Cyber Crime Lawyer Blog

As a West Palm Beach cyber crime criminal defense attorney, I was interested to read about a California man who is charged with extortion in connection with crimes allegedly committed online. According to a June 22 story from the Orange County Register, Luis Mijangos, 31, was arrested by the FBI that day for allegedly extorting more than 100 young women into sending him explicit photos and videos over the Internet. Mijangos is accused of hacking into more than 100 computers used by at least 230 people, using “malware” disguised as downloadable pop songs. Once he was inside the victims’ computers, he used his access to request naughty pictures that he then allegedly used to threaten them into sending more. He faces a federal charge of extortion. He has also admitted to participating in an international hacking ring and involvement in credit card fraud, the article said.

According to a June 26 report from PC World, Mijangos used the Internet chat program IRC and peer-to-peer file sharing networks to distribute a software program that allowed him to control the computer of anyone who downloaded it. Once he was inside a computer, he would reportedly use that access to send the malware to the victim’s friends and family over instant messaging, and put a “keylogger” program on the computer that would allow him to see and record everything the user did. More importantly, however, Mijangos used his access to look through the victims’ hard drives for explicit images and videos. If he didn’t find them, the report says, he would hack the email addresses belonging to the victims’ boyfriends and request some, or turn on a computer’s webcam and watch to see if he could catch them in an intimate moment. And once he had those images and videos, he is accused of contacting the victims directly and threatening to send the videos to everyone they knew unless they sent him more and stayed away from the police.

What interested me, as a Miami-Dade cyber crime criminal defense attorney, was that Mijangos faces only the extortion charge. As the Register article notes, extortion carries a maximum sentence of two years in federal prison. Two years in federal prison isn’t fun, but it’s a far cry from the penalty that Mijangos might face if he were also charged with aggravated identity theft or unauthorized access to a computer -- both of which could be charged, judging by the description in the article. It’s unclear why he isn’t charged, or isn’t yet charged, but from a defense attorney’s perspective, the most likely answer may be the simplest: there might not be enough evidence to prove either of those crimes. Prosecutors risk losing the case if they bring charges that aren’t supported by the evidence. Hacking crimes can be particularly difficult to prove because the accused are not physically present and can sometimes cover their tracks electronically. If they can connect those crimes to a specific computer, prosecutors still must prove that the accused was physically behind that computer when the crimes took place.

These are part of the difficulties that cyber crime presents for prosecutors and Fort Lauderdale cyber crime criminal defense lawyers like me. The Internet changes much faster than the law, and law enforcement and prosecutors don’t always have the resources to keep up. As a former cyber crime prosecutor for the Miami-Dade State’s Attorney’s office, I have the experience and skills to know where evidence that may clear my clients’ names may be hiding -- and when evidence may be misleading or false. I believe this gives my clients a major advantage, allowing them to build the fullest possible defense by putting the best range of information and evidence at their disposal. Unfortunately, not every attorney has these skills -- including some prosecutors. Mijangos would be well served to seek out such an attorney.

If you follow celebrity gossip, you may have heard about an incident last week that caught my eye as a South Florida cyber crime criminal defense attorney. As CNN reported June 21, celebrity blogger Perez Hilton caused a minor scandal last week when he posted a picture of 17-year-old celebrity Miley Cyrus that appeared to show the view looking up her skirt. Observers suggested that Hilton could be charged with child pornography crimes because he posted the photo to his Twitter feed. News reports say no charges are filed or planned against Hilton, and Cyrus and her father, singer Billy Ray Cyrus, say they’re not interested in a prosecution. But Hilton has lost at least two advertisers from tweeting the picture, including ABC, whose corporate parent Walt Disney owns Cyrus’s Disney Channel show.

It’s not clear whether the picture showed anything that could be considered pornography. The picture, which came from an outside paparazzi photo agency, was blurred or pixellated in the area that might have shown whether Cyrus was wearing underwear, and Hilton has claimed that other pictures show underwear. Regardless, critics say Hilton could face child pornography charges for publishing the picture, because Cyrus is 17 and not legally an adult. Hilton later removed the photo from his Twitter feed, saying he likes to be controversial, but does not want to go to jail. Defending himself on a talk show, he said the picture does not show anything inappropriate and is definitely not child pornography. He claimed he posted the picture to criticize the “unladylike” and overly adult behavior he believes Cyrus has displayed lately.

This situation is interesting to me as a Fort Lauderdale child pornography criminal defense lawyer for several reasons. If the picture was indeed pixellated in the appropriate area, I do not believe that Hilton or any other publisher can be prosecuted for distributing child pornography. Federal law defines child pornography as any image showing a minor engaged in sexually explicit conduct. An up-skirt picture is certainly invasive and tasteless, but it’s hard to justify calling getting out of a car without panties as sexually explicit conduct. More importantly, blurring the picture clearly shows an intent to avoid showing anything that could be considered sexually explicit.

However, I do not believe other defenses raised by Hilton would help him if he were prosecuted. In the media, Hilton has repeatedly pointed out that Cyrus has been acting very sexual and adult for her age and has done “unladylike” things. He also pointed out that she’s 17, which is just a year short of legal adulthood. These things may be true, but under the law, they don’t matter at all. If a picture meets the definition of child pornography, it wouldn’t matter whether the child depicted is 17 or 7 -- both ages would meet the legal definition. A jury would undoubtedly see a picture of a 17-year-old as less shocking than a picture of a younger child, which could help Hilton in any hypothetical prosecution. But the bad or experimental behavior of the child in the picture would also not matter, and might even backfire if it’s perceived as blaming the victim.

This controversy underscores some of the issues important to my practice as a Miami child pornography criminal defense attorney. In real life, the difference between 18 and 17 is sometimes hard to see, especially when the person in question behaves in a sophisticated and adult way. But when it comes to criminal law, that distinction makes the difference between criminal charges and legal behavior. (Celebrity watchers may recall similar photos of Lindsay Lohan and Britney Spears that did not create rumors of criminal prosecution.) In cases where that line is blurred and the defendant made the wrong judgment, a lot depends on the sympathy of the jury. Unfortunately, some people will always react strongly to child pornography charges, regardless of the underlying situation -- which is why it’s essential to have an experienced defense lawyer by your side.

As a South Florida tax evasion criminal defense attorney, I wrote a great deal last year about a crackdown on U.S. taxpayers who fail to declare income from overseas bank accounts. That crackdown was sparked by revelations from an employee of Swiss bank UBS that the bank had actively helped U.S. clients avoid reporting income. As a result, the IRS launched a special amnesty program that offered lighter penalties for taxpayers who came clean before mid-October -- but promised harsh penalties for proven tax evaders. At the same time, a lawsuit from U.S. authorities required UBS to turn over the names of tax evaders, which caused controversy in Switzerland’s famously secretive banking community. Now, the New York Times reported Jun 15, the Swiss Parliament has approved a deal that would end the international dispute -- but wants to put it to a popular vote, putting the outcome in doubt.

Switzerland agreed in August of 2009 to turn over 4,450 names, to settle a lawsuit brought by the U.S. Justice Department. But the Swiss high court ruled that parts of the settlement violated Swiss banking law, so the country’s legislature had to approve changes to the law in order to comply with the settlement agreement. The upper house of the Swiss Parliament has already approved the law but not a referendum; the lower house approved both. Now, the upper house must hold another vote, and if the two houses can’t agree, the settlement agreement could be broken. The referendum, if it passes, would take months, with no guarantee of a vote that would confirm the settlement agreement. That means there will certainly be some delay before the 4,450 names are turned over, keeping all of those U.S. taxpayers in further suspense despite nearly a year since the agreement was reached. If the Swiss government and people can’t meet their obligations, the Justice Department could take further legal action.

For taxpayers with UBS accounts who are not eager to see their names given to the IRS, this delay could be a relief. But it’s only a temporary relief, and as a Miami tax evasion criminal defense lawyer, I urge taxpayers who think they might be on that list not to ignore it. The IRS has already signaled that it intends to deal harshly with people who it thinks intentionally evaded their taxes, a crime that brings up to five years in prison and steep fines that can exceed the amount of income not declared. By contrast, the IRS was gentle last year with people who voluntarily disclosed undeclared income ahead of an Oct. 15 deadline, promising a low possibility of prison and fines of 5 to 60 percent of the undeclared income. The voluntary disclosure program was extremely popular -- so much that the IRS extended it an extra month -- and brought in accountholders at other overseas banks as well as UBS clients.

Presumably, all of those voluntary disclosers felt that staying silent wasn’t worth the risk of being identified and harshly prosecuted. Many people with overseas accounts rely on their accountants or the relatives who once owned the accounts for information on taxes. Some may not have realized they were doing anything illegal, especially since UBS admits that it actively helped clients hide their assets. The IRS may deal less harshly with those people -- but only if it believes they were acting in good faith. Voluntary disclosure is one way to show good faith and secure a promise of more lenient treatment.

However, it’s important to realize that voluntary disclosure can require more interactions with the IRS as it verifies your paperwork and evidence of good faith. That’s why many voluntary disclosers in 2009 hired Fort Lauderdale tax evasion criminal defense attorneys like me. An attorney can help clients determine which documents and information must be disclosed to the IRS. Clients may also want a defense lawyer by their sides as they sit through the in-person interviews with the IRS that were frequently required during last year’s voluntary disclosure program. And of course, an experienced tax evasion criminal defense lawyer can help clients confused by our Byzantine tax code decide whether they need to disclose in the first place. But to do this successfully, taxpayers must approach the IRS before it approaches them, because a voluntary disclosure won’t be honored if it comes after the taxpayers find out they’re under investigation. So it’s essential to get started as soon as possible -- before the Swiss government can approve its settlement.

Continue reading " Swiss Considering Referendum on Law That Would End Tax Dispute With the U.S. " »

As a Miami-Dade cyber crime criminal defense attorney, I was very interested to read about court sanctions brought against a fellow defense lawyer in a child pornography case. According to a June 12 article from the Detroit News, John Freeman of Troy, Mich., was sanctioned by a Detroit federal court for what the judge in the case said was a “blatant attempt to intimidate the minor victim’s mother” by asking for advance notice of the content of a victim impact statement from the mother. Freeman and his own defense attorney say there was no attempt at intimidation and that he was trying to balance his client’s due process rights with the legal rights given to crime victims. The National Association of Criminal Defense Lawyers filed an amicus brief in the case supporting Freeman.

In the underlying case, Freeman was defending Craig Aleo, a former school official who was convicted of manufacturing child pornography, for which he victimized a four-year-old girl. Aleo was sentenced to 60 years in prison in April. At the sentencing, the victim’s mother was permitted to give a statement, thanks to the federal Crime Victims’ Rights Act. Before Aleo was sentenced, Freeman filed a motion asking the court to order the prosecutors to give him advance notice of the content of the girl’s mother’s statement. He said this was required by the Crime Victims’ Rights Act, so he could respond appropriately. But the judge in the case said an advance notice requirement was not in the Act, and that the request was an attempt to intimidate the mother that was “unwarranted, baseless and worthy of contempt of court.” Freeman also broke a local court rule by not seeking agreement with prosecutors before he filed the motion, the judge said. Freeman was fined $2,000.

The Detroit News noted that the NACDL supported Freeman, with a spokesman for the group saying defense attorneys should be free to zealously and appropriately defend their clients without fear of sanctions. Not surprisingly, this Fort Lauderdale cyber crime criminal defense lawyer agrees. I am not familiar with the details of the case, but from a statement the judge made in an earlier article, I suspect that this judge’s reaction was an overreaction, possibly because of the terrible nature of the crime in the underlying case. In the earlier article, the judge is quoted saying that Freeman’s request “serves as yet another indication ... of the incredible lack of remorse for the victim in this matter.” That statement suggests that the judge has mixed up Freeman with Aleo, his client and the perpetrator of the crime at issue. It’s also worth noting that Aleo was sentenced to twice the amount of prison time the prosecutors had asked for, suggesting that the judge used his discretion to show how upsetting he found the crime.

If Freeman made a mistake in interpreting the Crime Victims’ Rights Act and broke local court rules, some penalty is appropriate. But as a South Florida cyber crime criminal defense attorney, I strongly agree with the NACDL that it is inappropriate and frightening to sanction a lawyer for doing his best to defend a client. Everyone in the United States criminal justice system is entitled to legal representation, and that includes people who are accused of serious and shocking crimes. No matter what Aleo did, part of Freeman’s job was to ensure that he got the due process he was entitled to under the law. Doing that job incorrectly is unfortunate, but there’s nothing in the information I have to suggest that it was an attempt to intimidate rather than a mistake. If we allow judges to sanction lawyers based on how they feel about the client’s actions, we will chill defense lawyers’ actions, denying their clients the full protection of the justice system. And as this case shows, that protection may be even more important when the underlying crime is shocking.

I’ve written here several times before about the legal issues surrounding the practice among teenagers of “sexting.” That’s when teenagers take nude or suggestive pictures of themselves and send them to their boyfriends, girlfriends or friends. As more kids have access to camera phones, webcams and other technology, this has become a growing issue for parents and school officials. It has also come to the attention of Miami cyber crime criminal defense attorneys like me because in many jurisdictions, teenagers are prosecuted for possession or distribution of “child pornography,” despite the fact that this is all voluntary, peer-group-member activity, and the “perpetrator” and “victim” are often the same person. A CBS news article from June 5 explains how the issue is being addressed by Pennsylvania prosecutors, as well as by legislators hoping to pass a law to better deal with the practice.

The article focuses on two separate sexting cases that came out of Susquenita High School outside Harrisburg, Pennsylvania. Ten people under the age of 18 have been charged with child pornography crimes in those cases in the past year, the article said. The teens were accused of using cell phones to take, send and receive inappropriate pictures of each other, plus one video. All of them were charged with one felony count of a child pornography crime. Some of the kids were able to avoid penalties by taking a five-week course on victimization and violence, performing community service and serving probation. However, one defendant is fighting the charge rather than pleading guilty. His attorney argues that penalizing teenagers is inappropriate for the situation and overzealous, and that the practice should not be a crime at all. Pennsylvania state legislator Seth Grove is claiming the middle ground with a recently introduced bill that would reduce sexting penalties for teenagers to a misdemeanor.

As a Fort Lauderdale cyber crimes criminal defense lawyer, I support any legislation that keeps teenagers from facing life-altering felony charges for sexting. But, like the defense attorney described in the CBS story, I question whether teen-to-teen sexting should be considered a crime at all. As numerous observers have pointed out, sexting is not a good idea. Pictures get out of the hands of their original owners quickly, which can embarrass the kids in the pictures. Even worse, the pictures can end up used as child pornography by total strangers who consume such images. But these are reasons to be honest with teenagers about the risks before sexting happens, and delete the images when they’re found. It is certainly not a reason to turn kids who are exploring their sexuality into criminals and, in some states, registered sex offenders. It’s worth noting that the same behavior between consenting adults is perfectly legal (though again, probably not a good idea).

The Supreme Court has made child pornography illegal, an exception to the First Amendment, because producing it means committing the disturbing crime of sexually exploiting a child. This logic does not hold when teenagers voluntarily take pictures of themselves and send them to other teenagers. In that situation, there is no exploitation and there is no imbalance of power between the people involved. As the Pennsylvania legislator argued, felony charges are too severe for such a situation. The teen would then graduate and start adulthood with a felony criminal charge on his or her record, which can limit opportunities for college financial aid, military service and jobs. But changing this “crime” to be charged as a misdemeanor in juvenile court misses the vital question: Why is this a crime? As a South Florida cyber crimes criminal defense attorney, I have not yet found a convincing answer to that question.

Members of the public don’t always realize this, but law enforcement may legally confiscate the money and property of people convicted of certain serious crimes. To be eligible for forfeit, the property must have been used in the commission of the crimes. This comes up in my work as a Miami-Dade cyber crime criminal defense attorney, because child pornography crimes are among those that can trigger criminal forfeiture. For that reason, I was very interested to see an appeals court decision that triggered a series of blog posts across the online legal world, including the CYB3RCRIM3 blog written by law professor Susan Brenner. On May 31, she published a post about U.S. v. Hull, 2010 WL 2079537 (8th Cir. 2010), in which the Eighth U.S. Circuit Court of Appeals decided that the government may legally take the home and land of a man who pleaded guilty to two counts of child pornography possession.

Larry Hull lived with his wife, Tracy Hull, on 19 acres in Treynor, Iowa. They built their own home and barn. In 2007, Larry Hull came to law enforcement’s attention when he got into a discussion with an agent posing as the Florida mother of two daughters, ages 12 and 9. Hull sent the agent child pornography, which he encouraged the older daughter to view, and said he’d like to perform sex acts with the older daughter. He had similar discussions with two other agents posing as mothers, but did not send them pornography. He was arrested in a raid in 2007, in which officers seized a total of 272 images of child pornography. Hull was indicted on one count of possession, four counts of distribution of child pornography and one count of attempting to entice a minor for sexual activity over state lines. The same indictment sought forfeiture of “[a]ny property, real or personal, used or intended to be used to commit or to promote the commission of the offenses alleged” -- including the Hulls’ home and land.

Hull eventually pleaded guilty to two counts of possession only. However, the forfeiture case went to a bench trial, where the district court ruled in favor of the government’s bid to take all 19 acres of the Hulls’ property. Hull appealed, arguing first that the district court should have required evidence that he used his real estate to commit the offenses. This is a requirement for forfeiture. He also argued that even if the home was used to commit the crimes, the outlying land was not and should be excluded. The Eighth Circuit disagreed. It first noted that the government “must show a substantial connection” between the property and the crimes, but concluded that this was satisfied. Hull’s home allowed him to get an Internet connection with enough privacy to commit the crimes, the court noted, unlike a library or coffee shop. And precedent says property is defined according to the legal deed or other document showing the defendant’s interest in the property, the court noted. For that reason, it declined to separate the home from the land.

Hull also argued that the seizure of the property violated the part of the Eighth Amendment that bans excessive fines. The district court had concluded otherwise, but Hull argued that it had made a mistake. Again, the Eighth Circuit sided with the trial court. Previous decisions on excessive fines have said a fine is not excessive unless it’s grossly disproportionate to the seriousness of the crime, the court wrote. Other caselaw says forfeiture can be presumed not excessive if it’s within the range of fines permitted by the sentencing guidelines. Hull’s equity in the property is within those guidelines, the Eighth Circuit wrote -- so the fine is presumptively not excessive. Furthermore, the court noted, child pornography is a serious offense.

Professor Brenner notes that Tracy Hull was allowed to keep the land in exchange for paying a $95,000 fine -- so she may not have been left homeless by the court’s decision. But as a Fort Lauderdale cyber crime criminal defense lawyer, I think this decision is a good example of why the sentencing guidelines for child pornography crimes must be changed. As I wrote last week, even some federal judges believe prison sentences for child pornography possession are too high. This decision says the maximum fine possible for Hull’s conviction -- two counts of possession of child pornography -- is $200,000. (The Hulls’ equity in their home and land was $192,632.) These sentencing guidelines set such high fines that most middle-class Americans would spend the rest of their lives attempting to pay the government. It’s also worth noting that 19 acres would be worth considerably more in more expensive real estate markets like Miami, which means wealthy urbanites are disproportionately protected from forfeiture.

But more importantly, I don’t believe the government has shown a “substantial connection” between the land and the crimes. If Hull had had a different home, a rented apartment, a hotel room or no home at all, he could still have possessed child pornography. Guaranteed privacy and a secure network collection certainly help, but as a West Palm Beach cyber crime criminal defense attorney, I feel confident in saying that defendants can and do commit child pornography crimes without those things. Professor Brenner noted a few other cases in which homes of child pornography defendants were forfeited, but all of these were in trial courts -- suggesting that more appeals in other circuits may be on the way. I hope other federal appeals courts come to a different conclusion from this one.