Cyber Crime Lawyer Blog

Eleventh Circuit Vacates Doctors Conviction for Dispensing Controlled Substances – U.S. v. Ignasiak

Wed, 01 Feb 2012 08:23:36 -0500

As a south Florida drug crimes defense lawyer, I was interested to see a recent conviction of a doctor accused of over-prescribing the kinds of controlled substances widely abused in our state’s “pill mills.” In United States v. Ignasiak, Robert L. Ignasiak, Jr., appealed his convictions for health care fraud and violations of the Controlled Substances Act. Ignasiak was a medical doctor until the charges, which alleged that he prescribed pills with no legitimate medical purpose or in excessive amounts. The prescriptions at issue were for a total of 20 patients, two of whom later died. He was sentenced to more than 24 years in prison and appealed on several grounds, including that he was deprived of his constitutional right to confront witnesses when autopsy reports and medical notes were admitted without testimony from their authors. The Eleventh U.S. Circuit Court of Appeals reversed in that ground.

Ignasak operated his own busy clinic in the Florida Panhandle. He came under scrutiny because the federal government felt he was billing higher amounts than normal for a family-practice doctor. However, a review of the records raised the auditor’s concerns that Ignasak was prescribing significant amounts of narcotic painkillers for most of his adult patients, along with drugs less likely to lead to abuse. Ignasak retired later that year and sold his clinic. The new doctor also became alarmed at the number of narcotics prescriptions in the practice, especially after discovering that patients would be visibly angry when he declined to write new prescriptions. The government eventually seized all the patient files and prosecuted Ignasak on 54 total counts. At trial, over Ignasak’s objection, the court allowed introduction of autopsy records in patient deaths (including seven not charged but admitted into evidence) and handwritten medical notes despite no testimony from their authors. After his conviction, he appealed.

While the Eleventh Circuit upheld the trial court’s decision as to the sufficiency of the evidence, it agreed with Ignasak that the authors of the documents should have testified. It first found that the autopsy records were testimonial evidence subject to the constitution’s Confrontation Clause because they are forensic records, on which the Supreme Court has called for more scrutiny because of their scientific nature. Thus, the testimony of the area’s chief medical examiner is not a constitutionally adequate substitute for the testimony of the autopsy reports’ actual authors (where they were different people). Under the Confrontation Clause, Ignasak should have had the right to confront and cross-examine his accusers. Furthermore, the Eleventh found that the error was not harmless — that is, it wasn’t confident that the “powerful” evidence of the extra autopsy reports did not contribute to the verdicts. In light of the fact that the government’s case was not overwhelming otherwise, the court vacated the conviction and ordered a new trial.

As a Miami criminal defense attorney, I’m pleased to see that this case will get a new trial. The constitutional right to confront one’s accuser is so fundamental that denying it denies the defendant a fair trial in the first place. Consider the possibility that some records admitted as testimony could have been produced by someone who was not reliable — for example, because of simple negligence, substance abuse or conflicts of interests. When this is the case, a jury seeking to make the best possible decision needs to know about the problem so it can fairly judge whether the evidence shows the defendant’s guilt. The precedent established here by the Eleventh Circuit will benefit all the clients I take on as a Fort Lauderdale drug crimes defense lawyer, as well as any other criminal defendant in Florida.

Federal Judge Throws Out Charges Against Man Accused of Online Solicitation of a Minor

Mon, 30 Jan 2012 18:28:25 -0500

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.

Supreme Court Orders New Trial in Murder Case Where Prosecutors Withheld Evidence – Smith v. Cain

Wed, 25 Jan 2012 08:49:03 -0500

As a criminal defense attorney in south Florida, I am part of a legal system that relies on adversaries to share certain specified information about cases. Information-sharing at the start of a criminal prosecution is called discovery, and it is not optional — withholding important information is punishable when the judge discovers it. However, prosecutors eager to get a conviction sometimes withhold evidence anyway — and judges don’t always find out, or react properly when they do. This can create a wrongful conviction requiring a retrial or a even a court order allowing the defendant to go free. That was the allegation in Smith v. Cain, a recent U.S. Supreme Court ruling alleging that New Orleans prosecutors failed to disclose contradictory statements made by the one eyewitness to the murder of five people. Because of that failure, the high court vacated the conviction of Juan Smith.

Smith was convicted for the murders and armed robbery on the testimony of Larry Boatner. Boatner said he was at a friend’s when armed gunmen burst in and demanded money and drugs, then began shooting. There were no other witnesses, and no physical evidence that Smith was involved. Boatner’s testimony at trial said Smith was the first gunman to come through the door. However, after Smith was convicted and began petitioning for post-conviction relief, he obtained police files with notes showing that Boatner had repeatedly told police he couldn’t identify the gunmen. In one note, Boatner said that he could only describe them as black males; in another, he said he wouldn’t know them if he saw them again because he couldn’t see their faces. Boatner alleged that this violated 1963’s Brady v. Maryland, which requires police to share relevant evidence. After his rejection by lower courts, the U.S. Supreme Court granted certiorari.

In a surprisingly brief opinion, Chief Justice John Roberts reversed all of the lower courts, vacating Smith’s conviction. Brady says prosecutors violate the defendant’s constitutional right to due process by withholding material evidence favorable to the defense; the two sides disagreed on whether Boatner’s statements to police were material. The majority found that it was. Established law says evidence is material when it may reasonably have changed the case’s outcome, at least enough to undermine confidence in the trial. The court wrote that this standard was met, both because the prosecutors in Smith’s case didn’t have enough evidence outside of Boatner’s statements to convict Smith, and because Boatner’s testimony directly contradicted his statements to police. A considerably longer dissent by Justice Thomas argued that the majority had failed to properly consider prosecutors’ arguments.

This decision reiterates support for existing law, but it’s still good news for criminal defendants and Miami-Dade criminal defense lawyers like me, because it strengthens the well-established rule that prosecutors may not withhold favorable evidence. To do otherwise would undermine the criminal justice process by allowing prosecutors to give themselves an unfair advantage. After all, juries cannot decide cases based on evidence they never see, nor can defendants construct their best possible cases without knowing material facts involved in the prosecution. In the nearly 50 years since the Brady decision, courts have established that this includes evidence that could impeach a witness as well as exculpatory evidence. As a Fort Lauderdale criminal defense lawyer, I appreciate having the opportunity to make the best possible case for my clients without misconduct by prosecutors.

Eighth Circuit Sends Back Child Porn Case Because Court May Have Considered Rehabilitation – U.S. v. Olson

Tue, 24 Jan 2012 13:53:45 -0500

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.

Orlando Police Not Entitled to Qualified Immunity From Excessive Force Lawsuit Involving Dog – Edwards v. Shanley

Wed, 18 Jan 2012 08:08:44 -0500

As a criminal defense lawyer in south Florida, I often hear from my clients about arrests in which the police used excessive force. Force is part of a police officer’s job, but it’s also subject to limitations that respect the arrestee’s civil rights. Officers who clearly overstep those limitations can lose their immunity from lawsuits, and that’s what happened to two Orlando police officers accused of excessive use of force in Edwards v. Shanley et al.. Colin Edwards was driving his wife’s car with a suspended license when he was pulled over. Panicking, he ran and was eventually tracked by a police dog, which he claims attacked him for five to seven minutes despite the fact that he had already surrendered. The Eleventh U.S. Circuit Court of Appeals ruled Jan. 12 that the officers were not entitled to immunity from his subsequent lawsuit.

Officer Justin Lovett of the Orlando police attempted to pull Edwards over for failing to stop properly at a stop sign in 2008. Edwards parked, got out and ran into the woods, but didn’t get very far before he decided to surrender by lying down on his stomach with his hands exposed. Meanwhile, Lovett had summoned Officer Bryan Shanley and his dog, Rosco, who led the humans to Edwards. The officers shouted to Edwards to show his hands, and Edwards shouted “You got me. I only ran because of my license.” As he said his, however, Rosco began biting his leg. Edwards alleges in his complaint that this continued for five to seven minutes as he lay there and occasionally yelled “I’m not resisting.” The officers made no move to arrest or instruct him further, but eventually did handcuff him before commanding the dog to release his bite.

Edwards was transported to the hospital, where a doctor said he’d suffered significant muscle and tendon damage from substantial loss of tissue. One of the officers joked that it looked like filet mignon, and that this is why officers do not feed their dogs. Edwards eventually pleaded no contest to felony fleeing a police officer; charges of resisting an officer, striking a police dog and driving with a suspended license were dismissed. He sued both officers, alleging Shanley used excessive force and Lovett failed to stop the attack. The federal district court for central Florida dismissed the case, granting the officers qualified immunity. This appeal followed.

On appeal, Edwards argued that the use of a police dog was itself excessive, but that the officers also violated his Constitutional rights by allowing the dog to continue biting for five to seven minutes “while Edwards pleaded to surrender.” The Eleventh Circuit was more impressed by the second argument. Noting that the record on appeal was scant and a jury might have a more complete picture of the facts, it found that the problem lay in the officers’ choice to let the dog attack continue past the first bite. While officers may have been justified in fearing Edwards before they caught up to him and could see what kind of threat he posed, the court said, they lost the justification after finding him facedown with his hands visible and asking to surrender. Allowing the dog to continue was unnecessary, “gratuitous and sadistic,” the court said, thus clearly violating the Constitution. It reversed the grant of qualified immunity to both officers.

As a Fort Lauderdale driving while license suspended lawyer, I’m pleased that the Eleventh Circuit came to this conclusion. I noticed that Edwards originally faced a charge of resisting an officer without violence and one of striking a police dog. Resisting an officer is a classic example of a charge brought by Florida police when they don’t like the suspect, often on the thinnest of evidence. In this case, the police dog charge likely also serves this function, since the record shows Edwards had no opportunity to strike the dog. As a Miami resisting an officer attorney, I vigorously defend these cases, often by pointing out to prosecutors that the facts are on my client’s side.

Eleventh Circuit Rules Use of File Sharing Software Does Not Qualify Alone for Sentence Enhancement – U.S. v. Vadnais

Mon, 16 Jan 2012 19:09:30 -0500

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.

Courts Must Review Public Defender Motions to Withdraw for Conflict, Florida Supreme Court Rules

Wed, 11 Jan 2012 09:17:14 -0500

As a Miami-Dade robbery criminal defense lawyer, I was interested to see a recent ruling from here in south Florida about when attorneys may back out of a case because of perceived or actual conflicts of interests. In Johnson v. State, an appellate public defender moved to withdraw from the appeals case of Christopher Johnson because the same public defender was already representing Johnson’s co-defendant, James Mayfield.. The defender’s withdrawal would have required Florida’s Office of Criminal Conduct and Civil Regional Counsel (RCC) to step in, but RCC objected. In this case, the Florida Supreme Court found that RCC has no standing to object to a public defender’s good-faith motion for a conflict withdrawal, but that courts at all levels must review those motions, not just rubber-stamp them.

Johnson and Mayfield had both been convicted in Broward County of robbery with a firearm and carjacking, then appealed the sentence. When the appellate public defender moved to withdraw from Johnson’s defense based on already representing Mayfield, RCC objected. The public defender said RCC had no standing to object, and that there was no need for fact-finding in any case because conflicts are inherent in representing co-defendants. Before the Fourth District Court of Appeal, RCC argued that the defender must show actual conflict, since conflict at the trial level may not translate to the appellate level. The Fourth District ultimately sided with the defender, appointing RCC to represent Johnson. It ruled that the law does not require a fact-finding inquiry into a certified conflict at the appeals level before automatically assigning representation to RCC. It also found that RCC has no standing to challenge a motion to withdraw, since no statute currently authorizes this.

The Florida Supreme Court found that the Fourth District was wrong about conflict cases automatically being assigned to RCC. Though the statute says “regional counsel shall handle the appeal” if a public defender certifies a conflict, it said history and legislative intent have handled it differently. There is no basis in legislative history to assume this, it said, and statutory language governing conflicts outlines a process involving a court inquiry. In fact, it found that this language is not specific to the trial court, and ruled that the appeals court must also review motions to withdraw, as it does other motions. However, the high court sided with the public defender on standing, ruling that RCC has no legal permission to object to such motions. RCC’s duty to represent arises only when a court grants a conflict motion to a public defender, the Supreme Court noted. It is also not a party to the case, which would give it a stronger stake in the outcome. Thus, it agreed that RCC had no standing and no right to be heard in a conflict hearing.

One likely result of this case is that Johnson’s appeal may have been hung up in court for months or longer while the Supreme Court made its decision. While conflicts of interests are an important issue in criminal defense, that may be cold comfort to the defendant who must wait to hear about his fate — and it can be avoided by defendants who choose to hire their own private south Florida criminal defense attorneys. Public defenders do an important job, but they are often given larger case loads than comparable private-sector attorneys. This can leave them poorly equipped to give unusual cases enough attention. As a Fort Lauderdale criminal defense lawyer, I prefer to reduce the volume of my cases, even if that means making less money, so that I have time to give each client the best representation I can.

Seltzer Law Defends Internet Users Slammed With Subpoenas for Alleged Illegal File Sharing

Mon, 09 Jan 2012 19:17:47 -0500

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.”

Eleventh Circuit Vacates Conviction Because Judge Improperly Participated in Plea Discussions – U.S. v. Davila

Thu, 05 Jan 2012 08:55:48 -0500

An important part of my job as a Miami criminal defense lawyer is helping clients understand the advantages and disadvantages of pleading guilty or going to trial. This is known as a plea deal or plea bargain, and it may be a tough call in some circumstances — but it should always be made by a well informed client who was free of improper interference. That’s why I was interested to see a recent Eleventh Circuit decision vacating a conviction that was wrongly influenced by the judge’s comments. In United States v. Davila, Anthony Davila of Georgia was being prosecuted for conspiracy to defraud the United States, using a scheme involving false tax refunds. The Eleventh found that the magistrate judge should not have essentially advised Davila on his defense strategy.

During a hearing before a magistrate judge, Davila requested the discharge of his court-appointed attorney, complaining that the attorney had not discussed options other than pleading guilty. The magistrate judge suggested that there was no other viable defense, and advised Davila that the only thing under his control was whether he planned to accept responsibility, thus allowing a lowered offense level. The opinion quoted the judge as telling Davila “You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three- level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.” Davila did eventually plead guilty and receive a sentence of 115 months, more than nine years.

His appeal to the Eleventh U.S. Circuit Court of Appeals argued that these comments were essentially improper participation in the plea discussions. By commenting on the weight of the evidence, Davila argued, the magistrate judge was suggesting that the sentence for a plea would be more favorable than a sentence coming out of a conviction. As a preliminary matter, the court noted that Davila failed to object to this in trial court, so it must review the court’s decision for plain error. Fortunately for Davila, the appeals court found plain error. The Federal Rules of Criminal Procedure expressly say that the court must not participate in plea agreement discussions, with no exceptions. Under Eleventh Circuit precedent, the defendant need not show any actual prejudice as a result; it is enough to show that the behavior was improper. Thus, it vacated Davila’s sentence and sent it back for retrial with a different judge.

Though I certainly handle fraud as a south Florida tax evasion attorney, this case has implications for a wide range of criminal cases. The Eleventh’s ruling reiterates that judges may not step into the plea deal discussion in any way, no matter how well intentioned. Indeed, this magistrate judge may have intended nothing more than to help Davila — but he was violating the law as well as unduly influencing the process. This is not just a technical violation. As the opinion in this case noted, allowing judges to participate in a plea discussion makes their preferences known (or seems to), which tends to change the parameters of the debate, bring the judge’s impartiality into question and possibly coerce the result. As a Fort Lauderdale fraud defense lawyer, I feel that preventing this protects both my clients and the integrity of the case itself.

Sixth Circuit Dissent Takes on ‘Unconscionably Harsh’ Sentencing for Child Pornography Cases – U.S. v. Overmyer

Tue, 03 Jan 2012 21:52:44 -0500

I’ve written on this blog several times about the growing movement to reconsider the harsh sentences handed down in federal child pornography cases. Sentences are set by the U.S. Sentencing Commission, and judges are given limited flexibility to change them, especially if they wish to depart downward and give the defendant a lower sentence than the guidelines warrant. Critics, including south Florida child pornography defense attorneys like me, say the Sentencing Commission’s decisions are overly influenced by politics, which is not well equipped for considering defendants’ rights because politicians know voters may punish them as “soft” on child molesters. That’s why I was pleased to see a passionate, though short, dissent in United States v. Overmyer, a Sixth U.S. Circuit Court of Appeals decision in which the majority upheld a relatively low sentence for transporting child pornography.

Leonard Overmyer originally got into trouble with the law when police traced child pornography downloads to his workplace, a Michigan auto parts manufacturer. No charges were filed, but he was fired. Less than a year later, an Internet service provider tipped off police that downloads were also coming from Overmyer’s home. A search turned up nothing on two computers, but when Overmyer asked to take his car to the mechanic, they grew suspicious and found a third laptop in the car. This one was loaded with about 90 images of child pornography. Overmyer eventually pleaded guilty to transporting child pornography, which has a statutory range of 60 to 240 months in prison. His guidelines range was 87 to 108 months. He moved for a downward variance, citing his remorse, the therapy he sought out alone and the effect of the case on his family. The federal district court declined and gave him the low end of the range, 87 months (seven years and three months).

On appeal, Overmyer argued that the sentence was both procedurally and substantively unreasonable. The Sixth Circuit first dismissed the procedural argument, finding no error in the review the court gave his requests. Indeed, it said, the trial court had taken the effects on Overmyer’s family and livelihood into account when sentencing at the low end of the guidelines. The court spent more time on the substantive reasonableness argument, whch was that the sentence was too long. Sentences within the sentencing guidelines are presumed to be reasonable, the Sixth noted. While Overmyer’s arguments against the sentence might support a lower sentence, the majority said it didn’t have license to consider anything that doesn’t compel a change. Furthermore, the majority said, recent Supreme Court decisions do not permit appeals courts to reverse just because they disagree; the disagreement must be based on unreasonableness. And it’s difficult to establish unreasonableness when the trial court and sentencing commission agree, the majority said.

The dissent by Judge Merritt focused on what the judge saw as the larger picture: “the continued sad dependence of federal judges on a harsh sentencing grid created by a distant bureaucracy.” The dissent heavily cited the Third Circuit’s decision in United States v. Grober, in which the Third upheld a downward departure for a child pornography defendant. The Third found that the sentencing guidelines are flawed and arbitrary, the dissent said. Sentence enhancements apply in nearly every case because they are “essentially inherent in the crime,” that court said, and the prosecutors’ choice of charge largely determines sentencing. As a result, that court found that anything more than the minimum would be unreasonable. The dissent found this compelling and instructive on the flaws of the “child pornography grid.” By rubber-stamping the result when the judge and Sentencing Commission agree, the dissent said, the majority has ignored several other issues and allowed the grid to become “a biblical command.”

As a Miami-Dade cyber crime defense lawyer, I’m pleased to see this kind of reasoning entered in the federal record — even if it did not determine the outcome of the case. As the dissent notes, there are other courts that have expressed dissatisfaction with the harshness and rigidity of the sentencing guidelines. By locking judges into specific sentences or sentence ranges, the guidelines take away in some sense their ability to be judges — to rule on the situation according not only to the letter of the law, but to the full situation. This has consequences for real people, who spend years and years in prison for what the dissent called addictive, nonviolent crimes. In my work an Orlando child pornography defense attorney, I try to eliminate or minimize any federal child pornography charges, because sentencing is a difficult place to seek mercy.

Florida High Court Rules Delay Allows Defendant to Challenge Jimmy Ryce Trial – Boatman v. State

Wed, 21 Dec 2011 08:32:46 -0500

As a south Florida sex crimes defense lawyer, I was pleased to see a rare appellate victory for a defendant tried under the Jimmy Ryce Act. The Ryce Act allows Florida prosecutors to evaluate certain offenders and determine whether they should be committed involuntarily as “sexually violent predators.” In Boatman v. State, Rayvon Boatman challenged his Ryce Act trial and conviction on the grounds that prosecutors waited longer than the thirty days required by the Act before holding the trial. The First District Court of Appeal ruled that Boatman had waived his right to appeal by not petitioning for habeas corpus after his Ryce Act trial, although he did object at trial to the length of his detention. However, the district court did certify the questions to the Florida Supreme Court, which permitted Boatman to continue his challenge.

Boatman pleaded guilty in 1994 to sexual battery with “slight force.” While he served his prison sentence, he was referred for evaluation as a sexually violent predator. Psychiatrists recommended this in July of 2008 and prosecutors filed a petition for the declaration in October of 2008. This was well over the 30-day deadline set by the Ryce Act, and it was later continued for several more months. Boatman noted this in a pretrial hearing and renewed the complaint as trial began, to no avail. He was found to be a sexually violent predator and committed. Boatman appealed to the First District, arguing that there was no good cause for a continuance, and he should have been immediately released because the prosecution went over the 30-day deadline. The First District agreed that the continuance was improper, but ruled that Boatman should have filed for a writ of habeas corpus as soon as the deadline was up, rather than raising the issue again on appeal.

The First District certified a question to the Florida Supreme Court that the high court split into two questions. One, if a defendant like Boatman is not brought to trial in 30 days, and has objected in trial court, is the claim waived if he does not file a habeas corpus complaint? Two, if the defendant does wait for an appeal to raise more objections and wins, is it appropriate remedy to release him or her and dismiss the Ryce Act proceedings? In both cases, the court said no. Florida defendants whose prosecutors miss the 30-day deadline may file writs before a Ryce Act trial, or they can appeal after trial, the court said. But if defendants do wait, the court said, they must be able to show that the fairness of the trial was affected in order to win dismissal and release. This is not exactly a speedy trial violation case or a pretrial detention case, the court said. Thus, while a habeas corpus petition is the preferred way of resolving the issue, failing to file one does not waive the issue for later. However, waiting does foreclose the option of having the Ryce Act proceedings dismissed, the court said, because allowing this later would effectively give defendants a second trial.

As a Fort Lauderdale criminal defense attorney, I’m pleased that the high court found for defendants on the first question. When an issue is waived on appeal, defendants can never argue it, no matter how valid or strong their arguments may be. However, as the court noted, this does Boatman no good because the court also determined that he had no case for dismissal. After he had already been tried and convicted, the court said, it would make no sense to let him go free. Thus, he has no remedy for the four-plus months he spent in custody when he should have been free. This underscores the importance of having an experienced Miami-Dade sex crimes defense lawyer by your side whenever you’re facing these very serious charges.

Sixth Circuit Rules Child Porn Sentence Not Unreasonable Despite Defendant’s Military Service – U.S. v. Riley

Mon, 19 Dec 2011 16:23:03 -0500

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.

Eighth Circuit Rules Child Porn Defendant Waived Double Jeopardy Claim When He Pleaded Guilty – U.S. v. Dolehide

Mon, 12 Dec 2011 18:57:47 -0500

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.

Florida Supreme Court Rules Ineffective Assistance of Counsel Ruling Cannot Apply Retroactively – Walton v. State

Wed, 07 Dec 2011 08:51:45 -0500

As a south Florida criminal defense attorney, I know how important the assistance of an experienced attorney can be. This is especially true for defendants facing serious charges like murder and manslaughter, who are eligible for the death penalty or life in prison. That’s why I was interested to see a recent Florida Supreme Court decision denying a capital murder defendant’s petition to apply a recent U.S. Supreme Court ruling retroactively to his own case. In Walton v. State, Jason Dirk Walton argued that he received ineffective assistance of counsel under the 2009 decision, Porter v. McCollum. He asked the court to apply Porter to his three convictions for capital murder in 1985 and again on retrial in 1989, relying on 1980’s Witt v. State to make it retroactive. Neither the trial court nor the Florida Supreme Court agreed.

In Witt, the Florida high court held that decisions should be retroactive only when they involve constitutional changes. This is to be evaluated on a case-by-case basis in each court. In Porter, the defendant argued for postconviction relief because of ineffective assistance of an attorney who did not present mitigating evidence about Porter’s childhood, military service and impairments. The United States Supreme Court found that this was prejudicial.

In the instant case, Walton argued that before Porter, including in his own case, the Florida Supreme Court had misread the law on ineffective assistance of counsel. Before the trial court, he said this was a fundamental change in the law under Witt, allowing it to apply retroactively. The trial court found this untimely, successive and procedurally barred and denied it without a hearing. It also concluded that Porter was not a constitutional change. Walton appealed, but had no better luck before the Florida Supreme Court. That court agreed that Porter did not create a fundamental constitutional change. As a result, it said, Witt cannot be used to make it apply retroactively. Furthermore, the court said, the instant case attempts to relitigate issues that had been settled in Walton’s previous postconviction motion. Thus, it upheld the trial court.

This decision underscores the importance of having a Fort Lauderdale murder criminal defense lawyer by your side if you are facing charges as serious as Walton’s. When your life is literally on the line, you need an attorney who will protect all of your interests at trial and explore every avenue of defense that could reasonably help. This includes presenting the kind of background information seen as mitigating in Porter — evidence of a troubled childhood, addiction problems, post-traumatic stress disorder and other explanations for the defendant’s actions. As this case shows, it’s very difficult to convince a court to reconsider a conviction once that conviction has been entered. This is why it’s so important for Miami-Dade manslaughter defense attorneys like me to present a vigorous and thorough defense the first time.

Tenth Circuit Upholds Conviction for Identity Theft and Wire Fraud Using Craigslist Scam – U.S. v. Lawrence

Mon, 05 Dec 2011 22:48:50 -0500

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.