Posted On: June 26, 2008

Laptops are Searched at Miami Border Crossing

Imagine coming across the border into Miami having returned from a business trip. Laptop in hand, nothing to declare, and the next thing you know, your laptop is being read and reviewed by TSA. Fair? Legal?

As politicians grumble over what appears to be the latest invasion of an individuals privacy by the Bush administration, what ever happened to this country's 4th amendment right to be free of unlawful searches and seizures? What the government is seeking to do now is to search laptop computers of those who enter the country at will. It is raising a lot of red flags, as United States citizens, and I believe rightly so, are in an uproar that their constitutional rights are being violated.

Once back on United States soil, do their rights not apply? According to the 9th Circuit Court of Appeals, TSA has the right to search laptops of those entering the country without probable cause, reasonable suspicion, all they need is a hunch and then they search. Non-US citizens, ok maybe, but even still, why are the courts giving TSA so much leeway? I understand we are at war and our safety is our highest concern. I am all for drug and bomb sniffing dogs, but the freedom to read email, search documents, etc., without reasonable suspicion, probable cause or a warrant, simply by racial profiling, I cannot agree. The Courts that we have in place to uphold our constitution, to me is making a mockery out of it. Looking for loopholes anywhere they can.

This issue is far from over. It is being address in the Senate and by Congress. For more information please see the article: Laptop Searches in Airports Draw Fire at Senate Hearing

Posted On: June 24, 2008

Child Porn Charges Dropped

First off, thank you to Prof. Patrick Corbett, from Thomas M. Cooley, who passed this story on to me. I recently ran into Patrick at the ABA Cyber Seminar, in Washington, DC. I attended Cooley, prior to transferring to Miami. I transferred for family reasons, but I truly believe that the education at Cooley is one of the best in the country, because they really, truly care about the success of their students.

State worker was charged with possession of child pornography on his workplace computer. A situation that is all too familiar these days. However in this case, the computer wasn't all that accurate. Yes, the computer did possess child pornography, but in filing a case the State must also prove that the user knew (or had dominion on control over the images). In this situation the State had neither. In a forensic review of the computer, the defendant was able to prove that he was not accessing or viewing child pornography, rather the computer was. What?

This is not the first instance of computers doing things on their own. Basically what happens is that you either intentionally, or unintentionally (virus), download a software application. They come in many forms, but the gist of the application is the same - it seeks out pornography, and doesn't differentiate between child and adult. It then appears to the world that your "machine" has been viewing pornography, and thus the police investigation/charges.

Who's fault is this? You would think that in the "pursuit of justice," that the police would be cognizant of the various types of viruses out there and when they forensically analyze the media they seize, that they would search for them. In reality what happens is that due to the backlog of media that is waiting to be forensically analyzed throughout this country, once the analyst discovers the evidence to make its case, the forensic review stops and the case gets filed. That begs the question, who really has the burden of proof?

It just goes to show you that you really can't judge a book by it's cover. For the article, click here: State Worker Cleared on Child Pornography Charges

Posted On: June 12, 2008

Miami Criminal Attorney Represents International Jewel Thief

Breakers jewel thief sentenced to prison

By LARRY KELLER

Palm Beach Post Staff Writer

Thursday, June 12, 2008

WEST PALM BEACH- — Debonair international jewel thief Nordine Herrina traded his expensive suits for drab jailhouse blues in court today, where he pleaded guilty to stealing two rings from a Palm Beach jewelry store that retailed for $1.5 million.

Herrina, 32, was sentenced to 3 1/2 years in prison after agreeing to plead guilty to two counts of grand theft of more than $100,000. He was credited for the two years he has been in jail, reducing the actual sentence to 18 months. Each charge carried a maximum sentence of 30 years in prison.

A French citizen, Herrina was a globe-trotting jewel thief extraordinaire who pocketed millions in baubles, authorities say. Dapper and accompanied by a beautiful woman, Herrina used sleight of hand to swindle jewelers in Italy, France, Switzerland, California and New York, they say. On at least one occasion, he claimed he was Prince Khalid of the Saudi royal family.

He was imprisoned in Italy in December 2002, then transported to Switzerland where he was sentenced to the time he already served in Italy. But the United States began extradition proceedings to have him face charges in Miami-Dade County, Palm Beach County and Orange County, California.

He arrived in Miami earlier this year. A judge there also sentenced him to the time served abroad, and ordered him to pay $145,000 in restitution. His next stop: the Palm Beach County courthouse.

Before retired Judge Roger Colton sentenced him today, Herrina gave him a neatly printed letter in which he said he has reformed. Unmarried, he has a 5-year-old daughter, he wrote.

"I am suffering for all this years lost from life from 26-32 years," he wrote. "I will like to see my daughter. I have learn a lot in prison. I will ... come back in the society and give the best of me."

If the way Herrina filched two rings from the Diamont Noir jewelry shop at The Breakers hotel in April 2001, was typical of how he operated, he was as smooth as a perfect pearl. Here's how Palm Beach police — who worked with the FBI and Interpol — say he did it:

Wearing a navy blue double-breasted suit, white shirt, violet tie and carrying a black alligator-type wallet, Herrina walked into the shop with a buxom blonde wearing a low-cut, off- the-shoulder blouse.

He asked to see a ring in the display case, and the blonde tried it on, then returned it to Stephanie Halimi, the store owner's daughter. Herrina then asked if Halimi had something bigger for his wife, explaining that the blonde was his girlfriend.

Herrina was shown a larger ring. He asked to speak to Halimii in a back office. Then he asked to see the box for the ring. Next, he asked to speak to employee John Goodkin, saying he preferred to do business with a man, because he was Arab.

Herrina put five 100-dollar bills on a counter and said he wanted to buy both rings — one for his wife, one for his girlfriend. The larger ring was a platinum, 9.15 carat, cushion cut diamond, flanked with two half-moon shaped diamonds. Retail value: $1.06 million.

The smaller ring was set in 18 carat yellow gold and platinum, with an 11 carat, fancy yellow pear-shaped diamond, flanked with two pear-shaped clear diamonds. Retail value: $441,140.

Herrina told Goodkin that he would return to purchase the rings after he went to lunch. Goodkin thought he watched Herrina place the rings back in a black velvet box, which was placed in a safe. He asked Goodkin not to show the rings to anybody else.

As Goodkin was about to close the store at 7 p.m., the "Arab" and the blonde had not returned. He went to the safe and discovered both rings were missing.

Police believe Herrina and his friend scammed a Boca Raton jeweler out of a $130,000 bracelet the same day, and were thwarted by a second jeweler in that city. The next day they were trying the same ruse at Cartier and Christian Dior shops in New York City, they say.

Now Herrina is headed to a Florida state prison, but maybe not for long. He still has charges pending in Orange County, California, which has the right to grab him immediately, said his Miami attorney, David Seltzer. If convicted there, he could serve his sentence in California, Seltzer said.

As part of Herrina's plea deal on Thursday, he was ordered to pay $1.5 million, plus $846 in court costs. But Judge Colton told Herrina that once he finishes his U.S. prison sentence, he likely will be deported — he still must serve a two-year sentence in France — and barred from returning here.

"There's no way of enforcing those judgments," Seltzer said.

Posted On: June 11, 2008

Miami, Drugs and Athelets...Miami's been quiet...for a change...

Athlete’s, alcohol and drugs seem to be dominating the news media these days. From Cedric Benson and his multiple drinking and driving arrests, to ex-DB Dexter Reid pleading to possession of marijuana with intent to distribute (he was acquitted of carrying a concealed weapon), to Nick Kaczur, a member of the New England Patriots, arrested for possession of OxyContin, a controlled substance, and in the middle of a federal government investigation, to Kenny Stabler, a former NFL star arrested for his third DUI. And that ladies and gentlemen is just the recent cases of alcohol and drugs in the NFL.

Everyone deserves a second chance in life, but should athletes, the people our youth look up to be held to a higher standard? Are they the ones our youth are seeking to emulate? Drugs in sports are nothing new. Major sports are addressing the use of narcotics with the public arrests of numerous players, and the federal government spending tax payer money inquiring as to what’s going on, and for what, what does the federal government hope to accomplish? Should an athlete’s careers be tarnished forever, or are they human, and entitled to error?

Having been a prosecutor in Miami-Dade County Florida, I have dealt with my fair share of drug cases, but I can tell you not all jurisdictions deal with cases in the same manner. Miami is very forgiving to first time drug offenders, sometimes second. The Court’s have programs in place such as drug court, whereby the defendant participates in court ordered treatment and following a set amount of time, absent no set-backs, the case would be dismissed and the individual does not have a felony record.

The judicial system is supposed to be rehabilitative, but not all people see it that way. Some people perceive it to be punishment first, and rehabilitate second. I can understand that mentality for certain crimes, but remember the book, Don’t Sweat The Small Stuff, people need to pick and choose their battles. Scarring someone for life for one indiscretion isn’t what we as a society ought to be doing or I don’t believe ever set out to do. The law is here to help and guide us. If we slip up, then so be it, we work to fix it, but should it mean your life is scarred and ruined? Guess it depends where you commit the crime…

Posted On: June 11, 2008

Miami and States Crack Down on Child Pornography

State and Federal agencies are cracking down on child pornography in an effort to protect the nation’s young from repeated online victimization. Internet Service Providers, such as Verizon, Time Warner, and Sprint , have announced that they will be spending in excess of $1 million dollars to purge their systems of anything child porn related. For more details see: Verizon, Time Warner Cable, Sprint to Block Child Porn Sites

The question is at the end of the day, how will this really help protect our nation’s youths? Will all the nation’s ISP’s follow suit? Will this become legislation? If the Federal Government steps in, what happens when this is challenged in the court’s over free speech and first amendment issues, just like Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). This new twist in fighting child pornography is not over...

Posted On: June 4, 2008

Child Pornography, Legal v. Illegal?

Determining what to charge and what is legal is never easy. Ask 10 people to opine on the same image, chances are good you will get multiple perspectives; question is which one is right?

The definition of teens, according to www.dictionary.com, is defined as the numbers 13 through 19. Furthermore, under the law, the legal definition of a minor is anyone 17 years and younger. Therefore, “teen,” even though it includes minors, it also includes LEGAL adults. So how does one avoid the obvious trap of being caught with child pornography when the site is advertising “legal teens,” or “barely legal?” In either instance, the site purports to depict what they are telling you is legal, so who is at fault when the police come knocking and the image “appears” to be a minor?

It is very deceptive to those who search the internet with no intentions of breaking the law, and then one day find themselves on a teen website with images of women, who may or may not be legal. It is unfortunate that there is no set in stone method of determining what constitutes a “minor” and what is legal. The standard in determining whether or not to charge a suspected image of child pornography lays solely in the prosecutors hands. It’s called prosecutorial discretion, and means watch out, as each prosecutor will have a different opinion. In some cases it is really too close to call, and then you would hope that the prosecutor doesn’t take the “let’s roll the dice” approach.

Factors used to determine whether or not a minor is in fact a minor are the size of limbs, body hair and/or pubic hair, facial features, breast size, and genitals, to name a few. Most often prosecutors will employ the services of a licensed doctor to opine as to the age of the child. However, it doesn’t end there. The prosecution still needs to prove the image is real and not virtual (a discussion for a different day).

Back to the topic at hand, how do you know if you are looking at legal pornography or child pornography? The short answer is you don’t know. However, I believe there is a strong argument to be made not only on the above factors that the prosecution uses in making their filing decisions, but also in the website itself. Sites that advertise “barely legal teens,” are telling you the viewer that you are looking at images that will not get you arrested. The problem is accountability. Most of the websites that post these images are not based in the United States, and therefore, it is often very difficult to prove the age of the child, and the factors above may be the only way. Question is, do you want to rely on someone else’s discretion?

The “too close to call” category of images is something most prosecutors shy away from, but there are those overzealous ones that will charge anything, and see what sticks. For further discussion or information on this matter, please feel free to contact me, as I am sure this debate will continue...