Cyber Crime Lawyer Blog

As a Miami-Dade cyber crime criminal defense attorney, I wrote last year about the arrest of Adonis Losada, an actor on the popular Spanish-language program Sabado Gigante, where he plays grandmother Doña Concha. Losada is accused of possessing and distributing child pornography, to a stranger online who turned out to be a Boynton Beach police detective. The Palm Beach Post published a story on Losada Aug. 30, saying the actor is upset that he has been incarcerated for nearly a year in Palm Beach County rather than in Miami-Dade. He says he cannot afford the $3 million bail the court is requesting, the article said, and complains that he cannot communicate with his English-speaking public defender.

Losada was first arrested at his South Beach home for possession of child pornography. The arrest report from that incident says he told the police he has a problem. He was released on bail after that arrest, but took the opportunity to flee to Georgia, a violation of the conditions of his release. When he was arrested in Georgia, Florida authorities brought him back to Palm Beach County rather than Miami-Dade. Though Losada had never been to Palm Beach County, authorities there were charging him with distributing child pornography as well, and the distribution charge originated in Palm Beach County because the officer who received the transmissions was in Boynton Beach.

Losada claimed in the article that he should be held in Miami, where the possession charge comes from and where he already has a private criminal defense attorney. That attorney is not working on the distribution charge in Palm Beach County, although he said he would try to move the distribution trial to Miami. Losada claims he cannot communicate with his public defender because he does not speak English well. He also says he was tricked into waiving his right to a speedy trial, kept in isolation and is being held with forged documents.

I would like to start by reminding readers and clients that Losada is partly responsible for his own predicament. Losada’s bail is very high because he is considered a flight risk, thanks to his trip to Georgia. Without this on his record, he may well have been granted a low enough bail that he would have been able to go home while awaiting trial. As a West Palm Beach cyber crime criminal defense lawyer, I do not recommend fleeing charges.

In my experience, it is relatively unusual to split criminal charges stemming from the same set of incidents in this manner. Losada allegedly possessed and transmitted the images from the same place -- his home -- and most people accused of transmitting child pornography are at least initially arrested in their home jurisdictions. As a Fort Lauderdale cyber crime criminal defense attorney, I suspect Losada’s fame among Miami’s large Spanish-speaking population could be part of why he is being kept in Palm Beach County. If prosecutors believe they may not get a fair trial due to the defendant's celebrity status, they have every right to make their case -- but they should make it in court, with a motion for a change of venue, rather than cooping Losada up for more than a year without a hearing.

Continue reading " Univision Star Adonis Losada Still in Palm Beach County Jail After Nearly a Year " »

As a West Palm Beach cyber crime criminal defense attorney, I have been interested to see all the media coverage given recently to “sextortion.” As this Associated Press article from Aug. 14 notes, sextortion is the practice of using explicit or naked pictures of someone to force favors out of that person, often favors of a sexual nature. Frequently, the article says, the pictures were not intended for the perpetrator, but ended up in that person’s hands as they got passed around between acquaintances or online. The article says federal prosecutors believe the practice is on the rise, although it did not cite specific numbers. It did cite several specific cases, including a particularly large case I wrote about for this blog back in June.

All of the cases in the article involve young men extorting other young people, often but not always young women. The victims may be classmates at school, but they may also be random people found through the Internet. In a case out of Maryland, the article says, a 17-year-old and two friends used a webcam to flash their breasts at an Internet chat room. A few weeks later, the victim began receiving threatening emails from 19-year-old Trevor Shea of Mechanicsville, Maryland, who said he would post the pictures to her MySpace page unless she sent more explicit pictures. She complied at least twice before authorities got involved and arrested Shea. In another case, 18-year-old Anthony Stancl of Wisconsin posed online as a girl in order to get male classmates to send him naked photos. He then revealed that he was male and used the photos to extort the classmates for sex.

The Today Show ran a brief segment on the topic Oct. 16:

As an Orlando cyber crime criminal defense lawyer, I was particularly struck by a statement made by the attorney in that segment. She said the threat of being prosecuted for child pornography -- and becoming a registered sex offender for life -- could drive some victims to hide rather than seek help. This is not an idle concern. I have written here several times about the trend toward prosecuting teenagers for making “child pornography” by taking pictures of themselves. I believe these prosecutions are exactly backwards -- subjecting teenagers to harsh penalties despite the lack of any real victim. Those penalties are designed for serious adult criminals, not for kids experimenting with their sexuality. If the threat of prosecution also discourages kids from seeking help when they do become victims themselves, that’s all the more reason to take a different, more sensible approach to the problem.

Of course, there’s also the issue of how to charge the “sextortionists” themselves. In the Maryland case, the article says, Shea was indicted for sexual exploitation -- presumably 18 USC sec. 2251, which (in relevant part) prohibits making child pornography. That crime has a mandatory minimum sentence of 10 years and a maximum of 20 for each count. If Shea faces multiple charges, he could easily grow old in prison. While his actions were certainly illegal and deserving of penalties, I am not sure this statute is appropriate. After all, it’s designed for hardened adult child pornographers who exploit small children -- not a 19-year-old demanding pictures from a girl two years younger.

As a Fort Lauderdale cyber crime criminal defense attorney, I might prefer to argue -- in a case without in-person sexual exploitation -- for a charge of extortion instead. Here in Florida, our extortion statute better fits the crime; it even explicitly includes extortion that “threatens ... to impute any ... lack of chastity to another.” This is a second-degree felony with up to 15 years in prison for each count, so it’s not a light penalty -- but it gives judges some much-needed discretion to distinguish between adults who exploit children and teenagers exploiting other teenagers.

Continue reading " Federal Prosecutors Say Cases of ‘Sextortion’ of People in Nude Pictures Increasing " »

A recent report from the Orlando Sentinel caught my eye as an Orlando cyber crime criminal defense attorney. According to an Aug. 12 article, a firefighter is behind bars after authorities caught him meeting a man for what he thought would be sex with the agent’s 11-year-old and 13-year-old daughters. In fact, the man was an undercover agent for the CyberCrime unit of the Florida Attorney General’s office, and no actual children were involved. However, Paul Joseph Quillen, 41, of Yulee, Fla., was arrested and charged with two counts of soliciting a minor for sex via a computer and two counts of traveling to meet a minor for sex. He faces up to 40 years in prison if convicted on all counts. Bail is set at $10,000, with the additional provision that Quillen must not have any contact with children or go online if released.

Quillen first came to the attention of the authorities when he joined an online chat room called “fmly excitement,” the article said. There, he met the “father”” who was actually an undercover detective. That person talked with Quillen for four hours. During that time, Quillen sent a picture purported to show his genitals; made salacious comments about the “daughters,” supposedly ages 11 and 13; and offered to perform a sex act on the “father” as the girls watched. He also mentioned having seen his girlfriend’s 10- and 12-year-old daughters naked at a nudist camp. After more communication online and by telephone, Quillen traveled to a Boston Market to meet the agent, intending to go to the nudist camp afterward. Quillen pulled into the parking lot behind the agent’s car, then pulled out and continued driving down the road. He was arrested about a mile away. Authorities found a 9mm handgun in his car, the article noted.

As a West Palm Beach cyber crime criminal defense lawyer, I thought the inclusion of this last detail was odd. If the handgun was legal, and Quillen is not charged with a firearms crime or violent crime, there’s no reason to make a fuss about it. There aren’t enough details in the article to say for sure how I would defend him, if I were his attorney, but I did notice that he seems to have left the Boston Market rather than go inside and have the meeting. If this is the case, Quillen might have a strong defense to the “traveling to meet a minor” charges, which are more serious. The statute makes it illegal to travel to, from or within Florida for the purpose of unlawful sexual contact with a child. If Quillen failed to follow through with the meeting, he could argue that he did not intend to go through with the meeting and thus did not have the intention that the law requires. This has been successful in at least some federal cases. He would still face the solicitation charges, of course, but those are less serious, carrying only a total of up to 10 years in prison.

People accused of trying to meet a minor for sex are not popular in our society. In addition to the harsh penalties laid down by the criminal code, they typically face sex offender registration for the rest of their lives, loss of jobs involving children, social ostracism and sometimes even threats of violence. Nonetheless, our justice system affords them the same right to defend themselves that anyone else accused of a crime would receive. As a Fort Lauderdale cyber crime criminal defense attorney, I cannot overemphasize how important it is for such people to take advantage of that right and get an experienced lawyer, fast. Even if you believe the case against you is airtight, an experienced defense attorney can look for mistakes and civil rights violations by law enforcement, as well as sloppy or overreaching charges. All of these can get a case dismissed or charges substantially reduced.

Continue reading " Panhandle Man Accused of Traveling to Orange County for Sex With ‘Underage Girls’ " »

I'm pleased to announce that I will be appearing for the second time this Friday on Doctor Radio, a talk show on SiriusXM satellite radio about medical issues of all kinds. Just like last time, I will be speaking as an expert Orlando cyber crime criminal defense lawyer about how children can be affected by online crime. In addition to sexting, which was a topic during my last appearance, we're going to discuss the very related topics of child pornography and cyberbullying. In fact, I will be joined by Dr. Robin M. Kowalski, a psychology professor at Clemson University and author of Cyber Bullying: Bullying in the Digital Age. The show will discuss these things from a physical and mental health perspective, and I will follow up with a general discussion, from my perspective as a Miami cyber crime criminal defense attorney, of how parents can protect themselves and their kids from legal trouble when they get mixed up in sexting, bullying or other online misbehavior.

You can listen LIVE to About Our Kids -- the parenting and child psych show -- on Doctor Radio on SiriusXM satellite radio (Sirius114 & XM119), Friday, August 13, 2010 from 9-10am Eastern. Not a subscriber? Sign up for a FREE online subscription at www.sirius.com/doctorradio.

As an Orlando child pornography criminal defense attorney, I was very interested to read about a recent appeals court opinion that could affect sentencing for child pornography cases here in Florida. According to the Fulton County Daily Report, a legal-industry newspaper in Georgia, the Eleventh U.S. Circuit Court of Appeals recently ordered an Orlando federal district court to re-sentence a man from 17 1/2 years in prison to 30 years in prison. The opinion, which numbers 256 pages, comes in United States v. William Irey, No. 08-10997 (PDF), and contains one concurrence and four dissents totaling more than 100 of those 256 pages. The case pits sentencing for William Irey, a man accused of very serious child pornography and sexual abuse crimes, against the traditional deference shown to district judges during sentencing.

Irey, a 50-year-old businessman from central Florida, pleaded guilty to one count of leaving the United States to engage in sex with underage girls, producing pornography from those acts and distributing them on the Internet. The Eleventh Circuit describes that pornography as shocking, degrading and tortuous, involving 40-50 Cambodian girls from ages four to 16. Over multiple visits to Asia, Irey took photos and videos of this conduct and put them online, which eventually led to his arrest. The federal statute gives a sentence of 15 to 30 years in prison, although federal guidelines suggest life. At the trial, prosecutors asked for the full 30 years, but Orlando federal judge Gregory Presnell settled on 17 1/2 years and a great deal of supervised release, saying he had been convinced by a psychological defense witness that Irey had a mental illness he did not choose and is treatable. Prosecutors appealed.

A three-judge panel of the Eleventh Circuit upheld the sentence in February. One of those judges wrote separately that he would prefer a higher sentence, but agreed that appeals judges are not authorized to second-guess trial courts. In a very unusual move, the Eleventh then agreed to rehear the case en banc even though prosecutors did not appeal. The resulting six-judge majority overturned Presnell, saying the shorter sentence was unreasonable and an abuse of discretion. The majority -- which included one judge who reversed his position from the original panel -- did not believe pedophilia removed any of Irey’s volition. Rather, they pointed out, Irey took steps to avoid being caught, showing that he had control over his actions.

By contrast, the dissenters focused on what they saw as an improper attempt to dictate Irey’s sentence. Judge Tjoflat, writing alone, suggested that sending the case back for a new sentence without specifying any length would have done less “institutional damage” to the justice system. Judges Edmondson, Birch, Barkett and Martin wrote that while appeals courts can correct unreasonable sentences, the record of this case did not show a lack of reasonable basis for Presnell’s sentence. Birch and Barkett wrote their own dissents as well.

This decision could affect any criminal defense attorney. But it’s particularly relevant to my practice as a West Palm Beach cyber crime criminal defense lawyer because it seems to be partly based on moral disapproval of Irey’s crimes. (For example, the opinion notes with disapproval that he cheated on his wife with prostitutes, which was not at issue here.) Those crimes are shocking, and I agree that Irey deserves penalties. I am sure that the dissenters on the Eleventh Circuit feel the same. But as those dissenters pointed out at length, it is not the role of appeals courts to determine sentences. Our legal system has this rule because trial courts hear facts and see witnesses in person, while appeals courts do not -- making trial courts better placed to take the full circumstances into account. By stepping into the role that properly belongs to a trial judge, the dissenters say that the Eleventh Circuit has violated basic rules of the justice system and legal precedent.

Just as importantly for my practice as a Miami-Dade child pornography criminal defense attorney, this decision could declare open season on any criminal sentence that appeals judges happen to dislike. That is, if this decision is allowed to stand, it will allow appeals courts to change sentences on the vague grounds that they believe the crime was too serious to allow anything less than the maximum permitted sentence. It’s not hard to imagine a situation in which this could create an injustice by taking sentencing power away from the judge who heard actual testimony. No matter how strongly we disapprove of William Irey, this way of addressing it is bad for the integrity of the justice system.

As an Orlando cyber crime criminal defense attorney, I was interested to see articles last week about a proposed new federal law. The STALKERS Act would make cyber-stalking a federal crime, and expand the definition of “cyberstalking” to include acts that the victim is not aware of. Cyberstalking is currently a crime in most states, including Florida, and those states typically require victims to feel reasonable fear of the perpetrator in order to trigger an arrest and prosecution. Under the proposed law, introduced by Democrats Loretta Sanchez in the house and Amy Klobuchar in the Senate, the threshold is lower -- “behavior that a reasonable, impartial observer would recognize as stalking,” according to an article Sanchez wrote for The Hill. The bill would also increase penalties for stalking children, the elderly or anyone with a protective order. It has already passed the House.

The bill was endorsed in the press by Erin Andrews, a reporter for sports news network ESPN. Andrews was the victim of stalking in 2009, when 47-year-old Michael David Barrett took videos of her through the peepholes or keyholes of various hotel room doors. In the videos, Andrews is naked or partially clothed and curling her hair. They were posted on the Internet, and Barrett reportedly tried to sell related photographs to celebrity website TMZ.com. He has since been convicted of interstate stalking and is serving a 30-month sentence. In support of the STALKERS Act, Andrews said she was disappointed that Barrett will serve only two and a half years. Sanchez’s article notes that Barrett’s electronic monitoring does not meet the current federal definition of stalking, which is one reason she’s pushing the STALKERS Act. Klobuchar noted that the law is not as sophisticated as online criminals, in an article saying 25% of stalking cases happen online.

As a West Palm Beach cyber crime criminal defense lawyer, I approve of expanding the definition of stalking to include cyberstalking. As I noted, most states already have cyberstalking laws, and including electronic harassment would simply help to update the law to fit the way people actually use technology in the 21st century. The federal law may be behind on this issue because federal criminal law applies only to conduct that crosses state lines or takes place in specific federal areas, and most stalking is local. However, I have some concerns about application of the STALKERS Act to conduct that the victim does not notice. The relevant language says the law applies when the conduct “would reasonably be expected to cause emotional distress.” Who judges this? If the victim cannot because he or she is unaware of the conduct, I suspect law enforcement decides whether it’s distressing. This could be a problem in any case where law enforcement officers might want to overreach, such as when they want to “get” the defendant for other reasons.

Such a vague definition of a crime invites law enforcement abuses and could create a crime out of victimless, harmless behavior. Here in Florida, the victim of stalking must feel actual emotional distress, and cyberstalking is defined as electronic communications that cause that emotional distress but serve no legitimate purpose. Barrett’s behavior toward Andrews would not meet this definition, and in that sense, Florida law leaves a gap. However, as a Miami cyber crime criminal defense attorney, I suspect that videotaping a young woman naked through a hotel room could meet the definition of a crime in other ways, such as by violating wiretap laws. I hope that federal legislators consider this when they consider the well-meaning STALKERS Act and its possible unintended consequences.