At the beginning of the year, I wrote here about the ongoing debate over the legality of police searches of cell phones and other handheld devices. Last weekend, law enforcement in Winter Haven, a lakeside community near Tampa, made an arrest that could revive that debate. According to a Sept. 26 article in the News Chief of Winter Haven, Brian Jennings was arrested and charged with ten counts of sexual performance by a child after his girlfriend’s son brought Jennings’ iPod to school and discovered child pornography on it.

The unnamed boy did not have permission to take the iPod to school. According to the article, he was listening to music with the device when he found images on it, including adult and child pornography. Authorities believe at least 20 of the 974 images are child pornography. Another student told a teacher that the boy was showing the pornographic images to other students, leading school authorities to confiscate the iPod and call the Polk County Sheriff’s Office. After arresting Jennings, law enforcement returned to search his home and seize his computer.

Here in Florida, at least one federal court has already ruled that police officers may not search handheld devices after an arrest for something unrelated, although they may be able to do so during an arrest. In this case, that issue doesn’t matter because the iPod was found on a minor, and minor schoolchildren have fewer constitutional rights than adults. But as a Miami-Dade cybercrime criminal defense attorney, I am not at all sure that things would have been different if Jennings himself had been found in possession of the iPod. The Fourth Amendment is clear about search and seizure, but courts have been inconsistent about whether law enforcement needs a search warrant to search handheld devices like iPods and phones.

Nonetheless, as a Fort Lauderdale cyber crime criminal defense lawyer, I believe Jennings may have strong defenses open to him. The statute under which he’s charged makes a distinction between possession of material showing sexual performance by a child, a third-degree felony, and possession with intent to promote, which is a second-degree felony carrying double the potential prison time. The law says possession of three or more copies of a performance is evidence of intent to promote it -- but a smart Orlando cyber crime defense attorney can and should challenge that assumption. The statute forbidding simple possession also requires that the possession be “knowing,” meaning that there is no crime if the defendant didn’t know the material involved children -- which is possible if, say, he downloaded a bundled set of images.

The penalties Jennings faces are serious. If convicted on all charges, he faces more than two decades in prison. Furthermore, the charges are felonies, which means he would lose his rights to vote and own a firearm and may have trouble finding a job after prison. And of course, he would likely be required to register as a sex offender for the rest of his life, which limits where he may live and work and carries a heavy stigma. With this much at stake, I hope Jennings is given every chance to present evidence that might prove his innocence.

As a South Florida tax evasion criminal defense lawyer, I was surprised and pleased to see that the Internal Revenue Service has extended its voluntary disclosure program for taxpayers with unreported overseas income. The program was to have ended this Wednesday, September 23 -- but the extension adds 22 days, for a deadline of October 15. IRS officials told the Wall Street Journal Sept. 21 that the extension comes at the request of numerous tax professionals, who wanted it for clients who need extra time to enroll in the program. In fact, the article said, the program has become hugely popular, flooding tax professionals and tax attorneys with phone calls. According to the IRS, the program has more than 3,000 takers since it was announced in March, up from 88 participants in all of 2008.

The voluntary disclosure program was a response to a complicated dispute between the IRS and giant Swiss bank UBS. After discovering that UBS had actively and knowingly helped American taxpayers avoid reporting income to the IRS, the agency launched criminal and civil cases against the bank. Those cases were settled with the disclosure of names of thousands of taxpayers who may not be in compliance with the law. The IRS has promised to thoroughly investigate any names it receives, but also set up the voluntary disclosure program to allow taxpayers to come forward on their own. In doing so, taxpayers can avoid extremely high fines and back taxes -- which are often higher than the income in dispute -- and potential criminal prosecution with prison time. By contrast, voluntary disclosers are unlikely to be prosecuted and face only back taxes, interest and penalties of 5% to 60% of the unreported income.

According to the Wall Street Journal, the approach of the original Sept. 23 deadline was one reason why taxpayers have increasingly stepped forward. Another reason is that UBS has begun sending letters notifying American accountholders that it intends to disclose their names to the IRS. Because the voluntary disclosure program is not available to people who are subject of an active criminal investigation, this provides a strong motivation to confess now. An attorney also told the newspaper that many accountholders don’t have access to the disputed money at the moment anyway, another strong motivator.

As a Miami tax evasion criminal defense attorney, I strongly encourage taxpayers whose names might be revealed by UBS to take advantage of the extended deadline. In fact, because the IRS has promised, and demonstrated, that it will go after tax scofflaws using any overseas bank, I believe it may be in the best interests of taxpayers with these accounts to get their houses in order now. Tax advisors told the newspaper that taxpayers of all kinds have gotten the UBS letters, including people with relatively small accounts and people whose history doesn’t indicate intent to evade taxes. And even for taxpayers who have not gotten the letters, the voluntary disclosure process takes time; taxpayers must document their income, fill out paperwork and sometimes attend an in-person interview with the tax agency.

Smart taxpayers frequently hire a Fort Lauderdale tax evasion defense lawyer like me to make sure their rights are protected throughout the disclosure process. I can help clients identify what income they must disclose and make sure to document and disclose it properly, and represent clients in any in-person interview the IRS may request. Perhaps most importantly, I can negotiate with the agency to get the best, fairest possible penalty for my clients. The penalties imposed by the IRS do vary; penalties are generally lower for people who inherited their accounts or relied in good faith on UBS advice that has been revealed to be corrupt. However, to take advantage of the voluntary disclosure program, it’s vital to start now to avoid missing the new Oct. 15 deadline. To learn more at a free, confidential consultation, please call me from anywhere within Florida at 1-866-ARRESTED or nationwide at 1-866-685-3421, or send a message through my Web site.

As a Miami child pornography criminal defense attorney, I was happy to see a recent news item showing that defense lawyers like me are not the only ones concerned about the severe penalties mandated by our federal child pornography laws. According to a Sept. 10 article in the National Law Journal, federal judges testified before the U.S. Sentencing Commission last week that they believe sentences for child pornography possession have become too severe. The judges said people convicted of possession are frequently first-time offenders that are not threats to the community, and should not be sentenced in the same harsh way as those convicted of commercial manufacture or sales of child pornography.

The Sentencing Commission hears testimony from judges, attorneys, probation officers and others about federal sentencing practices. It heard the testimony on child pornography sentencing in Chicago, its fourth stop of seven in a nationwide tour. Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel he does not condone child pornography possession, but pointed out that someone who watched such a video once can now be punished more severely than someone convicted of raping a child repeatedly over several years. In fact, he said, the average sentence for child pornography possession in his district more than doubled between 2002 and 2007, from 50 months in prison to 109 months.

The panel also heard from the Chief Judge of the Seventh U.S. Circuit Court of Appeals, Frank Easterbrook, who presides over the federal appeals court for the area. He said he wonders if the sentencing guidelines don’t produce “unreasonable and unjustified disparities” when he sees sentences for child pornography possession that are more than 40 times the size of sentences for bank robbers. Another objection was raised by U.S. Attorney Patrick Fitzgerald for the Northern District of Illinois, the prosecutor behind the Rod Blagojevich and “Scooter” Libby cases. Thanks to a Supreme Court decision that left judges free to depart from mandatory minimums, Fitzgerald said, his prosecutors prefer to request very high sentences because they believe judges will reduce those sentences. “[I]t is plain as day there is a deep disconnect” between judges and prosecutors on these sentences, he said.

Unfortunately, the problem these witnesses were addressing is far from abstract. In my work as a Fort Lauderdale child pornography possession defense lawyer, I have seen firsthand that this overly severe sentencing devastates the lives those who are prosecuted, and the lives of their families. The average sentence cited in the article for Eastern Michigan is now just over nine years in prison, during which time the defendant cannot support a family, develop a career or be a parent to his or her children. That’s a terrible personal cost, as well as a financial cost to society -- and it doesn’t even address the additional costs of lifelong sex offender registration requirements or life as a convicted felon.

I do not believe that child pornography possession should go unpunished, of course -- but sentences like these can be disproportionate to the crime, particularly when the accused is a first-time offender without a commercial interest in the material. And as the judges pointed out, they are also disproportionate to the federal sentences for other crimes, including violent crimes like assault or sexual abuse of a minor. As an Orlando child pornography crimes defense attorney, I have thought this for quite a while -- but when well-respected judges and prosecutors say the same, I believe the case for strong action by the Sentencing Commission is clear.

As a Fort Lauderdale cyber crime criminal defense lawyer, I have followed the Lori Drew case with interest. Drew is the Missouri woman charged with violating MySpace’s terms of service in order to set up a fake account to “cyberbully” a 13-year-old neighbor girl who later committed suicide. Because there was no criminal law applying to Drew’s behavior, prosecutors charged her under the federal Computer Fraud and Abuse Act with violating MySpace’s terms of service. A Los Angeles jury convicted Drew, but U.S. District Judge George Wu signaled his intent to overturn that verdict on the grounds that the law is unconstitutionally vague. Earlier this month, he did just that, and the New York Times published an approving editorial Sept. 8.

This prosecution was always controversial, criticized as a legal stretch that made relatively innocent behavior into a crime. Those concerns were shared by Wu, who said the Computer Fraud and Abuse Act was never meant to apply to cyberbullying. The Act, aimed at hackers and thieves, prohibits Internet users from knowingly accessing a computer without authorization for certain purposes or with certain negative results, including injury to another person. MySpace’s Terms of Service, the legal notice most Web sites include, prohibits users from doing some of the things Drew did. The prosecution construed this to mean that Drew had accessed MySpace’s computers without authorization and violated the Act.

Internet civil libertarians, South Florida cyber crime defense attorneys and Wu all saw serious problems with this approach. Wu wrote that making violations of terms of service into a crime would make a federal crime out of every violation, no matter how small or common. For example, he wrote, people looking for dates online might lie about their age and appearance; parents with Girl Scout cookies to sell might send “commercial” messages to friends. This is unconstitutionally vague, Wu said; under previous court decisions, criminal laws must be clear about what behavior is prohibited. In essence, he declared parts of the Act unconstitutional. The New York Times applauded that move, saying that the average Web user has no reason to believe violating a terms of service agreement breaks federal law.

As a Miami cyber crime criminal defense attorney, I strongly agree. If the prosecution’s interpretation of the law had prevailed, it would have put Web site owners, rather than federal law, in charge of what is and is not a crime. Companies may put almost anything they like in terms of service agreements, including rules that might later be voided by a judge as unenforceable as well as rules that are routinely violated. For example, the terms of service at yahoo.com say users may not use Yahoo!’s services to send unsolicited advertising, chain letters or content that is abusive or harassing. As anyone with a Yahoo! email account knows, these rules are violated almost constantly. Prosecuting every violator of every terms of service agreement would be impossible, a waste of prosecutors’ time and potentially a violation of Internet users’ civil rights. That’s why I am pleased with Wu’s decision, despite the tragic set of facts leading up to it.

As a Miami tax evasion criminal defense attorney, I was not surprised to see evidence that the U.S. Internal Revenue Service is planning to extend its efforts to fight tax fraud. According to a Sept. 1 article by Bloomberg News, the IRS has advertised among its employees to staff a new office dedicated to monitoring the “global high-wealth industry.” This office will have the responsibility of processing the information on 4,450 accounts that UBS agreed to turn over in its settlement of a lawsuit against it by the IRS. The IRS sued the Swiss bank after it refused to turn over information in a related criminal case, in which the bank admitted to intentionally helping U.S. taxpayers dodge their taxes through deception and elaborate networks of dummy corporations.

In part because so many tax evaders use dummy corporations, the new IRS department will be located within the agency’s Large and Mid-Size Business division. According to Bloomberg News, that’s the division with the most experience navigating the issues that apply to high-net-worth individuals with international holdings, such as tax treaties and international business structures, and a division with an embedded legal department. Currently, responsibility for auditing wealthy people is split between divisions handling small business, self-employed people and investors -- and not all of those divisions have experience in international transactions. The IRS has already asked Congress to approve funding to hire 784 new full-time workers to better enforce international tax laws. As a Fort Lauderdale tax evasion defense attorney, I believe this means this issue goes beyond UBS -- we can expect stricter enforcement of tax evasion laws in the future.

Tellingly, the Bloomberg article notes that the IRS expects up to 10,000 new tax evasion cases related to UBS -- more than twice the number expected to come through the settlement. The new cases are expected because of the popularity of the agency’s voluntary disclosure program, which offers limited immunity from tax evasion prosecution for accountholders who come forward before they are charged with any tax crime. Taxpayers still must pay back taxes and penalties, but they escape much more serious penalties and potential prison time by being honest. As I have noted on this blog before, the program has already generated more responses in one month than the IRS got in all of 2008. However, the deadline for making a voluntary disclosure is just two weeks away -- Sept. 23 -- so the agency may see even more disclosures soon.

As a South Florida tax evasion criminal defense lawyer, I represent taxpayers in Florida and around the world who need help coming forward in a way that protects their rights. Taxpayers must follow specific requirements in order to qualify for the program, and not all of their personal financial information is necessarily required in a voluntary disclosure. I can help taxpayers start the process; represent them in their dealings with the IRS, including the in-person interviews the agency has been demanding; and negotiate for the best, fairest possible penalties. With the deadline just two weeks away, it’s more important than ever for taxpayers who are in this position to take action quickly to avoid the very serious consequences of a federal criminal conviction. To set up a free consultation with an experienced attorney, please call 1-866-ARRESTED from anywhere within Florida or 1-866-685-3421 nationwide, 24 hours a day and seven days a week, or contact me online.