Cyber Crime Lawyer Blog

As a south Florida criminal defense attorney, I believe very strongly that representing yourself is almost never a good idea in criminal cases. Even a well-educated person who understands the courts may still be too emotionally connected to the case to be objective. Then, a small mistake can sometimes bring down the entire case unnecessarily. So I was pleased to see that the Eleventh U.S. Circuit Court of Appeals gave a pro se (acting as his own attorney) defendant a break in United States v. Ly. Hung Thien Ly of Georgia appealed his eight-year sentence for unlawfully distributing controlled drugs without a prescription, arguing that the judge in his trial should have corrected his clear misunderstanding of his right to testify. The Eleventh agreed.

Ly was a doctor accused of writing medically unnecessary prescriptions. He asked the court for appointed counsel because he was indigent, but the court denied this (and was later affirmed) on the grounds that Ly was only indigent because he had transferred all of his assets to his wife. Ly then announced that he would represent himself, and continued down that path despite warnings from the court about the risks of doing this. After all of Ly’s witnesses had finished, the trial judge called him to the bar and asked if he intended to testify. The Eleventh said the transcript of this conference showed that Ly did not understand that he could testify without anyone to ask him questions. The court did not correct Ly, and he was later convicted. He appealed, arguing among other things that his right to testify was denied by the court’s refusal to clarify it.

On appeal, the Eleventh noted that Ly’s misunderstanding was understandable given his lack of legal experience. Nonetheless, it said, defendants have a right to testify (or choose not to testify) in criminal cases — and this right is protected only when the defendant makes that choice knowingly. Ly didn’t have the knowledge to make that decision knowingly, the court wrote. The court rejected Ly’s argument that courts should discuss the choice with pro se defendants ahead of time, because it could improperly influence their choices. It also rejected the government’s contention that the district court has no responsibility in a situation like Ly’s. The right to testify is fundamental, the court wrote, and caselaw requires extra protection for pro se defendants. Instead, the Eleventh ruled that the trial court, once already engaged in dialogue with Ly, should have corrected his mistaken impressions about his right to testify. Thus, it reversed and remanded the conviction.

As this case shows, there are many reasons to consider hiring a Miami-Dade drug crimes criminal defense lawyer if you’re accused of a crime in south Florida. Without an attorney, Ly was unable to testify on his own behalf, and the witnesses that he called were unable to give the testimony he relied on. As a result, the Eleventh noted, the jury in his case simply had no narrative to rely on except the one provided by the well-funded prosecution. This is not to say that Ly would not have been convicted if he had had an attorney; no reputable lawyer would promise specific results. But in general, it pays to have someone on your side who understands the justice system, its basic rules and the personalities of judges and juries. A Fort Lauderdale narcotics criminal defense attorney costs more money than representing yourself, but you should always balance this against the personal cost of a criminal conviction.

Continue reading " Eleventh Circuit Rules Trial Court Should Correct Misunderstandings of Defendant Representing Himself – U.S. v. Ly " »

Determining whether a search was legal is an important part of my work as a cyber crime criminal defense lawyer. If a search was invalid, all of the evidence it uncovered must be thrown out — and in some cases, that’s enough to derail the prosecution. For that reason, I scrutinize my clients’ cases closely when I believe police may have violated the Fourth Amendment. This kind of violation was alleged in United States v. Schwarte, which was recently decided by the Eighth U.S. Circuit Court of Appeals. Steven Jerome Schwarte of Iowa was convicted of possessing child pornography, receiving child pornography and attempted sexual exploitation of children. He argued unsuccessfully to the Eighth Circuit that evidence from a search of his home should have been suppressed at trial.

For three months in 2007, Schwarte chatted online regularly with an NCIS agent posing as a teenaged girl. Schwarte turned the conversation to sex, repeatedly asked the girl to send sexually explicit pictures or videos of herself and sometimes a friend, and offered sexually explicit pictures of himself. As the conversations progressed, NCIS notified the Postal Service, which asked for a warrant to search Schwarte’s home. The plan was to control a delivery of a package from the NCIS agent to anyone who was at home at Schwarte’s address. An adult niece of Schwarte’s answered the door but told the postal worker no one by that name lived there. Nonetheless, she accepted the package. Law enforcement arrived at the home shortly after and found Schwarte, who confessed after being Mirandized. At a later trial, he moved to suppress evidence from the search n the grounds that the search warrant was invalid. That motion was denied and he was later convicted and sentenced to more than 16 years in prison.

On appeal, Schwarte argued that the search warrant was not valid because its triggering event — the proper delivery of the package — never occurred. He argued that no one in the house accepted delivery of the package, because his niece had testified that she said he didn’t live there and attempted to give the package back while the postal worker walked away. This contradicted testimony from the postal worker, who said the niece accepted the package without incident. Nonetheless, the Eighth said, even the undisputed parts of the package delivery testimony show that the niece accepted the package, thus showing that the condition was triggered for the search. It also rejected arguments that Schwarte could not have knowingly received or possessed the child pornography because he was asleep, saying it was enough that he took steps to receive it. Thus, it affirmed Schwarte’s conviction and sentence.

As a child pornography criminal defense attorney, I rarely encounter cases where possession of child pornography is “constructive,” as it is here — meaning that the defendant is said to possess something even though he or she may not actually have it in a pocket or hand. For the most part, child porn is found on a computer or some storage medium. But no matter where the materials are stored, defendants should know their rights when dealing with law enforcement. Officers must have a warrant to search homes and must have a reasonable basis for that warrant. If there is a trigger, as in this case, the triggering condition must be met. If you believe officers have not met those conditions or overstepped their authority in another way, you should tell an experienced child porn defense lawyer as soon as possible, because evidence from that search can make or break the case.

Continue reading " Eighth Circuit Rules Search That Led to Child Porn Conviction Was Valid – U.S. v. Schwarte " »

As a Miami-Dade criminal defense attorney, I’m in favor of more access to exculpatory evidence when defendants are facing the death penalty or other very serious penalties. So I was disappointed in the ruling by the Eleventh U.S. Circuit Court of Appeals in Van Poyck v. McCollum, denying William Van Poyck a chance to request access to DNA testing related to his murder conviction. Van Poyck was already in prison when he and another inmate attempted to escape, leading one of them to shoot a guard to death. Van Poyck was convicted of the guard’s murder and sentenced to death, and this was upheld by the Florida Supreme Court. In 2003, he filed a lawsuit seeking the clothes he and the other inmate wore during the murder, to perform DNA testing he claims would show the other inmate pulled the trigger. After this was denied, he re-filed in federal court and his claim was denied for failure to state a valid claim.

The Eleventh first looked at whether Van Poyck had waited too long to file. The state argued that the statute of limitations, or deadline to sue, should have started running when DNA testing became widely available. The court disagreed, saying Florida’s four-year statute of limitations for personal injury applies. Under Florida law, the statute of limitations begins running when the facts supporting the case become apparent. The court said this was when the Florida state DNA lawsuit was exhausted. It specifically said, however, that it was ruling only on this case and not making a general statement about when plaintiffs should sue or whether denying evidence is a continuing tort.

It next turned to the meat of the issue, whether Van Poyck had a valid claim. In order to bring a claim, it noted, he needs to show that Florida officials denied a federally protected right when denying him access to the DNA evidence. Van Poyck argued that he should have a due process right to the information. However, the Eleventh pointed out, a substantive due process right to DNA testing was expressly rejected by the Supreme Court in 2009’s District Attorney’s Office for the Third Judicial District v. Osborne. Van Poyck may have a procedural due process right to the testing, the court said, but he did not adequately make that argument in his appeal. Thus, the Eleventh upheld the trial court’s decision to deny access to DNA testing.

Decisions like this are disappointing to south Florida criminal defense lawyers like me. The Eleventh barely had to look into whether Van Poyck’s due process rights were violated, because the U.S. Supreme Court’s precedent in Osborne is binding. That’s true regardless of whether any individual court thinks the Osborne decision was a wise one. For criminal defendants in a similar position, this means it’s vital for Fort Lauderdale criminal defense attorneys to structure appeals in ways that allow appeals judges to decide in their favor on other grounds (when possible).

Continue reading " Plaintiff Cannot Show Violation of Federal Rights Behind Denial of DNA Testing Request – Van Poyck v. McCollum " »

The fallout from the Casey Anthony case continues, and I was asked once again to appear on Geraldo Rivera's Fox News show to discuss it from my perspective as a Miami criminal defense attorney. Among the legal issues we discussed are the lawsuit against Anthony by Zenaida Gonzalez, an Orlando woman who claims she was fired and harassed after Anthony told police that a nanny with the same name had abducted her daughter. We later discovered that this statement was fiction. I told Geraldo and his audience that I don't believe Gonzalez has a defamation case against Anthony, since Anthony never intended to name a specific person.

We also discussed the possibility of penalties against Anthony's Florida criminal defense lawyer, Jose Baez, for withholding information. If Baez did have any information not known to investigators, criminal charges or professional discipline would still not be inevitable, because communications between attorneys and clients are privileged under the law. That means anything said to me in my capacity as a cyber crime criminal defense lawyer would enjoy more protections than a communication between friends -- so that I can do my job effectively.

Continue reading " Defense Lawyer David Seltzer Discusses Casey Anthony Lawsuits on Geraldo " »

One of the most important pieces of advice I can give anyone, as a cyber crime criminal defense attorney, is to avoid speaking to the police without an attorney when you believe you may have committed a crime. Frequently, defendants and witnesses being questioned by police don’t realize they have the right to remain silent (sometimes even after a Miranda warning), and give the police confessions or other admissions that can hurt them down the road. Law enforcement also may promise defendants they won't be arrested, or that the officers will speak to prosecutors on their behalf, but these are empty promises. Their job is to make an arrest, and anything you voluntarily say may be held against you, no matter how innocent you believe the statement is. A spectacular version of this happened in United States v. Littledale, a Seventh U.S. Circuit Court of Appeals decision about a young man convicted of child pornography offenses. In this case, the defendant was being questioned about his uncle’s alleged criminal activities when he confessed to involvement with child porn.

Immigration and Customs Enforcement found out that someone living at a house in suburban Chicago was purchasing child pornography. ICE got a warrant to search the home, targeting Richard Ahrens as the resident most likely to be involved with the pornography. As a matter of routine, ICE agents asked to interview Daniel Littledale, a nephew of Ahrens, as soon as they realized he also lived there. After agents found him in a college class, Littledale agreed to be interviewed in private. They explained that he was not under arrest and not in trouble. Partway through the interview, Littledale confessed that he had been downloading the child pornography for five or six years. He was read his rights and then agreed to make a written statement and show which pieces of pornography were his. He was not arrested and left the office on his own. At trial, however, Littledale moved to suppress the statements he had made to agents. The district court denied this, finding that he was never in custody. Littledale appealed.

Under Miranda v. Arizona, the Seventh said, the question was whether a reasonable person would have felt free to leave. The court concluded that such a person in Littledale’s situation would have. Littledale voluntarily agreed to be interviewed, and officers did not use physical force or raise their voices. Though they did not tell him he was free to go, they did explicitly say he was not under arrest. And while the interview was in the campus police station, the court said this was not enough to make the interview compulsory. Thus, the court upheld the trial court’s decision not to suppress Littledale’s confession.

As a child pornography criminal defense lawyer, I cannot advise clients and potential clients strongly enough to avoid speaking to the police. The goal of any law enforcement officer in interrogating someone is to get information they can use to get a conviction. Everything that they hear will be evaluated in that light. Thus, even if you think you have evidence that could convince them you’re innocent, it’s best to stay quiet; they don’t want to hear it. In fact, the more you speak, the more likely it is that you’ll say something police (correctly or incorrectly) believe is incriminating. When being questioned in connection with something as serious as child pornography or online solicitation of a minor, it’s best to say nothing. You have a right to have a cyber crime defense attorney present at questioning, and if you’re nervous or need help making your case, it’s best to have such a person do the talking.

Continue reading " Seventh Circuit Rules Defendant Cannot Suppress Voluntary Confession to Police – U.S. v. Littledale " »

As a south Florida drug crimes criminal defense lawyer, I know how important the legality of a search can be to a drug case. Because mere possession is a crime in itself and can lead investigators to other crimes, finding a drug in someone’s possession frequently makes or breaks the case. Thus, when a search is illegal, a good defense attorney can often get the resuting evidence thrown out and undermine the case. That was what happened in the Florida Supreme Court’s State v. Hankerson. Anthony Hankerson was charged with possession of cocaine with intent to sell, within 1,000 feet of a school. Hankerson argued that Delray Beach police did not have probable cause to believe he had committed a felony and thus could not legally search him. The trial court disagreed and Hankerson was convicted, but on appeal, the Fourth District Court of Appeal reversed. The Supreme Court’s decision reinstated Hankerson’s conviction.

Hankerson was spotted by an officer driving up to a home, showing something small in his hand to people on the porch, exchanging that thing for money and then leaving, all the while glancing up and down the street. Based on that exchange, he asked colleagues to pull over Hankerson’s car. The officer who performed the traffic stop saw Hankerson bend down when he was first pulled over, then asked him to remove his shoes. When he did, the officer spotted him palming a set of baggies of what turned out to be cocaine. At trial, Hankerson unsuccessfully moved to suppress this evidence and was sentenced to 10 years in prison for possession of cocaine for sale.

He appealed to the Fourth District Court of Appeal, which reversed the conviction. That court declined to consider the state’s argument that the officer performing the traffic stop was merely investigating, saying the state had not raised the issue at trial. The state appealed this to the Florida Supreme Court, citing a conflict with that court’s 1999 decision in Dade County School Board v. Radio Station WQBA. In that case, the court found that appellees need not limit their arguments to arguments that were expressly made in trial court as long as there’s a basis for the arguments in the record. Similarly, the Supreme Court found, the Fourth District could have and should have considered the state’s argument that the traffic stop was merely investigatory. It then went on to find that the trial court had probable cause to search Hankerson based on what the first officer witnessed. Justice Pariente dissented, saying the facts supported reasonable suspicion but not the stricter probable cause.

As a Miami-Dade narcotics criminal defense attorney, I am disappointed by this decision. As the dissent points out, probable cause is a high hurdle that an officer would have to pass in order to get a search warrant. A warrantless search like the one of Hankerson should have an even higher standard, but this decision loosens standards instead. The result will likely be that police officers in Florida feel free to search anyone suspected of drug crimes, even when the suspicions aren’t very well-founded. That goes against many Americans’ ideas about the proper role of police, even if the courts have decided it doesn’t violate the Fourth Amendment. As a Fort Lauderdale drug crimes defense lawyer, I’ll continue to watch search and seizure issues, especially in Florida courts.

Continue reading " Florida High Court Reinstates Conviction Based on Disputed Evidence – State v. Hankerson " »

During Casey Anthony's murder trial, I was asked to appear on Geraldo to discuss the charges and the progress of the trial from my perspective as a Florida criminal defense lawyer. After the verdict, I had the honor of appearing again on the show to discuss the understandably emotional reaction to Anthony's acquittal. In the first part of my appearance, I repeated what I wrote last week and have told several media outlets: the jury acquitted Anthony because the prosecution did not have the evidence to prove capital murder beyond a reasonable doubt. Geraldo later asked my opinion about the science behind the bad smell in the car, and I told him truthfully that a bad smell is a subjective measure open to a lot of interpretation, unlike something like a DNA match.

Finally, Geraldo asked what I think of the "Caylee's Law" proposals now heading for state legislatures. I believe some of these laws will inevitably pass, but I also believe they're unnecessary. Casey Anthony, and perhaps others who would be charged under this law, could have been charged for child endangerment or child abuse. In fact, I believe Anthony could have been convicted and sentenced to more time in prison under this kind of charge. But because the prosecutors went straight for capital murder, a charge they couldn't support with adequate evidence, Anthony is free as of this week.

Continue reading " Defense Attorney David Seltzer Appears on Geraldo to Discuss Casey Anthony Verdict " »

When I handle federal cases as a child pornography possession defense attorney, I sometimes have two competing charges to defend: knowingly possessing child pornography and knowingly receiving the same child pornography. As the Sixth U.S. Circuit Court of Appeals ruled recently in United States v. David Ehle, defendants cannot be sentenced for both: Because one offense includes the other, penalties for both would violate the constitutional prohibition of double jeopardy. Furthermore, the court found that Ehle’s choice to plead guilty and accept whatever penalties the Kentucky federal court imposed did not take away his right to challenge the ruling as double jeopardy.

Ehle was indicted for four charges, including the two at issue here. He made a plea agreement that read, in relevant part, that he “knowingly and voluntarily waives the right to contest or collaterally attack his conviction and the resulting sentence.” In the later hearing, however, the prosecutor in his case made clear that this waiver did not apply to any sentencing challenge he might bring. Ehle was sentenced to 20 years in prison on the charge of receiving child pornography and 10 years for the possession charge, to be served consecutively for a total of 30 years (on those two charges). He appealed on double jeopardy grounds.

The Sixth Circuit first dismissed the prosecutor’s claim that the appeal was barred, not by the waiver, but by Ehle’s intentional choice to plead guilty to both charges. The Sixth disagreed, saying the Supreme Court’s 1975 decision in Menna v. New York does not allow defendants to waive any claim based on unconstitutional prosecution. The Sixth then went on to consider whether Ehle’s conviction for both receipt and possession constitute double jeopardy. Under Supreme Court precedent, the court said, convictions on two charges can be double jeopardy only if each requires a proof of fact that the other does not. The two charges in Ehle’s case fail that test, the court said — in fact, the law says possession is a lesser included offense of receipt. Four other federal appeals courts, including the Eleventh, which covers Florida, have come to the same conclusion, the court noted. Thus, the Sixth sent Ehle’s case back to the district court, with orders to vacate on one charge and resentence on the other.

As a child porn possession defense lawyer, I’m pleased to see the Sixth Circuit join other federal appeals courts that have made similar decisions. As the court points out, it is logistically difficult to receive something without possessing it, even if only for a moment. That’s why possession is a lesser included offense of receipt. This decision does not necessarily go easy on Ehle and similar defendants. At best, his sentence will be cut down from 30 years in prison to 10, but the court is free to resentence him at a higher number within the guidelines for one of the crimes. Thus, he could still be in prison for 30 years. But as a cyber crime criminal defense attorney, I believe this is still better for my clients than rules that allow even longer sentences in violation of the right against double jeopardy.

Continue reading " Sixth Circuit Rules Defendant Cannot Be Sentenced Twice for Possession and Receipt of Child Porn – U.S. v. Ehle " »

Today, a jury found Casey Marie Anthony not guilty of murdering her two-year-old daughter, Caylee Anthony. The verdict has already generated a lot of controversy from people who understandably feel that it provided no justice for Caylee Anthony. However, as a south Florida murder criminal defense attorney, I’m less surprised and upset. I have appeared in the media several times to discuss this high-profile case, and I expect to appear several more times to discuss this verdict. In essence, it confirms what I said from the beginning: that prosecutors did not have what it took to convict Casey Anthony beyond a reasonable doubt.

First, a word about what that means. In our legal system, defendants are presumed innocent until proven guilty (or they should be). As a result, the prosecutors bear the burden of convincing a jury that the defendants are not innocent. Jurors in criminal cases are instructed to find people guilty only if they have no reasonable doubts that the person is guilty. In Florida, jurors are told that a reasonable doubt is one that does not leave them completely convinced of the defendant’s guilt. That’s the standard applied to Casey Anthony’s trial.

In my opinion, the prosecution simply didn’t have the evidence to meet that standard. The evidence against Anthony was entirely circumstantial: nothing directly tied her to the child’s death. She certainly lied to the police about issues related to Caylee’s death — and was convicted of it — so she didn’t make a very credible or sympathetic witness. But that’s different from whether she killed her child. By offering alternative explanations for all of the evidence against her, Anthony gave jurors a reason to have reasonable doubts. And as we saw today, those reasonable doubts were enough to keep her out of prison.

As a Miami-Dade criminal defense lawyer, I know a lot of people are unhappy with this verdict. The death of a toddler appeals to people’s emotions, and this verdict has undoubtedly left some people with the impression that no one is being held responsible for a terrible crime. That might even be true, but the trial was not about finding someone responsible: it was about whether Casey Anthony was guilty beyond a reasonable doubt. Using the facts presented to them at the trial — which were certainly more detailed and differently presented from the facts in the media — the jury decided she was not. As a Fort Lauderdale child abuse criminal defense attorney, I commend them for making their decision based on the facts and instructions given to them, rather than emotion — because that’s what keeps our justice system working properly.

Continue reading " Florida Criminal Defense Attorney on Casey Anthony Verdict – State v. Anthony " »

I wrote recently about restitution orders for child pornography defendants, from my perspective as a child porn possession criminal defense attorney. Another restitution case caught my attention today, but this one involves people who were in the business of selling a child’s sexual services over the Internet. In United States v. Palmer and United States v. Baraku, defendants Debra Palmer and Todd Baraku were convicted of operating an illicit online sex business, for which they trained Palmer’s 12-year-old daughter as a dominatrix, then sold her services in person and over a webcam from ages 14 to 17. Baraku, who lived with Palmer and the girl, was also permitted to have BDSM sex with the girl. Both defendants pleaded guilty in 2009 to various charges and received restitution orders as well as prison sentences.

At Palmer’s sentencing, an expert witness testified that the girl would likely need $1 million in restitution for therapy and medication. Palmer’s defense disputed only the amount, saying the expert had no basis for the $1 million amount. The expert did not meet the girl, but relied on his past experience treating victims of child sexual crimes. Ultimately, the district court granted $200,000 in restitution from Palmer and Baraku, saying the evidence for the larger amount was speculative and $200,000 ought to cover counseling. Importantly, it set special conditions for their payments, ordering each to pay until $5,000 was in a fund for the victim, then make payments to keep it at a minimum of $5,000 and a maximum of $200,000. Both parties appealed, with the government objecting to the special conditions and defendants to the amount.

The Eighth Circuit agreed in part and reversed in part. The restitution law, 18 USC sec. 3664, allows courts to order “partial payments at specified intervals.” However, the court said, the requirement to meet or exceed $5,000 does not meet that test because it is not a “specified interval” as required. In effect, the court said, the original restitution order made restitution not mandatory and forced the victim to seek reimbursement for out-of-pocket costs rather than providing payment. However, it denied the cross-appeal seeking to nullify all restitution, saying the victim’s need for treatment was clear and pointing to her personal testimony that she was seeking it. It upheld the $200,000 restitution order but vacated the $5,000-minimum special condition for both defendants.

As a cyber crime criminal defense lawyer, I’m interested in the restitution order because it could have a direct effect on restitution payments for clients accused of online child sex crimes. The Eighth Circuit said here that restitution orders cannot depart from the “partial payments at specified intervals” language in the statute, even if the departure is a concession to what is realistic — in this case, the defendants’ inability to make money while imprisoned. As a solicitation of a child online defense attorney, I would encourage defendants to consider possible restitution orders before deciding whether to plead guilty.

Continue reading " Court Upholds Restitution Order for Child Victim of Sex Trafficking – U.S. v. Palmer and U.S. v. Baraku " »