One issue that comes up often in my work as a Fort Lauderdale criminal defense attorney is the importance of meeting court deadlines. In legal matters, deadlines are absolutely vital because missing one can end an entire case, no matter how valid the underlying claim might be. That was what happened in Carbajal v. State, a Florida Supreme Court ruling rejecting an appeal by David Carbajal, who is serving a lengthy sentence for drug offenses. All of his offenses took place in the same county and thus the same Florida judicial circuit, but he was prosecuted by the Office of the Statewide Prosecutor. More than five years after his conviction, he challenged that office’s jurisdiction, saying this robbed the circuit court of its authority to convict him. The Second District Court of Appeal certified this issue to the state Supreme Court, which decline to reach it on the grounds that Carbajal waited too long.

The Office of the Statewide Prosecutor was created in 1986 by popular vote to prosecute organized crimes taking place in multiple state judicial circuits. It filed a ten-count indictment of Carbajal in December of 2001. He pleaded nolo contendere to unspecified drug crimes and is serving 155 months in prison. He filed no appeal of his sentence or conviction, but in February of 2007, moved for postconviction relief on the grounds that the OSP had no jurisdiction to prosecute him. He contended that the motion was not time-barred because challenging the jurisdiction of the circuit court can be done at any time. The circuit court agreed with this but denied the motion on its merits. The Second District Court of Appeal affirmed, but on the basis that the motion was not timely. This conflicts with at least four decisions in three other Courts of Appeal. Its determination that OSP’s lack of jurisdiction would not in any case divest the circuit court of jurisdiction also conflicted with other courts, so it certified the issues to the Florida Supreme Court.

On appeal, the Florida Supreme Court upheld both of the Second District’s decisions. It agreed with Carbajal that under Florida law, the OSP was not authorized to prosecute his crimes, which all arose in Lee County. However, it said, any such defect does not take subject matter jurisdiction to prosecute Carbajal away from the circuit court. Regardless of the prosecuting agency, the applicable circuit court is the correct place to bring felony drug charges. Under Florida law, defects in charging information are not enough to void a conviction, the court noted. Nor did the defects mislead Carbajal in a way that reduced his ability to defend himself. Such a mistake may be voidable in a timely challenge, the court added, but Carbajal’s challenge came years after the conviction. He effectively conceded that the motion was untimely, the court said, and thus he cannot challenge it now. Thus, the high court upheld the Second District.

As a Miami-Dade drug crimes defense lawyer, I recommend that all defendants consult an experienced attorney when they first realize they will face charges. It’s not clear whether Carbajal had representation during his original charges and nolo contendere plea. But as a rule, an attorney should be able to spot potential issues such as a lack of jurisdiction by the prosecuting agency. Retaining an experienced attorney would also help with meeting deadlines for an appeal or other court deadlines, an essential part of any criminal case. Particularly in cases involving serious drug charges — which carry high sentences for political reasons — it’s vital to talk to a south Florida narcotics criminal defense attorney as early as possible so you can start building your defense.

Continue reading " Florida Supreme Court Declines to Reach Jurisdiction Claim, Ruling Challenge Is Time Barred – Carbajal v. State " »

As a south Florida child porn criminal defense lawyer, I was interested to see a recent decision that seems to create a small split among federal circuit courts on an issue related to child pornography. In United States v. Spence, the Fourth U.S. Circuit Court of Appeals ruled that a prior conviction for aggravated assault and battery was enough to justify a sentence enhancement in a child pornography possession case. The court upheld a 10-year mandatory minimum sentence with the enhancement for Troy Spence of South Carolina, who pleaded guilty to one count of possession of child pornography. Spence had a previous conviction for assault and battery of a high and aggravated nature, and argued at sentencing that this did not qualify for a sentence enhancement for a prior sexual abuse of a minor conviction. The district court disagreed and the Fourth Circuit confirmed.

Spence was indicted in 2009 for one count of child pornography possession; the opinion did not make the circumstances known. He struck a plea bargain on that charge, but challenged the sentence enhancement for having a prior conviction for sexual abuse of a minor. His prior conviction is from 2003. In that case, he was convicted of an unlawful violent act resulting in injury to a female much younger than him. During the course of the injury, court documents said, he touched the victim’s genitals. Spence argued that the sentence enhancement could not apply because the elements of the aggravated assault and battery did not require a sexual act. The district court agreed, but applied a modified categorical approach to determine that the enhancement should still apply because there was a sexual assault on the record. He was sentenced to 10 years in prison and now appeals.

He had no better luck with the Fourth Circuit, which upheld the use of the sentence enhancement. It started by adopting a Fifth Circuit decision determining that the phrase “of a minor” in the sentence enhancement applies only to the enhancement for an “abusive sexual conduct conviction, not to sexual abuse or aggravated sexual abuse. It next turned to the standard used by the district court. A modified categorical approach looks not only at the elements of the offense being used for the sentence enhancement, but the facts on record for that offense. This avoids a “mini-trial” for each prior, the court said, and the Sixth, Eighth and Ninth Circuits have all adopted the two approaches. The Fourth joined them, rejecting an opposing view from the Tenth Circuit. The categorical approach doesn’t definitely say whether the sentence enhancement applies to Spence, the court said, but the modified categorical approach does. Thus, it upheld the district court.

This conviction is bad news for Spence, who is serving a mandatory minimum equal to the maximum sentence for the un-enhanced base offense. Given that he got the mandatory minimum, I would be interested as a Miami child porn criminal defense attorney to know what kind of sentence he would have received without the sentence enhancement. As the opinion notes, the majority of circuits seem to agree that the categorical and modified categorical approaches are appropriate. However, this case struck me as similar to a case with a different outcome, the Sixth Circuit’s U.S. v. Gardner. The prior conviction in that case was for sexual battery, a crime that does not require a minor victim but in this case had one. Because Gardner did not plead guilty to any facts involving abuse of a minor, the sentence enhancement was ultimately reversed. As a Fort Lauderdale cyber crime defense lawyer, I expect to see more cases addressing this unfortunately common issue.

Continue reading " Fourth Circuit Rules Sentence Enhancement Proper for Child Porn Defendant With Prior Battery – U.S. v. Spence " »

As a Miami criminal defense lawyer, I strongly urge people facing serious legal cases to hire some kind of experienced attorney, even if it’s not me. People who represent themselves in any situation are at a serious disadvantage, but people who represent themselves in criminal cases run the risk of losing their freedom or even their lives because of mistakes professionals are unlikely to make. Sometimes, people who represent themselves have good cases, but they don’t know how to present them properly, and deadlines pass before they can fix the situation. To make matters worse, while the courts typically extend some sympathy to self-represented people (who are called pro se), judges used to dealing with professional attorneys can lose their patience. So it wasn’t surprising to see the Florida Supreme Court order sanctions against one pro se plaintiff in Hastings v. State of Florida.

Jeffrey Robert Hastings is an inmate serving 180 years in state prison for the manslaughters of six people, as a habitual offender, and 15 more years for escaping from prison. His last sentencing was in 1980. After his convictions became final, he began filing numerous legal cases, acting as his own attorney. In 1998, a trial court prohibited him from filing any more pro se cases about his manslaughter convictions. Two opinions followed from the Fourth and Fifth District Courts of Appeal, upholding that decision and also prohibiting him from filing pro se cases over his escape conviction and sentence. In 2010, Hastings filed with the Florida Supreme Court for a writ of mandamus — ordering a lower court to do something — to compel the public defender’s office to help him fight his convictions. This was dismissed in May of 2011, but the court further asked Hastings to show why it should not reject any similar future filings.

In his response, Hastings argued that he should not be penalized for his lack of legal sophistication or the lower courts’ unwillingness to reverse sentences he says are illegal. He also noted that some of the petitions he filed had to do with matters other than his convictions and sentences, such as parole. The Florida Supreme Court was not impressed. In its opinion, the court listed 26 other petitions Hastings had filed with the Florida Supreme Court since 2000. While some did pertain to parole and gain time, the court said, many more attacked his convictions and sentences. The Supreme Court found all of them meritless or inappropriate for the court. In this case, the court said, Hastings did not justify what it said was misuse of the courts, or show remorse. It said he was likely to continue filing petitions if not stopped. Such litigants waste limited judicial resources and block access to justice by other citizens, the high court noted. Thus, it directed the clerk of the court to reject all future filings by Hastings having to do with his convictions and sentences, unless signed by a member of the Florida State Bar.

Although this order theoretically creates more work for south Florida criminal defense attorneys like me, I cannot like it. Limiting someone’s access to justice so severely is a serious penalty that should only be used when the litigant is genuinely out of control. Though the Supreme Court did not have space to explain why each petition was without merit, this opinion never even attempted to reach the issue of whether Hastings did indeed get an illegal sentence. Thanks to my experience as a Fort Lauderdale manslaughter criminal defense lawyer, I happen to know that manslaughter normally carries up to 15 years in prison, which means Hastings was sentenced to double the normal maximum time in that case. This is not to say that his claims did have merit — but if they did, an experienced attorney could have made the difference.

Continue reading " Florida Supreme Court Imposes Sanctions on Prisoner for Filing Too Many Legal Cases – Hastings v. State " »

Many of the cases I take as a south Florida cybercrime defense attorney stem from the defendant’s interactions with police officers online. Officers will commonly pretend to be minors, then lure defendants into sending explicit pictures of themselves, child pornography or other incriminating materials. Unfortunately for defendants, the courts have ruled that this is generally not entrapment; what matters is whether the defendant believed the officer to be a minor when the conduct took place. That idea was turned on its head in United States v. Fulford, a decision of the Eleventh U.S. Circuit Court of Appeals. That court found that an Alabama court was wrong to apply a sentence enhancement for sending child pornography to a minor in the case of David Fulford, who sent the material to an unidentified person.

Authorities prosecuted Fulford for distributing child pornography through online chat rooms. Investigators believed the recipients to be minors, but the only two recipients whose ages were known were adults not involved in law enforcement. He pleaded guilty to one count of possessing child pornography and two counts of knowingly receiving and distributing it. At a sentencing hearing, prosecutors argued for a five-level sentence enhancement for distributing the pornography to a minor, but Fulford objected that the recipient, someone claiming to be a 13-year-old named Dawn, was not provably a minor. Prosecutors argued that under Eleventh Circuit cases on different but related issues, the court could find that it was enough that Fulford believed it was a minor. The court did eventually find this over Fulford’s objections, and he appealed that decision only.

The Eleventh started with the text of the sentence enhancement, which requires the enhancement “If the offense involved… [d]istribution to a minor.” The issue was whether “Dawn,” the unknown person to whom Fulford sent the child pornography, was a minor. For the purposes of the statute, a minor is an actual minor, a law enforcement officer pretending to be a minor or a third real or fictional person represented by law enforcement as a minor. The Eleventh found that expanding this to cover unknown persons believed to be minors would impermissibly read too much into the guidelines. Even if expanding the definition would improve the guidelines, the majority said, caselaw requires it to avoid reading in any more meanings than the sentencing commission wrote into the guidelines. In its analysis, it disapproved its own decision in 2004’s United States v. Murrell for doing exactly that. Thus, it vacated Fulford’s sentence and sent the case back for further examination of whether Dawn was a minor.

This case is at the least interesting, and could even be important to my work as a Miami-Dade child pornography criminal defense lawyer. Of course, I agree that defendants should not receive sentence enhancements for offenses prosecutors cannot prove. Our system of justice requires prosecutors to prove their cases in order to avoid putting innocent people in prison; standards should not be any lower for sentence enhancements. It would be interesting to see whether other appeals courts have also taken up the issue. It’s uncommon to see a prosecution like this, because most people prosecuted for soliciting a child online actually did talk to law enforcement, and thus they fall right within the guidelines. As a Fort Lauderdale solicitation of a minor defense attorney, I suspect there would be far fewer prosecutions if officers were not permitted to entrap defendants by posing as children.

Continue reading " Eleventh Circuit Lowers Sentence for Defendant Caught Sending Child Porn to Unidentified Person – U.S. v. Fulford " »

As a south Florida murder criminal defense attorney, I was extremely interested to see a series of six decisions out of the state high court that all centered on the same issue. The Florida Supreme Court recently sent back the six cases, all of which asked whether juries in murder cases were given the proper jury instructions. In Solano v. State, Bonilla v. State, Zeigler v. State, Mungin v. State, Burgos v. State and Valdes-Pino v. State, the high court said the defendants may have been the victims of reversible error. All six were convicted of second-degree murder using then-standard jury instructions that changed after the court’s 2010 ruling in State v. Montgomery. That ruling said Montgomery was entitled to more accurate jury instructions on the lesser included offense of manslaughter by act. All six cases were sent back to the lower court for reconsideration in light of Montgomery.

In Montgomery, Steven Montgomery was convicted of second-degree murder with a weapon in the death of Tarnesha Ellis. He appealed to the First District Court of Appeal. Among other arguments, he argued to the court that manslaughter by act does not require an intent to kill, and thus the jury instructions in his case were incorrect. The appeals court agreed, finding that the jury was incorrectly told it must find that Montgomery intended to kill Ellis. The State of Florida petitioned the state high court for review and the appeals court certified a question of “great public importance”: “Is the state required to prove that the defendant intended to kill the victim in order to establish the crime of manslaughter by act?”

On appeal, the Florida Supreme Court said no. In the first part of its analysis, it found that the crime of manslaughter by act does not require intent to kill. First-degree murder requires this intent, which the court said distinguishes it from non-premeditated second-degree murder. Manslaughter, a lesser included offense of both kinds of murder, is a killing “by the act, procurement or culpable negligence of another... without lawful justification” in cases that aren’t justifiable homicide or murder. Thus, the court said, there is no requirement for intent to kill the victim. Next, the court found that the jury instruction in Montgomery’s case, which was standard at the time, erroneously required the jury to find that “(Defendant) intentionally caused the death of (victim).” Another instruction requiring no premeditated intent was not sufficient to counteract this language, the court found. Finally, it found that this instruction caused reversible fundamental error in Montgomery’s trial, requiring a new trial.

In each of the six cases recently decided, the case was sent back to the Second or Third District Court of Appeal for reconsideration of a case that court had previously decided in conflict with Montgomery. As a Miami-Dade manslaughter criminal defense lawyer, I’m pleased by these decisions. The reversals mean each defendant is likely to get a new trial, at which each could be re-convicted under the new jury instructions, or potentially convicted of manslaughter instead. Though it’s not a “get out of jail free card,” this should help ensure that each defendant gets a better shot at justice. As the high court said, jury instruction problems constitute fundamental error because they can make the difference between conviction and acquittal. As a Fort Lauderdale murder criminal defense lawyer, I believe that when the stakes are as high as life in prison or the death penalty, the standards for conviction must be scrupulously met.

Continue reading " Florida Supreme Court Sends Back Five Murder Cases for Potential Jury Instruction Flaws " »

I've recently found two blogs written by a mother about her son's child pornography possession case. The first blog, Oppose The Adam Walsh Act, focuses on the trial and investigation of her son. The second, Sugar for Salt, is about the family's experience with incarceration. The blogs are a chilling look at the experience from the family's point of view, and may offer some insights for other families going through similar cases.

I often hear from clients who felt compelled to answer questions or allow searches by law enforcement officers before they were legally required to. This is a common mistake for people accused of crimes, and it’s one the police love because they can exploit it to get an easy confession or conviction. It is basically never in your best interests to talk to the police; if they believe you committed a crime, they will use everything you say to bolster that theory. That’s why your best choice is always to stay quiet until you have a Fort Lauderdale cyber crime defense attorney by your side. That could have helped the defendant in United States v. Perrin, a recent Eighth U.S. Circuit Court of Appeals case involving a child pornography possession conviction for Walter Perrin of Sioux Falls, South Dakota.

Perrin, who is of below-average intelligence and had been in special education classes, shared a home with six other people, including his mother, and multiple computers. State authorities traced child pornography downloads to the home, and federal agents got a warrant to raid the home. They stopped one resident on the way to work and had him sit in the living room with Perrin and three other people, while officers “swept” the house. An agent told the residents they were free to leave, but must stay in the living room if they stayed in the house; and that he would ask questions but no one had to answer. During questioning, Perrin showed signs of nervousness, so the agent took him into his own bedroom for private questioning. The agent did not repeat the admonition that Perrin did not have to answer questions and was free to go. A detective searched the room while they talked. The Eighth said the agent’s gun was visible, but he did not raise his voice, threaten or make promises.

Nonetheless, Perrin confessed to possessing child pornography during this interview. At trial, he moved to suppress this confession, arguing that he was in custody at the time but had not been Mirandized, as required. The trial court denied this motion and Perrin pleaded guilty, but reserved his right to appeal the suppression issue. If Perrin is right, the Eighth said, the confession must be thrown out as tainted. However, the court found that Perrin was not in custody, legally speaking, at the time. When Perrin confessed, he had been advised about ten minutes earlier that he didn’t have to answer any questions and was free to leave the house. Perrin voluntarily agreed with the agent’s request go to the bedroom, the court said. Perrin’s bedroom door was not shut and no evidence suggests the officers were blocking him from leaving. Perrin emphasized that his intelligence was below average, but the court said this was undercut by his apparent lack of problems answering the questions. Thus, it upheld his conviction.

As a south Florida child pornography criminal defense lawyer, I wonder whether another court would have looked more deeply into the issue of Perrin’s intelligence. Knowing how to answer questions is a low threshold for mental competence. The opinion notes that Perrin had been in special education all through school and had held jobs as a dishwasher and fry cook at a restaurant. Both the jobs and the schooling would have given Perrin practice in answering questions — but it’s doubtful that they taught him much about interacting with the police. The test for whether defendants were in custody is whether reasonable people in their position would have felt free to leave. As a Miami child pornography criminal defense attorney, I’d be interested in a closer examination of Perrin’s circumstances.

Continue reading " Eighth Circuit Rules Suspect Not in Custody When He Confessed to Child Porn Crimes – U.S. v. Perrin " »

Much of my work as a south Florida child pornography criminal defense lawyer focuses on defending clients accused of possession of child pornography. This is the most common charge, in part because it’s genuinely more common than other child pornography crimes and in part because it’s easier for prosecutors to prove. However, federal law also defines separate crimes for distribution, advertising and other actions with child pornography, and advertising can be construed broadly. In United States v. Williams, the Ninth U.S. Circuit Court of Appeals more precisely defined the crime of advertising child pornography. John Williams of Nevada had argued that he could be convicted of advertising child pornography only if he had made the pornography in question, but the appeals court disagreed.

FBI agents found Williams online through his file-sharing activities, with which he had shared more than 5,000 illegal images. After a search of his mobile home, Williams admitted to viewing and sharing child porn online. He was indicted for possessing, distributing and advertising the distribution of child pornography. He objected only to the advertising charges, arguing that the statute only applies to people who advertise to create child pornography or advertise pornography they actually produced. The district court denied his motion, so he entered a conditional guilty plea that preserved his right to appeal the issue, and the prosecutors dropped the other charges in exchange. This appeal followed.

The sole issue the Ninth Circuit had to consider was whether the statute (18 USC § 2251(d)(1)(A)) requires defendants to personally produce the child pornography they are accused of advertising for distribution. The court decided that it does not. The plain language of the statute suggests otherwise, the court said. It requires only that the defendant “knowingly makes, prints or publishes... [any] advertisement seeking or offering to... distribute or reproduce any [child pornography].” While the statute does refer to the production of child pornography, nothing in its plain language requires a defendant to have personally produced the pornography. The issue has come up in other circuits, the appeals court noted, but all three to have considered it — the Second, Third and Eighth Circuits — have come to the same conclusion. Williams argues to the contrary based on the statute’s phrasing that the offer “involves” rather than “involved” the use of a minor, but construing the statutes this way would take away prosecutors’ ability to enforce the law in many situations. This could not be what Congress intended, the court said.

As a Miami-Dade child pornography criminal defense attorney, I am disappointed but not surprised. It’s not unusual for laws in the present tense to capture behavior that’s in the past; the statute could easily be read in the way prosecutors preferred. Furthermore, it’s the norm for courts to construe child pornography laws broadly, because our society just isn’t sympathetic to child pornography defendants. Even though child porn defendants now face some of the harshest laws in the federal criminal system, some juries and some judges make emotional decisions when confronted with upsetting cases involving child pornography. That’s why I strongly recommend that people accused of these crimes contact an experienced Fort Lauderdale child porn criminal defense lawyer as soon as they realize they will be charged.

Continue reading " Ninth Circuit Finds Child Pornography Need Not Be Self Produced to Merit Charges for Advertising – U.S. V. Williams " »

Here in south Florida, we recently made the national news when a citizen filmed alleged police brutality, only to narrowly avoid having the video destroyed when the police allegedly attempted to destroy his cell phone. So, as a Miami-Dade criminal defense attorney, I was pleased to see a recent piece giving average people advice on how to record police actions on their phones. The article, from Wired.com’s How-To Wiki, discusses the legal rights of people filming police actions as well as the practical aspects of taking the video and then spreading it across the Internet. Perhaps most importantly, the article ends with the advice to get a good attorney if you’ve been arrested, good advice no matter whether you were a bystander caught up on a police action or a protester intentionally standing in harm’s way.

The piece starts out by noting that each state has a different law on whether citizens may record the police with a small camera. Here in Florida, recording anything that takes place in public should be legal under a provision of the law allowing recording without the other person’s consent, as long as there is no “reasonable expectation” of privacy. Media reports in the wake of the arrest of Narces Benoit have given expert opinions saying that this extends to taping police actions — but the Florida courts have not made a definitive ruling. The article goes on to advise would-be camerapeople that they are free to refuse consent to a police search of their person, car or home, and have the right to remain silent. You may also leave if you are not under arrest. Those who are able to keep the video out of police hands are advised to put it online as soon as possible and consider filing a complaint about any mistreatment.

As a Fort Lauderdale criminal defense lawyer, I’d like to talk a little further about how these rights may come into play in real life. In the Narces Benoit case, Benoit claimed he was a bystander who happened to film police shooting at Raymond Herisse, who died last May after police fired on him for driving his car into their ranks. Once police spotted him filing, Benoit said, they arrested him and his girlfriend at gunpoint and attempted to smash the phone while yelling “You want to be [expletive] paparazzi?” The police department denies that the phone was damaged. In other states, bystanders who happened to film police actions have been arrested for refusing to hand over the video and their videos confiscated; the charges are usually dropped or never brought. This means people who film police cannot expect to be left alone, even though they are usually not breaking the law. It also means that they should attempt to hide or upload the video as quickly as possible.

If you’ve been arrested in south Florida for exercising your legal right to record public police actions, don’t wait before you call Seltzer Law, P.A. for help. Based in downtown Miami, we represent clients facing all kinds of charges — from serious, violent crimes to charges that may seem more like a pretext for getting rid of someone police don’t happen to like. In cases like that of Benoit, defendants often face charges like interfering with police activity, resisting an officer or wiretapping. Our experienced south Florida defense attorneys can often have charges like this dropped early in the process by letting prosecutors know we understand our clients’ legal rights and are fully prepared to defend them. If that’s not possible, we will mount a strong defense before a jury, which is not likely to be impressed by alleged abuse of police power.

Continue reading " Advice on How to Record Abuse of Police Authority May Be Useful for Miamians and Protesters " »