Cyber Crime Lawyer Blog

As a south Florida sex crimes defense lawyer, I was pleased to see a rare appellate victory for a defendant tried under the Jimmy Ryce Act. The Ryce Act allows Florida prosecutors to evaluate certain offenders and determine whether they should be committed involuntarily as “sexually violent predators.” In Boatman v. State, Rayvon Boatman challenged his Ryce Act trial and conviction on the grounds that prosecutors waited longer than the thirty days required by the Act before holding the trial. The First District Court of Appeal ruled that Boatman had waived his right to appeal by not petitioning for habeas corpus after his Ryce Act trial, although he did object at trial to the length of his detention. However, the district court did certify the questions to the Florida Supreme Court, which permitted Boatman to continue his challenge.

Boatman pleaded guilty in 1994 to sexual battery with “slight force.” While he served his prison sentence, he was referred for evaluation as a sexually violent predator. Psychiatrists recommended this in July of 2008 and prosecutors filed a petition for the declaration in October of 2008. This was well over the 30-day deadline set by the Ryce Act, and it was later continued for several more months. Boatman noted this in a pretrial hearing and renewed the complaint as trial began, to no avail. He was found to be a sexually violent predator and committed. Boatman appealed to the First District, arguing that there was no good cause for a continuance, and he should have been immediately released because the prosecution went over the 30-day deadline. The First District agreed that the continuance was improper, but ruled that Boatman should have filed for a writ of habeas corpus as soon as the deadline was up, rather than raising the issue again on appeal.

The First District certified a question to the Florida Supreme Court that the high court split into two questions. One, if a defendant like Boatman is not brought to trial in 30 days, and has objected in trial court, is the claim waived if he does not file a habeas corpus complaint? Two, if the defendant does wait for an appeal to raise more objections and wins, is it appropriate remedy to release him or her and dismiss the Ryce Act proceedings? In both cases, the court said no. Florida defendants whose prosecutors miss the 30-day deadline may file writs before a Ryce Act trial, or they can appeal after trial, the court said. But if defendants do wait, the court said, they must be able to show that the fairness of the trial was affected in order to win dismissal and release. This is not exactly a speedy trial violation case or a pretrial detention case, the court said. Thus, while a habeas corpus petition is the preferred way of resolving the issue, failing to file one does not waive the issue for later. However, waiting does foreclose the option of having the Ryce Act proceedings dismissed, the court said, because allowing this later would effectively give defendants a second trial.

As a Fort Lauderdale criminal defense attorney, I’m pleased that the high court found for defendants on the first question. When an issue is waived on appeal, defendants can never argue it, no matter how valid or strong their arguments may be. However, as the court noted, this does Boatman no good because the court also determined that he had no case for dismissal. After he had already been tried and convicted, the court said, it would make no sense to let him go free. Thus, he has no remedy for the four-plus months he spent in custody when he should have been free. This underscores the importance of having an experienced Miami-Dade sex crimes defense lawyer by your side whenever you’re facing these very serious charges.

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As a cyber crime criminal defense attorney, I was interested but not surprised to see a recent case rejecting an appeal from a defendant who asked for leniency based on his status as a military veteran. In United States v. Riley, Patrick Michael Riley of Kentucky had pleaded guilty to distributing child pornography. He was turned in by a woman he had been flirting with online, who contacted police after he suggested having sex with her and a child at the same time. At sentencing, Riley argued that a brain injury suffered during his three combat tours in Iraq and Afghanistan, combined with pain medications for other serious injuries, let to his interest in child pornography. The court rejected his plea for a downward departure and sentenced him to the minimum available under the sentencing guidelines. The Sixth Circuit affirmed.

The woman who contacted the police told them in early 2008 that he had proposed sex with a child and sent her five videos of child pornography. The police began posing as the woman online and told Riley that a 14-year-old girl had moved in to “her” home. He sent instructions for “grooming her for sexual activity,” then more videos, which he saw as instructional. He planned to meet them for sex and videotape the acts. However, police raided his home instead and seized a computer with a lot of child pornography as well as an attempt to have sex with another woman’s three-year-old. Riley ultimately pleaded guilty to two counts of distributing child pornography. In a presentencing memo, he moved for a downward departure to his sentence based a decade of service with the Army, including three tours in Iraq and Afghanistan in which he suffered repeat concussions and a broken back. A psychologist testified that his brain injury and pain medications generated his interest in child pornography, but the court denied the motion and sentenced Riley to 151 months in prison.

Riley appealed, arguing that the sentence was substantively unreasonable, arguing that a departure was appropriate because of his lack of criminal history and “beautiful” military record. The Sixth Circuit was not persuaded. The U.S. Sentencing Guidelines exist to give some uniformity to criminal sentencing, though they don’t lock judges into specific ranges. Though the Guidelines do identify military service as a possible factor in a downward departure for sentencing, the Sixth said, Congress has expressly said that child crimes and sex crimes are not to be treated like other crimes. For those, the only acceptable departures are “expressly enumerated” in Sec. 5K of the guidelines, and that section does not mention military service or a clean criminal history, the court said. The commentary to the Guidelines notes this different standard and says judges should not use downward departures to make judgments on policy. Thus, Riley’s motion was legally inappropriate and the trial court’s decision was correct, the court said.

One thing that stuck out to me about this decision, as a child pornography possession defense lawyer, was the Guidelines’ statement that judges should not substitute their policy judgments for that of Congress. This principle is how child pornography sentences have become so long that they sometimes eclipse sentences for in-person abuse of a child. Riley’s sentence is just over 12 and a half years, and it’s the lowest end of the appropriate scale for someone with no criminal record. Congress undoubtedly means well, but it’s subject to political pressures from voters who don’t understand the justice system but know that they find child sex crimes abhorrent. Thus, it’s politically easy to increase the minimum sentence, but difficult for judges to justify a departure when they encounter a case that might justify it. As a solicitation of a minor defense attorney, I believe judges should retain the discretion to show mercy when the circumstances warrant.

Continue reading " Sixth Circuit Rules Child Porn Sentence Not Unreasonable Despite Defendant’s Military Service – U.S. v. Riley " »

Last summer, I blogged from my perspective as a child pornography possession defense attorney about double jeopardy. In a Sixth Circuit case, the court found a defendant could not be convicted of both possessing and receiving the same child pornography, because one offense necessarily includes the other. In that case, the court also found that the defendant cannot have waived his right to challenge the ruling by pleading guilty. That case turns out to contrast with a more recent Eighth U.S. Circuit Court of Appeals case, U.S. v. Dolehide. John Dolehide of Iowa pleaded guilty to two counts of child pornography possession, then appealed the sentence on double jeopardy grounds. The Eighth Circuit found the claim waived because it was never raised at trial.

Law enforcement identified Dolehide through his use of the file-sharing service Limewire to trade child pornography. He was ultimately charged with and pleaded guilty to two counts of possession of child pornography. After his presentencing report, Dolehide moved for a downward variance, based on factors other than double jeopardy. Rather, he argued that he had mitigating mental health problems including ADHD and Asperger’s syndrome, and would likely become a victim in the prison system. In a lengthy order, the court denied his request for a downward variance and granted the prosecution’s request for an upward variance based on evidence that Dolehide offered the pornography in expectation of a “thing of value” — other child porn. He was ultimately sentenced to 135 months in prison, and now appeals.

On appeal, Dolehide argued first that his conviction for two separate counts of child porn possession violates the Double Jeopardy Clause. The Eighth Circuit declined to consider this argument, saying it was waived because Dolehide never brought it up in lower court. The court also cited its own recent case in United States v. Stock, decided Nov. 11, in which it reasoned that Stock admitted to committing two separate crimes when he pleaded guilty to both counts. Dolehide also appealed his sentence enhancement for expectation of “a thing of value.” The commentary to the sentence enhancement expressly considers trading for more child porn a “thing of value,” the court said, and that using a file-sharing system to upload and download is evidence of expectation of a trade. Furthermore, it said, evidence shows Dolehide is too familiar with computers to claim ignorance of how file-sharing works. Thus, it affirmed the district court.

As a cyber crime criminal defense lawyer, I am very familiar with the legal principle that arguments not brought up at trial are waived on appeal. By making sure each avenue of defense is covered at trial, an experienced attorney can set clients up for a successful appeal, if necessary. As for the sentence enhancement, it appears to be written directly into the law that courts may presume defendants expect something of value from using file-sharing software to both upload and download files. You may be able to fight this with the right facts, which is why defendants facing serious criminal charges like child pornography should always get the help of an experienced child pornography criminal defense attorney. Even if you have a strong case, courts may penalize you for failing to meet statutory requirements.

Continue reading " Eighth Circuit Rules Child Porn Defendant Waived Double Jeopardy Claim When He Pleaded Guilty – U.S. v. Dolehide " »

As a south Florida criminal defense attorney, I know how important the assistance of an experienced attorney can be. This is especially true for defendants facing serious charges like murder and manslaughter, who are eligible for the death penalty or life in prison. That’s why I was interested to see a recent Florida Supreme Court decision denying a capital murder defendant’s petition to apply a recent U.S. Supreme Court ruling retroactively to his own case. In Walton v. State, Jason Dirk Walton argued that he received ineffective assistance of counsel under the 2009 decision, Porter v. McCollum. He asked the court to apply Porter to his three convictions for capital murder in 1985 and again on retrial in 1989, relying on 1980’s Witt v. State to make it retroactive. Neither the trial court nor the Florida Supreme Court agreed.

In Witt, the Florida high court held that decisions should be retroactive only when they involve constitutional changes. This is to be evaluated on a case-by-case basis in each court. In Porter, the defendant argued for postconviction relief because of ineffective assistance of an attorney who did not present mitigating evidence about Porter’s childhood, military service and impairments. The United States Supreme Court found that this was prejudicial.

In the instant case, Walton argued that before Porter, including in his own case, the Florida Supreme Court had misread the law on ineffective assistance of counsel. Before the trial court, he said this was a fundamental change in the law under Witt, allowing it to apply retroactively. The trial court found this untimely, successive and procedurally barred and denied it without a hearing. It also concluded that Porter was not a constitutional change. Walton appealed, but had no better luck before the Florida Supreme Court. That court agreed that Porter did not create a fundamental constitutional change. As a result, it said, Witt cannot be used to make it apply retroactively. Furthermore, the court said, the instant case attempts to relitigate issues that had been settled in Walton’s previous postconviction motion. Thus, it upheld the trial court.

This decision underscores the importance of having a Fort Lauderdale murder criminal defense lawyer by your side if you are facing charges as serious as Walton’s. When your life is literally on the line, you need an attorney who will protect all of your interests at trial and explore every avenue of defense that could reasonably help. This includes presenting the kind of background information seen as mitigating in Porter — evidence of a troubled childhood, addiction problems, post-traumatic stress disorder and other explanations for the defendant’s actions. As this case shows, it’s very difficult to convince a court to reconsider a conviction once that conviction has been entered. This is why it’s so important for Miami-Dade manslaughter defense attorneys like me to present a vigorous and thorough defense the first time.

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As a Miami hacking criminal defense lawyer, I was interested to see an appeals court decision about an Internet crime that involved theft rather than sexual exploitation. In United States v. Lawrence, the Tenth U.S. Circuit Court of Appeals upheld a conviction for a man who took part in a scheme to defraud people who had trouble paying their bills. Wallace Laverne Lawrence III was convicted at a jury trial of seven counts of wire fraud, two counts of fraud in connection with devices and one count of aggravated identity theft, with sentence enhancements for being a leader of the scheme and for obstruction of justice. He challenged the sufficiency of the evidence for every count, but the Tenth Circuit saw no problems with the evidence and upheld the convictions.

Lawrence was part of a group of people who placed ads on Craigslist and on flyers to find people who had trouble paying their bills and faced threats like utility disconnection. The group promised to pay the bills in full in exchange for a cash payment of half the amount owed, payable only after verification from creditors that the bills had been paid. The group paid the bills with credit card numbers stolen from the medical offices where Lawrence’s girlfriend, Sandra Acuna, worked. Acuna and two other women would act as couriers for the cash, and the phone numbers used were prepaid cell phones. Once the true owners of the cards discovered and reversed the charges, Lawrence and his associates would disappear. Lawrence’s seven wire fraud charges referred to Craigslist posts; the aggravated identity theft count refers to the stolen credit card numbers. He was convicted on all counts and appealed.

Lawrence’s appeal argued that the evidence for the convictions was insufficient, but the Tenth Circuit found these arguments without merit. On the wire fraud charges, Lawrence argued that there was not enough evidence to show that he personally placed the online advertisements that formed the basis of the charges. However, the Tenth said, because the charges had an alternative “aiding and abetting” theory, it was not necessary for prosecutors to show that he personally placed the ads, as long as he or a co-conspirator placed the ads. Indeed, three of them were traced to his home computer. Because those convictions were valid, the court said, Lawrence’s challenge to his aggravated identity theft charge, which must be based on an underlying felony like wire fraud, must also fail. Finally, Lawrence challenged sentence enhancements for both being a leader of the scheme and obstruction of justice — based on a recorded phone call in which Lawrence urged Acuna to lie — but the Tenth rejected both challenges, finding clear evidence for both enhancements.

As a south Florida identity theft criminal defense attorney, I’m always interested to see a criminal appeal in this area. Lawrence faced federal charges in this case, of course. Most defendants in his situation would, since even a Craigslist posting intended to sell an item in the same city is likely to use out-of-state servers, and thus be involved in interstate commerce. This is all that’s needed to trigger federal jurisdiction. But Florida defendants can also face state charges for many of the same offenses. This could include credit card fraud, offenses against computer users and offenses against intellectual property. As in this case, there is often a question about whether the person charged actually took the offending online actions — police can trace an IP address, but can rarely show that a particular person was using the computer. As a Fort Lauderdale cyber crime defense lawyer, I use these and other defenses whenever appropriate to defend my clients.

Continue reading " Tenth Circuit Upholds Conviction for Identity Theft and Wire Fraud Using Craigslist Scam – U.S. v. Lawrence " »