforcement doesn’t close up the office at 5 p.m. sharp, so we make ourselves available to clients and potential clients at all times — 24 hours a day and seven days a week.

Nebraska Supreme Court Reverses Child Pornography Conviction Because of Flaws With Warrant – State v. Sprunger

Wed, 04 Apr 2012 08:24:36 -0500

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.

Immigration Authorities Sweep Nation for Aliens With Convictions, Arresting More Than 3,100

Mon, 02 Apr 2012 19:59:42 -0500

As a south Florida immigration criminal defense attorney, I know a lot of my clients keep a close eye on enforcement actions by the U.S. Immigration and Customs Enforcement (ICE, once called the INS). ICE announced in the last few years that it planned to focus its enforcement efforts on “high-priority” aliens who have been convicted of crimes, putting undocumented immigrants without a criminal history the lowest priority for agency resources. Since then, ICE has conducted at least three raids, including a new one announced Monday. According to its press release, ICE’s six-day “Cross Check” operation found immigrants in every state who had been convicted of crimes, were fugitives from justice or had immigration violations. At least 204 of those arrested were offered for prosecution on new charges.

According to ICE’s press release, the agency found a total of 3,168 undocumented immigrants with criminal records, immigration violations or who are immigration fugitives. These included 2,834 with criminal records, slightly more than half of which were felony criminal records. Of those with criminal records, 1,063 had multiple past criminal convictions; 50 were gang members; and 149 were convicted sex offenders. A separate 698 of those arrested were immigration fugitives, meaning they were ordered to leave the country but did not, and 559 had reentered the country after being removed. According to an Associated Press article, San Diego immigration authorities simply tracked targets to their last known addresses, arriving early in the day, before work. In total, the San Diego office targeted 14 immigrants, found six and arrested six others who had not been targeted.

That last fact is a bit disturbing to me as a Miami-Dade criminal defense lawyer. These non-targeted arrestees may be responsible for serious crimes, or they may just happen to be undocumented immigrants living at or near addresses where ICE agents went during the sweep. Though the ICE press release profiles three arrestees who were convicted of or wanted for murder, it also notes that fewer than half of those arrested had felony convictions. Many others may be convicted only of immigration-related crimes, such as possessing forged papers, or minor crimes such as resisting an officer. While these are not good things to have on your record, I suspect most people don’t realize this kind of misdemeanor accounts for such a large part of the reportedly “high-priority” arrests being made.

If you’re an immigrant — here legally or not — and you’re facing legal problems, don’t hesitate to call Seltzer Law, P.A. There are no minor crimes for immigrants, unfortunately; even legal permanent residents can be deported for crimes that might not significantly disrupt the life of a citizen. For those who arrived here without permission, any encounter with the police can be anxious. Our law firm represents clients who are in trouble with immigration authorities because of immigration crimes such as illegal reentry, or other crimes that affect their immigration status. We also represent clients who need the help of an experienced attorney as they navigate the complicated U.S. immigration system to get a green card, work visa or other legal status. Our Fort Lauderdale immigration attorneys represent people in ordinary Florida and federal courts as well as immigration hearings.

Resisting an Officer With Violence in Florida Is a Violent Crime, Eleventh Circuit Rules – U.S. v. Romo-Villalobos

Wed, 28 Mar 2012 08:59:04 -0500

As a criminal defense attorney in south Florida, I have written here before about the crime of resisting an officer, which is really two crimes in Florida. Resisting an officer with or without violence typically means “not doing what the officer wanted,” which in turn means it’s a nuisance charge often brought against people who happened to make the officer angry. Not everything that makes an officer angry is a crime, of course, but having the charges dismissed or dropped can require early and expensive legal intervention. When the charges lead to a conviction, that conviction can lead to all kinds of unpleasant consequences in the future, as a recent case from the Eleventh U.S. Circuit Court of Appeals shows. In United States v. Romo-Villalobos, the court ultimately decided that Hector Manuel Romo-Villalobos had committed a crime of violence because he had a resisting an officer conviction, and upheld his long immigration sentence.

Romo-Villalobos is a Mexican citizen who had been removed from the United States twice before. The first time, the removal was after conviction for false representation; the second time, it was after a conviction for resisting an officer with violence. He then reentered the United States again and apparently was caught again. At his sentencing for this most recent offense, the district court enhanced his sentence by 16 levels because he had been previously deported after committing a crime of violence. It cited his previous conviction for resisting an officer with violence in Florida. The result was a sentence of 37 months in prison, to run concurrently with a sentence of 24 months for illegal reentry after false representation. Romo-Villalobos appealed, arguing that the Florida law did not meet the requirements to be a crime of violence under federal immigration law.

The Eleventh Circuit disagreed that resisting an officer with violence should not count as a crime of violence. Under the sentencing guidelines, a previous deportation for a felony crime of violence will earn the defendant a 16-level enhancement for any new illegal reentry. A crime of violence, in turn, is any crime involving “the use, attempted use or threatened use of physical force.” Federal law instructs federal courts interpreting state laws like this one to use the interpretations offered by the state’s Supreme Court, so the Eleventh turned to the Florida courts’ interpretation of resisting an officer with violence. Florida’s Supreme Court has not decided the issue, but its appellate courts have held that violence is an element of the offense. The state statute itself makes it a crime to resist or obstruct an officer when “offering or doing violence to” the officer’s person. Thus, the Eleventh affirmed the use of the sentencing enhancement.

As a Miami-Dade immigration crimes lawyer, I tell all of my clients to be very careful when they are charged with crimes, because nearly any criminal conviction could threaten a noncitizen’s immigration status. Even a lawful permanent resident — someone who has a “green card” — can be removed for certain crimes. And as this case underscores, it’s not usually clear in immigration law which crimes fall into the category of “crime of violence” or “crimes of moral turpitude” (another category of offense that can lead to removal). This is particularly upsetting for crimes like resisting an officer, since they are largely up to the officer’s discretion. Not every officer uses that discretion carefully; some use the charge as a way to punish defendants they don’t like. As a Fort Lauderdale resisting an officer attorney, I try to fight arbitrary charges like those to get them dropped or dismissed as early as possible.