Cyber Crime Lawyer Blog

I'm happy to say that I've appeared on RT America's The Big Picture again to discuss cyber crime issues. This time, I was asked to contribute a cyber crime attorney's perspective on the new .xxx domain, which was authorized last Friday as a domain specifically for the pornography industry. The move was opposed by the pornography industry, which feels that an all-pornography domain will be easier to block. In fact, the government of India has already announced plans to block it. I argued that this is a good thing for parents who want to block their children's access to pornography online -- but they need to know how to use the technology to do so.

I’ve written here several times before about the issue of financial restitution for children and young adults who were depicted in widely shared child pornography. In the past several years, numerous requests for financial restitution have come from these victims, who say they are victimized with each new download and should be fairly compensated. As a child pornography criminal defense attorney, I’ve written here before that I believe these claims are legally weak — but several appeals courts have allowed them, as long as the victim can show the harm caused by the defendant’s actions. The Fifth U.S. Circuit Court of Appeals raised an even more controversial issue last week when it ruled that victims do not need to show how the defendant’s actions harmed them in order to claim the restitution. This worsens a legal split that the article said will likely be resolved only with a ruling from the U.S. Supreme Court.

The Fifth Circuit’s case comes out of Texas, where Doyle Paroline served two years in prison for downloading child pornography. The images authorities found in his possession included two images of “Amy,” a pseudonym for a woman in her twenties who, when she was a child under 10, was the unwilling star of very widely shared child pornography pictures. “Amy” has also been at the forefront of the movement to compensate victims, filing hundreds of claims around the country. She requested $3.4 million in compensation from Paroline, for costs like therapy and loss of income. But a Texas federal judge denied it, saying she didn’t show that Paroline’s possession of the images was the proximate cause of her injuries. The Fifth Circuit reversed that ruling, and in doing so, also reversed a previous ruling from a different Fifth Circuit panel in a different case involving “Amy.” No clear consensus has emerged in federal courts on what compensation is appropriate, the article said, with some awarding no compensation or small amounts that are largely symbolic.

As a child porn criminal defense lawyer, I am sure this issue will eventually reach the U.S. Supreme Court. Child pornography is a highly emotional issue, which means that sometimes, juries and judges overreach what the law allows in their eagerness to penalize the perpetrators. However, federal law on restitution for victims was not intended for this use, and that means it wasn’t written with the looser standards the Fifth Circuit seems to have applied. Restitution laws are intended to keep criminals from profiting from their crimes. In the case of someone like Paroline, who is accused of viewing or downloading the material rather than making it, there’s no financial profit to take away. It’s also debatable whether the harm to “Amy” was direct enough to qualify, since she didn’t need to be present or even aware of Paroline for him to access the images. As a child porn criminal defense attorney, I think courts exist to exercise this kind of careful judgment, to avoid misuse of restitution laws — and ensure that justice is served, even for people society doesn’t like.

Continue reading " Federal Appeals Court Ruling Loosens Standard of Proof for Child Porn Compensation " »

As a Miami-Dade drunk driving criminal defense lawyer, I was interested to see a piece about the prosecution of a man accused of a high-profile DUI death. As the Fort Lauderdale Sun-Sentinel reported March 18, Mario Careaga of Fort Lauderdale is accused of causing the death of Nancy Guillermina Lopez-Ruiz, a 22-year-old who had just joined the Miami Heat dance squad. Lopez-Ruiz was stopped by the side of the road on her motorcycle when Careaga plowed into her, killing her at the scene. Careaga is facing charges including DUI manslaughter, DUI property damage and careless driving.

Careaga and a friend were at the Galleria Mall before the September 2010 crash. Surveillance cameras at two stores show the two men being served at bars about six times, police say. Then, they apparently got into Careaga’s car and drove west on Sunrise Boulevard, where Lopez-Ruiz was stopped by the side of the road, in an area called a “gore” that authorities said was not intended for vehicles. The crash threw her 137 feet, killing her at the scene. Ninety minutes after the crash, two tests measured Careaga’s blood-alcohol level at 0.23 and 0.24 — about three times the legal limit. Careaga turned himself in on formal charges March 17 and was released the next morning on bail. His Fort Lauderdale DUI criminal defense lawyer said it was “a horrible, tragic accident.”

I’m pleased to see Careaga has a defense attorney, because the charges he faces are very serious. It’s difficult to say from the information included in the article, but from that quote, it looks like Careaga and his lawyer may be planning to defend the charges rather than make a plea agreement. If Lopez-Ruiz was stopped in an area not intended for vehicles, as the police report said, Careaga may be able to argue that he didn’t reasonably expect anyone to be there. By contrast, if he makes a plea bargain, he will likely face less time than the maximum 15 years in prison carried by a Florida DUI manslaughter charge. As a south Florida intoxicated driving criminal defense attorney, I know that could mean a plea to a lesser or different charge that still carries some time, including vehicular manslaughter, felony DUI and others.

Continue reading " Fort Lauderdale Man Accused of DUI Manslaughter of Miami Heat Cheerleader " »

I'm pleased to say that another television station asked me to contribute my opinion as an experienced cyber crime lawyer to a news report. The Big Picture, an English-language talk show on Russian television network RT America, had me on to discuss a proposed Oregon state law. This law, which has passed the Oregon state House, would require computer technicians to report images they believe are child pornography when they encounter them at work. I told host Thom Hartmann about my concerns that the law would overreach the Fourth Amendment by requiring technicians to perform a search and seizure of people who law enforcement would not otherwise have any reason to search. I also told him I believe it's dangerous to effectively deputize non-experts to decide what is and is not child pornography. You can see the entire segment here:

An article about an Oregon man facing steep charges for possessing, distributing and receiving child pornography caught my eye as a child porn attorney. The March 18 article on OregonLive.com said the tale of Kyle Scott Broadhurst should serve as a caution to the many Internet users who have not yet secured their wireless home networks. Broadhurst, 26, is accused of using the wireless networks of neighbors in Milwaukie, Ore. to access file-sharing sites specializing in child pornography. The goal was to avoid being identified by deceiving authorities into believing the neighbors were the ones downloading. Fortunately for his neighbors, Broadhurst was correctly identified and is now facing nine federal felony counts.

Broadhurst was discovered by an interagency team of investigators into child pornography swapping online. Rather than have human detectives do searches, they used an automated system to find sites and traced traffic back to individual home computers. That system led Clackamas County sheriff’s deputy Erin Schweitzer to Milwaukie, where she parked outside the homes with the unsecured wireless networks. Because they were all unsecured, she suspected they were being pirated by someone with a directional wifi antenna, which extends the range in which you can pick up wireless networks. By using a special device whose function was not described, the investigators were able to trace the activity back to Broadhurst and found him downloading child pornography in his bedroom in February of 2010. He confessed to downloading thousands of images, some only for trading purposes.

This piece reminds me of another I read and blogged about last month as a child pornography lawyer. In that case, a Sarasota man was wrongly accused of child pornography crimes after his network was hijacked. It wasn’t until a frightening search of his computer that the authorities considered a wireless pirate, and eventually found the real downloader. In Oregon, no such invasive searches were reported, fortunately — but they easily could have happened if investigators had been impatient to make an arrest or inexperienced with cyber crime. That’s one reason why, as the article implies, wireless home network users would be wise to password-protect their networks. As a child pornography attorney, I believe evidence would eventually get such innocent users released — but possibly not before they’re subjected to invasive searches, rough treatment and possibly even confiscation of their property.

Continue reading " Oregon Man Caught Using Neighbors’ Unsecured Wireless to Download Child Porn " »

Back in 2009, a police-involved shooting in Miami Beach caught my eye as a Miami-Dade criminal defense attorney. Husien Shehada of the Washington, DC area was shot late at night on Washington Avenue by Miami Beach officers who said they thought he was pulling a weapon; investigation later turned up nothing but a beer bottle in the waistband of his pants. Now, as the Miami New Times Riptide 2.0 blog reported March 9, an investigation has cleared the officer who pulled the trigger, Adam Tavss. Prosecutors say Tavss was justified in shooting because Shehada didn’t obey instructions to raise his hands. Shehada’s brother, Samer Shehada, was present at the time of the shooting and says his brother made no threatening moves and didn’t touch the bottle.

Samer Shehada said he and his brother had a fight with their girlfriends, so they went out to buy some cigarettes. A bouncer on the street called police to report that the men were armed, and when police found them, they yelled at them to put their hands up. The prosecutors’ report says another officer saw Husien Shehada reaching for the beer bottle in his pants. Based on that, he later said Tavss could have believed Shehada was reaching for a weapon. A surveillance video showing the Shehadas from behind does not show either making sudden or aggressive moves, and no other officers at the scene reacted this way. The family is planning a lawsuit against the police department.

Tavss is no longer with the Miami Beach Police Department, but not because of Shehada’s shooting. Four days after Shehada’s shooting and just hours after passing a related psychiatric evaluation, Tavss also shot and killed a homeless man named Lawrence McCoy Jr., saying McCoy had a weapon. No weapon was found. After that shooting, Tavss tested positive for marijuana, which led to his resignation from the police force. Months later, Tavss was found running a marijuana grow house in his apartment. He is currently serving a two-year sentence of house arrest and is barred from working as a police officer.

As a south Florida assault criminal defense lawyer, I suspect that a civilian accused of the same behavior would be unlikely to get the same treatment. Self-defense is certainly a defense against charges of armed assault and battery (likely a felony), but the courts generally need defendants to demonstrate a reasonable belief that their lives were in danger. In this case, the Shehada family and others dispute the reasonableness of Tavss’s belief that he was in danger. (However, it’s important to realize that Tavss didn’t end up before a jury, as a civilian likely would — his actions were evaluated by the Miami-Dade State’s Attorney’s office.) To get this kind of outcome in a case involving felony charges, you should mount the strongest defense they can — and that typically means hiring a Fort Lauderdale battery criminal defense attorney as early as possible in the case.

Continue reading " Miami Beach Police Officer Serving Time for Pot Cleared in 2009 Shooting of Tourist " »

I'm pleased to say that I appeared on TruTV (formerly known as Court TV) March 13 to talk about the case of Arizona v. Ray from my perspective as a criminal defense attorney. James Ray is the self-help author and guru who is currently being tried for manslaughter in the deaths of three people in a sweat lodge in Arizona during a "Spiritual Warrior" retreat. TruTV asked me to give my opinion on the chances of the prosecution (which, as I say in the video, seems unlikely to succeed) as well as comment on related civil litigation.

Last week, I wrote a blog post about the different ways federal law and Florida state law handle cases of child pornography created by computers rather than in-person exploitation of children. So as a child porn attorney, I was very interested to see a New York Times article March 7 about a man in Michigan who is being prosecuted for a related offense that some say was not even a crime. According to the article, 21-year-old Evan Emory is charged with manufacturing and distributing child pornography because he digitally altered a video of himself giving a concert to schoolchildren, making it seem as if he was singing graphic sexual lyrics to the children even though in reality, he was singing age-appropriate songs. Emory was expected to plead no contest to a lesser charge March 14, to avoid a potential maximum sentence of 20 years in prison and 25 years of sex offender registration.

No actual sex was depicted in the video and no children heard the dirty song. After Emory finished the clean version of his performance at the school, he and a friend taped the dirty version. He showed the video at a performance in mid-February and also uploaded it to YouTube. Nonetheless, the Times reported that the case has divided neighbors in the town of Muskegon, where complaints from parents triggered Emory’s arrest. Parents are upset that their children are easily identifiable in the sexually themed video. Emory, meanwhile, has been treated like anyone else accused of a child pornography crime: he has been suspended from his job, was jailed, and had his computer and phone seized and searched. (No child pornography was found.) His father has left the state to look for work to pay legal bills, and his mother has avoided leaving the house except to work after she was chased and photographed by angry parents. A few parents have also experienced a backlash from Emory’s supporters.

As a child porn lawyer, I’m not at all surprised that this case has upset so many people in Muskegon. Child pornography charges trigger strong feelings, which means people who are accused typically face personal and social consequences long before they can be convicted or acquitted — often before they’re formally charged. The social backlash against Emory’s mother and the suspension from his job are both unfortunately common. However, I am surprised that prosecutors in Muskegon County felt that a dirty song was strong enough evidence to support a child pornography prosecution. Not only were no children harmed in the making of this video, but it would be difficult to argue that the video is any kind of pornography, as the term is generally understood. It’s understandable that Emory is choosing to plead no contest to a lesser charge, given the life-altering consequences he faces if convicted and the cost of defending himself. But as a child pornography attorney, I believe he’d have a strong case if he chose to fight the charges instead.

Continue reading " Michigan Man Faces Child Porn Prosecution for Digitally Altering Lewd Music Video " »

As a Miami-Dade resisting arrest criminal defense attorney, I’m well aware that the crime of “resisting an officer” in Florida is sometimes misused by police officers who simply don’t like the person arrested. So I was interested to see a March 2 article from WSVN-TV about a woman who claims officers roughed her up, including pushing her to the ground while she was already handcuffed, before charging her with resisting arrest, disorderly conduct and battery on a police officer. Andrea Castillo says she was wrongly jailed and subjected to excessive force after criticizing officers verbally on her way out of a concert Feb. 20. Video captured of part of the confrontation appears to show her being pushed into a metal railing, and Miami police say they’re investigating the incident.

Castillo had been to a concert at Bayfront Park with her husband and some friends. As they left, she was separated from the others and encountered a police officer she felt was rude. She says she asked “Why are you talking to us like that?” and the officer cursed at her. The next thing she knew, she said, she was pushed into a railing, then pulled back by her arm. When she spoke again, she says, the officer handcuffed her and began walking her away, but then pushed her onto the ground while handcuffed. It wasn’t clear from the video how many officers were involved, and the department declined to comment. She was slightly injured, but says she doesn’t want to sue the department — she just wants the charges against her dropped.

As a Fort Lauderdale resisting an officer defense lawyer, I know there’s a reasonable chance that Castillo is telling the truth about not having committed any real crimes. Unfortunately, the Miami-Dade Police Department has been accused of excessive force in the recent past — in fact, a similar incident was caught on tape on Halloween, when officers were accused of beating partygoers in Coconut Grove for no apparent reason. Al Sharpton has also recently called for an investigation into officer-involved shootings of African American men. Resisting an officer is a real crime in Florida, but unfortunately, it’s very vaguely defined. This allows officers who just don’t like being questioned to use it in situations where no real crime was committed — in essence, to abuse their power. An experienced south Florida resisting arrest defense attorney may be necessary to clear the defendant’s name and keep him or her out of jail on trumped-up charges.

Continue reading " Miami Woman Charged With Resisting Arrest Claims Police Pushed and Threw Her " »

A recent federal appeals court ruling caught my eye as a child porn defense lawyer because it came to a conclusion opposite from that of Florida courts. The New York Law Journal reported March 2 that the Second U.S. Circuit Court of Appeals in New York ruled that superimposing the faces of minors onto the bodies of adults in pornography can be penalized as child pornography. The decision means 50-year-old John Hotaling of Sharon Springs, N.Y. will continue to serve a 6.5-year jail sentence on one count of possessing child pornography. The ruling comes down on the opposite side of a Florida state court decision in the case of former Lakeland school principal John Stelmack, who was freed in December after the Second District Court of Appeal ruled similar images are not child pornography.

Hotaling used a computer to create six photos in which the faces of teenage girls were pasted onto the bodies of women in adult pornography. The teens’ photos came from people he knew, including pictures his daughter and her friends had taken and one picture taken from a computer he was fixing for family friends. The court ruling said the photos were “encoded in [HTML]” and stored in “indexed folders that could be used to create a website,” although it’s not clear what that means. The court noted that there was no evidence that Hotaling uploaded or distributed the photos, and he argued that he created them only for himself and did not harm any of the minors. However, the Second Circuit said the pictures fit within the bounds of previous rulings excepting child pornography from the First Amendment because of the harm to children created from producing it. The court also expressed concern that the pictures were “primed for entry into the distribution chain.”

Thanks to our dual state-federal legal system, it’s not at all contradictory that this court came to a different conclusion from the appeals court here in Florida. Child pornography is illegal in both jurisdictions, but Florida does not specifically forbid making “virtual” child pornography with a computer program, the way Hotaling did. Federal law does — but interestingly, that’s been the case only since 2003, when Congress modified child pornography laws to explicitly include pornographic images that appear to be minors. It did that because the U.S. Supreme Court ruled in a 2002 case, Ashcroft v. Free Speech Coalition, that a previous law on the same topic unconstitutionally restricted “speech that records no crime and creates no victims by its production.” This is still the precedent

Since then, the high court has declined to revisit the issue — but Hotaling’s attorney has indicated that they may try again. In my opinion as a child pornography lawyer, Hotaling may be able to make a strong case, and not just because he because the harm to the victims was questionable in his case. As the article notes, he was convicted in part based on the court’s belief that he might have been planning to distribute the images — not because he actually did.

Continue reading " Court Upholds Child Porn Conviction for Pasting Minors’ Faces Onto Adult Bodies " »

As a south Florida probation violation lawyer, I was interested to see a probation violation that made the news because of a high-profile defendant. The Orlando Sentinel reported Feb. 22 that Jamar Hornsby, a former redshirt freshman safety for the University of Florida, reported to jail the day before to serve 90 days for violating his probation. The underlying charge was for four misdemeanor counts of unauthorized use of a credit card. Hornsby was arrested for that charge in May of 2008. He was also released from the Gators, and returned to his native Mississippi. There, he got into trouble again in 2009 when he was charged with misdemeanor assault Starkville, Miss. That was the basis for the probation violation charge that landed him in jail.

Hornsby’s original legal trouble stemmed from an October 2007 motorcycle accident that killed his teammate, Michael Guilford, and another student named Ashley Slonina. Six months after their deaths, Hornsby was accused of using Slonina’s credit card about 70 times. He pleaded guilty to the misdemeanor charges and was sentenced to probation, restitution and court costs. After leaving Florida, he played for a community college and signed a letter of intent with Ole Miss, but was released after his arrest for assault, for allegedly attacking a man who rear-ended his car in a McDonald’s drive-through. He will serve 90 days in Alachua County Jail in Gainesville for the probation violation. After finishing his jail sentence, he will need to enroll at Mississippi’s Delta State quickly to make a May 31 deadline to play for that school.

As a Miami assault criminal defense attorney, I hope the high profile of this case reminds probationers how important it is to stay out of trouble. When you’re on probation, almost any law-breaking more serious than a parking ticket can land you back in jail. If that happens, your jail or prison sentence is determined by the sentence for the original crime — not whatever you’re accused of doing to violate probation. That means you can face long sentences for relatively minor infractions. To make matters worse, people on probation have fewer rights than other people, which means police can do things like search you at any time without permission. And as Hornsby’s case shows, you can also suffer non-criminal penalties like losing a job or a job opportunity. That’s why your best choice is to stay out of trouble — and, if you get in trouble, why you should hire a Fort Lauderdale probation violation attorney as soon as possible.

Continue reading " Former Gators Safety Begins Serving Jail Sentence for Assault and Probation Violation " »