Cyber Crime Lawyer Blog

As a Miami insurance fraud criminal defense lawyer, I was interested to read an article suggesting insurance fraud and other forms of fraud are on the rise. According to AOL’s DailyFinance site, the kind of street gang that has historically focused on crimes like drug trafficking or underground gambling is starting to get involved in “white-collar” crimes. The numbers come from an FBI report, which cites the Crips, the Mexican Mafia, the Armenian Power gang, the Latin Kings, the Bloods and the Vice Lords. In addition to insurance fraud, they’re accused of involvement in mortgage fraud, identity theft, counterfeiting checks and other forms of financial fraud. In addition to being a new source of revenue, the new crimes also help the gangs launder money.

An FBI spokesperson said part of the reason for the change in criminal focus is opportunity. Just like other segments of society, street gangs recognized that the mortgage bubble presented an opportunity to make money. In addition, the spokesperson said, the Internet offers opportunities to commit crimes under greater cover of anonymity than in-person crime allows. Thus, a criminal organization can organize credit card fraud or steal many identities at once, and often make purchases with the purloined information, without ever leaving the room. And not surprisingly, the spokesperson said there’s a perception among criminal gangs that “white-collar” crime is punished less harshly than the kind of street crime they’re used to. The article cautioned that this isn’t necessarily true, however, since sentencing takes into account the magnitude of the losses as well as the use of violence and so on.

This is true, but as a Fort Lauderdale insurance fraud defense attorney, I still suspect that the sentences involved will start out at a lower range. Observers of the court system know that sentencing is not always fair or well-thought-out; consider the sentences for crack crimes, which until recently were 100 times more harsh than the sentences for an equivalent cocaine crime. Because a crime like insurance fraud does not require violence, it’s likely that the base sentence will be lower. Of course, this doesn’t prevent the sentencing judge from heaping on enhancements or factors that raise the sentence, and in fact, people with a history of criminal activity are generally likely to get higher sentences. But in addition, there’s a real risk that judges will hand down harsher sentences because they simply don’t like the defendant’s gang membership status, regardless of past criminal history, or even his or her ethnic background.

Continue reading " FBI Report Shows Rise in Insurance Fraud and Other Nonviolent Crime Among Street Gangs " »

As a south Florida insurance fraud defense attorney, I was interested to read an Eleventh U.S. Circuit Court of Appeals decision on civil liability for insurance fraud. In State Farm Mutual Automobile Insurance Co. v. Physicians Injury Care Clinic, the federal appeals court upheld a Central Florida ruling making PICC liable for alleged fraudulent claims stemming from false auto accidents. State Farm claimed the defendants pushed its insureds through a course of unnecessary medical treatment that was specifically designed to exhaust their PIP benefits. After an initial mistrial, a jury in the Middle District of Florida agreed and awarded financial damages to State Farm. The Eleventh eventually upheld that award.

The opinion does not describe the alleged fraudulent scheme in detail, but it does note that each patient had a PIP limit of $10,000. State Farm sued for the cost of the improper benefits, as well as a declaratory judgment that it was not required to pay any new costs that were pending. Eight patients who had been treated for car crash injuries by PICC intervened as defendants in the first trial, making counterclaims against State Farm for breach of contract and other torts. At trial, the defendants argued that they should not face civil liability for insurance fraud because Florida law authorizes insurers to sue people found guilty of PIP insurance fraud in criminal courts. This argument was unsuccessful. After the mistrial and the second trial that the Eleventh did not detail, a jury found for State Farm on all counts.

On appeal, the defendants raised the preemption issue, but to no avail. The Eleventh Circuit found that the statute was not an exclusive remedy, but could coexist with the common law. It also found that the insurer’s common-law fraud claim was not barred by Florida’s economic loss rule, which bars tort-based lawsuits over matters arising from contracts. However, the court said that because the defendants had assigned their right to payment of PIP benefits to PICC — a common way of handling auto insurance benefits — the law did not apply, since PICC was not privy to the contract. State Farm presented enough evidence to prove its fraud allegations, the court said; it provided testimony from a doctor and two former patients alleging that PICC gave pre-determined diagnoses and medically unnecessary treatments. For similar reasons, the Eleventh found that the trial court was correct not to grant summary judgment on State Farm’s declaratory judgment motion. Turning next to the counterclaims, the Eleventh also rebuffed arguments that State Farm was not entitled to judgment as a matter of law on unjust enrichment, and that it should not have been permitted to make a claim under Florida’s deceptive trade practices statute. However, the Eleventh did reverse the trial court on the issue of withdrawal of PIP payments not yet paid, finding that State Farm was legally required to get a doctor’s opinion first.

As a Miami insurance fraud defense lawyer, I’m always interested to see an insurer turn to the civil courts rather than pursuing a criminal case. It’s not clear why State Farm filed a lawsuit in this case rather than relying on prosecutors, but it’s possible that prosecutors declined to bring any case. If that’s the case, the insurance company may have benefited from a small but important difference between the two systems: The standard of proof in civil cases is lower. In criminal cases, prosecutors must be able to prove insurance fraud beyond a reasonable doubt — and it could be that the proof was just not strong enough. If that’s true in any of my work as a Fort Lauderdale insurance fraud defense attorney, I will defend the case aggressively, seeking to show jurors why the evidence of my client’s wrongdoing doesn’t meet legal standards for conviction.

Continue reading " Eleventh Circuit Upholds Civil Insurance Fraud Judgment Against Florida Clinic – State Farm v. Physicians Injury Care Clinic " »

As a south Florida criminal defense lawyer, I was interested to read a Florida Supreme Court case that presented an interesting legal question: May parents be convicted of kidnapping their own children? Davila v. State was not a custody kidnapping case, but rather a case of child abuse with an imprisonment component. Davila was accused of false imprisonment, kidnapping, aggravated child abuse and more in his treatment of his minor son R.D., then eleven years old. Among other things, he was accused of locking R.D. in storage rooms and bathrooms for several weeks at a time for offenses ranging from lying to not washing dishes well. The Florida High Court ruled that parents may be convicted of kidnapping their own children under some circumstances.

R.D. came to live in Florida from Nicaragua in February of 2000; it was unclear whether the rest of the family came at the same time. At Davila’s trial, R.D. testified that not long after his arrival, his parents hit him several times for lying and misbehavior, and locked him in a storage room for three weeks. R.D. testified that in May, he was locked in a bathroom for three weeks, and again in July for one week. On one of those occasions, he said, it was at the request of his mother, who was not satisfied with his dishwashing. Davila allegedly bound R.D.’s hands and feet with rope, tied handkerchiefs over his eyes and mouth and put a bucket over his head, then forced to lie in the bathtub. When R.D. escaped from the rope or left the bathtub, he said, his father hit and kicked him with enough force to break tile. The abuse ended in July when R.D. escaped to a neighbor through a bathroom window. Davila disputed the tying, the duration of the lockups and the reasons for the punishment, but he was nonetheless convicted at trial and sentenced to life in prison. The Third District Court of Appeal ruled that a parent may kidnap his own child, but noted that this conflicted with a Second District ruling, Muniz v. State.

The Florida Supreme Court ultimately preferred the outcome in Davila, ruling that a parent may indeed be convicted of kidnapping, under the right circumstances. Under the plain language of the statute, it said, nothing prevents a parent or legal guardian from being charged; the statute requires only that the accused confine or abduct another person with intent to (in relevant part) terrorize him or her. Another subsection specifies that kidnap of a child under age 13 is against his or her will if it’s against the will of the parents or guardians. The court found that this section provides only a way for prosecutors to prove the will of young children; it is not the exclusive method. It found that if the Legislature intended to exempt parents from the kidnapping statute, it would have made this express. Judge Pariente concurred, mainly to address a dissent by Judge Canady. The dissent argued that Davila’s argument could not be found unreasonable, since the absence of a parent or guardian’s consent could be read as necessary rather than optional. Pariente said this could lead to an absurd conclusion, protecting teens 13 and older more thoroughly than younger children.

I do not approve of the parental behavior described in this opinion. But as a Miami-Dade criminal defense attorney, I would prefer a clear statement from the Legislature about whether the court was correct in its ruling. Kidnapping statutes are most often written with abduction by strangers in mind. Thus, the authors of the statute were likely not thinking about this issue when they wrote it, and the courts may have genuine difficulty divining legislative intent. It’s worth keeping in mind that while kidnapping is the most serious of Davila’s convictions, he would not walk free without it; that life sentence runs concurrently with a 30-year sentence for aggravated child abuse. As a Fort Lauderdale criminal defense lawyer, I am always cautious about heaping on new penalties unless they truly fit the crime.

Continue reading " Florida Supreme Court Finds Parents May Be Convicted for Kidnapping Own Children – Davila v. State " »

As a Miami-Dade child pornography defense attorney, part of my job is to make sure that juries are not unfairly prejudiced against my clients. This is a challenge in child pornography prosecutions, in which the crime is frequently enough to upset most jurors. However, it’s vital to distinguish between the actual charges and other conduct that he or she is not on trial for, but that may upset the jurors more. That distinction was vital in U.S. v. Loughry, a Seventh U.S. Circuit Court of Appeals decision overturning a conviction for child pornography charges. Roger Loughry was convicted of advertising and distributing child porn, and conspiracy, in his role as an administrator of a relatively soft-core child pornography website. The court said prosecutors should not have been permitted to show the jury harder-core pornography found on Loughry’s computer.

Loughry was a “co-administrator” on a website called The Cache, which specialized in pictures of the genitals of female minors. Pictures of sexual conduct or photos of males were not allowed. Loughry could control content and admit or promote users, and posted on several occasions to praise members who contributed new photos. Thus, he was charged with advertising and distributing child pornography, and conspiracy to do those things. Despite the fact that investigators found non-Cache pornography in his possession, Loughry was not charged with possession of child pornography. None of his charges were based on the non-Cache pornography. Nonetheless, prosecutors showed the non-Cache pornography at trial, over Loughry’s objection. These were harder-core videos involving the rape of prepubescent girls. The jury found him guilty on every count and sentenced him to 30 years in prison. He appealed.

The Seventh Circuit reversed, finding that the choice to show the at-home pornography was not a harmless error. Federal Rule of Civil Procedure 403 limits evidence that might unfairly prejudice the jury, Rule 414 relaxes this somewhat by allowing evidence in child molestation-related trials showing a propensity for such crimes. The Seventh clarified that Rule 414 does not require judges to routinely ignore Rule 403, but judge the risk of prejudice on a case-by-case basis. It went on to rule that because the court had an obligation to follow Rule 403, it should have reviewed the non-Cache pornography before allowing it to be shown to the jury. It further found that the court should have explained its reasoning in making its Rule 403 motion, but did not. Applying its own test, the Seventh found that the value of the evidence in this case did not outweigh the risk of prejudice. Loughry was never charged with possession, nor was the pornography similar to that on The Cache, the court said. The court accused prosecutors of “manufacturing” reasons to bring in hardcore pornography that had “a strong tendency to provoke intense disgust.” Because of this, and because the prosecution’s case was not a slam-dunk, the Seventh reversed and remanded the case.

This case is a good example of why I work hard, as a Fort Lauderdale cyber crime defense lawyer, to keep only the relevant evidence in front of juries. Loughry was on trial for conduct related to The Cache. The other pornography he had on his computer was not directly relevant to those charges, any more than it would be relevant to argue that he’s a bad driver or good at his job. However, the introduction of the irrelevant hard-core pornography evidence was likely to have affected the jury’s decisions — especially since it was apparently introduced right before jury deliberations. With a shocking, difficult-to-watch video still fresh in their memories, jurors were more likely to convict. This is why, as a south Florida child pornography defense attorney, I think at least as hard about evidence I’d prefer to exclude as I do about what to include.

Continue reading " Seventh Circuit Reverses Conviction for Child Porn Defendant After Jury Shown Inappropriate Videos – U.S. v. Loughry " »

As a Florida mortgage fraud defense attorney, I was disappointed to read about a wrongful mortgage fraud prosecution that ate nearly a year of one man’s life. The New Times Miami reported Oct. 17 on the case of Ivanhoe Smester, who committed no mortgage fraud but had the bad luck to be friends with someone who had. Smester’s friend, Julio Llanessa, and Llanessa’s girlfriend, Laura Fernandez, had forged his name (misspelled as “Semester”) on a check cashed shortly before they fled the country. On that basis, federal marshals concluded that Smester knew where they were hiding. He did not, but he spent 10 months in jail on charges of bank and wire fraud before he was able to convince prosecutors. Llanessa and Fernandez are still at large.

Smester had never bought a home in the United States or worked in the mortgage industry. He grew up with Llanessa in the Dominican Republic, but the two hadn’t spoken in more than a year. Smester knew that Llanessa had been arrested for mortgage fraud, but didn’t know that Llanessa and Fernandez had jumped their bail and left the country. So he was surprised to get a March 2010 call from federal agents demanding to know where Llanessa was hiding. Soon, agents began harassing his family, calling his father in the Dominican Republic and showing up at his mother-in-law’s home in the U.S. In late April of 2010, he voluntarily turned himself in, only to be charged with fraud related to more than 10 Florida properties. He was also threatened with deportation away from his American wife and one-year-old son. His Miami mortgage fraud defense lawyer said prosecutors were simply “fishing” for information, and indicted him on very little evidence in an attempt to make him disclose Llanessa’s whereabouts. Of course, Smester didn’t know where Llanessa was — but it was only in February of 2011 that a judge dismissed the charges.

This story is familiar to me as a Fort Lauderdale mortgage fraud defense attorney, because variations on it happen more than we’d like to think. Sometimes, prosecutors make up their minds about a piece of evidence or a person, and refused to acknowledge evidence to the contrary until it’s unavoidable. This may be a natural human tendency — but in this case, it could have cost Smester’s life as he knew it. As it was, he spent 10 months in jail, faced unfounded criminal charges, missed a crucial time in his young son’s life and spent untold dollars defending himself from someone else’s mistake. The article doesn’t discuss how his lawyer helped him, but in general, the advice of an experienced attorney is crucial in cases like this. For example, Smester may not have needed to turn himself in; he certainly could have had a lawyer present at questioning.

Continue reading " Miami Man Spent 10 Months in Jail After Childhood Friend Set Him Up for Mortgage Fraud " »

A recent news item caught my eye as a Miami mortgage fraud defense lawyer, because it signals a victory for two people accused of mortgage fraud. According to the Miami Herald, prosecutors decided last week not to retry attorney Steven Stoll and former Plantation police officer Dennis Guaracino for their parts in an alleged mortgage fraud scheme. The two were accused of conspiring with Guaracino’s brother Joseph Guaracino, also a former Plantation police officer, to buy and flip properties, defrauding banks out of more than $16 million. All three were tried this year, but the trial ended in September with a hung jury. Two other police officers were convicted, but three more and an FBI agent were acquitted in the scheme. A pair of mortgage brokers reached plea deals. The announcement said prosecutors would retry Joseph Guaracino, but not the other two.

Numerous current and former police officers were involved in the alleged scheme, which led investigators to call their investigation “Operation Copout.” Joseph Guaracino ran a company called The Home Buyers Group, and Stoll owned a mortgage brokerage firm called The Lending House. They were accused of orchestrating the fraud through their companies, by having buyers lie about their income and intent to live in the home on loan applications. The mortgage brokers who plea-bargained, who worked for Stoll, testified that they forged documents for those loans. Joseph Guaracino was frequently given an ownership stake in the homes after closing, and the homes would then be flipped for profit. At the trial, Stoll and the Guaracinos pointed out that the brokers who testified against them had admitted to large amounts of fraud, and claimed that they didn’t know about or condone it.

As a Florida mortgage fraud defense attorney, I suspect these two defendants are not being retried because they have a fairly strong case. Observers outside the criminal justice system often forget that the standard for convicting someone is quite high: the charge must be proven beyond a reasonable doubt. If the jury in the previous case hung, it suggests that at least some jurors had reasonable doubts about the defendants’ guilt. And these had to be strong reasonable doubts, because throwing away the entire trial meant throwing away 54 days of their time. Prosecutors are still planning to retry Joseph Guaraino, so they likely believe the evidence against him is stronger — perhaps because he was running The Home Buyers Group. As a Fort Lauderdale mortgage fraud defense lawyer, I suspect prosecutors will need new allegations or stronger allegations against him if they want a different outcome.

Continue reading " Prosecutors Decline to Retry Mortgage Fraud Defendants Whose Trial Ended With Hung Jury " »

As a Florida mortgage fraud defense attorney, I was interested to read about a dramatic spike in reports of suspected mortgage fraud. The Palm Beach Post reported Oct. 3 that the number of reports from lenders to law enforcement rose by 88 percent over the same quarter of 2010. Florida was the state with the second highest number of reports; among the top ten counties were Palm Beach (sixth), Broward (eighth) and Miami-Dade (ninth). These are reports of mortgages the lender suspects may be fraudulent; law enforcement may not investigate or arrest everyone implicated. However, a mortgage fraud investigator and convicted former mortgage fraud perpetrator told the Post that law enforcement would very likely

According to the article, most of the reports are about mortgages written between 2006 and 2008, at the height of the housing bubble. Banks are reviewing these older mortgages because they are under pressure from investors in mortgage-backed securities to buy back fraudulent or sub-standard mortgages. Bank of America, for example, bought back $2.87 billion worth of bad mortgages last year from Fannie Mae and Freddie Mac. Once a lender finds a suspicious loan, it reports it directly to law enforcement, including the Treasury Department agency that issued the statistics. Michael Sichenzia, who spent time in prison for mortgage fraud and now investigates suspect mortgages, told the newspaper that the reports were “like gravy” for police officers in charge of finding fraud schemes. He also noted that Florida is likely to continue ranking high, because of the large amount of building and inflation of home prices during the boom.

As a Miami mortgage fraud defense lawyer, I strongly agree that Florida is likely to see a high number of prosecutions. In fact, we have already seen several mortgage fraud cases in the media this fall, including one announced last month that involves 20 south Florida residents all up and down the mortgage chain. Mortgage fraud is more than just lies on a mortgage application; it frequently involves dishonest appraisers, mortgage brokers, real estate agents and even bank loan officers. Usually, these schemes focus on borrowing the large amount of money required to buy a home and never repaying it, sticking the bank with a huge loss. Of course, these practices also end up costing money for federal insurers and driving down property values for neighbors guilty of no wrongdoing. With stagnant home prices still blamed on the housing crash, I expect to see more of these prosecutions in my work as a Fort Lauderdale mortgage fraud defense attorney.

Continue reading " Florida Prosecutions for Mortgage Fraud May Rise as Lenders Scrutinize Failed Loans " »

As a Miami mortgage fraud defense lawyer, I was interested to see a lawsuit that spotlights a less discussed area of mortgage fraud. As the Associated Press reported Sept. 26, two lawsuits allege that accounting giant Deloitte & Touche failed for years to detect fraud in its audits of Taylor Bean & Whitaker. Taylor Bean was a Florida mortgage company that committed billions of dollars’ worth of mortgage fraud between 2002 and its raid by federal agents in 2009. The firm’s collapse is blamed for the collapse of Colonial Bank, the sixth-largest bank failure in American history. Seven of its officers were criminally convicted. The lawsuit was brought by a bankruptcy trustee for Taylor Bean, whose job it is to recover money for creditors to the company. A Deloitte spokesperson said the lawsuits are without merit and that Taylor Bean lied to the accounting firm.

One of the two lawsuits is on audits of Taylor Bean; the other applies to Ocala Funding LLC, which purchased many millions of dollars’ worth of mortgages from Taylor Bean. Together, they cover a total of $7.6 billion in losses. Taylor Bean was accused of selling false mortgages, grossly overvaluing real mortgages, hiding overdrawn bank accounts and lying about liabilities. The lawsuits accused Deloitte of enabling this by continuing to certify the companies’ financial health despite signs that things were amiss. According to the article, those signs included analyzing large, questionable transactions just hours before the audit was due; accepting questionable verbal explanations from officers and accepting explanations that contradicted documents in Deloitte’s possession. An attorney for the plaintiffs said Deloitte abdicated its duty as a public watchdog. Analysts said the success of the lawsuit may depend on how well the bankruptcy trustee can separate him- or herself from the admittedly corrupt companies.

This story interests me as a south Florida mortgage fraud criminal defense attorney because it shows how widespread mortgage fraud was during the housing boom. People all up and down the mortgage lending chain were making lots of money in the middle of the last decade. For some people, this encouraged careless accounting or careless lending and borrowing practices. At the low end of the chain were people like “straw buyers” in mortgage schemes who lied about their income, often with the help of co-conspirators in a position to approve the loan. At the high end are people like the convicted Taylor Bean officers, who reportedly covered overdrafts by simply selling $1 billion worth of mortgages they did not own. With investors as well as homeowners now feeling financial effects of the housing downturn, I expect to see more allegations of fraud in my own work as a Fort Lauderdale mortgage fraud defense lawyer.

Continue reading " Trustee for Bankrupt Mortgage Firm Sues Deloitte for Audits That Failed to Detect Fraud " »

I was interested to see a chart on marijuana possession laws recently published by Wired magazine. The chart is really a map of the United States, colored to show the average price of an ounce of marijuana in different areas. Labels for certain states give the maximum fine and jail time for being caught in possession of “low levels” of marijuana. This certainly differs between states. However, it’s interesting to see the wide variation of sentences available for the same crime in different areas — as low as a $100 fine with no jail time in some states, and as high as $1,150 or up to a year in jail in others. Florida is not singled out in this chart, but as a south Florida drug possession defense attorney, I know how our state stacks up — and it’s disappointing.

Here in Florida, simple possession of marijuana can be divided into two categories. Possession of 20 grams or fewer — about three-fourths of an ounce — is a misdemeanor crime carrying up to one year in prison and a fine of up to $1,000. This puts our state at the high end of the scale of penalties on the Wired chart. Of those listed, only Delaware has a higher fine, and only two states, Rhode Island and South Dakota, have maximum jail sentences as long. Of course, these are the maximum penalties. In real life, Florida defendants, and probably defendants in many other states, don’t necessarily face the maximum. For first offense with a relatively clean background, a defendant may get probation, community service or both, plus a driver’s license suspension. However, probation is not necessarily a light penalty — it severely restricts your movements and your freedom of association, and of course you must pass random drug tests. Repeat offenders are more likely to face the full year in jail. And if you’re caught in possession of more than 20 grams, even if it’s only an ounce (about 32 grams), the maximum penalty is up to five years in prison and a fine of up to $5,000. Defendants in both categories may be eligible for a drug diversion program (also known as Drug Court), but it generally helps to have an experienced Miami-Dade narcotics criminal defense lawyer on your side.

Personally, I believe marijuana should be legalized. In my work as a Fort Lauderdale drug crimes defense attorney, I see clients going to jail for offenses that harmed no one, except perhaps their health. Not only is this a waste of many individual lives, but it’s a waste of public resources, clogging the courts and the prisons for no real benefit to society. If marijuana were legalized and regulated in the way that alcohol is, the authorities would be able to control harmful behaviors like DUI while allowing responsible adults to consume it safely. As it currently stands, Florida residents face high penalties for simple marijuana possession, even though, as the Wired chart shows, marijuana is widely available enough to drive the price down through much of central Florida. Floridians caught with marijuana should get in touch with an experienced marijuana defense lawyer as soon as possible.

Continue reading " Chart Shows Marijuana Is Cheap in Florida Despite High Maximum Possession Sentence " »

As a Florida criminal defense attorney, I was pleased to read that an Italian appeals court has freed American Amanda Knox. Knox was a 20-year-old studying abroad in Italy when she was accused of the murder of her roommate, British national Meredith Kercher. Also convicted were Knox's boyfriend at the time, Italian national Raffaele Sollecito, and a transient born in the Ivory Coast, Rudy Hermann Guede. Knox was convicted in 2007 on the strength of DNA evidence that was later refuted, an interrogation that she said was entirely in Italian and a confession she said she signed under duress and without a translation. The trial also attracted a lot of media attention, with its lurid allegations that Knox and Sollecito murdered Kercher as part of an attempted sexual assault or even a Satanic cult. According to the Wall Street Journal, an Italian appeals court found today that there was insufficient DNA to connect Knox and Sollecito to the murder. Both were freed effective immediately.

This case is attracting major media attention because of the understandable desire to see an American freed from a foreign prison. But as a Miami criminal defense lawyer, I notice that many of the elements of this trial that cast doubt on the conviction are the same elements present in doubtful convictions at home. For example, confessions under duress are unfortunately not uncommon; police may be as unkind as they like in interrogations as long as they don't cross a few specific lines. DNA testing that does not meet standards is also a factor in some wrongful convictions -- and high-profile cases involving scandalous facts or allegations by prosecutors also tend to create problem convictions. For American defendants at home and abroad, this means it's absolutely vital to have the help of an experienced criminal defense attorney as soon as you know you are suspected of a crime.

If you're under investigation or have been charged with a crime in Florida, call Seltzer Law, P.A., for help. We answer the phone 24 hours a day and seven days a week because we know arrests don't stop after office hours. You can send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

As a Miami cyber crime criminal defense lawyer, I am pleased to announce that Florida is now dealing reasonably and equitably with teenagers caught “sexting.” As CNN reported Oct. 1, a new state law went into effect that day that changed the law enforcement approach to the practice, in which kids send lewd cell phone photos to one another. Prior to the change, the only law to deal with the issue was the state’s child pornography law, which was designed for adults who exploit children. This led to harsh penalties for teens caught sexting, who would be penalized even if the “child pornography” was a self-portrait. Those convicted would generally face prison time, lifelong sex offender registration and life as a convicted felon.

The new law, authored by state Rep. Joseph Abruzzo (D-Wellington), reduces this significantly. On a first offense, teenagers caught sexting don’t face any criminal charge at all. Instead, they get the equivalent of a ticket, which carries eight hours of community service or a $60 fine. On a second offense, sexting becomes a misdemeanor of the first degree, which carries up to a year in jail and a fine of up to $1,000. (In my experience as a Ford Lauderdale cyber crime criminal defense attorney, I suspect that most kids will actually face much less time in practice.) A third offense is a felony, however, with a maximum of five years in prison and a maximum fine of $5,000. For the law to apply, the defendant must be under 18 and the person in the photo must also be under 18. Teens may not be charged at al if they took reasonable steps to tell an authority figure, did not solicit the images they received or did not send the images.

This is great news for Florida teens and south Florida child pornography defense lawyers like me. Abruzzo has said the law was expressly designed to avoid making teens face lifelong consequences for actions they took while immature. This is vital, because teens are at an age when they want to experiment sexually as well as experiment with adult freedoms. Combine this with child pornography laws written for a very different situation, and the situation can be unnecessarily disastrous. While this law was needed and will do good, however, I know that other states have added an education component to their own relatively new sexting laws. This may not be necessary in every case, but I suspect that many teens caught sexting don’t realize what serious consequences there would be if they faced true child porn laws. Such an educational component could be helpful in motivating kids to keep it clean in the future.

Continue reading " New Florida Law Addresses Teen Sexting Without Throwing Kids in Prison " »