Cyber Crime Lawyer Blog

As a south Florida immigration attorney, I've written here before about the new U.S. Immigration and Customs Enforcement policy of concentrating efforts on aliens who were convicted of serious crimes. That policy has already resulted in a major series of arrests, as ICE announced today. The agency arrested 2,901 people throughout the United States who had past criminal convictions, including more than 1,600 with felony convictions and 151 convicted sex offenders. It said some, but not all, of the defendants were also guilty of overstaying a visa, illegal entry or illegal reentry after deportation.

Unfortunately, it's unclear from the release whether all of the people arrested fell into the kind of high-risk category ICE meant when it announced its re-prioritization in August. Among the arrests the agency listed was one of a man who had been convicted of second-degree murder in 1975 and of fifth-degree sale of a controlled substance in 1995. Selling drugs is a crime, but many people would say it's not nearly as serious as the murder charge -- and that charge is more than 35 years old. If others among the 2,901 people arrested are also facing petty drug charges, this operation may be the waste of resources ICE was trying to prevent. As a Miami immigration violations lawyer, I strongly advise people with any kind of immigrant status to seek legal advice the second they get into legal trouble, because under the right circumstances, even a small crime can lead to their removal.

Continue reading " New Immigration Enforcement Leads to 2,900 Arrests of Immigrants With Serious Criminal Charges " »

As a weapons violations defense lawyer in Miami, I was interested to read about a Florida defendant who argued that a concealed weapons violation was not enough to enhance his sentence for being a career offender. In McKay v. United States, Torey McKay was charged with possession and distribution of both cocaine and crack. His sentence for these charges was enhanced by his past convictions for selling cocaine and for carrying a concealed weapon, which the court called a crime of violence. This inflated his minimum sentence by more than nine years. He argued that because carrying a concealed weapon is not a crime of violence, his sentence should be set aside or reduced. But the Eleventh U.S. Circuit Court of Appeals found that McKay had failed to bring up a necessary argument on appeal, so it affirmed the sentence.

McKay pleaded guilty in 2005 to four drug charges without a plea agreement. He was ultimately sentenced to the lowest sentence in the range for career offenders, 262 months. He did not object at the time to the career offender designation. However, in 2007, the Sentencing Commission allowed retroactive changes to sentences for crack offenders, and McKay moved pro se to have his sentence reduced. The district court denied this because of McKay’s status as a career offender. He did not appeal. In 2008, the Supreme Court found that an alcohol DUI is not a violent felony under the Armed Career Criminal Act, and the Eleventh Circuit followed with a ruling extending the Supreme Court’s logic to sentencing guidelines for crimes of violence, finding that carrying a concealed weapon is not a crime of violence. McKay moved pro se to set aside or correct his sentence under these new rulings. Insofar as the argument had been foreclosed by his failure to make it earlier, he argued that he should be excused for this procedural error on the grounds of “actual innocence” of the career offender designation. The trial court denied it, and McKay appealed.

The Eleventh Circuit sided with the trial court, finding that McKay’s claim of sentencing error was barred because it was procedurally defaulted by his failure to bring it up earlier. Thus, the Eleventh expressly declined to reach the issue of whether a sentencing claim is cognizable under the relevant section of law. Under the procedural default rule, defendants like McKay must make their arguments on direct appeal, or they cannot use them as the basis for a motion to change a sentence. The Eleventh said it was “beyond question” that McKay did not make his claim on direct appeal; he filed no direct appeal. McKay acknowledged that, arguing that he should be excused on the grounds that he is actually innocent of the sentence enhancement for being a career offender. Actual innocence can apply to actual innocence of a capital sentence, but circuit courts have divided on whether it applies to non-capital sentences. The Eleventh declined to take a side in this split, instead ruling that McKay’s claim fails regardless because his claim is one of legal innocence, not factual innocence. He was not factually innocent of carrying a concealed weapon, the court reasoned; he was arguing that that crime is not legally sufficient to make him a career offender. Thus, he could not claim the factual innocence exception, the appeals court said, and his claim was barred by its procedural defect.

As a Fort Lauderdale drug crimes criminal defense attorney, I am disappointed that the Eleventh Circuit declined to reach the merits of this defendant’s claim. If McKay were sentenced for the same crimes today, he would likely face far less time in prison than the total of nearly 22 years he faces — thanks to the decisions on crack sentencing and career offender status. This may not be the “miscarriage of justice” the Eleventh Circuit says actual innocence claims should be, but surely it doesn’t make much sense that sentences continue even after those who make the sentences change the rules. Unfortunately, one of the best ways to avoid facing this kind of overwhelming sentence is to avoid being convicted in the first place, which is why people facing serious drug and weapons charges should talk to a south Florida criminal defense lawyer as soon as they realize they will be charged.

Continue reading " Eleventh Circuit Rejects Actual Innocence Claim From Defendant Challenging Career Offender Sentence – McKay v. U.S. " »

One issue that comes up in my practice as a south Florida cyber crime criminal defense attorney is supervised release for people who have already been convicted of child sex crimes. For these defendants, supervised release frequently comes with strict limitations on what they may do online, including prohibitions on viewing or possessing any kind of pornography. In a few cases, the defendant may be barred from even using the Internet, or from specific uses of the Internet. Breaking these rules can land the defendant back in prison, as the defendant discovered in United States v. Olinger. In that case, the Tenth U.S. Circuit Court of Appeals declined to overturn the sentence given to Brian Charles Olinger for three violations of the terms of his supervised release. Oliger had argued that the sentence was unfairly inflated by allegations he was never charged with and the government could not prove, as well as exceeding three times the low end of the range.

Olinger was on supervised release after serving prison time for failure to register as a sex offender. He lived with his girlfriend at a hostel where another ex-offender, Andrew Wright, lived. Probation officers came to check on Wright and learned from a hostel staff member that Wright had been using a computer belonging to Olinger’s girlfriend. Wright admitted that he had used the computer with Olinger, but told probation officers that he was not responsible for “some things” on it that could get him in trouble. Officers found 1500 pornographic images, including 200 images of child pornography. Olinger ultimately faced and admitted to only three violations of his release: going online without the consent of the probation office, possession of alcohol and association with a known felon. Pornography charges were discarded because they could not be proven; five people in total had access to the computer, and some child pornography had been downloaded at times when Olinger was working. The sentencing range was 5 to 11 months; the court ultimately sentenced Olinger to 18, saying accessing a computer with child pornography on it was “very serious” even if he hadn’t viewed it. Olinger appealed.

He had no better luck with the Tenth U.S. Circuit Court of Appeals. Olinger argued on appeal that the sentence was unreasonable because it was more than triple the minimum part of the sentencing range, and because it reflects the court’s disapproval of the child pornography on the computer, which Olinger was not charged with possessing. However, because Olinger didn’t raise objections at the time, the court said, it reviewed those decisions only for plain error. Construing his argument as an argument against the factors the court considered, the Tenth said Olinger failed to show plain error. The language of the court’s decision did not show reliance on the wrong factors, it said. Furthermore, the appeals court said the court’s statement that “using a computer upon which there was child pornography… was a very serious violation” “clearly refers to the defendant’s breach of trust in admitting a particularly serious violation of his supervised release.” Thus, it found no procedural error. It also found no error in the length of the sentence, because the circumstances of the case included Olinger’s previous flight from justice, multiple violations of the supervised release and the child pornography. Thus, the Tenth upheld all of the sentence.

This decision disappoints me as a Miami-Dade sex offender registration defense lawyer. In a trial, prosecutors are restricted in what they may tell juries because irrelevant information about past crimes, for example, could unfairly hurt the defendant. In this case, the child pornography on the computer seems to have strongly influenced the decisions of both the district court and the Tenth Circuit, even though Olinger may not have actually possessed it or known it was there. Of course, he may be fully responsible for it, but there’s no way for prosecutors to show this. In criminal trials, the standard for convicting someone is high — beyond a reasonable doubt — in part to avoid putting an innocent person in prison in situations like this. People on supervised release and parole have fewer rights, and as this case shows, they can be convicted and sent back to prison easily, even for actions that are perfectly legal for you and me. That’s why, as a Fort Lauderdale child pornography defense attorney, I work hard to keep these kinds of convictions off my clients’ records.

Continue reading " Tenth Circuit Upholds Sentence for Supervised Release Violations Despite Lack of Child Porn Evidence – U.S. v. Olinger " »

Getting to know — and prove — the mindset of the defendant is an important part of my work as a Miami-Dade criminal defense attorney. To get a conviction for many crimes, prosecutors must show that the defendant had a certain criminal mindset, or that he or she knowingly committed the crime. Without that element of intent, the charge may be unprovable. This is a vital part of criminal defense law, which is why I was pleased to see a recent revision to a Florida Supreme Court opinion on intent under Florida’s kidnapping statute. In Delgado v. State of Florida, Rogelio Delgado stole a pickup truck with a sleeping toddler in the backseat. When the baby and the car were recovered, Delgado was charged with and convicted of kidnapping, among other charges. The Florida Supreme Court struck down the kidnapping charge, however, saying the prosecutors failed to prove Delgado knew the child was in the car.

Juan Gonzalez took his aunt, his girlfriend and the girlfriend’s two-year-old daughter to pick up furniture in Hialeah. Gonzalez and his aunt left the girlfriend and the little girl in the truck, but called the girlfriend into the store to help move the furniture. The girlfriend left the truck running and the doors unlocked, with the sleeping child in her car seat in the back. Delgado and an accomplice stole the truck within minutes. Officers found the truck about thirty minutes later, three miles away, with the radio and some tools missing and some damage to the property. The little girl was upset but unharmed. Delgado was found and charged with grand theft, auto theft, burglary of an occupied conveyance and kidnapping with the intent to commit a felony. At his trial, prosecutors introduced no evidence that Delgado knew the little girl was in the car. Nonetheless, he was convicted of all four charges. He was sentenced to life on the kidnapping charge; thirty years for the burglary; ten years for the auto theft; and time served for theft. He appealed the kidnapping charge to the Third District Court of Appeal, but unsuccessfully.

He had better luck with the Florida Supreme Court. Kidnapping requires intent, the court said; in this case, intent to commit auto theft. However, a test developed by earlier Florida court rulings further requires that kidnappings must not be incidental to another crime, inherent to another crime and have separate significance. The Third District inferred that Delgado must have become aware of the child in the course of stealing property out of the car, and found that the “special danger” posed to her made the kidnapping not incidental to the auto theft. However, the Supreme Court found that this was a misapplication of caselaw. Under the plain wording of the law, it said, defendants must be aware of their victims from the start, or they cannot have the requisite intent to commit kidnapping. Continued confinement after Delgado did (presumably) become aware of her is irrelevant to the intent aspects of kidnapping. Furthermore, the high court said, the prosecutors in Delgado’s original case had never shown that he knew the child was in the truck when he entered it. In fact, a detective’s testimony supports the idea that it would be difficult to see her until specifically looking into the backseat. Thus, the Supreme Court reversed his conviction for kidnapping.

This is not a situation I encounter often in my work as a south Florida theft criminal defense lawyer — fortunately for parents. As the Supreme Court noted, it’s not disputed that the little girl could have been in danger during the theft of the truck or after it was abandoned. However, in the interests of justice, it is vital that prosecutors apply the same rules to this kind of accidental kidnapping that they would to any other crime. And under Florida law, the intent of the defendant matters. In fact, the high court suggested near the end of the opinion that Delgado could also have successfully challenged the “occupied” portion of his conviction for burglary of an occupied vehicle. As a Fort Lauderdale theft criminal defense attorney, I appreciate that the court system distinguishes between accidental and intentional crimes and is willing to reduce sentences accordingly.

Continue reading " Defendant Must Be Aware of Child in Stolen Car to Be Charged With Kidnapping – Delgado v. State of Florida " »

I’ve written here many times before as a child pornography criminal defense lawyer about the series of child pornography restitution cases brought in federal courts by a young woman known only as “Amy.” She was the unwilling star of a series of child pornography photos taken by an uncle who molested her. Because the pictures are widely traded among child pornography fans, “Amy” is able to intervene in child pornography prosecutions that include her images, and request financial restitution for the harm the images have done to her. None of these defendants are accused of molesting Amy or making the images; the legal theory is that Amy is hurt emotionally every time someone views the images and needs restitution money to pay for therapy. Interestingly, however, the Second U.S. Circuit Court of Appeals rejected that reasoning in United States v. Aumais.

Gerald Aumais, a resident of northern New York, was caught with a large cache of child pornography in the trunk of his car while crossing the border from Canada into New York state. He pleaded guilty to transporting child pornography and possession of child pornography. The pre-sentencing report in the case identified Amy, who said she was unable to forget the sexual abuse she had suffered and lives in fear of being recognized from the pictures. She sought $3.3 million in restitution. After an evidentiary hearing, the judge awarded $48,483 for future therapy, finding that Aumais had exacerbated, not caused, Amy’s problems. Aumais appealed to the Second Circuit.

The issue of restitution in this circumstance was one of first impression in the Second Circuit. However, it found that the text of the law, which pays restitution for harm “suffered by the victim as a proximate result of the offense,” should be read as requiring a showing of proximate cause. The D.C., Third, Ninth and Eleventh Circuits have found this as well, a result that denies compensation to victims in Amy’s position; the Fifth Circuit found that “proximate result” applies only to “other losses” and awarded the restitution. In siding with the larger group of circuits, the Second rejected its district court’s reasoning that the crimes by Aumais are a substantial cause of the harm to Amy. The two had never met, and in fact, the mental health expert who evaluated Amy did so before Aumais was arrested. Thus, it was impossible for that testimony to speak to the harm this particular defendant did, the Second said. Furthermore, it noted, ordering restitution from the many viewers of Amy’s images would create joint and several liability issues requiring courts to keep track of restitution awards of different amounts and purposes.

As a cyber crime criminal defense attorney, I’m pleased that the Second joined the other circuit courts — including Florida’s home circuit, the Eleventh — in finding a requirement of proximate cause. As the opinion notes, this is a standard well-established in common law, intended to restrict defendants’ liability to liability for things they themselves have done. Amy has certainly suffered harm, but I agree with the court that the harm comes from the actions of her uncle, who created and distributed the pictures. It’s understandable that courts would like to help a victim who was too young to protect herself when an awful thing happened to her, but that should not undermine the text and meaning of the law. Restitution was intended to keep criminals from profiting from exploiting children; consumers of child pornography indirectly create demand, but they do not create supply. As a child porn possession defense lawyer, I suspect this issue will eventually make it to the Supreme Court.

Continue reading " Second Circuit Overturns Child Pornography Restitution Payment Order for ‘Amy’ – United States v. Aumais " »

As a south Florida drug crimes defense attorney, I know that federal drug crime sentences can be very harsh. During the height of the so-called War on Drugs, sentences for drug crimes were heavily inflated, and as a result, it’s still possible to serve a long sentence for a nonviolent crime. Another major criticism of federal drug law was addressed last year with the passage of the Fair Sentencing Act, which reduced the sentences for crack cocaine crimes, which carried sentences 100 times greater than sentences for the exact same crimes involving powdered cocaine. Critics pointed out that crack is disproportionately an African American drug, while powdered cocaine tends to be abused and dealt by white people. The FSA was behind the appeal in United States v. Smith, in which defendant Arthur Smith ultimately did not get his sentenced changed.

Smith was arrested in 2009 for his involvement in a South Florida drug distribution ring and on June 7, 2010, agreed to plead guilty to one count of possession of 50 grams or more of cocaine base with intent to distribute. The plea agreement included a waiver of Smith’s right to appeal the sentence or the manner in which it was imposed unless it departed upward from sentencing guidelines or exceeded the maximum. The court took pains to confirm this at Smith’s plea hearing. In August of 2010, the FSA was passed. Smith objected to a pre-sentencing report that did not take the FSA into account. At the October sentencing hearing, the court declined to apply the FSA but noted that later legal developments might make the FSA relevant. Those legal developments came in the form of U.S. v. Rojas, an Eleventh Circuit decision finding that the FSA applies if the crime took place before the law was enacted but the sentence took place after.

The Eleventh agreed that this is exactly Smith’s situation, and the FSA should apply. This would cut his mandatory minimum sentence in half, the court noted. It may or may not also lower his base offense level, the Eleventh said, because the offense had to do with powdered cocaine. However, the court found that none of this matters, because Smith’s appeal waiver prevents him from enforcing his rights. None of the exceptions to the appeal waiver apply in this case: the sentence does not vary from the statutory maximum or depart upward from guidelines. Indeed, previous Eleventh Circuit caselaw shows that a valid appeal waiver includes a waiver of the right to appeal blatant error by the court — not just a refusal to consider an issue that later became important. If waivers only waived issues that were meritless, the Eleventh said, they would be useless to both sides. Thus, it upheld the defendant’s sentence.

This is a disappointing case for Miami narcotics criminal defense lawyers like me. Smith would have had every right to be sentenced under the FSA even at the time of his sentencing; the judge simply declined to apply the FSA. In order to make his plea bargain, Smith had to agree to the government’s conditions, which included a waiver of his right to challenge that in the future, even though the judge expressly noted that the decision was open to a future challenge. Thus, there is little recourse for defendants except to refuse a plea bargain, or try to negotiate away the waiver as it applies to specific and potentially important issues. An experienced Fort Lauderdale drugs criminal defense attorney can help defendants identify those potentially important issues and negotiate to keep them out of the waiver, which is one reason why an attorney’s help can be vitally important.

Continue reading " Waiving Right to Appeal Means Waiving Right to Challenge Sentencing Errors, Eleventh Rules – U.S. v. Smith " »

As a Miami-Dade child pornography criminal defense attorney, I was interested to read an appeals court decision about suppressing a search of a defendant’s home. The search of Eric Wayne Kelley’s Arkansas home was found illegal by the Arkansas Supreme Court — but, applying federal law to a different criminal charge, the Eighth U.S. Circuit Court of Appeals found that the search evidence was admissible. In United States v. Kelley, the Eighth Circuit also found that Kelley’s 20-year prison sentence was not substantively unreasonable. Kelley was convicted in Arkansas state court of rape of a minor, only to have it reversed, and then convicted in federal court of possession of child pornography.

Kelley was living in Arkansas under an assumed name because he was wanted in Texas for sexual assault of a child. U.S. Marshals tipped off the local police to Kelley’s presence and said he was believed to be spending time with a boy. He was stopped outside his home by police; there was a boy in the car matching the description given by the Marshals. He admitted his identity and was arrested. At the police station, he repeatedly asked to call his sister about a prescription for his eyes; police had reason to believe he actually intended to tell the sister to remove evidence from his home. Meanwhile, the boy (with his mother present) told police Kelley had sexually abused him and taken photographs that were likely on Kelley’s computer. In response, officers sought and obtained a search warrant authorizing them to search for child pornography after midnight that day, because the pornography was in danger of removal.

Kelley was convicted in Arkansas state court of rape. However, the Arkansas Supreme Court reversed that conviction, ruling that the evidence must be excluded from consideration because it was illegally obtained using a warrant with no factual basis for a nighttime search. He was later retried and convicted on the same charge, and sentenced to 47 years in Arkansas state prison. Federal authorities then prosecuted Kelley for possession of child pornography. He appealed his conviction and 20-year prison sentence.

On appeal, the Eighth dismissed Kelley’s argument that the Arkansas Supreme Court’s ruling should serve to suppress the evidence in federal court as well. Under federal, not state, law, the Fourth Amendment controls whether the evidence should be suppressed, the court said. While nighttime searches were banned at our nation’s founding, current federal and Arkansas rules permit them when the requesting officers disclose their intent to search at night and give good cause. In this case, the court said, the officer requesting the warrant did exactly that. Thus, the motion to suppress the evidence was properly denied. The Eighth then turned to the issue of whether Kelley’s federal sentence was unreasonable. The judge departed upward from advisory guidelines to 240 months and ordered that this sentence run consecutively with the 47-year state sentence. Kelley argued that both the departure and the consecutive sentence were substantively unreasonable, noting that he would be 73 before eligible for parole from the state sentence. The Eighth disagreed, finding that the district court carefully considered the predatory nature of the crime, Kelley’s history of running from justice and the need to protect the public.

As a Fort Lauderdale cyber crime criminal defense lawyer, I am disappointed that the Eighth spent so little time on the issue of whether the sentence was unreasonable. Kelley’s age was not given, but even for a young adult of 20, a sentence of 67 years in prison means he has a good chance of dying in prison. The offenses in this case are serious, of course, but I cannot help but wonder whether the sentencing might not have been driven by a sense that Kelley nearly “got away with it” because his rape conviction was originally overturned. This could also have been the impetus behind the child pornography prosecution itself; the rape charge was the more serious charge and was brought well before the child porn charge. Popular sentiment is strongly against defendants like Kelley, and also drives the high mandatory minimum sentences for child pornography offenses. That’s why it pays to hire a south Florida child porn criminal defense attorney as soon as you even think you could be under investigation.

Continue reading " Appeals Court Upholds Search Evidence Despite Violation of Arkansas Law – U.S. v. Kelley " »

Getting to know — and prove — the mindset of the defendant is an important part of my work as a Miami-Dade criminal defense attorney. To get a conviction for many crimes, prosecutors must show that the defendant had a certain criminal mindset, or that he or she knowingly committed the crime. Without that element of intent, the charge may be unprovable. This is a vital part of criminal defense law, which is why I was pleased to see a recent revision to a Florida Supreme Court opinion on intent under Florida’s kidnapping statute. In Delgado v. State of Florida, Rogelio Delgado stole a pickup truck with a sleeping toddler in the backseat. When the baby and the car were recovered, Delgado was charged with and convicted of kidnapping, among other charges. The Florida Supreme Court struck down the kidnapping charge, however, saying the prosecutors failed to prove Delgado knew the child was in the car.

Juan Gonzalez took his aunt, his girlfriend and the girlfriend’s two-year-old daughter to pick up furniture in Hialeah. Gonzalez and his aunt left the girlfriend and the little girl in the truck, but called the girlfriend into the store to help move the furniture. The girlfriend left the truck running and the doors unlocked, with the sleeping child in her car seat in the back. Delgado and an accomplice stole the truck within minutes. Officers found the truck about thirty minutes later, three miles away, with the radio and some tools missing and some damage to the property. The little girl was upset but unharmed. Delgado was found and charged with grand theft, auto theft, burglary of an occupied conveyance and kidnapping with the intent to commit a felony. At his trial, prosecutors introduced no evidence that Delgado knew the little girl was in the car. Nonetheless, he was convicted of all four charges. He was sentenced to life on the kidnapping charge; thirty years for the burglary; ten years for the auto theft; and time served for theft. He appealed the kidnapping charge to the Third District Court of Appeal, but unsuccessfully.

He had better luck with the Florida Supreme Court. Kidnapping requires intent, the court said; in this case, intent to commit auto theft. However, a test developed by earlier Florida court rulings further requires that kidnappings must not be incidental to another crime, inherent to another crime and have separate significance. The Third District inferred that Delgado must have become aware of the child in the course of stealing property out of the car, and found that the “special danger” posed to her made the kidnapping not incidental to the auto theft. However, the Supreme Court found that this was a misapplication of caselaw. Under the plain wording of the law, it said, defendants must be aware of their victims from the start, or they cannot have the requisite intent to commit kidnapping. Continued confinement after Delgado did (presumably) become aware of her is irrelevant to the intent aspects of kidnapping. Furthermore, the high court said, the prosecutors in Delgado’s original case had never shown that he knew the child was in the truck when he entered it. In fact, a detective’s testimony supports the idea that it would be difficult to see her until specifically looking into the backseat. Thus, the Supreme Court reversed his conviction for kidnapping.

This is not a situation I encounter often in my work as a south Florida theft criminal defense lawyer — fortunately for parents. As the Supreme Court noted, it’s not disputed that the little girl could have been in danger during the theft of the truck or after it was abandoned. However, in the interests of justice, it is vital that prosecutors apply the same rules to this kind of accidental kidnapping that they would to any other crime. And under Florida law, the intent of the defendant matters. In fact, the high court suggested near the end of the opinion that Delgado could also have successfully challenged the “occupied” portion of his conviction for burglary of an occupied vehicle. As a Fort Lauderdale theft criminal defense attorney, I appreciate that the court system distinguishes between accidental and intentional crimes and is willing to reduce sentences accordingly.

Continue reading " Defendant Must Be Aware of Child in Stolen Car to Be Charged With Kidnapping – Delgado v. State of Florida " »

As a south Florida sex crimes criminal defense attorney, I work with clients who are subject to sex offender registration laws, or will be if convicted. When I handle sex cases, in fact, I work hard to avoid sex offender registration requirements when possible, because they are a heavy burden to carry and last for the rest of the defendant’s life. In fact, thanks to the federal Sex Offender Registration and Notification Act, defendants are required to register in every state and to notify officials promptly if they move between states. And as the Ninth U.S. Circuit Court of Appeals reminded us in United States v. Crowder, there are heavy consequences for ignoring these registration laws. In this case, Kevin Leroy Crowder moved from the state of Washington to Montana about a year after finishing a prison sentence for child molestation. The court ruled that he can be prosecuted for failing to register when he moved despite no “actual knowledge” of the requirement.

Crowder signed a form disclosing the notice and registration requirements when he started his prison sentence, and another with similar disclosures when he registered on release from prison. Despite the registration requirement and a sentence of three to four years of probation, he moved from Washington to Montana about a year after his release, notifying neither state. He camped for a few months in a national forest but was arrested in a convenience store in Bozeman. At a bench trial, he pleaded not guilty to violating SORNA and unsuccessfully argued that he did not receive “actual notice” of the requirement. In essence, he said the statute requires not only that he knowingly fail to register — a fact he did not dispute — but that he know that SORNA requires registration. He was convicted and appealed.

The Ninth Circuit declined to overturn the conviction. In general, it said, the Supreme Court reads “knowingly” in a way that does not criminalize innocent conduct. However, it found that failure to register is not innocent conduct. Registrable sex offenders know or should know about their registration requirements “Because state registration schemes have been around for years in all 50 states[.]” Because that failing to register is already illegal at the state level, prosecutors need not show defendants knew about the exact statute they were violating; it is enough that they knew or reasonably should have known that the conduct was illegal. Nor did Congress show any intent to have the statute interpreted otherwise, the Ninth said. It also rejected Crowder’s argument that the law requires actual notice, through provisions asking the U.S. Attorney General to design notification for offenders not notified in other ways. This language does not suggest a requirement for the government to prove the offender knew about SORNA. In so ruling, the Ninth joined nearly every other circuit court in finding no notice requirement.

As a Fort Lauderdale sex offender registration defense lawyer, I am disappointed but not surprised by this ruling. Sex offender registration is generally quite strict, and courts are not inclined to show lenience to people who violate them unless there is a mitigating factor like genuinely trying to register and being unable to. Nonetheless, I believe this decision, and others like it, does a disservice to offenders who have been given bad information from their local police agencies and are not in a position to discover more. Sex offenders frequently live on the margins of society, in part because it’s tough for them to find jobs and in part because residency restrictions make it tough to find living space (which in turn contributes to the job problem). Someone who has never been out of Florida before may not realize that other states even have registration requirements, which would undermine the Ninth Circuit’s reasoning. As a Miami registration violations attorney, I would like to be able to defend my clients by pointing to this kind of actual ignorance.

Continue reading " Prosecutors Need Not Prove Actual Notice of Sex Offender Registration Requirement – U.S. v. Crowder " »

As a Miami-Dade child pornography defense lawyer, I have read decisions in the past that draw a fine line between the federal crime of possessing child pornography and that of receiving child pornography. Logically, a person cannot possess anything he or she has not received, so even though they are separate crimes, the defendant generally is convicted of only one. That was not the case in U.S. v. Johnson Jr., an Eighth U.S. Circuit Court of Appeals case in which the defendant challenged both his receipt conviction and the fact that he was convicted of both offenses. Randy Lee Johnson Jr. was sentenced to 135 months in prison (11 and one-quarter years) on convictions for both possessing and receiving the same prohibited images. Because the jury was erroneously instructed on the crimes, the Eighth Circuit sent it back to the district court for resentencing.

Johnson is a professional photographer who had an assistant helping him as he photographed a hockey game in Iowa in November 2008. The assistant, Dawn Gorelick, was downloading photos off camera memory cards onto Johnson’s laptop when she discovered child pornography among the photos. She found an off-duty police officer in the hockey arena and reported it. In a police interview at the arena, and after being Mirandized, Johnson told the police he had stumbled on child pornography while viewing adult pornography, but that he saves everything. Later investigation found 190 images believed to be child pornography, which Johnson said he had downloaded from the Internet. This was videotaped. However, at trial, Johnson recanted that confession, saying it was obtained under extreme stress and fear, and had no idea how the child pornography got onto his computer. He was convicted on both counts anyway.

On appeal, Johnson’s main argument was that there was insufficient evidence for his conviction for receiving child pornography, because of allegedly erroneous instructions given to the jury about federal jurisdiction. For federal jurisdiction to apply, the child pornography must have been shipped in interstate or foreign commerce or contained materials shipped in interstate or foreign commerce. Johnson denied this at trial and the government’s computer expert could not confirm it. Despite this, the jury was erroneously instructed to consider only whether the materials of the child pornography were shipped in interstate commerce — that is, the instructions left out the possibility that the pornography itself could have been shipped over state or international lines. And there was no evidence presented at trial that the components of Johnson’s computer were shipped over state lines. Under the Eighth Circuit’s own 2009 decision in U.S. v. Inman, a conviction from flawed jury instructions can still be upheld if a rational jury could still have found the defendant guilty. In this case, the Eight found that was not necessarily true; whether the child pornography came from interstate commerce was disputed at trial. Thus, it vacated the conviction for receiving child pornography and sent the possession conviction back for resentencing. Judge Smith dissented, arguing that the evidence for federal jurisdiction was overwhelming.

This decision applies to cases in the Eighth Circuit, to which Florida does not belong, so it does not apply directly to my work as a Fort Lauderdale child pornography criminal defense attorney. But because federal circuit courts usually follow one another, this decision may hold some influence with the Eleventh Circuit if a similar case arises there. Any given child pornography case may be a state case or a federal case, and the issue in Johnson’s prosecution is the main issue: whether the child pornography provably traveled over state or national borders. When it did not, it should be a state case. While the best outcome of all is having the prosecution dropped, defendants often prefer to be prosecuted at the state level because federal child pornography convictions carry harsh mandatory minimum sentences and judges have little flexibility to ignore them. This is just one of the tools I use as a south Florida cyber crime criminal defense lawyer to get clients the best possible outcome.

Continue reading " Eighth Circuit Overturns Conviction Because of Flawed Jury Instructions – U.S. v. Johnson Jr. " »